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High Court of Judicature at Bombay
ROSHAN DALVI, J.
Sparebanken Sogn og Fjordane & Another
Versus
M.V. Bos Angler & Others
Notice of Motion No.242 of 2013 In Admiralty Suit No.24 of 2011
Decided on : 20-03-2013
Even if plaintiff failed in suit which asserts a claim in rem, Court is under an obligation to distribute sale proceeds to such claimants whose claim duly proved in exercise of admiralty jurisdiction. - The direct underlying the issuance of a notice under sub-rule (3) of Rule 951 is to furnish intimation to all persons who may have a claim in respect of the vessel or the proceeds of the sale thereof. The notice constitutes intimation of the institution of the proceedings before the Court, the sale of the property and of the fact that any claimant who seeks to establish a claim against the property of the vessel or the sale proceeds must necessarily apply to that Court and prove his claim within a stipulated period.
The essence of a notice is that it constitutes an intimation to all claimants at large with claims against the vessel or the sale proceeds of the vessel that it is to the Admiralty Court which has assumed jurisdiction following the arrest of the vessel that claims must be brought and proved. A claimant who fails to bring a claim before the Admiralty Court, m nonetheless assert a claim in personam against the owner of the vessel, but once a vessel has been arrested and sold, a claim in a suit in rem has to be brought before the Admiralty Court exercising jurisdiction in rem and before that Court alone. The Single Judge has, failed to make a distinction between on the one hand the process involving an invitation of claims and the culmination of that process in the form of a determination of the order of priorities.
The invitation of claims is a notice to all claimants who wish to assert a claim in rem in respect of the vessel or sale proceeds that have been realized. Once claims are received those claims have to be adjudicated upon and upon the adjudication of claims an order of priorities would have to be determined in a situation where the aggregate of the claims exceeds the value of the res that has been realized. There is no reason or justification to defer the invitation of claims to a date after a decree, if any, is passed in favour of the plaintiff. As a matter of fact the position in law would make it clear that even if the plaintiff in a given case were to fail in the suit which asserts a claim in rem, the Court nonetheless is under an obligation to distribute the sale proceeds to such claimants whose claims have been duly proved in the exercise of the admiralty jurisdiction. The obligation of the Court to distribute the sale proceeds which have been realized upon the order of arrest and sale is thus independent of the position of a particular plaintiff before the Court.
1. This Notice of Motion is taken out by the Plaintiff for directions in the suit relating to the admissibility of the documents of the Plaintiff, the cross examination of the Plaintiff's witnesses and for expeditious progress of the hearing of the above suit and the suits filed by the defendants herein being Admiralty Suit Nos.32 of 2011, 26 of 2011, 53 of 2011 and 54 of 2011.
2. It may be at once be mentioned that in view of the amendment of the Civil Procedure Code in 1999 and 2002 (CPC) more specially by the amendment to Order 8 Rule 1 and Order 18 Rule 4 of the CPC, all suits are in essence expedited.
3. So soon as writ of summons is served or is even deemed to be served and the defendants are represented in the suit, the Written Statement would have to be filed within 30 days, except when the Court, for specified reasons, allows the defendant to file the suit within a extended period of 90 days under Order 8 Rule 1 of CPC.
4. After the Written Statement is filed it is for the court to frame issues, subject, of course, to the availability of time under Order 14 Rule 1 of the CPC. Once the issues are framed it is for the Plaintiff to prosecute the suit by issuing notice to admit documents and / or facts, offer the Plaintiff's own documents for inspection to the defendants and file the affidavit of evidence as also documents under Order 11 Rules 12 to 17 of the CPC. Once that is done, the Court would consider the admissibility of those documents and refer the parties to a Commissioner for recording the cross examination of the witnesses of the Plaintiff under Order 18 Rule 4 of the CPC. This outsourcing of Court work is the essential division of labour which, upon being necessitated, has been legislated so that the suits of all Plaintiffs can, in essence be expedited and proceed to trial.
5. The objection to such a procedure would be wondrous. No defendant would be heard to state that a Plaintiff cannot prosecute his / her / its suit expeditiously, subject of course, to the suit reaching before Court in view of the Courts grossly heavy dockets.
6. All the defendants have filed their own respective suits which they would need to prosecute to obtain the reliefs sought. They would also defend the Plaintiff's suit and oppose reliefs prayed for by the Plaintiff in the above suit. The subject matter of all the suits is the same – the suit proceeds of Defendant No.1 ship. All the parties claim a part or entire of the sale proceeds towards their respective, separate individual claims.
7. The defendants in this suit have very vehemently opposed the Plaintiff's application which is in essence of expedition of its suit. The Plaintiff has recounted how the defendants have at every stage contested the Plaintiff's case in the suit to defeat and delay the Plaintiff's case. Be that as it may, it would have to be seen whether the Plaintiff's suit must proceed to trial forthwith considering its stage.
8. It must be remembered that the above suit is an admiralty suit. Parties having an interest in the subject matter of the suit which is Defendant No.1 ship or its sale proceeds, would be allowed to intervene in the suit on their application for intervention. They would be made party defendants in this suit. Defendant Nos.3 to 9 have intervened and have been brought on record as party defendants after the initial suit was filed against defendant Nos.1 and 2.
9. Further since this is an admiralty suit intervention of such of the other parties who would have any claim upon the sale proceeds of the defendant vessel would be required to be followed, as per the rules of this Court, to intervene and to prove their claim before the Court and obtain a decree thereupon. Proceedings in that regard have been expeditiously taken out by the Plaintiff and despite the contest by the defendants have been allowed by the Court. A notice in that respect has been issued as per the order dated 21st January, 2013 in this suit.
10. The form of the not
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