1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY AND VICE ADMIRALTY JURISDICTION ADMIRALTY AND VICE ADMIRALTY JURISDICTION ADMIRALTY AND VICE ADMIRALTY JURISDICTION NOTICE OF MOTION NO. 1858 OF 2006 NOTICE OF MOTION NO. 1858 OF 2006 NOTICE OF MOTION NO. 1858 OF 2006 IN IN IN ADMIRALTY SUIT NO. 11 OF 2006 ADMIRALTY SUIT NO. 11 OF 2006 ADMIRALTY SUIT NO. 11 OF 2006 Mr. Bernardo de Souza ... Plaintiff Mr. Bernardo de Souza ... Plaintiff Mr. Bernardo de Souza ... Plaintiff Versus Versus Versus M.V. SEVEN ISLAND & Anr. ... Defendants M.V. SEVEN ISLAND & Anr. ... Defendants M.V. SEVEN ISLAND & Anr. ... Defendants Mr. V.R.Dhond i/b. Ashwin Shanker for the Plaintiff. Mr. V.R.Dhond i/b. Ashwin Shanker for the Plaintiff. Mr. V.R.Dhond i/b. Ashwin Shanker for the Plaintiff. Mr. P.S.Pratap with Ms. Monica Kohli for Defendants Mr. P.S.Pratap with Ms. Monica Kohli for Defendants Mr. P.S.Pratap with Ms. Monica Kohli for Defendants CORAM CORAM CORAM: D.K.DESHMUKH,J. D.K.DESHMUKH,J. D.K.DESHMUKH,J. DATE DATE DATE : 9th August,2006. 9th August,2006. 9th August,2006. P.C. P.C. P.C. 1. This is a Notice of Motion taken out by the 1. This is a Notice of Motion taken out by the 1. This is a Notice of Motion taken out by the Plaintiff. The Plaintiff has filed the suit claiming Plaintiff. The Plaintiff has filed the suit claiming Plaintiff. The Plaintiff has filed the suit claiming a decree in the sum of Rs.1,09,00,000/- against the a decree in the sum of Rs.1,09,00,000/- against the a decree in the sum of Rs.1,09,00,000/- against the Defendants. The Defendant No.1 is a Vessel flying the Defendants. The Defendant No.1 is a Vessel flying the Defendants. The Defendant No.1 is a Vessel flying the Indian Flag registered at Mumbai and Defendant No.2 is Indian Flag registered at Mumbai and Defendant No.2 is Indian Flag registered at Mumbai and Defendant No.2 is a Company which owns Defendant No.1-vessel. According a Company which owns Defendant No.1-vessel. According a Company which owns Defendant No.1-vessel. According to the Plaintiff, there was collision between the 1st to the Plaintiff, there was collision between the 1st to the Plaintiff, there was collision between the 1st Defendant-vessel and the fishing trawler of the Defendant-vessel and the fishing trawler of the Defendant-vessel and the fishing trawler of the 2 plaintiff. The present suit is filed by the Plaintiff plaintiff. The present suit is filed by the Plaintiff plaintiff. The present suit is filed by the Plaintiff for recovery of damages for the loss of life and for recovery of damages for the loss of life and for recovery of damages for the loss of life and property suffered by the Plaintiff due to the property suffered by the Plaintiff due to the property suffered by the Plaintiff due to the collision. Before the suit was filed, the Defendants collision. Before the suit was filed, the Defendants collision. Before the suit was filed, the Defendants had filed a Caveat, being Caveat Application No.19 of had filed a Caveat, being Caveat Application No.19 of had filed a Caveat, being Caveat Application No.19 of 2006 and offered security in the sum of Rs.1,00,000/-. 2006 and offered security in the sum of Rs.1,00,000/-. 2006 and offered security in the sum of Rs.1,00,000/-. It appears that the Plaintiff had moved the Court for It appears that the Plaintiff had moved the Court for It appears that the Plaintiff had moved the Court for arrest of the 1st Defendant-Vessel,but the Court by arrest of the 1st Defendant-Vessel,but the Court by arrest of the 1st Defendant-Vessel,but the Court by the Order dated 10th May, 2006 declined to arrest the the Order dated 10th May, 2006 declined to arrest the the Order dated 10th May, 2006 declined to arrest the 1st Defendant-vessel. 1st Defendant-vessel. 1st Defendant-vessel. 2. The Plaintiff has taken out this Notice of Motion 2. The Plaintiff has taken out this Notice of Motion 2. The Plaintiff has taken out this Notice of Motion seeking a direction for placing the suit for ex-parte seeking a direction for placing the suit for ex-parte seeking a direction for placing the suit for ex-parte decree as an undefended suit. According to the decree as an undefended suit. According to the decree as an undefended suit. According to the Plaintiff, in terms of the provisions of Rule 936 of Plaintiff, in terms of the provisions of Rule 936 of Plaintiff, in terms of the provisions of Rule 936 of the of the Bombay High Court (Original Side) Rules, the of the Bombay High Court (Original Side) Rules, the of the Bombay High Court (Original Side) Rules, the Defendants were under an obligation to give the Defendants were under an obligation to give the Defendants were under an obligation to give security in the sum of the suit claim within three security in the sum of the suit claim within three security in the sum of the suit claim within three days from the date of the filing of the plaint. As days from the date of the filing of the plaint. As days from the date of the filing of the plaint. As the Defendants have not given security in the sum of the Defendants have not given security in the sum of the Defendants have not given security in the sum of the suit claim, in view of the provisions of the said the suit claim, in view of the provisions of the said the suit claim, in view of the provisions of the said Rule, the Plaintiff is entitled to have the suit Rule, the Plaintiff is entitled to have the suit Rule, the Plaintiff is entitled to have the suit placed for ex-parte decree. placed for ex-parte decree. placed for ex-parte decree. 