Suppression of material facts can lead to the dismissal of an application and vacating of an order of arrest in an admiralty suit.

Ashis Kumar Chakraborty, J.

1. The application, G.A. No. 2303 of 2018 is at the instance of Fareast Marine Service Hongkong Ltd., a company carrying on business from 902 Shun Kwong Commercial Building, 8, Des Voeux Road West, Hongkong (hereinafter referred to as “the applicant”), who caims itself to be the Bareboat Charterer of the vessel ‘M.T.ACQUAIUS’. The applicant has prayed for, inter alia, vacating of the order dated August 10, 2018 passed by this Court in G.A. No. 2260 of 2018 filled by the plaintiff. By the said order, this Court directed the Marshall to arrest the vessel ‘M.T.ACQUAIUS’ (hereinafter referred to as the “defendant vessel”) presently berthed at Haldia Port. The plaintiff in the suit, however, presses its application G.A. No. 2260 of 2018 and prays for extension of the said order dated August 10, 2018. Thus both the applications are taken up for hearing.

2. The facts leading to the application, G.A. No. 2303 OF 2018 are that on August 10, 2018 the plaintiff filed the admiralty suit claiming, inter alia, a decree for a sum of AED 15,251,702.60, equivalent to INR 28,06,31,328 and arrest of the defendant vessel. In the suit the plaintiff also filed an application, that is, an affidavit-of-arrest praying for arrest of the defendant vessel.

3. In the plaint as well as in the affidavit of arrest the plaintiff has made out a case that on June 17, 2017 it had entered into a Sale and Purchase Contract with one Mobin International Ltd., a company carrying on business from 2403 Ahmed Abderrahim Al Attar, Trade Centre, Dubai, UAE (hereinafter referred to as ‘Mobin International’) under which the latter sold to the plaintiff 18,000 MTS of gas oil (hereinafter referred to as ‘the said goods’). Upon payment of AED 13,070,408.00 to Mobin International the plaintiff claims to be the owner of the said goods. The plaintiff further claims that on the basis of the said purchase, it executed a back to back contract of sale of the said goods with Faqeesh Jewellery (Establishment) of Abu Dbhabi, UAE (represented in the transaction by its financier, namely, “Digat Enjaz Hadramout For Investment”) and it undertook to supply the said goods at Yemen. According to the plaintiff, on June 21, 2017 Mobin International had entered into a charter party with the owners of the defendant vessel, Evergreen Shipping Ltd. for shipment of the goods purchased by the plaintiff under the said Sale and Purchase Contract dated June 17, 2017 and delivery thereof at the port of Mukalla, Yemen. Thus, Mobin International had nominated the defendant vessel for carriage of the goods from the port of Khor Fakkam, UAE to the Mukalla Port, Yemen. The plaintiff claims that the said goods were loaded on board the defendant vessel at the port of Khor Fakkam, UAE towards the end of June 2017 and in acknowledgement of receipt of the said goods on board the vessel, her Master, representing the vessel and her owners, issued a Bill of Lading bearing no. MOB/QT/001/19/06/17 which was although dated June 29, 2017 had been signed and stamped by the Master of the defendant vessel on or about July 6, 2017. The plaintiff has disclosed the copies of the three originals of the said Bills of Lading dated June 29, 2017 (hereinafter referred to as ‘the said Bill of Lading dated June 29, 2017’). In the said Bill of Lading dated June 29, 2017 disclosed in the affidavit of arrest, the plaintiff is named as ‘Shipper’, Digat Enzaz Hadramout For Investment is named as “Consignee” and the port of discharge for the goods is mentioned to be Mukalla, Yemen. According to the plaintiff, in response to its query made on July 8, 2017 the seller Mobin International forwarded to it an e-mail message received from the Master of the defendant vessel confirming that the vessel had departed from the port of Khor Fakkan and was on her way towards the discharge port as instructed. Even on July 11, 2017 and July 12, 2017 the Master of the defendant vessel had informed the concerned parties that