IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 7TH APRIL 2011 / 17TH CHAITHRA 1933 WP(C).No. 33474 of 2010(H) ---------------------------------- PETITIONER(S): ------------------- COCHIN PORT TRUST,W/ISLAND,COCHIN-REPRESENTED BY DEPUTY CONSERVATOR. BY ADVS. SRI.K.ANAND (A.201) SMT.LATHA KRISHNAN RESPONDENT(S): -------------------- 1. M/S KINSHIP SERVICES(INDIA)PVT.LTD, KINSHIP HOUSE,MARAR ROAD,WILLINGDON ISLAND, COCHIN-682003,REPRESENTELD BY ITS MANAGING DIRECTOR. 2. M/S KINSHIP SERVICES(INDIA)PVT.LTD, KINSHIP HOUSE,MARAR ROAD,WILLINGDON ISLAND, COCHIN-682003,REPRESENTED BY ITS MANAGING DIRECTOR. 3. THE MASTER,M.V.KINSHIP LUCKY,NOW BERTHED AT COCHIN PORT TRUST. 4. THE PRINCIPAL OFFICER,MERCANTILE MARINE DEPARTMENT,WILLINGDON ISLAND,COCHIN-9. R1 TO R3 BY ADVS. SRI.D.ANIL KUMAR SRI.C.C.SURESH R4 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/04/2011, ALONG WITH WPC NO. 34786 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO.33474/2010 APPENDIX PETITIONER'S EXHIBITS: P1(a):COPY OF LETTER DATED 22/09/2009 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P1(b):COPY OF LETTER DATED 20/04/2010 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P1(c):COPY OF LETTER DATED 28/04/2010 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P1(d):COPY OF LETTER DATED 03/05/2010 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P1(e):COPY OF LETTER DATED 28/07/2010 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P2(a):COPY OF LETTER DATED 22/01/2010 SENT BY THE PETITIONER TO THE 4TH RESPONDENT. P2(b):COPY OF LETTER DATED 03/06/2010 SENT BY THE PETITIONER TO THE 4TH RESPONDENT. P3: COPY OF LETTER DATED 04/09/2010 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P4: COPY OF LETTER DATED 28/09/2011 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R1(a):COPY OF THE STATEMENT CONTAINING THE DETAILS OF PAYMENTS WWW MADE UNDER VARIOUS HEADS. R1(b):COPY OF THE STATEMENT CONTAINING THE SHIFTING OF THE VESSEL ABOUT 35 TIMES. R1(c):COPY OF THE NOTICE DATED 24/11/2010 GIVEN BY THE COCHIN PORT INTIMATING THE SHIFTING OF THE VESSEL ON 25/11/2010. R1(e):COPY OF THE LETTER DATED 12/01/2011 SENT BY PETITIONER/1ST RESPONDENT TO THE COCHIN PORT. R1(f):COPY OF THE LETTER DATED 17/01/2011 SENT BY PORT AUTHORITIES TO THE PETITIONER/1ST RESPONDENT. svs .............2/-... ...2... WPC. NO.33474/2010 R1(g):COPYC OF THE COMMUNICATION DATED 31/01/2011 SENT BY PETITIONER/1ST RESPONDENT. R1(h):COPY OF THE LETTER DATED 04/02/2011 FROM M/S. HALL MARK ENGINEERS. R1(i):COPY OF THE LETTER DATED 07/03/2011 ISSUED BY HALLMARK ENGINEERS. R1(j):COPY OF THE LETTER DATED 09/03/2011 ISSUED BY THE 1ST RESPONDENT. R1(k):COPY OF THE LETTER NO.2-SY(09)/1749 DATED 10/03/2011 ISSUED BY THE MERCANTILE MARINE DEPARTMENT. /TRUE COPY/ P.A. TO JUDGE. svs P.R.RAMACHANDRA MENON, J ....................... W.P.(C)s.33474 & 34786/2010 ....................... Dated this the 7th day of April, 2011 JUDGMENT W.P.(C).33474/2010 has been filed by the Cochin Port Trust mainly with the grievance that the vessel by name “MV Kinship Lucky” owned by the first respondent for which the second respondent in the said writ petition acted as Agent and the third respondent is the Master of the vessel. The grievance of the Cochin Port is mainly that, despite various notices issued at different points of time, the owners/agents of the vessel have not removed the ship from the port area nor have they satisfied the amounts due to the Port under different heads, which made them to approach this Court seeking for issuance of a direction to the fourth respondent for causing removal of the vessel from the Port limits. 2. When the matter came up for consideration before this Court earlier, it was undertaken from the part of respondents 1 to 3 that they would remove the vessels from the Port area within four weeks and it W.P.(C).34786 & 33474/2010 2 was ordered accordingly on 11.1.2011. Subsequently, I.A.2098/2011 was filed by respondents 1 to 3 seeking for further extension of time, which was allowed as per order dated 11.2.2011 granting further period of four weeks, subject to the condition that the applicants paid a sum of Rs.5 Lakhs within three weeks to the Cochin Port Trust, which is stated as complied with. The grievance of the petitioner in the said writ petition, as put forth by the learned counsel, is that despite the specific assurance/undertaking, the vessel is still to be removed. 3. During the pendency of the above writ petition, the first respondent, (owner of the vessel), filed W.P.