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TMI Blog2013 (6) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... it sailed out of the territorial waters, it may be impossible to recover the dues. On 27.8.2010, this Court granted an ex parte order of arrest, while issuing notice returnable by 20.9.2010 in the said application. 3. Immediately upon being served with the warrant of arrest, the defendant moved this Court through their counsel, offering to deposit the suit claim into Court. Therefore, an order for the release of the vessel was passed on 31.8.2010. Paragraphs 9 and 10 of the said order requires reproduction, since the scope of the said order is one of the controversies now raised. Therefore, it is extracted as follows: 9. Registry is therefore directed to issue warrant of release of the defendant/vessel M.V.Anushree Fame (Ex- Royal Pisces) immediately to the learned counsel appearing for the respondent/defendant, so that they will be able to serve the same on the port authorities to enable the defendant to take the ship out of port freely. 10. Call this matter on 17.09.2010, to enable the respondent/defendant to file a counter to this application. 4. After the defendant deposited the suit claim to the credit of the above suit and after the vessel was released, the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be the owner at the time when the arrest was effected; and (xiii) that therefore, the suit is barred by law and the plaint is consequently liable to be rejected. 7. A careful reading of the affidavit in support of the application A.No.7370 of 2010, would go to show that the defendant seeks rejection of the plaint on the sole ground that the suit is barred by law and that there was no cause of action. Despite the fact that the suit arose on the admiralty jurisdiction of this Court, the principles on the basis of which the prayer for rejection of the plaint has to be tested, are traceable only to Order VII, Rule 11 of the Code of Civil Procedure. This is why the defendant seeks rejection of the plaint on the ground that there was no cause of action and that the suit was barred by law. Both these grounds could be traced to clauses (a) and (b) of Order VII, Rule 11. Therefore, it is necessary to see if, on a plain reading of the plaint, both these grounds are made out or not. It is needless to point out, while dealing with an application for rejection of plaint, the Court has to go only by the plaint averments and not by any defence that the defendant may be entitled to. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiff's claim that the defendant has come up with the application for rejection of plaint. It is needless to point out that the supply of necessaries to a vessel constitute a mere maritime claim and the same would not give rise to a maritime lien. This question was settled by me, after a great deal of discussion in Interaccess Marine Bunkering Ltd. v. K.M.Allauddin [2009 (3) CTC 611]. Therefore, if the claim of the plaintiff is confined only to the supply of necessaries to the vessel, it would just remain a maritime claim and not a maritime lien. 14. But, unfortunately for the defendant, the plaint proceeds on the footing as though Port charges, pilotage dues, etc. were also paid by the plaintiff. The said claim may be true or false. This is something which would unfold only in the course of trial. But, the fact remains that in paragraph 6 of the plaint, the plaintiff has claimed to have paid pilotage, port dues etc. 15. It is not known whether the amounts paid by the previous owner of the vessel towards the three invoices raised by the plaintiff, could be identified with the individual items of claim. If the total amount paid by the owner of the vessel could be related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat none of the items supplied or payments made by the plaintiff would constitute a maritime lien, or (ii) that the items that would constitute maritime lien had already been paid off, then, the suit may get dismissed. But, if these two findings can be recorded only after taking evidence, I cannot reject the plaint. Hence, A.No.7370 of 2010 for rejection of plaint is dismissed. 18. Insofar as the prayer in A.No.7371 of 2010 is concerned, it is for refund of the money already deposited by the defendant in securing the release of the vessel ordered to be arrested by this Court. This claim for refund of money is made by the defendant on the ground that the arrest secured by the plaintiff itself was on a misrepresentation of facts and that the very nature of the claim made by the plaintiff did not entitle the plaintiff to an order of arrest. 19. A preliminary objection was raised to the maintainability of this application by Mr.K.Bijai Sundar, learned counsel for the plaintiff. According to the learned counsel for the plaintiff, the defendant obtained an order for release of the vessel, by agreeing to deposit the suit claim into Court. After securing the release of the vessel, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The abandonment of right to contest an application for arrest cannot be made out very lightly against the person whose vessel had already been arrested and detained. Therefore, the preliminary objection to the maintainability of the application is liable to be rejected. 21. Coming to the entitlement of the defendant to withdraw the amount already deposited by them, it is necessary for me to examine if the plaintiff had made out a case for the arrest of the vessel in the first instance. If the plaintiff had made out a case for the arrest of the vessel, the amount deposited by the defendant for the release of the vessel would be taken to be a security for the suit claim, as the suit gets converted into an action in personam. But, if the plaintiff had not made out a case for the arrest of the vessel, then the ordinary principles of Order XXXVIII, Rule 5, CPC, alone would apply, to test whether the plaintiff is entitled to a security for the suit claim. 22. A meaningful reading of the plaint as a whole, would show that the plaintiff claims to have rendered services to the vessel, part of which would give rise to a maritime claim and part of which would give rise to a maritime l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... management, observation or maintenance. Article 3.1.a states that arrest is permissible of any ship in respect of which a maritime claim is asserted, if the person who owned the ship at the time when the maritime claim arose, is liable for the claim and is the owner of the ship when the arrest is effected. But, as I have pointed out earlier, the plaintiff's claim includes claim for dues to the Port, pilotage fees etc. They constitute a maritime lien, if proved. Therefore, the Convention does not go to the rescue of the defendant. 24. Once it is found that there are a few items in the invoices raised by the plaintiff that may constitute a maritime lien, subject however to the evidence that may unfold at the time of trial, the liability of the defendant either to get arrested or to furnish security, cannot be questioned. In such circumstances, the prayer of the defendant for the refund of the amount, which has now replaced the vessel, cannot be granted. Therefore, A.No.7371 of 2010 is dismissed. 25. The amount already deposited by the defendant to the credit of the above suit, shall be kept in fixed deposit for a period of one year. The Registry is directed to convert the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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