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HIGH COURT OF CALCUTTA
Dipak Kumar Sen, J.
Peoples' Republic of Bangladesh
Vs.
Bedford Shipping Corporation of Hong Kong
ORIGINAL SIDE Suit No. 729 of 1980
Decided On : January 20, 1981
ADMIRALTY JURISDICTION - CHARTER PARTY - JURISDICTION - SUIT FOR SPECIFIC PERFORMANCE - WHETHER ENTERTAINABLE IN ORDINARY ORIGINAL CIVIL JURISDICTION OR ADMIRALTY JURISDICTION - SECTIONS 6 AND 7 OF THE ADMIRALTY COURT ACT, 1861 - LETTERS PATENT, CLAUSES 12 AND 32 - CONCURRENT JURISDICTION - HELD, SUIT NOT ENTERTAINABLE IN ADMIRALTY JURISDICTION - CONCURRENT JURISDICTION OF HIGH COURT IN ADMIRALTY AND ORDINARY ORIGINAL CIVIL JURISDICTION.
Fact of the Case:
The Peoples' Republic of Bangladesh instituted a suit for specific performance of a Charter party Agreement dated the 7th June, 1979 in respect of the defendant's vessel M.V. "Sheriar", and mandatory and permanent injunctions as alternative or ancillary reliefs. The defendant furnished security in terms of an order passed on the 18th September, 1979 and the interim order passed on the 15th September 1979 stand vacated. The defendant filed an application praying, inter alia, for rejection of the plaint, dismissal of the suit, release of the Bank Guarantee furnished in terms of the order dated 18th September, 1979 passed in the suit, and injunction restraining the plaintiff from taking any or any further steps in the suit. The defendant contended that the suit could not be entertained in the Ordinary Original Civil Jurisdiction of the Court as it fell within the exclusive Admiralty jurisdiction of the Court under Sections 6 and 7 of the Admiralty Court Act, 1861.
Finding of the Court:
The Court held that the plaintiff's cause of action in the suit could not be said to be one which is covered by Sections 6 and/or 7 of the Admiralty Court Act, 1861. Section 6 of the said Act is confined to suits where damage is done to goods shipped and cannot be extended to cover where damages are claimed only on a breach of contract without any damages to goods. Such damage also cannot be said to be damage done by any ship and therefore the suit would not fall under the category of those contemplated in Section 7 of the said Act. However, the Court also held that by reason of the unreported judgment of the Division Bench of the Court which is binding on it, the High Court has concurrent jurisdiction to try such a suit either in it its Admiralty jurisdiction or in its Ordinary Original Civil Jurisdiction.
Issues: 1. Whether the suit for specific performance of a Charter party Agreement and mandatory and permanent injunctions is entertainable in the Ordinary Original Civil Jurisdiction of the Court or the Admiralty jurisdiction of the Court? 2. Whether Sections 6 and 7 of the Admiralty Court Act, 1861 confer exclusive jurisdiction on the Court in Admiralty matters?
Ratio Decidendi: 1. The Court held that the plaintiff's cause of action in the suit could not be said to be one which is covered by Sections 6 and/or 7 of the Admiralty Court Act, 1861. Section 6 of the said Act is confined to suits where damage is done to goods shipped and cannot be extended to cover where damages are claimed only on a breach of contract without any damages to goods. Such damage also cannot be said to be damage done by any ship and therefore the suit would not fall under the category of those contemplated in Section 7 of the said Act. 2. However, the Court also held that by reason of the unreported judgment of the Division Bench of the Court which is binding on it, the High Court has concurrent jurisdiction to try such a suit either in it its Admiralty jurisdiction or in its Ordinary Original Civil Jurisdiction.
Final Decision: The Court held that the suit was not entertainable in the Admiralty jurisdiction of the Court and that the High Court has concurrent jurisdiction to try such a suit either in it its Admiralty jurisdiction or in its Ordinary Original Civil Jurisdiction. No order was made on the application and all interim orders passed in the application were vacated.
The Peoples’ Republic of Bangladesh instituted this suit on or about the 15th September 1979 with leave under clause 12 of the Letters Patent claiming a decree for specific performance of a Charter party Agreement dated the 7th June, 1979 in respect of the defendant's vessel M.V. "Sheriar" as also mandatory and permanent injunctions as alternative or ancillary reliefs.
2. On an application made in the said suit on the 8th September 1979 an order has been passed in terms of the agreed minutes, inter alia, as follows :-
"UPON the defendant or defendant through the Agent Samrat Shipping Co. (P) Ltd., Calcutta furnishing a Bank Guarantee for Rs. 1,80,000,00 to the satisfaction of the Registrar, Original Side, the interim order dated 15.9.1979 stand vacated. Such Bank Guarantee to be furnished on or before 26.9.1979. It is recorded the Advocates on record for the plaintiff has already approved the form of Bond for such Bank Guarantee. The parties waived the notice of reference before the Registrar, Original Side. Leave is given to the Registrar, Port Authorities, Customs and all parties to act on a signed copy of the minutes. The defendant undertakes to Court to keep the said Bank Guarantee renewed till further orders of the Court.
The parties agree to make a joint petition under S. 21 of Arbitration Act, 1940 referring the disputes under the Charter Party dated 7.6.1979 including the subject-matter of suit in accordance with the Arbitration Clause contained therein.
This order is without prejudice to the rights, contention of the parties. This order is also without prejudice to the defendant's right to apply under S. 21 of the Arbitration Act, 1940 and the defendant's appearance will not be regarded as a step in the proceedings."
3. The defendant has furnished security in terms of the aforesaid order and the said interim order passed on the 15th September 1979 stand vacated.
4. On the 12th August 1980 the Advocate on record for the defendant took out the Notice of the present application praying, inter alia, for the following order :-
a) That the plaint in this suit be rejected and/or taken off the file;
b) Alternatively, the said suit be dismissed with costs as against the defendant;
c) Liberty be given to the defendant to obtain release of the Bank Guarantee for Rs. 1,80,000 furnished in terms of the order dated 18th September, 1979 passed in this suit;
d) Injunction restraining the plaintiff and its servants, agents and assigns from taking any or any further steps in this suit;
e) Costs and further orders.
5. This application was moved on the 12th August 1980 when an ad interim order was passed restraining the plaintiff from taking any or any further steps in this suit.
6. In this application it is inter alia contended by the defendant that no part of the plaintiff's cause of action arose or has arisen within the jurisdiction of this Court and as such this Court has no jurisdiction to entertain and try this suit.
7. It is further contended that under clause 32 of the Letters Patent read with the provisions of the Colonial Court of Admiralty Act, 1861 and in particular S. 6 thereof this Court has exclusive Admiralty jurisdiction in all maritime actions in rem and in personam within the territories of West Bengal and concurrent jurisdiction in respect of same cannot be exercised by this Court in its Ordinary Original Civil Jurisdiction by invoking clause 12 of the Letters Patent.
8. It is contended that the plaintiff's cause of action in this suit alleging breach of duty or breach of contract on the part of the owner of the said vessel for carriage of goods by sea fall within S. 6 of the said 1861 Act and as such can be entertained only in its Admiralty jurisdiction and not in its Ordinary Original Civil jurisdiction and that the plaintiff is not entitled to have this suit tried in the latter jurisdiction.
9. Karsasp Naval Dastur the authorised agent of the Government of Bangladesh has affirmed an affidavit on the 11th November 1980 whi
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