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Gujarat High Court
Judgename :ANANT S.DAVE
ANGSLEY INVESTMENT LTD. - Appellant
Versus
TURUS SHIPPING SERVICE - Respondent
ADMIRALITY SUIT 16 Of 2001
Decided On : 10/10/2006
Constitution of India – Suit for Recovery of Money - Application is filed by Investment intervener and interested party in defendant vessel with a prayer to decide the issue regarding maintainability of the suit on the ground that at the time when arrest order of (MV Lima-I) came to be passed by this Couit was harbored at port of Calcutta, which is within the territorial jurisdiction of theHigh Court of Calcutta and not within the territory of the jurisdiction of the Hon ble High Court of GujaratIt- is also stated that even when the first order came to be passed in Admiralty Suit filed by the plaintiff, ownership of ships (MV Lima-I and II) of different persons and having different entity. Therefore, following prayers are made:-" (A) Your Lordships may be pleased to frame preliminary issue about territorial jurisdiction, and on the aspect that whether the ship LIMA-I and LIMA-II are sister ships and further be pleased to dismiss the suit on the aspect that this Hon ble Court lacks territorial jurisdiction in respect of ship M. V. Lima-I, (B) Pass such other and further order in the interest of justice which may be deemed fit to this Hon ble Court - plaintiff has submitted that initially order of arrest came to be passed against vessel MV Lima-II in Admiralty Suit was defied and the vessel had jumped the arrest order, and therefore, on application moved by the original plaintiff i. e. O. J. C. A, this Court passed order for arrest of vessel MV Lima-I, a sister concerned - Held, Court as early and belated application made after a period of two years for framing preliminary issue of jurisdiction of this Court is not accepted in view of the above decision of the Apex Court reported in (2006) 3 SCC p. 100 in the case of Mayar (H. K.) Ltd. Vs. Owners and Parties, Vessel M. V. Fortune Express etc. Thus, this Court is in full agreement with law laid down by M. V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd. , Goa, AIR 1993sc 1014, at the same time facts of the present case clearly indicate that it is a mix question of fact and law which do not require adjudication at the threshold. For the same reasons, the oral order passed by this Court in other case, where in O. J. C. A. No. 83 of 2004 in Admiralty Suit No. 27 passed by this Court is also not applicable. Therefore, other contentions of the applicant about determination of right of the plaintiff to prefer the present Admiralty Suit in absence of registration of partnership deed and requirement of fulfillment of Section 69 of the Partnership Act and applicability of rules framed by High Court of Bombay in case of Admiralty proceedings do not require any further scrutiny since the Court is satisfied on other grounds that the prayers of the applicant in this application cannot be granted - Admiralty Suit stands rejected
( 2 ) THUS, this Court is asked to frame preliminary issue about territorial jurisdiction with regard to the vessels (MV Lima-I and II) for which order of arrest came to be passed by this Court.
( 3 ) IN a reply to the above application filed by the intervener, the plaintiff has submitted that initially order of arrest came to be passed against vessel MV Lima-II on 16. 07. 2001 in Admiralty Suit No. 16 of 2001 was defied and the vessel had jumped the arrest order, and therefore, on application moved by the original plaintiff i. e. O. J. C. A. No. 20 of 2002, this Court passed order on 16. 03. 2002 for arrest of vessel MV Lima-I, a sister concerned, for which the present application is filed. It is also averred in the above reply that present application is barred by delay, latches, acquiescence and estopple in view of the fact that applicant had already appeared before this Court on furnishing security for the release of vessel MV Lima-I as early as in the year 2002 and furnished the bank guarantee and also renewed the same from time to time and participated in the proceedings of the suit by way of preferring O. J. C. A. No. 147 of 2003 and conditionally release was ordered by this Court on 18. 06. 2002 passed in O. J. C. A. No. 53 of 2002 preferred by the applicant. It is also stated that since MV Lima-I, the sister concerned of the original defendant vessel (MV Lima-II) and therefore, consequential order, passed by this Court of arrest of MV Lima-I, did not require to be vacated, altered or modified at the behest of stranger to the suit proceedings, not yet impleaded as a party, and therefore having submitted to the jurisdiction of this Court and the fact that various other issues are involved from the issue of jurisdiction cannot be decided as a preliminary issue under Order-14 Rule 2 of Code of Civil Procedure, 1908. Learned counsel appearing for both the parties have addressed to this Court on various issues and cited case-laws in support of their submissions. The applicant,-intervener has also even filed written submission and the same is taken on record.
( 4 ) SHRI Y. N. Ravani, learned advocate appearing for the intervener has submitted that under Order-14 Rule 2 of the Code of Civil Procedure, 1908, the suit is required to be disposed of on the ground that this Court lacks territorial jurisdiction and also on the ground that plaintiff is not a registered firm and by framing preliminary issue with regard to the territorial jurisdiction the whole suit proceedings can be disposed of. In support of his submission, he has relied upon the decisions of (2002) 10 SCC 101, (2005) 12 SCC 362 and 2003 (1) SCC 488 and submitted that it is incumbent upon the Court to decide the issue of territori
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