9911796707
TMI Blog1999 (9) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... noi on July 10, 1999, without discharging the cargo although all the documents in relation thereto had been seized by the appropriate authorities of the Government of Bangladesh. The plaintiff in this suit had certain claim against the owners of the ship M.V. Kim Dong. The vessel M.V. Dong Do had been arrested, by this court, on the following allegations : "The vessel 'M.V. Dong Do' and the vessel 'M.V. Kim Dong' at all material times were and still are both owned in all respect by the Government of Socialist Republic of Vietnam. The plaintiff further states that at the time when the cause of action in the instant suit arose both the vessels were in use or intended for use for commercial purpose. The vessel Dong Do is a sister vessel of the vessel M.V. Kim Dong. The said two vessels have common owners and both vessels are owned and controlled in all respects by the Socialistic Republic of Vietnam." An application for vacating the stay was filed which was dismissed by reason of the impugned order, inter alia , on the ground that both the ships were sisters ships owned by the Socialist Republic of Vietnam. The learned trial judge in support of his aforementioned conclusion r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997-1999 and Lloyds Shipping Index of July, 1997, had been relied upon by the learned trial judge in passing the impugned order. Drawing our attention to a large number of documents it has been contended that M.V. Kim Dong belongs to the Eastern Dragon Shipping Co. Ltd. and, thus, it cannot be said to be the sister ship of M.V. Kim Dong. It has further been submitted that various documents had been produced before the learned trial judge but the same had not been considered at all. The concept of sister ships, contends Mr. Chakraborty, would mean that both the ships must be belonging to the same owner. In this connection reliance has been placed on The Evpo Agnic [1988] 2 Lloyds Law Report 411, The Maritime Trader [1981] 2 Lloyds Law Report 153 and M.V. Elisabeth v. Harwan Investment and Trading Pvt. Ltd., AIR 1993 SC 1014. Mr. Biswarup Gupta, learned senior counsel and Mr. Sudipto Sarkar, appearing on behalf of the respondent, on the other hand, submitted that even beneficiary of a ship can be subject to an order for arrest of the ship. It has been submitted that as the Government of Vietnam holds the ultimate shares in respect of both the concerns purported to be ownin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port, it will incur serious financial loss. What should be the striking balance is the question involved in this appeal. Before us, learned counsel appearing on behalf of the parties produced various documents to show that both in the Lloyds Directory of 1997-1999 and Lloyds Shipping Index of July, 1997, the ships have been shown to be belonging to different concerns although they have been clubbed together under one heading, viz , "Socialistic Republic of Vietnam." As the order directing arrest of a ship will lead to a grave consequence, such an order must not be passed casually. It is true that keeping in view the stake involved in an admiralty suit, the case of the plaintiff who is the petitioning creditor in a maritime action must also be considered from the angle that if there is a prima facie case that both are sister ships, it should not be allowed to leave the port without furnishing security. However, the said question would largely depend upon the question as to whether in such a situation, the corporate veil can be lifted. In Dr. S.L. Agarwal v. Hindustan Steel Ltd., AIR 1970 SC 1150 and Heavy Engineering Mazdoor Union v. State of Bihar [1969] 39 Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t department nor do its powers fall within the province of Government." In Electronics Corporation of India Ltd. v. Government of Andhra Pradesh [1999] 97 Comp. Cas. 470,475 (SC); [1999] 4 SCC 458, it has been held : "It is the case of the appellant-company in its writ petition that it is the lessee of the Department of Atomic Energy of the Union of India in respect of the said land. The said land, therefore, is of the ownership of the Central Government and, being leased out to the appellant-company for an industrial and commercial purpose, is land to which the Act applies. By virtue of the amended definition of owner under section 2( j ) of the Act, the appellant-company is the owner of the said land and by virtue of section 3, is liable to pay non-agricultural assessment thereon." It may be that in some cases this court had been following the common law practice of England in such matters, but as indicated hereinbefore, each case has to be considered at its own facts and the law providing in this country. In the instant case the allegations made in the plaint by the plaintiff are absolutely vague. Excepting stating, inter alia : "The vessel Dong Do is a sister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o