(C).34786/2010 challenging Exts.P5 and P6 proceedings dated 28.9.2010 and 16.11.2010, whereby the Cochin Port Trust demanded certain amounts to be paid by the owner of the vessel in view of the lapses on the part of the owner of the vessel. Projecting the plight of the vessel, interference of this Court is sought for, seeking to set aside Exts.P5 and P6. W.P.(C).34786 & 33474/2010 3 4. The parties concerned have filed their pleadings and produced copies of the relevant documents in support thereof. Since the assurance/undertaking is given by the owner of the vessel as recorded by this Court while passing interim orders in W.P.(C).33474/2010, the Port Trust, who is the respondents 1 to 3 in the latter W.P.(C). 34786/2010 has filed I.A.5605/2011 for appointment of an Advocate Commissioner to cause the vessel to be sold in public auction for realization of the due amount. The State Bank of India, Stressed Asset Managements Branch, Ernakulam, subsequently got impleaded as the additional fourth respondent, as per order dated 25.3.2011 in I.A.5612/2011 and the Federal Bank Ltd, Willingdon Island Branch, Kochi-3, has been impleaded as the additional fifth respondent, as per the very same order. The contention of the respondent Banks is that the State Bank of India is having the primary charge over the vessel, the same having been mortgaged to the State Bank, while the Federal Bank is having second charge in respect of the financial assistance extended by the said Bank. 5. Learned Standing Counsel for the Port Trust submits that, by W.P.(C).34786 & 33474/2010 4 virtue of the pivotal status of the Port Trust, the rights and interest of the Port stand on a better pedestal than the claim of the respondent Banks. It is also brought to the notice of this Court that the additional fourth respondent has approached the Debt Recovery Tribunal (DRT) by filing O.A.52/2011 for realisation of the amount due from the owner of the vessel; that the proceedings are going on, and that an Advocate Commissioner by name Mr.Abu Mathew has already been appointed for the sale of the vessel. The learned Advocate Commissioner is present before this Court. Learned counsel for the additional respondents submit that since the DRT having already appointed an Advocate Commissioner for sale of the vessel, the same Commissioner might be permitted to proceed with the sale of the vessel and to procure the sale proceeds, to be appointed by the parties concerned, in accordance with law. 6. After hearing both the sides, this Court finds that there is no point in keeping the writ petitions pending before this Court and that the parties could be relegated to have their rights apportioned by way of appropriate proceedings before the DRT, where the matter is W.P.(C).34786 & 33474/2010 5 pending consideration as O.A.52/2011. Petitioner in W.P.(C). 33474/2011 (Cochin Port Trust) is at liberty to get impleaded in O.A.52/2011 projecting their claims as pleaded in the proceedings. Parties represented through the learned counsel however, are having unanimous opinion that the vessel is not in a position to be propagated, nor is it in a position to be towed out and that sale of the same has to be effected at the earliest opportunity to realise , at least the recoverable extent so as to reduce the probable loss to the possible extent. 7. In the above circumstances, this Court makes it clear that the very same Advocate Commissioner Mr.Abu Mathew, already appointed by the DRT, Ernakulam in O.A.52/2011 be left with the task of conducting sale of the vessel in accordance with law and to deposit the sale proceeds in the DRT, to be allotted/apportioned to/among the eligible parties concerned, as to be ordered by the DRT. This Court also finds it fit and proper to have the matter pending before the DRT by way of O.A.52/2011, finalised within a specific time. It is ordered accordingly and this shall be done as W.P.(C).34786 & 33474/2010 6 expeditiously as possible, at any rate within 'three months'. The parties are at liberty to produce a copy of the judgment before the DRT, bringing the position as above to the notice of the DRT for appropriate reliefs. 8. It will be the responsibility of the petitioner in W.P.(C). 34786/2010 to man the vessel to the requisite limit/extent, in order to preserve the vessel and to avoid any casualty. The agent of the owner of the vessel will be at liberty to approach the authorities of the Cochin Port Trust so as to permit them to carry out shipping activities for generating funds of their own till the proceedings are finalised as above and the Port shall consider the same in a positive manner, extending relief to the permissible/possible extent; subject to appropriate terms if any, so as to solve the issue once and for all. Both the writ petitions are disposed of as above. P.R.RAMACHANDRA MENON, Judge mrcs