1 s-833-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 833 OF 2006. Uran Ship Yard Private Limited, having registered Office at 32-A, Pais Street, Of. Byculla Station Road (West), Mumbai, India-400 011. ..Plaintiff. vs. 1. Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206. 2. Shri Vikas Chaurasia, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206 and has his other address at 15, Thakur Vilas Bldg., Jerbal Wadia Road, Parel, Bholwada, Mumbai-400 012. 3. Shri Santosh Pal, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206. 2 s-833-06 4. Smt. Urmila Chaurasia, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206, otherwise residing at 68, Leader Road, Allahabad-211 003. 5. Shri Jawaharlal Chaurasia, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206, otherwise residing at 68, Leader Road, Allahabad-211 003. 6. Smt. Pooja Chaurasia, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206, otherwise residing at 68, Leader Road, Allahabad-211 003. 7. Shri Baijnath Pal, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206, otherwise residing at 16-B, Parvati Nagar, Nagpur-400 027. 3 s-833-06 8. Smt. Susheel Pal, a trustee of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206, otherwise residing at 16-B, Parvati Nagar, Nagpur-400 027. 9. Shri Narsu Patil, Member Advisory Board of the Bombay Science & Research Education Institute, having their registered office at 5, Ratan Kashi Niwas, J.M. Road, Anand Nagar, Bhandhup (West), Mumbai, India-400 078 and their Office at New International Maritime Training Centre, “Dwarika”, Village Borkhar, Taluka Uran, Navi Mumbai-410 206. ..Defendants. .... Mr. Kishor Patil, i/b. Mrs. G.S. Dalvi, for Plaintiff. None for Defendants. .... CORAM : S.J. KATHAWALLA, J. DATE : 6TH JULY 2011. JUDGMENT : By this Suit, the Plaintiff has prayed for an order and decree against the Defendants to pay to the Plaintiff a sum of Rs. 23,33,421/-, as more particularly set out in the particulars of claim annexed as Exhibit ‘E’ to the Plaint, together with further interest in the sum of of Rs. 23,33,421/- at the rate of 12% per annum, from the date of filing of the Suit until payment and / or realisation. Though the Defendants are served with the Writ of Summons and the Affidavits of Service to this effect dated 14 th January 2010 and 27 th April 2011 are filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend 4 s-833-06 the Suit. The Suit has therefore appeared under the caption ‘For Ex- parte Decree’. 2. Shri Nadeem Nusrath, Director of the Plaintiff has filed his Affidavit in lieu of Evidence dated 27 th April 2011. The said Affidavit is taken on record and marked ‘X’ for identification. A compilation of Documents is also filed on behalf of the Plaintiff. 3. It is stated in the Plaint as well as in the Affidavit of Evidence as follows :- 4. The Plaintiff is a Private Limited Company incorporated under the provisions of the Companies Act, 1956. The Plaintiff carry on business inter alia as ship builders and ship repairers and have their own shipyard at Uran, New Bombay. The Defendant No.1 is a non- profit organisation registered under the Bombay Public Trusts Act, 1950. Defendant Nos. 2 to 8 are the trustees of Defendant No.1 and the Defendant No.9 is the Member of the Advisory Board of Defendant No.1 . 5. Defendant Nos. 2 and 5 as trustees of the Defendant No.1 approached the Deponent some time in May 2003 with the proposal to seek from the shipyard of the Plaintiff, technical services for the students of the Defendant No.1. The Deponent has submitted that under Merchant Shipping Act, 1958 and under the Rules framed for private institute conducting training courses, it is mandatory for other training institutes to have a tie up or an arrangement with a shipyard, whereby students could avail all practical training in the ship building and repair exercise. 