Bom HC | An unsatisfied order/Judgment in personam is no bar to proceedings in rem

Bombay High Court: R.I. Chagla, J., while addressing a matter held that,

“Cause of action in rem does not merge with the Order / Judgment in personam given in respect of a cause of action in personam arising out of the same facts.”

Senior Advocate, Prashant Pratap stated that there is no Caveat against the arrest of the defendant-Vessel. Varsha Gawande, Court Associate upon checking the caveat against arrest Register stated that there is noCaveat against the arrest of Defendant Vessel.

Background

Claim in the Suit is for a Decree against the Defendant Vessel and for the arrest, sequestration, condemnation and sale of the Defendant Vessel, for securing and / or satisfying the Plaintiff’s claim of the principal amount of USD 1,120,914 and USD 25,000 for cost of litigation in India aggregating USD 1,145,914 plus poundage with interest at the rate of 2% per month from the date of the Suit till payment and / or realization as per the Particulars of Claim.

Plaintiff has not been paid in respect of equipment supplied and services rendered, which were necessary for the operation of the Defendant Vessel.

Thus, to recover the above-stated unpaid amounts, present suit was filed and Judge’s Order had been taken out for arrest of Defendant Vessel.

Urgent relief which had been sought is for the arrest of the Defendant Vessel as there was an apprehension as stated in the Plaint that if the Defendant vessel was permitted to sail, Plaintiff would have no legal recourse whatsoever to recover the amounts due to it and eventually these proceedings will be rendered infructuous.

In Court’s opinion, case for arrest of defendant-vessel was made out.  Dues of the Plaintiff for providing equipment and services to the Defendant vessel is evidenced from the Letter of Award read with Sub Contract and invoices annexed.

Thus, Claim would fall within the meaning of a maritime claim under Section 4(1)(I) of the Admiralty (Jurisdiction of Settlement of Maritime Claims) Act, 2017.

Plaintiff fled the present suit seeking attachment of the Defendant vessel, which is currently within jurisdiction of this Court.

Further it was submitted that the proceedings before the Courts in Abu Dhabi are in personam and the present Suit is in rem against the Defendant Vessel.

Hence for the above, Bench stated that,

“proceedings before the Courts in Abu Dhabi are in personam and cannot come in the way of the present Suit, which is an action in rem and that the Plaintiff is entitled to commence an action in rem, whilst the action in personam is still pending and has not proceeded to a final Judgment.”

Balance of convenience lies with plaintiff to whom, almost irreversible prejudice would be caused if reliefs were to be denied.

Therefore, Court directed the Sheriff of Mumbai to effect the arrest/seizure or detention of defendant vessel along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture, fixtures, appurtenances and paraphernalia, plant and machinery at present at anchorage at the Port of Mumbai or wherever she has within the territorial waters of India until the satisfaction of the Plaintiff’s claim.

Further the Bench stated that,

after service of this Order of Arrest, if the arrested Vessel is not released by the furnishing security or bail amount within 6 weeks of service, or an application for vacating the order of arrest is not fled, or the vessel is found abandoned by the person-in-charge of the Vessel or owner, or is found unmanned, then, in such an event, on an application being made by the Plaintiff, the office of the Sheriff of Mumbai shall present a Sheriff’s report for auctioning the Vessel within a period of fourteen days from the date of receiving communication from the Plaintiff’s Advocate or from the date of knowledge of abandonment of Vessel.

[Fugro Survey (Middle East) Ltd. v. DLB 1600 (IMO No. 9681651), DHOC NO. LD-VC-53-2020, decided on 02-05-2020]

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