3. The learned Counsel appearing for the Plaintiff 3. The learned Counsel appearing for the Plaintiff 3. The learned Counsel appearing for the Plaintiff submits that the consequence of filing a caveat is submits that the consequence of filing a caveat is submits that the consequence of filing a caveat is that the Defendant is entitled to receive a copy of that the Defendant is entitled to receive a copy of that the Defendant is entitled to receive a copy of 3 the plaint even before the suit is filed. Therefore, the plaint even before the suit is filed. Therefore, the plaint even before the suit is filed. Therefore, according to the Plaintiff, the Defendant is under an according to the Plaintiff, the Defendant is under an according to the Plaintiff, the Defendant is under an obligation to give security of the amount of suit obligation to give security of the amount of suit obligation to give security of the amount of suit claim. The learned Counsel in support of his claim. The learned Counsel in support of his claim. The learned Counsel in support of his submission, relied on the Judgment of the English submission, relied on the Judgment of the English submission, relied on the Judgment of the English Court reported in Probate Division (1931) March 25 Court reported in Probate Division (1931) March 25 Court reported in Probate Division (1931) March 25 (THE RING). (THE RING). (THE RING). The learned Counsel took me through the administrative practice directions in force in England administrative practice directions in force in England administrative practice directions in force in England and submitted that the practice directions in force in and submitted that the practice directions in force in and submitted that the practice directions in force in England support his contention. According to the England support his contention. According to the England support his contention. According to the learned Counsel, in view of the provisions of the learned Counsel, in view of the provisions of the learned Counsel, in view of the provisions of the Rules framed by this Court the Defendant is liable to Rules framed by this Court the Defendant is liable to Rules framed by this Court the Defendant is liable to give security of the amount of the suit claim and not give security of the amount of the suit claim and not give security of the amount of the suit claim and not of the amount which is mentioned in the caveat. of the amount which is mentioned in the caveat. of the amount which is mentioned in the caveat. 4. The learned Counsel appearing for the Defendants, 4. The learned Counsel appearing for the Defendants, 4. The learned Counsel appearing for the Defendants, on the other hand, submits that the obligation of the on the other hand, submits that the obligation of the on the other hand, submits that the obligation of the Defendant is to mention in his caveat such amount Defendant is to mention in his caveat such amount Defendant is to mention in his caveat such amount which, according to him is enough to secure the which, according to him is enough to secure the which, according to him is enough to secure the interest of the Plaintiff during the pendency of the interest of the Plaintiff during the pendency of the interest of the Plaintiff during the pendency of the suit. There is no obligation on the Defendant to give suit. There is no obligation on the Defendant to give suit. There is no obligation on the Defendant to give security of the amount for which decree is claimed. security of the amount for which decree is claimed. security of the amount for which decree is claimed. The obligation is to give security only in the amount The obligation is to give security only in the amount The obligation is to give security only in the amount which is mentioned in the Caveat. The learned Counsel which is mentioned in the Caveat. The learned Counsel which is mentioned in the Caveat. The learned Counsel also submits that under Rule 939 of the Rules framed also submits that under Rule 939 of the Rules framed also submits that under Rule 939 of the Rules framed by this Court, even in a case where caveat has been by this Court, even in a case where caveat has been by this Court, even in a case where caveat has been 4 filed, the Plaintiff can move the court for arrest of filed, the Plaintiff can move the court for arrest of filed, the Plaintiff can move the court for arrest of the vessel. The learned Counsel also submits that if the vessel. The learned Counsel also submits that if the vessel. The learned Counsel also submits that if according to the Plaintiff, the amount mentioned in according to the Plaintiff, the amount mentioned in according to the Plaintiff, the amount mentioned in the caveat is ridiculously low, the Plaintiff can even the caveat is ridiculously low, the Plaintiff can even the caveat is ridiculously low, the Plaintiff can even move the Court for dispensing with the requirement of move the Court for dispensing with the requirement of move the Court for dispensing with the requirement of giving notice and copy of the plaint to the caveator giving notice and copy of the plaint to the caveator giving notice and copy of the plaint to the caveator before presenting the Plaint. before presenting the Plaint. before presenting the Plaint. 