calcutta high court

Calcutta High Court: In an appeal against an order which modified a previous order directing the arrest of the vessel MT TSM Pollux (IMO No. 9266889), including its tackle, hull, engine, equipment, apparels, furniture, and all movables on board, a Division bench comprising of Sabyasachi Bhattacharyya and Partha Sarathi Chatterjee, JJ., dismissed the appeal, stating that there is no ground to interfere with the impugned order. The Court did not find any fallacy in the refusal of the security amount related to loss of business, it, however, noted that the appellant has established a prima facie case for damages due to the alleged negligence of the respondent.

Brief Facts

On 15-09-2023, an order was issued to arrest the vessel MT TSM Pollux and its assets, and this order was to continue until 27-09-2023, or until the plaintiff-appellant filed an undertaking as required by Section 11 of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017. The plaintiff complied with this direction. The order also stated that if the defendant deposited an aggregate amount of USD 506,161 and Rs. 84,00,67,559 as security with the Registrar, Original Side of the court, the arrest order would be vacated.

In the appeal order dated 19-10-2023, the Single Judge modified the security amount, directing the defendant to deposit only Rs. 4,77,70,265.93 as security with the Registrar, Original Side of the Court, instead of the total amount specified in the previous order dated 15-09-2023.

Parties’ Contentions

The primary contention of the appellant is that the Single Judge erroneously assumed that the appellant had not disclosed any agreement with HPCL and that the invoices submitted did not reference specific berths (e.g., HOJ-I or HOJ-II). The appellant argued that it has provided sufficient evidence to substantiate its claim for damages, particularly related to business losses for a projected period of one year. The appellant’s case revolves around the alleged negligence of the respondent’s vessel, which resulted in damage to one of the arms at HOJ-I. The appellant claimed that the damaged arm cannot be repaired and must be replaced, which is supported by a report from the arm’s manufacturer. The appellant also emphasised the duty of care owed by the defendant and argues that it has established a prima facie case for damages.

In contrast, the respondent contended that the appellant failed to segregate the income earned by each arm at HOJ-I and HOJ-II, making it impossible to ascertain the actual business losses. The respondent also disputes the necessity for two arms to operate simultaneously and argues that the appellant’s claims are based on conjecture.

Court’s Observations

The Court noted that while the respondent may be liable for damage to the equipment, the same principle should apply to the claim for business loss, as the basis for both claims is the respondent’s alleged negligence.

The Court observed that the appellant’s claim of business loss is based on a presumption of simultaneous work by both arms, which is not supported by evidence. The Court stated that the appellant failed to provide clear evidence of actual business losses. The Court found that the appellant’s claim was based on conjecture and surmise and not on concrete evidence of damages.

The Court emphasised on the principle that the appellate court should not interfere with the exercise of discretion by the lower court unless there is perversity or patent illegality in the decision.

The Court rejected the appellant’s argument regarding a non-existent third twin arm and stated that the outcome of the case did not hinge on this observation. The Court extended the stay of the impugned order for seven more days to allow the appellant to seek further review.

Court’s Decision

The Court dismissed the appeal, stating that there was no occasion to interfere with the impugned order. The observations made in the judgment are tentative and shall not operate as res judicata in any subsequent applications or the admiralty suit itself. The stay of the impugned order was extended for seven days from the date of the order.

[Hindustan Aegis LPG Ltd. v. Vessel MT TSM POLLUX, 2023 SCC OnLine Cal 4178, order dated 02-11-2023]

Advocates who appeared in this case :

Mr. Amitesh Banerjee, Sr. Adv., Mr. K.R. Thaker, Ms. Tannya Baranwal, Mr. Prathamesh Kamat, Mr. Nooruddin Dhilla, Mr. Dharmesh Singh Chauhan, Mr. Shahrukh Raja, Counsel for the Appellant

Mr. V.K. Ramabhadhran, Sr. Adv., Mr. Subhojit Roy, Mr. Deepnath Roy Chowdhury, Mr. Rohit Mukherji, Mr. Ramanuj Raychaudhuri, Mr. Aditya Sarkar, Counsel for the Respondent

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