: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY ADMIRALTY ADMIRALTY & VICE ADMIRALTY JURISDICTION & VICE ADMIRALTY JURISDICTION & VICE ADMIRALTY JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.2565 OF 2008 OF MOTION NO.2565 OF 2008 OF MOTION NO.2565 OF 2008 IN IN IN SUIT SUIT SUIT NO.5 OF 2008 NO.5 OF 2008 NO.5 OF 2008 Queshm Bonyad Ship Management Co. ...Plaintiffs V/s. m.v. Ocean Frontier ex MV Parsian ...Defendants Mr.Zarir Shankar i/b. Mr.Ashwin Shankar for the Plaintiffs. Mr.D.A. Nalavade, Govt. Pleader, present on notice. Mr.A.M. Kazi, Dy. Sheriff of Bombay present. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 10TH FEBRUARY, 2009. : 10TH FEBRUARY, 2009. : 10TH FEBRUARY, 2009. P.C.: P.C.: P.C.: 1. This Notice of Motion is taken out by the Plaintiffs in this suit for seeking refund of the Sheriff’s poundage which the Plaintiffs deposited on 3rd March, 2008. The Plaintiffs in this suit obtained a Judge’s order for arrest of the Defendant No.1-vessel on 14th January, 2008. Pursuant to the said order, the vessel was arrested by the Sheriff of Bombay. Thereafter, on 3rd March, 2008, the Plaintiffs withdrew the suit stating that the dispute was referred to mediation in Iran and the Plaintiffs have received security for their claim in Iran. So : 2 : the Defendant No.1-vessel stood released on that day. Soon thereafter, the Plaintiffs’ Advocate deposited a sum of Rs.3,99,800/- with the Sheriff towards poundage. This amount represented 1% of the Plaintiffs’ claim of American $ 9,95,000 in the suit. 2. Despite this the Plaintiffs, as said above, took out this Notice of Motion for refund of the amount. It is contended by the Plaintiffs that they are not liable to pay the poundage. The Notice of Motion was served on not only the Defendants but also on the Sheriff of Bombay and Shri Kazi appeared for the Sheriff. The question is whether the Sheriff is entitled to the poundage in this case. Such a question was discussed and decided in three different judgments of our Court. The first judgment is of Justice H. Suresh in the case of Malpani Brothers (Firm) vs. Ramjidas Shyamlal Saboo & Anr. reported in 1987 Mh.L.J. 223. The second judgment on this point was delivered by Justice I.G. Shah in the case of Seabird Marine Ltd. vs. m.v. Kota Berani & Ors. (not reported). The third judgment was delivered by Justice H.L. Gokhale in the case of The Peerless General Finance & Investment Co. Ltd. vs. Swan Mills Ltd. & Ors. & Sheriff of Mumbai (not reported). : 3 : 3. Before I discuss the ratios of the judgments, I must quote the relevant rules of the High Court of Judicature at Bombay Original Side Rules, 1980 and the relevant table of fee provided for payment to the Sheriff relating to the poundage; the same are as under : "474.(1) In cases where a person is arrested or property is attached, the party or the Advocate on record for the party at whose instance the arrest was made or the attachment levied shall be liable to the Sheriff for his fees or poundage, as the case may be. (2) Any amount received by the judgment-creditor from the judgment-debtor in full or part satisfaction of a decree or order in respect of which a warrant of arrest or a warrant of attachment has been executed shall be presumed to have been realised under the warrant, if the warrant is merely suspended and not dead. (3). Where the execution-creditor or his Advocate on record receives direct any instalment or any other sum ordered to be paid by the judgment-debtor in full or part satisfaction of the decree or order, he shall file a precipe in the Sheriff’s office informing him of the payment made. : 4 : (4). The Advocate on record shall b responsible for filing this precipe, if the payment has been made through his office or he has been informed of it by the execution-creditor. 475. When an order is passed releasing a judgment-debtor or raising an attachment, the Advocate on record for the party at whose instance the order is made shall file a certified copy thereof in the Sheriff’s Office and shall inform the Sheriff whether there has been any satisfaction, compromise or settlement and, if so, for what amount and also whether poundage has been paid in respect thereof. 476. Where warrants in execution have been lodged with the Sheriff, no satisfaction in full or in part of any decree or order in any suit or matter shall be entered thereon without the production of a certificate of the Sheriff that no poundage is due to him. 5. Poundage on every debt levied by execution including an attachment before judgment or in the event of the claim being satisfied, compromised or settled upon the amount of such satisfaction, compromise or settlement .... 