Bombay High Court: An interim application was filed by the applicant in the company petition, since the claim of the applicant for salvage services and watch-keeping in respect of Malaviya- 3 (‘vessel') belonging to GOL Offshore Limited, of INR 1,16,44,830 was rejected by the Official Liquidator. Bharati Dangre, J., held that the order passed by the Official Liquidator cannot be maintained being based on an erroneous assumption of facts and circumstances.
GOL Offshore Limited was directed to be wound up vide order dated 04-12-2017 and the Official Liquidator was appointed to take charge of the affairs, assets, and business of the Company and to conduct its affairs while winding up. The vessel Malaviya- 3 faced issues as the water was entering the water tank level on the port side when the ship was at PVC. The Deputy Conservator from the Mumbai Port Trust instructed the Applicant agency to carry out possible repairs and bail out ingress of water to protect the vessel from flooding and the Applicant was contacted by the Board of Trustees of the Port of Mumbai (MBPT).
The applicant followed the mandate issued to it from time to time and submitted its report to the Port Trust highlighting the work undertaken by it and commenting upon the status of the vessel. The applicant raised an invoice for manpower, safety, and watchkeeping upon the Deputy Conservator of Mumbai Port Trust and requested to forward the invoices to the Official Liquidator, Bombay High Court for prompt payment. After round of two meetings discussing the claim and its validity, the Port Trust made it clear that as far as salvage claim is concerned, they are not lodging any claim with the Official Liquidator and further certified that the claim raised by the Applicant is genuine and legitimate and Board of Trustees of the Port of Mumbai, do not have any objection with respect to the same.
However, the claim of the Applicant was considered by the Official Liquidator and was turned down on 24-02-2023 by the impugned order on the grounds that before rendering any services, the service provider must be appointed by the Official Liquidator or to be appointed with their consent and in this entire transaction, nowhere official permission from the Official Liquidator is being seen.
The Court noted that whenever invoices were raised for the necessary charges of repairs and watchmen services, the Official Liquidator never raised any dispute, and rather it trusted the MBPT and sought opinion from it about the services rendered. In turn, the MBPT certified that the services provided by the Applicant are genuine and once the Official Liquidator delegated the task of ascertaining the quality of services rendered by the applicant to someone else, it is not permissible for it to raise a quibble that the charges raised for watch keeping. Thus, the ship was guarded by the applicant on the guidance of MBPT and there is no reason why the Official Liquidator shall now drag its feet in disbursing the amount as per the invoice.
The Court opined that the reason stated in the impugned order that the permission of the Official Liquidator was never sought, is without any ground since on account of the emergency faced, the MBPT had summoned the Applicant to arrange for the required manpower to ensure that the vessel is dewatered and to engage watchmen to ensure that no pilferage takes place. Thus, there arises no question of seeking prior permission from the Official Liquidator.
The Court concluded that the assumption of the Official Liquidator that the scope of work did not include watchkeeping is also an incorrect conclusion derived by it. The rejection of the bill raised by the Official Liquidator, therefore, cannot be sustained as the Applicant had discharged the duty cast upon it by the Port Trust and now it is too late for the Official Liquidator to deny that necessary services were not offered or if they were offered it was without its permission.
Thus, the Court set aside the claim rejection order and directed the Official Liquidator to pay a sum of Rs.1,16,44,830 along with interest at the rate of 6% pa, through the applicant has sought interest at the rate of 18% pa to be disbursed in favour of the applicant, within a period of 12-weeks from the date of passing of this order.
[K. E. Salvage Corporation v Official Liquidator, High Court Bombay, 2023 SCC OnLine Bom 1801, decided on 10-08-2023]
Advocates who appeared in this case :
Mr. Karl Tamboly a/w Vikrant Shetty and Kush Shah i/b Dhruv Liladhar & Co. for the Applicant.
Mr. Rushabh Sheth, for the Official Liquidator.
Mr. Anil Bhagure, Assistant Official Liquidator present.
