1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY & VICE ADMIRALTY JURISDICTION NOTICE OF MOTION NO.3612 OF 2007 IN ADMIRALTY SUIT NO.13 OF 2007 Bank of Beirut (UK) Ltd. .. Plaintiffs Versus m. v. SAN GIORGIO 1 & Ors. .. Defendants and Chennai Port Trust .. Applicants. Mr.Rahul Narichania i/b. Mulla & Mulla for plaintiffs Mr.V.K.Ramabhadran for applicants in support Mr.Abhimanyu Singh i/b/.V. Subramanian for intervenors. CORAM : S.C.DHARMADHIKARI, J. DATE : 30th July 2009. P.C.: 1] The Chennai Port Trust is the applicant in this chamber summons and claims following reliefs:- “(a) For an order that the first defendant vessel m.v. SAN GIORGIO presently berthed at the Port of Chennai be 2 sold through the Office of Sheriff of Mumbai on such terms as this Court may deem fit and proper; (b) For an order that the Office of the Sheriff of Mumbai be directed to pay to the applicants all the amounts then due from the sale proceeds of the first defendrant vessel and to deposit the balance amount of sale proceeds in this Court.” 2] In the affidavit in support, it is stated that the Vessel in question was arrested when it was berthed at Chennai Port. In para 6 of the affidavit in support, it is stated that in view of the order passed by this Court of arrest, the applicant, Port Trust will not be able to exercise its power to sell the Vessel under Major Port Trust Act, 1963. There are further apprehensions expressed, during the course of argument, with regard to waiver or destruction of the rights of the applicant on the basis of possessory lien. An additional affidavit in support of the prayers in the summons is also filed with copies thereof have been served on other side. 3 3] However, during the course of arguments, in all fairness Mr.Ramabhadran appearing in support states that there are subsequent developments. He relies upon an order passed by this Court (Dr.D.Y.Chandrachud, J) and further order dated 6th June 2008 (D.G.Karnik, J) permitting the vessel to be sold by the Sheriff. Mr.Ramabhadran would urge that the order was passed without affording complete opportunity to the applicant Port Trust to make submissions and, therefore, a notice of motion to recall that order was filed. In further fairness, Mr.Ramabhadran states that even this motion is disposed of as withdrawn. 4] While not seriously disputing that the prayers in the notice of motion are rendered infructuous, Mr.Ramabhadran would urge that if the vessel is allowed to be sold through Sheriff and secondly the sale proceeds from the sale are brought in court, it should not be construed that the Port Trust has surrendered its rights or waived them not only to the extent of sale of the vessel but to claim and appropriate sale proceeds. Therefore, any order permitting the vessel to be sold is bound 4 to affect the applicants adversely. 5] However, Mr.Narichania appearing for plaintiffs states that with all the efforts undertaken earlier, the position is that the vessel could not be sold. Plaintiffs are making efforts to have the vessel put up for sale again. However, he makes a statement on instructions that the plaintiffs would have no objection if this Court passes the order permitting sale of the vessel with such clarifications so as not to prejudice the rights of the applicants, in law. In other words, the Court can protect the applicants even if the sale is not held through the applicants, by clarifying that the applicants, by this act, are not waiving their rights in law and they can have recourse to appropriate remedies to claim the proceeds from the same. 6] In the light of the above and considering that the suggestions made are fair and proper, interest of justice would be sub-served if the sale of the Vessel in question is permitted subject to the applicants’ rights in law to claim the sale proceeds and merely because they are allowing the vessel to be sold, does not mean that they cannot request the Court to pass 5 appropriate orders and directions releasing the sums due and payable to them, from the sale proceeds towards their claim as Port Trust. All contentions of the applicants so also the plaintiffs in that behalf are kept open. The Vessel be sold subject to this clarification. Needless to state that while making an application and staking its claim, the applicant will have opportunity to point out to this Court that the vessel was arrested by the Chennai Port Trust and all pleas even in that behalf of all parties are kept open. (S.C.DHARMADHIKARI, J)