1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION REVIEW PETITION NO.26 OF 2009 IN NOTICE OF MOTION NO.3683 OF 2009 IN ADMIRALTY SUIT NO.34 OF 2009 Acuamar Shipping LLC .. Petitioner Versus m. THOR GUARDIAN & Anr. .. Respondents Mr.Prashant Pratap i/b. Manoj Khatri for petitioner Mr.F.De’ Vitre with Ashwin Shankar for respondent Nos. 1 and 2 CORAM : S.C.DHARMADHIKARI, J. DATE : November 23, 2009. P.C.: 1] The Review petition is by the petitioner – original plaintiff in the admiralty suit No.34 of 2009. The defendants in this suit have taken out a notice of motion being Notice of Motion No.3683 of 2009 inter alia praying for release of the vessel m.v.THORGUADIAN, which was arrested by this Court’s order passed in Admiralty Suit No.25 of 2009 so also the instant suit. The respondents to this review petition are the original defendants to this suit. 2 2] Mr.Pratap appearing in support of this review petition submits that the notice of motion mentioned in the title of the review petition in the suit viz., Admiralty Suit No.34 of 2009 was heard by this Court along with Notice of Motion No.1999 of 2009 in Admiralty Suit No.25 of 2009. 3] By a common order delivered on both motions on 12th October 2009, this Court, while disposing them off has made certain observations, which are ex facie erroneous in law and would not be, therefore, tenable. Inviting my attention to para 46 of the order dated 12th October 2009, Mr.Pratap submits that there are certain observations made therein, which run counter to the legal position which has been settled by a Full Bench decision of this Court reported in 2007 (2) Mh.L.J. 419 (J.S.Ocean Liner LLC Vs. m.v.Golden Progress and Anr.). 4] Inviting my attention to para 76 of this Full Bench decision and the ultimate conclusions rendered, Mr.Pratap submits that the Court has proceeded on a misconception in law that if the plaintiff in this Admiralty Suit No.34 of 2009 has taken recourse to arbitration under the Arbitration and Conciliation Act, 1996, it can secure the claim before the Arbitral 3 Tribunal by seeking an arrest of first defendant vessel. He submits that precisely that is held to be impermissible in law. It is held by the Full Bench that the Court exercising jurisdiction while considering an application under section 9 of the Arbitration and Conciliation Act, 1996 cannot direct arrest of the vessel for obtaining security under the Award that may be secured in arbitral proceedings. What the Court held that any such action in rem for recovery of the claim and arrest of the vessel can be maintained where parties have agreed to submit the dispute to arbitration and in such cases, the Court is not powerless, according to Full Bench, while considering an interim application, to direct arrest of the vessel. Such an order of arrest or the security provided to obtain release of the vessel can continue pending the final decision of the Arbitral proceedings. Therefore, the observations made in para 46 of the order dated 12th October 2009 (Order under review) are contrary to law and the Court should review the order. 5] His next submission is that the review is necessitated also because of the fact that the Court has assumed that the plaintiff is seeking an order of arrest of the first defendant vessel to secure all claims in the suit. It was specifically clarified that the claim covered in Admiralty Suit No.25 4 of 2009 viz., Dodsal suit is specifically given up. All that remains for adjudication now is a claim of plaintiffs which survives despite the Dodsal having filed the suit. In other words, from the particulars of claim at page 70 of plaint in Admiralty Suit No.34 of 2009, what survives is the claim under Serial No.I to the extent of U.S.$ 183479.33. Even this claim is not pressed in its entirety, but to the extent indicated by the Review Petitioner. In these circumstances, the error that has come in the order viz, that to secure the claim pertaining to the cargo of Dodsal that the order of arrest was sought, deserves to be corrected and for that review petition be allowed. 6] On the other hand, Mr.De’Vitre appearing for defendant Nos. 1 and 2 submits that the Review Petition is not maintainable. Relying upon an affidavit in reply filed to this review petition, Mr.De’Vitre submits that firstly the plaintiff did not give up their claim specifically as urged by Mr.Pratap. That claim based upon the cargo of Dodsal survives as is apparent from the statements made in the affidavit in reply of Notice of Motion No.3683 of 2009. Therefore, what is now stated across the bar and in the review petition is incorrect. This is nothing but an attempt to re-open the controversy which stands concluded by this Court’s order 5 dated 12th October 2009. He submits that review jurisdiction cannot be equated with an appeal and this Court cannot in the garb of correcting error be called upon to exercise the appellate powers. 7] Further he submits that the Full Bench decision considers a controversy about the ambit and scope of the powers of this Court under section 9 of the Arbitration and Conciliation Act, 1996. Beyond that and clarifying the legal position it states nothing. This Court has while disposing of the notice of motion observed that in order to secure the claim before the Tribunal and the ultimate award, it would be open for the plaintiffs to take recourse to law and seek security in such manner as is permissible therein. Therefore, there is no apparent error of law in the order which must be read in its entirety. For all these reasons no case is made out for review of the order and the petition be dismissed. 