5 s-833-06 6. According to the Plaintiff, the Defendants further informed the Deponent that they had been in principle approved to conduct training courses and that they were affiliated to the Merchant Navy Training Board, Scottish Qualifications Authority, Department of Transport (Government of UK – IMO) and other foreign authorities. Based on this representation and under the bonafide belief that the Defendants were genuinely interested in imparting Maritime training to students, the Plaintiff through the Deponent entered into a service provider Agreement dated 26 th May 2003 with the Defendant No.1 whereby the Plaintiff could agree to provide marine technical services to the students of the Defendant No.1. A copy of the said service provider Agreement is produced before the Court. The Deponent states that the Agreement was executed and signed by the trustees of the Defendant No.1 in his presence. He further submits that the contents of the same are true and correct. The said Agreement is taken on record and marked Exhibit ‘P-1’. According to the Deponent, there is no dispute about the execution of the Agreement as Defendant Nos. 2 and 3 had admitted the execution of the said Agreement in Suit No. 39 of 2005 filed before the Court of Civil Court (Junior Division) at Uran. 7. According to the Deponent, during March 2004, certain facts came to his knowledge which lead to the conclusion that the Defendant Nos. 2 to 9 were actually using Defendant No.1 and the premises of the Plaintiff for ‘human trafficking’ and not Maritime Training, as it was being made out to be . Since then, he took up this issue with all the concerned authorities including the local police, DG Shipping, the Glasgow University, the British Embassy, the JNPT Port and all other statutory authorities with whom the Defendants have claimed affiliations. Moreover, the Defendant No.1 was neither 6 s-833-06 registered nor recognised to provide any training in the maritime field. The Deponent has produced the following correspondence :- (i) A letter dated 19 th April 2004 written by the Managing Director of the Plaintiff to the Senior Police Inspector, Uran Police Station, inter alia placing on record that though the Defendant No.1 is not recognised by the Directorate General of Shipping, Government of India, in reality no such Certificate had been given to them. They are therefore misleading the students and their parents and indeed committing a fraud and requesting the police authorities to intervene and take necessary action against the Defendants. The Deponent has stated that the said letter dated 19 th April 2004 is prepared in his presence by the Managing Director of the Plaintiff and submitted with the police authorities. He submits that the contents of the said letter are true and correct. A copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-2’. (ii) A letter dated 16 th April 2004 written by the Managing Director of the Plaintiff to the Directorate General of Shipping, Government of India seeking information whether the Defendant No. 1 had been recognised and approved by the Directorate General of Shipping for imparting maritime education. According to the Deponent, the Managing Director of the Plaintiff has prepared the said letter dated 16 th April 2004 and signed the same in his presence and has submitted the same to the authorities. It is submitted that the contents of the same are true and correct. A copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-3’. (iii) A letter dated 20 th May 2004 written by the Executive Officer, Shri K.R. Vardharajan of the Directorate General of Shipping, 7 s-833-06 Government of India informing the Plaintiff that the Defendant No.1 has violated the DGS guidelines and therefore, the Directorate has withdrawn the ‘in-principle’ approval granted on 26 th December 2001 and therefore, the Institute is not recognised by the Directorate General of Shipping, Mumbai. The said letter dated 20 th May 2004 is produced by the Deponent before this Court. The same is taken on record and marked Exhibit ‘P-4’. (iv) A letter dated 28 th February 2005 addressed by the Deponent to the Glasgow College of Nautical Studies, Scotland, U.K. inter alia informing the said Glasgow College of Nautical Studies that the Directorate General of Shipping, Government of India has not recognised their collaborative business with the Defendant No.1 or the courses conducted for imparting Marine Education. The Deponent has submitted that he has signed the said letter and submitted the same to the said Glasgow College of Nautical Studies. The said letter dated 28 th February 2005 is produced by the Deponent before this Court. The same is taken on record and marked Exhibit ‘P-5’. (v) A letter dated 29 th May 2005 addressed by the Deponent to the Education U.K. inter alia recording how the Indian students have been duped by the Defendant No.1 and that Glasgow College of Nautical Studies when informed about the credentials of the Defendants have refused to answer or write to the Plaintiff explaining their stand. The Deponent has stated that he has signed the said letter dated 29 th March 2005 and forwarded the same to the Education U.K. and that the contents of the said letter are true and correct. A copy of the said letter dated 29 th March 2005 is produced before the Court. The same is taken on record and marked Exhibit ‘P-6’. 