AS/26/2001 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD ADMIRALITY SUIT No. 26 of 2001 For Approval and Signature : HONOURABLE MR.JUSTICE C.K.BUCH sd/-. ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ========================================= BATUKBHAI B. PATEL (SHREE RAM STEEL & ROLLING IND - Plaintiff(s) Versus TUG JOSHUA & 1 - Defendant(s) ========================================================= Appearance : MR YN RAVANI for Plaintiff(s) : 1, MR RS SANJANWALA for Defendant(s) : 1, MR RJ OZA for Defendant(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 12/08/2008 ORAL JUDGMENT 1. The present Admiralty Suit is filed by the plaintiff for obtaining a decree in favour of the plaintiff and against the defendants for an amount of Rs.6 lakhs alleging the loss and damages suffered by the plaintiff due to negligence of masters of defendant no.1-Tug AS/26/2001 2/15 JUDGMENT Joshua and defendant no.2-Vessel M.V. Josefina C. The say of the plaintiff is that the defendants are jointly and severally liable to make the loss of Rs.6 lakhs good from the date of filing of the suit till its realization. At the time of filing of the suit, the plaintiff also prayed for arrest of the defendant no.1- Tug and defendant no.2-Vessel along with their respective hull, tackle, engines, machinery, equipment, etc. by praying for issuance of warrant of arrest. 2. Firstly it is necessary to state the case of the plaintiff in nutshell. It is alleged that the plaintiff is a businessman carrying on the business in the name and style of 'Shree Ram Steel and Rolling Industries (Unit-2)', as a sole proprietor and was carrying on the business at 101, Ship Breaking Yard, Sosiya, Alang, Dist. Bhavnagar. The plaintiff is having its office at 2, Samrat Chambers, Khergada Street, Khargate, Bhavnagar and at the relevant point of time, defendant no.1 was towing defendant no.2-Vessel, which was supposed to be beached. According to the AS/26/2001 3/15 JUDGMENT plaintiff, the vessel of the plaintiff i.e. M.V. Ithaki, had arrived at port Alang Ship Breaking Yard on 10th November 2001 and was lying there since then. The plaintiff purchased the said vessel on 20th November 2001 for a lump sum price of US$ 638369. One TDD Overseas, the Agent of the seller and the master of the said vessel delivered the said vessel to the plaintiff at 17-30 hours on 20th November 2001. The plaintiff was also given the bill of sale on 22nd November 2001. When this vessel M.V. Ithaki was awaiting for being beached, the defendant no.2-Vessel which was towed by defendant no.1 collided with the plaintiff's vessel M.V. Ithaki at 13-25 hours on 14th December 2001 and caused serious damage to the vessel of the plaintiff-M.V. Ithaki. On 14th December 2001, the master of vessel M.V. Ithaki addressed a letter to the masters of defendant no.1-Tug and defendant no.2-Vessel, stating the factum of collision and damage, holding the masters of the defendants responsible for the aforesaid collision and all the losses arising out of the said collision. A copy of the letter along with the AS/26/2001 4/15 JUDGMENT relevant documents issued by the master of vessel M.V. Ithaki is on record. The masters of defendants had signed a collision report dated 14th December 2001 and this fact is a matter of clear admission as to the collision which had occurred at 13-25 hours on 14th December 2001. This collision had also damaged the port side ladder completely. On 15th December 2001, the plaintiff addressed a letter to the Port Officer, Gujarat Maritime Board, informing him about the collision and indicating that the plaintiff would be making an appropriate claim for damage on defendants. The said letter is also on record. One M/s.Munna Scrap Traders purchased defendant no.2-Vessel for breaking it at Port No.107. The plaintiff, therefore, vide letter dated 19th December 2001 informed the said Trader and intimated him about the damage caused to the vessel owned by the plaintiff. It was pointed out that the plaintiff is in process of ascertaining the actual damage and would be making claim with respect to the damage caused. It is alleged that since the loss was the result of negligence of masters of AS/26/2001 5/15 JUDGMENT defendants, the Gujarat Maritime Board did not issue 'No Due Certificate' to defendant no.1- Tug. 3. The case of the plaintiff is that the Sigma Marine, Surveyor, surveyed the damage done to the plaintiff's vessel and has given its report; and the said report clearly shows that the damage caused to the plaintiff's vessel is to the tune of Rs.6 lakhs. The said Survey Report is produced with a separate list by the plaintiff. On receipt of