8] I have perused the review petition and the annexures thereto so also the affidavits placed on record. As far as the ambit and scope of review jurisdiction is concerned, there is no dispute about the principles laid down in that behalf. In these circumstances, it is not necessary to refer to the decision of the Supreme Court reported in (2005) 4 S.C.C. 741 (Board 6 of Control For Cricket in India and Anr. Vs. Netaji Cricket Club and Ors.) about the ambit and scope of powers of Review. 9] When the Notice of Motion No.3683 of 2009 was placed before this Court along with Notice of Motion No.1999 of 2009, the request that being considered was of the first and second defendants to vacate the order of arrest and not to continue it. The plaintiffs in both suits on the other hand were urging that the said order should continue. It is on such motion that the common order has been passed. As far as Notice of Motion No.3683 of 2009 is concerned, it is clear that the same was moved by the defendant Nos. 1 and 2 and the request therein was that the order of arrest be vacated. Whereas in the earlier suit, the request of M/s.Dodsal was that the order should continue. 10] While the motion was being argued, it was streneously contended that the claim of plaintiffs arises in the light of the facts set out in the plaint. The subject matter of the Dodsal suit viz., Dodsal Cargo is referred to by the plaintiffs themselves. In one of the affidavits which came to be filed in the motion, it was urged that the power transformers are being delivered to the rightful owner after this Court’s intervention 7 and that is why the plaintiffs would modify their claim to the loss and liabilities to which they are exposed to as a result of various breaches of the charter party. However, the statements made in para 6 of this affidavit apart, it does not appear that any bifurcation of the claim was made or that any of the claims were given up. Instead, the affidavit reiterated the position that the entire amount as per the statement of claim at page 75 of the plaint being Annexure “P-1” in is due and payable. Therefore, it is not possible for me to accept the contention of Mr.Pratap that this Court proceeded on an erroneous basis that the claim of Dodsal was the basis of plaintiffs’ suit. It continues to be the claim in the suit of plaintiffs. Therefore, on the basis of some oral statements made now and in the memo of Review petition, I cannot hold that the order passed on the notice of motion on 12th October 2009 should be vacated. 11] Apart from that, the order considers the request by plaintiff in Admiralty Suit No.34 of 2009 to continue the order of arrest. While considering that prayer and request based thereon, that this Court held that the claim as raised by the plaintiff is capable of being resolved by Arbitration. That the charter party provides resolution of disputes in accordance with the Arbitration Act and the procedure of appointment of 8 Arbitrator, is not in dispute. The arbitration agreement is invoked and the proceedings can go on in accordance with the law is also an agreed position. It is in such circumstances that Mr.De’Vitre’s objection as recorded in para 45 to the continuation of the arrest has been upheld. The Court was of the clear opinion that not only on the basis of Dodsal’s claim but also on the basis of other claims in Admiralty Suit No.34 of 2009, the order of arrest cannot continue and it is in that context that the position has been clarified in para 46. It is not as if the plaintiff/ review petitioner cannot invoke the jurisdiction of an appropriate court to seek security for enforcement of the ultimate award nor is it prohibited, during the course of the arbitral proceedings from seeking appropriate relief so as to secure the claim otherwise. When an application is made during the course of the proceedings or otherwise that the question of applicability of law laid down by the Full Bench of this Court (Supra) would arise. It is not that this Court has stated that the plaintiff can do so straight away. All that this Court has observed is that the plaintiff can seek security to satisfy their claim in Arbitration. What measures, interim or final, so as to secure the claim can be provided by the Court is the subject matter of distinct proceedings. In these circumstances, even the second contention of Mr.Pratap that the order suffers from an error apparent and the 9 observations in para 46 are untenable in the light of the Full Bench decision, cannot be upheld. 12] Having read the order with the assistance of the learned Counsel for parties in the backdrop of the controversy before the Court, I do not see any necessity of exercising review jurisdiction. Review petition fails and it is accordingly dismissed. 13] However, the error in para 47 of the order dated 12th October 2009, which is an obvious error is corrected and the said part be substituted with the following “In the result, even the request made by the plaintiffs in Admiralty Suit No.34 of 2009 to continue the Order of arrest of the first defendant vessel cannot be granted.” (S.C.DHARMADHIKARI, J)