1 per cent." 4. Rule 474 lays down that where a property is attached pursuant to the order of the court by the Sheriff, the party on whose instance the attachment : 5 : is levied should be liable for poundage of the Sheriff. Justice H. Suresh discussed this provision in detailed in his judgment and rejected the arguments of the Sheriff that it is in every where case the property is attached, the Sheriff could demand poundage. After discussing the English Law on this subject, Justice H. Suresh held that "it is only where actual seizure is effected or actual attachment is levied and thereafter if any amount is recovered, the Sheriff under the existing rule could demand poundage". Justice H. Suresh also observed in his judgment as under: "6. At the outset, my reaction was that the notion "poundage" itself was anachronistic and I wish the Rule had been totally deleted. It is rather surprising that after a heavy Court fee is paid and a decree is obtained, the Plaintiff should still pay a further poundage, which is nothing but a commission for the purpose of executing a decree through the office of the Sheriff. This is one of the Anglo-Saxon legacies which has continued without any justification whatsoever. In the past, it is possible that the Sheriff’s Office was not paid any salary as such and perhaps it was not a part of the Department of the Government, and in the absence of any other machinery for the purpose of executing a money decree, since the parties had to necessarily go : 6 : through the Office of the Sheriff, the Sheriff was justified in demanding some commission by way of his fees. Today it is totally different. The Deputy Sheriff is an officer of the Government and all the staff and the bailiffs are paid their salaries. Whatever fees they are entitled to for the purpose of executing a decree, they can certainly take it, but there can be no justification whatsoever for the purpose of demanding a commission over and above the fees and costs which the Sheriff’s Office collects. However, I am not in a position to strike off that part of the Rule which relates to poundage. I hope that our Rules Committee will seriously reconsider this part of the Rules, and delete the same." 5. In the case before Justice H. Suresh, the facts were little different. In that case though the warrant of attachment was issued, the Sheriff did not actually levy the attachment but in the meantime the parties settled the matter and the Defendants effected the payment to the Plaintiffs. 6. In the case before Justice I.G. Shah, the facts were exactly similar as in this case. It was a case of admiralty suit and the vessel was attached. The Sheriff arrested the ship but the parties similar to this case arrived at a compromise where the : 7 : dispute was referred to the High Court of Justice in England and the parties provided security in respect of each others claim. The question still was whether the Sheriff was entitled to poundage. Justice I.G. Shah placing reliance on Justice H. Suresh’s judgment held that since despite of actual arrest of the ship, there was no realization of the amount, no poundage was payable. The facts before Justice H.L. Gokhale in the case of Peerless General Finance & Investment (supra) were different. In that case the property was attached with the help of the office of the Sheriff but subsequently an out of court settlement took place and certain amount was released to the Plaintiffs. 7. The Plaintiffs in that case still sought refund of the poundage placing reliance on the judgment of Justice H. Suresh. Justice H.L. Gokhale rejected the application mainly because the two conditions led down by Justice H. Suresh were satisfied in the case namely the actual attachment of the property and realization pursuant to the attachment. 8. In my view, the judgment of Justice I.G. Shah should be followed in this case. The request of : 8 : the Government Pleader to refer this issue to a larger Bench is also not acceptable mainly because there is no conflict of opinions between the learned Judges of this Court in the above referred three judgments. The Notice of Motion thus succeeds. The Notice of Motion is allowed in terms of prayer clause (a). The request of the Government Pleader to keep the order in abeyance is also rejected mainly because the claim is in respect of liquidated sum of money. 9. Parties to act on authenticated copies of the order. [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]