the report, the plaintiff served a notice through his advocate on 22nd December 2001 to both the defendants herein, calling upon them to pay the damage to the tune of Rs.6 lakhs to the plaintiff for the loss and damage caused to his vessel. It is alleged that the collision occurred solely due to the negligence of the masters of defendants as they had violated the Collision Regulations and normal sea practice. A copy of the notice was also sent to the Assistant Commissioner of Customs, Bhavnagar; Coast Guard, Porbandar; Traffic Manager, Gujarat Maritime Board, Gandhinagar; and also to the AS/26/2001 6/15 JUDGMENT agent of defendant no.1-Tug. The Gujarat Maritime Board responded to the notice on 24th December 2001 and communicated to the plaintiff to settle the issue amicably with the owner of defendant no.1 through its agent Demo Shipping Services, Bhavnagar, so that they can release defendant no.1-Tug at the earliest. But the plaintiff failed to settle his claim and, therefore, apprehending the escape of defendant no.1, the plaintiff filed a suit for recovery from the defendants for the loss suffered by the plaintiff in pursuance of the damage caused to the plaintiff's vessel. 4. This Court vide order dated 26th December 2001 passed an ex-parte ad interim order considering the contents of the affidavit filed in support of the arrest prayed for by the plaintiff to arrest defendant no.1-Tug keeping in mind the possibility of defendant no.1 slipping away from the Indian Territorial water. There was ample scope of demolition of defendant no.2 and hence, defendant no.2- Vessel was also ordered to be arrested. AS/26/2001 7/15 JUDGMENT However, both of them got bail as a formal application was moved being Civil Application No.258 of 2001 and the Court ordered the release of defendant no.1-Tug as well as defendant no.2-Vessel. The order being conditional, the defendant no.2 filed an undertaking to deposit the amount of loss of Rs.6 lakhs. Ultimately, the amount has been deposited and the same is lying with the Registry of this Court. The Court issued formal orders of releasing defendants with a letter of authority. As per the orders passed by this Court, the amount of Rs.6 lakhs deposited with the Registry has been invested in the Bank. 5. As the defendants had failed in filing written statement, the plaintiff moved an application under Order 8 Rule 10 of the Code of Civil Procedure, 1908 to pass a judgment and decree as per the plaint. The Court ordered that the plaintiff should prove the damage by leading formal evidence and dismissed the application vide order dated 19th September 2005. 6. The Court decided to frame the following AS/26/2001 8/15 JUDGMENT issues for determination keeping in mind the pleadings i.e. plaint as well as the facts emerging from the documents tendered in support of the plaint. Vide order dated 03rd November 2006, the following issues have been framed by this Court (Coram : M.R. Shah, J): (1) Whether the plaintiff proves that on December 14, 2001, defendant No.2 vessel, which was under tow of defendant no.1, collied with vessel M.V. Ithaki owned by it? (2) Whether the plaintiff is entitled to claim an amount of Rs.6 lacs for the loss and damage suffered by it due to negligence of the Masters of defendant nos.1 with interest at the rate of 15% per annum from defendant nos.1 and 2 jointly and severally? (3) What order and costs ? AS/26/2001 9/15 JUDGMENT 7. My findings to the aforesaid issues are as under : (1) In the affirmative. (2) Partly in the affirmative. The plaintiff is entitled to the loss and damage of Rs.6 lakhs; but so far as the interest is concerned, he be awarded interest at the rate of 9% per annum from the defendants jointly and severally. (3) As per the final order. 8. To prove the case, the plaintiff filed an affidavit and the said affidavit is at Ex.20. The affidavit takes care of each and every allegation made in the plaint and the plaintiff has stated on oath that the plaintiff's vessel did suffer damage on account of negligence of masters of defendants. It emerges from record that the plaintiff had kept himself ready for cross- examination, if any. But it appears that as defendant no.1 had left the Indian Coast and AS/26/2001 10/15 JUDGMENT defendant no.2 was demolished, nobody from their side was interested in cross-examination of the plaintiff. Shri R.S. Sanjanwala, learned counsel representing defendant no.1- Tug, has also declared that he has no instructions and, therefore, he may be permitted to retire. The plaintiff has proved that at the relevant point of time he was the owner of the vessel-M.V. Ithaki and that very vessel sustained damage to the tune of Rs.6 lakhs because of the negligence on the part of the masters of defendants. The damage was because of collision which had taken place at 13-25 hours on 14th December 2001. The plaintiff was not an expert and, therefore, he has rightly undertaken the exercise to get his vessel surveyed. 