8 s-833-06 (vi) A letter dated 15 th June 2005 addressed by the Managing Director of the Plaintiff to the Maritime and Coastguard Agency inter alia pointing out that the prospectus of the Defendant No.1 carries no information on their faculty not in the least the educational qualifications of the promoters. It is further pointed out that the Defendant No. 1 has been misleading the Indian public that their headquarters are based in Jawaharlal Nehru Port which is India’s premier most Container Sea-Port terminal and the JNPT has released nationwide advertisements cautioning the public at large against the Defendant No.1. The Plaintiff by the said letter therefore requested the Maritime and Coastguard Agency U.K. to inform the Plaintiff whether the Defendant No.1 has been certified by the Agency to conduct the Maritime courses. The Deponent has stated that he has signed the said letter dated 15 th June 2005 and forwarded the same to the Maritime and Coastguard Agency and that the contents of the said letter are true and correct. The said letter is produced by the Deponent in the Court. The same is taken on record and marked Exhibit ‘P-7’. (vii) A letter dated 7 th July 2005 addressed by the Examiner of Masters and Mates, Seafarer Training and Certification Branch informing the Managing Director of the Plaintiff that the Defendant No.1 is not a Maritime and Coastguard Agency (MCA) approved training Centre. The said letter dated 7 th July 2005 of the MCA is produced before the Court. The same is taken on record and marked Exhibit ‘P-8’. (viii) A letter dated 25 th June 2004 addressed by the Managing Director of the Plaintiff to the Chairman, Jawaharlal Nehru Port Trust, inter alia inquiring from the JNPT whether the JNPT has 9 s-833-06 indeed provided to the Defendant No.1 the land and other infrastructure and JNPT recognises and approves the courses of the Defendant No.1. The Deponent has stated that the said letter was prepared and signed by the Managing Director of the Plaintiff in his presence and has submitted the same to JNPT. He has stated that the contents of the said letter dated 25 th June 2004 are true and correct. The said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-9’. (ix) A letter dated 30 th July 2004 addressed by JNPT to the Managing Director of the Plaintiff inter alia recording that the Under Secretary, Ministry of Shipping, Government of India, vide their letter dated 20 th May 2004 had informed that as per the information forwarded by the Directorate General of Shipping, Government of India, the Defendant No.1 is not approved by the Directorate General of Shipping, Government of India and the credential of the institute are of doubtful nature. The said letter dated 30 th July 2004 is produced before this Court. The same is taken on record and marked Exhibit ‘P-10’. (x) An e-mail dated 17 th June 2005 written by the Deponent to Scottish Qualification Authority, Scotland, U.K. inquiring whether the Defendant No.1 has been approved by them to conduct the marine education for students seeking employment through the Merchant Navy holder. The said institute by its reply e-mail dated 17 th June 2005 stated that the Defendant No.1 is not approved by them. The said e-mails both dated 17 th June 2005 are produced before this Court. The same are taken on record and marked Exhibit ‘P-11’ collectively. (xi) Letters dated 6 th June 2005 and 7 th June 2005 written by 10 s-833-06 the Deponent bringing to the notice of the Maritime Training Institute of the Shipping Corporation, Government of India, that the Defendant No.1 is claiming to have tie up with them. Copies of the said letters dated 6 th June 2005 and 7 th June 2005 are produced before this Court. The same are taken on record and marked Exhibit ‘P-12’ and ‘P-13’ respectively. (xii) A letter dated 14 th June 2005 from the Maritime Training Institute of the Shipping Corporation of India, Government of India, informing the Plaintiff that it has no tie up with the Defendant No.1. 