1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3774 OF 2009 IN ADMIRALTY SUIT NO.25 OF 2009 Dodsal Engineering and Construction LLC .. Plaintiff Versus m.v.THOR GUARDIAN and Ors. .. Defendants Mr.V.K.Ramabhadran with Ms.Sheetal Sabnis, Ms.I.Sen and Mr.G.T.Mestha i/b. Gagrats for plaintiffs in support Mr.F.E.DeVitre with Ashwin Shankar i/b. Ashwin Shankar for defendant Nos. 1 and 2 Mr.P.S.Pratap with Manoj Khatri for petitioner in Review Petition. CORAM : S.C.DHARMADHIKARI, J. DATE : November 23, 2009. P.C.: 1] Perused the notice of motion and the Annexures thereto, including a copy of the affidavit of defendant Nos. 1 and 2 filed in this Court on 2 30th October 2009. I have also perused the reply filed by Mr.Gautam Trehon, who is Director of defendant No.2 and this affidavit is affirmed on 17th November 2009 before a Notary in the State of Goa. The deponent of this affidavit is resident of the State of Goa and was temporarily and presently in Mumbai. 2] I have also perused the affidavit in rejoinder on behalf of the plaintiffs. The affidavit in rejoinder is affirmed by their Constituted Attorney. Mr.Ramabhadran appearing for plaintiffs makes a grievance that the order passed by this Court directs furnishing of undertaking by defendant Nos. 1 and 2. Far from filing an undertaking in terms of the order what the defendant Nos. 1 and 2 have filed is their affidavit. Further, the order directs that the undertaking must be furnished by their local agent. However, the affidavit filed on 30th October 2009 is in purported compliance with the order of this Court. It is neither an undertaking and even assuming it is so, it is not furnished by the local agent. In fact, in para 3 of this affidavit the deponent Mr.Gautam Treho9n states that he is filing it for and on behalf of defendant Nos. 1 and 2 without any personal liability on his part. Such an affidavit is not compliance with the order of this Court. 3 3] Inviting my attention to the affidavit in reply to the present notice of motion, Mr.Ramabhadran submits that the defendant Nos. 1 and 2 have not carried out and implemented the order and direction of this Court. They must be dealt with appropriately for having made statements which are not in compliance with the order but rather in breach thereof. For all these reasons, he submits that instant notice of motion be made absolute in terms of prayer clause (a). 4] On the other hand Mr.De’Vitre, learned Senior Counsel appearing for defendant Nos. 1 and 2 at the outset tendered an apology and submitted that there is an obvious error in the affidavit filed on 30th October 2009. The first defendant is a vessel whereas second defendant is a Corporate Entity. Therefore, the affidavit should have correctly set out the array of parties. Further, he submits that the order of this Court does not direct that the local agent should state in the undertaking that he would be personally liable. It is clear from the order that only undertaking is required to be furnished of the local agent. Beyond that the local agent is not incurring any personal liability. Therefore, if Mr.Ramabhadran’s submissions are to be accepted that would amount to 4 adding something more in the order and definitely calling upon defendant Nos. 1 and 2 to make compliance with additional conditions. Such is not permitted now in law and more particularly, in the light of the clarifications now issued. 5] Having perused this motion and the affidavits on record, it is apparent that although in para 1 of the affidavit in reply, Mr.Gautam Trehon does not state that he is filing the affidavit as a Director of defendant No.2, yet, from a plain reading thereof, it is apparent that he is a Director of second defendant. Further, there is some substance in the complaint of Mr.De’ Vitre that by the present motion plaintiff seeks to obtain security from local agent even though there admittedly exist no cause of action against the local agent. The order passed by this Court directs furnishing of an undertaking by defendant Nos. 1 and 2, stating what is in terms directed by the order. The undertaking should be of a local agent is the only other direction. If para 1 of the affidavit in reply of the present notice of motion is read in isolation, possibly something could have been said in favour of the plaintiffs. However, the deponent has clarified in this affidavit and more particularly in para 4 thereof that the affidavit filed on 30th October 2009 is nothing but an undertaking to this 5 Court. Although, in the title of the said affidavit that word is not appearing, if the said affidavit is perused in its entirety, it is nothing but an undertaking to the Court. Secondly, it has been clarified that the first defendant is a vessel and has issued an undertaking through its owner – defendant No.2, who in turn is a Corporate Body having signed it through their local agent. The local agent in this case happens to be a Director of defendant No.2. This local agent is none other than Mr.Gautam Trehon who is deponent of the affidavit in reply so also the signatory to the affidavit cum undertaking dated 30th October 2009. He has filed in his capacity as a local agent, this affidavit, as is apparent from the statement now made. 6] Having perused this affidavit in reply and reading the statements made therein together with the affidavit dated 30th October 2009, I am of the opinion that defendant Nos. 1 and 2 have complied with the order and directions of this Court, more particularly, with para 41 of the order in Notice of Motion No.3683 of 2009 dated 12th October 2009 a copy of which is annexed as Annexure I to this affidavit in support. 7] In the result, accepting the statements made in the affidavit of 30th 6 October 2009, together with the affidavit in reply dated 17th November 2009, in Notice of Motion No.3774 of 2009 and having been satisfied that the undertaking is given by a local agent of the owner of the vessel viz., Gautam Trehon, who is also a Director of defendant No.2, notice of motion is disposed of. No costs. (S.C.DHARMADHIKARI, J)