was loaded at Paradip Port. In the instant case the parties have produced the documents of certificates of registration granted by the Government of Vietnam in respect of the vessels Kim Dong as also Dong Do as would appear from pages 66 and 154 of the paper book. The appellant herein has also produced the following documents to show that M.V. Dong Do is owned by the Eastern Dragon Shipping Co. Ltd. : "(A). Bills of lading issued by the master on behalf of M.V. Kim Dong. All the bills of lading are of Eastern Dragon Shipping Co. Ltd. (B) Letter dated July 13, 1999, from Eastern Dragon Shipping Co. Ltd., to Maritime Services Ltd., Chittagong (page 56) of the stay petition. (C) Letter dated July 14, 1999, from Eastern Dragon Shipping Co. Ltd. to R. Piyarilall International Ltd., Calcutta (page 57). (D) Letter dated July 14, 1999, from Eastern Dragon Shipping Co. Ltd., to R. Piyarilall (page 58). (E) Letter from Eastern Dragon Shipping Co. Ltd., to R. Piyarilall International Ltd. (page 59). (F) Letter dated July 16, 1999, from Eastern Dragon Shipping Co. Ltd. to R. Piyarilall (page 60) (G) Letter dated July 16, 1999, from Easter Dragon Co. Ltd., to R. Piyarilall claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r are also the same. In the circumstances it is my belief that the owners of the vessel 'Skipper 1 were on the date of the issue of the writ herein beneficial owners as respects all shares in the ship or vessel. 'Evpo Agnic', and that it is clearly the case that the two separate companies which are the registered owners according to Lloyd's (Register), are part of an arrangement which has the effect of covering up the true ownership of these vessels. Such being the case I respectfully submit that the court should lift the corporate veil in order to determine that the 'relevant person', who would be liable on an action in personam, is also the present beneficial owner of all shares in the 'Evpo Agnic'." The learned judge in answering the question, stated the law in the following terms : "In answering this question I bear in mind three important considerations. First, it is a basic rule of construction that where a statute employs different terminology in different provisions, prima facie a different meaning is intended and this is particularly the case if the differing terminology occurs within a single sub-section. 'Owner' in par. ( b ) thus falls to be contrasted with 'bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order that it would not be available as security for a judgment against MTO. If, of course, the parent company, MTO, is unable to pay its debts and is wound up, one of the assets of the company will be its shareholding in MTS. The value of those shares must depend upon the assets and liabilities of MTS, about which I have no evidence." The Commercial Documents Act carries a presumption. Such presumption may be raised in respect of the items mentioned therein. But presumptive evidence must necessarily be considered in terms of the pleadings of the parties and other relevant evidences brought on records. No trial on evidence has taken place in this case. The dispute between the parties have to be resolved on the basis of affidavits evidence. As has been stated herein before that in respect of such matters the court shall presume, but the various documents all of which are public documents show different things. Under the Indian Evidence Act not only the court has to raise a presumption but such presumptions are rebuttable. The matter in respect whereof the court shall presume also comes within the purview of the evidence and, thus, the same must be considered in its entirety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e neither the interest of the plaintiff nor of the defendant. The object 6f section 86 is to save foreign States from being harassed by defending suits in which there are hardly any merit. If the foreign state is required to file written statement and to contest the said suit and only at the stage of final disposal, a verdict is given whether in the facts and circumstances of the particular case, such foreign State is entitled to the protection of section 86 of the Code, the very object and purpose of section 86 shall be frustrated. The bar of section 86 can be taken at the earliest opportunity and the court concerned is expected to examine the same." The said decision has no application in the present case. In Videsh Sanchar Nigam Ltd. v. M.V. Kapitan Kud, [1996] AIR 1996 SC 516, the apex court was not concerned with the question involved herein. We are, therefore, of the view that no prima facie case has been established to arrest the ship in question. In the result, the appeal is allowed and the judgment and order under appeal is aside. In the facts and circumstances of this case, there will be no order as to costs. M.H.S. Ansari J. I agree. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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