9. It is also relevant to note that the documents tendered along with the suit and proved by the affidavit of the plaintiff, including the Survey Report relied upon by the plaintiff strengthens the case of the plaintiff and the version of the plaintiff in the affidavit gets clear support from those documents produced. AS/26/2001 11/15 JUDGMENT It is specifically established by the plaintiff that on 14th December 2001, the defendant no.2 was towed by defendant no.1 and there was a collision between the plaintiff's vessel and defendants and this collision had occurred because of the negligence on the part of masters of defendants. The case of the plaintiff, therefore, falls in the category of maritime lien. Shri Yogesh Ravani, learned counsel appearing for the plaintiff, has relied upon the observations made by the Apex Court in the decision in the case of M.V. Elisabeth and others v. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-de-Gama, Goa, reported in AIR 1993 SC 1014 and more particularly, on the observations made in paragraph nos.38 and 39 and also the observations made by the Apex Court in the decision in the case of Epoch Enterrepots v. M.V. Won Fu, reported in AIR 2003 SC 24. The endeavour of Shri Yogesh N. Ravani is that the case of the plaintiff is a case of maritime lien and, therefore only, this Court had issued a warrant of arrest AS/26/2001 12/15 JUDGMENT against the defendants and to get the defendants released from the arrest, the amount of Rs.6 lakhs has been deposited. 10. There is no challenge as to the contents of the report submitted by the Surveyor and the fact emerging from the correspondence between the plaintiff and Gujarat Maritime Board, an independent agency, which is found satisfactory to hold that the defendants were responsible for the wrong committed i.e. the act of negligence. The Gujarat Maritime Board was anxious to see that defendant no.1-Tug is permitted to leave the Indian Coast and, therefore, it had suggested to settle the claim. At least some logical reply to the notice issued on behalf of the plaintiff through its lawyer could have been given by the defendants or one of them. One more important aspect which is relevant, according to me, is that there is no formal resistance in the form of written statement as to how the say of the plaintiff is incorrect or false. At least the owner of defendant no.2-Vessel could have approached the Court by a joint AS/26/2001 13/15 JUDGMENT litigation, but in absence of any formal resistance and when the plaintiff had kept himself ready for cross-examination, if any, the say of the plaintiff obviously shall have to be accepted. It is settled legal position that the facts stated on oath if are not challenged, can be accepted as a good piece of evidence. In the present case, many crucial facts have remained unchallenged and, therefore, on that count also, the present suit filed by the plaintiff can be decreed. 11. The plaintiff has claimed that he may be awarded interest at the rate of 15% per annum and the costs of the suit; but for want of any agreement, the Court while awarding damage on the part of defendants normally awards interest at the rate of 9% to 12% per annum. The defendants have not even resisted the suit. So the success in the present litigation can be said to be a cake-walk for the plaintiff. So the interest if at the rate of 9% is awarded, it would meet the ends of justice and the claim of the plaintiff of interest at the rate of 15% per annum appears AS/26/2001 14/15 JUDGMENT to be exaggerated in view of the facts and circumstances of the case and hence, the plaintiff is required to be awarded interest at the rate of 9% per annum; and the following final order is passed : :: O R D E R :: (1) The present suit is hereby decreed. (2) The plaintiff shall recover an amount of Rs.6 lakhs from the defendants jointly and severally with interest at the rate of 9% per annum from the defendants from the date of filing of the suit till its realization and the costs of this suit. (3) After expiry of the appeal period, the plaintiff can approach this Court for realization of the amount deposited by the defendants with the Registry of this Court with interest accrued thereon, by moving a separate application. (4) Decree be drawn accordingly. AS/26/2001 15/15 JUDGMENT Sd/-. (C.K. Buch, J) Aakar