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TMI Blog1988 (7) TMI 228X X X X Extracts X X X X X X X X Extracts X X X X ..... India; the 3rd respondent is SCICI and the 4th respondent is the auction purchaser. 3. There is no dispute that the said vessel came to the port of Bombay in the month of May 1985 and was laid up at Anchorage in the said port. The vessel continued to remain in this position till date. The 1st respondents have been charging anchorage fees in respect of the said vessel at the rate of Rs…… which petitioners disputed being unreasonable and contrary to rules and regulations. It is also common ground that the 1st respondent served several bills in the aggregate sum of Rs. 14,7,250/-. Since the petitioners failed to pay the charges 1st respondent vide their public notice dated 14.8.1987 notified the auction sale. The petitioners challenged the quantum of charges in this court. The writ court rejected the writ petition summarily but appeal court on 19.9.1987 passed conditional order which petitioners could not comply. The auction sale consequently could not be held. The writ petition against the order of the said bills served upon the petitioners is pending for final disposal. The 1st respondent again on 11th December 1987 issued a public notice of auction sale of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Important Note contained in these instructions which reads as under :- "All the bidders will be provided the beaching sites by the Port Trust immediately on payment of the requisite charges therefor. The conditions required to be fulfilled by the bidders for registration as ship-breakers are that they should have been registered with the Small Scale Industries and MSTC and have Income-tax clearance certificate and Banks reference." 6. Before I deal with this contention it would be necessary to trace the power of the 1st respondent to sell the said vessel. Section 64 of the Major Port Trust Act, 1963 deals with the provisions of recovery of rates and charges by distraint of vessel. Sub-section (2) thereof is relevant for our purpose and it reads as under :- "(2) In case any part of the said rates or penalties, or of the cost of the distress or arrest, or of the keeping of the same, remains unpaid for the space of five days next after any such distress or arrest has been so made, the Board may cause the vessel or other thing so distrained or arrested to be sold, and, with the proceeds of such sale, shall satisfy such rates or penalties and costs, including the costs of sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners by Mr. Seervai relying upon the Important Note will have no application in the facts and circumstances of the case. In case the 4th respondent intends to scrap the vessel probably they may have to follow the procedure prescribed by the Bombay Port Trust. Therefore the fact that the 4th respondent have not registered with the MSTC will have no bearing. Mr. Shah who has filed the affidavit on behalf of the 4th respondent has stated that he has applied in July 1987 for such registration with the MSTC as a ship-breaker and the said application is pending. Having regard to these facts, in my opinion, the first contention raised on behalf of the petitioners based on Important Note has no substance. 9. It was next contended by Mr. Seervai that under Section 42 of the Merchant Shipping Act, 1988 the sale is void. Section 42 prohibits the transfer or acquisition of any Indian ship or any share of interest therein without the previous approval of the Central Government. If any such transfer etc. is effected by the owner in contravention of this provision shall be void. Section 42 in my opinion, will come into operation only if it is a voluntary sale. If it is a sale of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to enable them to materialise the said sale. Having regard to the facts and circumstances of the case, in my opinion, the case of the petitioners that M/s Vishwanath Rupa and Co. were prepared to purchase the said vessel is just a pretext and without any reality. 12. There is one more fact which also goes against the petitioners in this behalf. On 5th May 1988 the 1st respondent by their letter informed the petitioners of the auction sate of the said vessel being fixed on 13th May 1988. On the date of the auction sale the petitioners' representative was very much present outside the auction hall and watching the proceedings quietly. If there was any concluded contract between the petitioners and M/s Vishwanath Rupa and Co., the petitioner would not have missed the opportunity of informing M/s Vishwanath Rupa and Co. to participate in the auction sale. This conduct itself negatives the claim set up by the petitioners that they had agreed to sell the said vessel to M/s Vishwanath Rupa and Co. 13. Lastly it was urged by Mr. Seervai that the said vessel was sold for a song and in fact there were ready buyers to purchase the same for Rs. 93 lacs i.e. M/s. Vishwanath Rupa and Co. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to beach the said vessel to safe place of Port of Bombay. On 1st of July 1988I passed ad-interim order directing the 1st respondent to permit the petitioners to beach the said vessel at their costs. Certain other directions were also issued. The petitioners have incurred the costs to beach the said vessel. This direction is in the interest of the successful party and would undoubtedly benefit the 4th respondent. In the facts and circumstances of the case I quantify the costs and direct the 4th respondent to pay 50% of the costs incurred by the petitioners under my order dated 1st July 1988. The 4th respondent shall accordingly reimburse the petitioners to the extent of 50% costs. Mr. Makhija appearing for the 1st respondent informs me that the total costs incurred for beaching the vessel came to Rs. 77,615/- Out of that the petitioners have deposited Rs. 40,000/-. The repairing amount comes to Rs. 37,615/-. Since under this order the 4th respondent is directed to pay 50% costs, Rs. 37,615/- would almost come to 50% of the total costs. The 4th respondent is accordingly directed to pay this amount to the Bombay Port Trust. On payment of this amount to the Bombay Port Trust, the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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