8. According to the Plaintiff, in view of the above facts/ correspondence, the Plaintiff by its letter dated 26 th November 2004 requested the Defendants for termination of Agreement dated 26 th May 2003 and make payment of the outstanding amount of Rs. 5,81,203/- for the period June 2004 to December 2004. The Deponent states that the said letter was signed by him and the contents of the same are true and correct. A reminder letter dated 10 th May 2005 which also included the arrears from the period January 2005 to May 2005 amounting to Rs. 9,03,361/- was also forwarded by the Plaintiff to the Defendants. According to the Plaintiff, the said letter was prepared and signed by the Managing Director in the presence of the Deponent and the contents of the same are true and correct. The copies of the said letters dated 26 th November 2004 and 10 th May 2005 are produced before the Court along with the postal acknowledgment cards acknowledging receipts of the said letters by the Defendant No.1. The same are taken on record and marked Exhibit ‘P-14’ and ‘P-15’ respectively. 9. According to the Plaintiff, the Defendants have not made any 11 s-833-06 payments towards the dues of the Plaintiff. On the contrary, the Defendants sent a legal notice to the Plaintiff dated 10 th June 2005 alleging defamation caused by the Plaintiff to the Defendants. A copy of the said notice is produced before the Court. The same is taken on record and marked Exhibit ‘P-16’. 10. According to the Plaintiff, the Defendants filed Civil Suit No.39 of 2005 in the Court of the Civil Judge, Junior Division, Uran, thereby seeking possession of the Plaintiff’s shipyard. An application for temporary injunction sought by the trustees of the Defendant No.1 was dismissed by an order dated 30 th September 2005. A copy of the said order is produced before the Court and taken on record and marked Exhibit ‘P-17’. 11. It is therefore submitted on behalf of the Plaintiff that though the Defendants have received the letters dated 26 th November 2004 and 10 th May 2005, they have neither bothered to reply to the same nor have they made any payments with respect to the outstanding amount of Rs.23,33,421/-. It is therefore submitted that the Suit be decreed as prayed. 12. I have gone through the submissions made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of Documents filed by the Plaintiff. Exhibit ‘P-1’ establishes the fact that Plaintiff had agreed to provide marine technical services to the students of the Defendant No.1 on payments set out therein. Exhibit ‘P-2’ to Exhibit ‘P-13’ is the correspondence entered into by the Plaintiff with several authorities pertaining to the approvals and affiliations claimed by the Defendants. Since the issue involved in the Suit pertains to the payment of the service charges, 12 s-833-06 etc. payable by the Defendants to the Plaintiff as set out in Exhibit-B to the Plaint, the said correspondence is not of much relevance for deciding the present Suit. 13. Exhibits ‘P-14’ and ‘P-15’ establishes the fact that the Plaintiff called upon the Defendants to make payment of the outstanding amounts set out therein which the Defendants were bound and liable to pay to the Plaintiff under the said Agreement dated 26 th May 2003 and the Defendants despite having received the said letters from the Plaintiff have failed and neglected to make any payment to the Plaintiff. The Plaintiff has therefore established that an amount of Rs.23,33,421/- is due and payable by the Defendants to the Plaintiff, as more particularly set out in Exhibit-B to the Plaint. Though the Writ of Summons is served on the Defendants and the Affidavits of Service dated 14 th January 2010 and 27 th April 2011 are filed in Court, the Defendants have not filed their written statements and not come forward to defend the Suit. In view thereof, what is stated by the Plaintiff has gone unchallenged. There is no reason why what the plaintiff has stated in the Plaint as well as in the Affidavit of Evidence should not be accepted. 14. In the above circumstances, in my view, the reliefs sought by the Plaintiff are required to be granted. In view thereof, I pass the following order :- (i) The Defendants are ordered and decreed to pay to the Plaintiff a sum of Rs.23,33,421/- together with further interest on Rs.23,33,421/- at the rate of 12% per annum from the date of filing of the Suit until payment/realisation. 13 s-833-06 (ii) The Defendants shall pay costs of this Suit to the Plaintiff. (iii) Plaintiff will be entitled to refund of Court fees, if any, as per Rules. 15. The Suit is accordingly disposed of in favour of the Plaintiff and against the Defendants. [ S.J. KATHAWALLA, J. ]