5. Now, to understand the rival submissions it is 5. Now, to understand the rival submissions it is 5. Now, to understand the rival submissions it is first necessary to refer to Rule 929 of the Bombay first necessary to refer to Rule 929 of the Bombay first necessary to refer to Rule 929 of the Bombay High Court Rules. Rule 929 reads as under:- High Court Rules. Rule 929 reads as under:- High Court Rules. Rule 929 reads as under:- 929. Caveat against arrest of property 929. Caveat against arrest of property 929. Caveat against arrest of property Any person desiring to prevent the arrest of Any person desiring to prevent the arrest of Any person desiring to prevent the arrest of any property shall file in the registry a any property shall file in the registry a any property shall file in the registry a praceipe, signed by himself or his Advocate, praceipe, signed by himself or his Advocate, praceipe, signed by himself or his Advocate, who may be acting for him, requesting that a who may be acting for him, requesting that a who may be acting for him, requesting that a caveat be entered against the arrest of the caveat be entered against the arrest of the caveat be entered against the arrest of the said property and undertaking to enter an said property and undertaking to enter an said property and undertaking to enter an appearance in person or a Vakalatnama in any appearance in person or a Vakalatnama in any appearance in person or a Vakalatnama in any suit that may be instituted against the said suit that may be instituted against the said suit that may be instituted against the said property and to give security in such suit in property and to give security in such suit in property and to give security in such suit in a sum not exceeding the amount to be stated a sum not exceeding the amount to be stated a sum not exceeding the amount to be stated in the praecipe or to pay such sum into the in the praecipe or to pay such sum into the in the praecipe or to pay such sum into the registry. A caveat against the issue of a registry. A caveat against the issue of a registry. A caveat against the issue of a warrant for the arrest of the said property warrant for the arrest of the said property warrant for the arrest of the said property 5 shall thereupon be entered in a book to be shall thereupon be entered in a book to be shall thereupon be entered in a book to be kept in the registry, called the "Caveat kept in the registry, called the "Caveat kept in the registry, called the "Caveat Warrant Book" Warrant Book" Warrant Book" . Perusal of the above quoted Rule shows that a . Perusal of the above quoted Rule shows that a . Perusal of the above quoted Rule shows that a person who apprehends that a suit may be instituted person who apprehends that a suit may be instituted person who apprehends that a suit may be instituted against him in this court in its admiralty against him in this court in its admiralty against him in this court in its admiralty jurisdiction, wherein an order of arrest of any jurisdiction, wherein an order of arrest of any jurisdiction, wherein an order of arrest of any property may be sought can file a caveat undertaking property may be sought can file a caveat undertaking property may be sought can file a caveat undertaking to appear either in person or by vakalatnama and give to appear either in person or by vakalatnama and give to appear either in person or by vakalatnama and give an undertaking to give security in such suit of such an undertaking to give security in such suit of such an undertaking to give security in such suit of such amount as may be mentioned in his undertaking. In amount as may be mentioned in his undertaking. In amount as may be mentioned in his undertaking. In view the provisions of Rule 932 Caveat remains in view the provisions of Rule 932 Caveat remains in view the provisions of Rule 932 Caveat remains in force for a period of six months from the date on force for a period of six months from the date on force for a period of six months from the date on which it is filed. An application can be made under which it is filed. An application can be made under which it is filed. An application can be made under Rule 934 for setting aside a caveat. Rule 934 is Rule 934 for setting aside a caveat. Rule 934 is Rule 934 for setting aside a caveat. Rule 934 is important which reads as under :- important which reads as under :- important which reads as under :- "934. An application to set aside a "934. An application to set aside a "934. An application to set aside a caveat shall be made by Chamber Summons caveat shall be made by Chamber Summons caveat shall be made by Chamber Summons supported by affidavit." supported by affidavit." supported by affidavit." Rule 935 casts an obligation on the Plaintiff in a Rule 935 casts an obligation on the Plaintiff in a Rule 935 casts an obligation on the Plaintiff in a suit in relation to which a caveat has been filed to suit in relation to which a caveat has been filed to suit in relation to which a caveat has been filed to serve a copy of the plaint on the person who has serve a copy of the plaint on the person who has serve a copy of the plaint on the person who has filed the caveat. Rule 935 reads as under:- filed the caveat. Rule 935 reads as under:- filed the caveat. Rule 935 reads as under:- 6 935. Copy of plaint in suit against property 935. Copy of plaint in suit against property 935. Copy of plaint in suit against property to be served before filing plaint, on party to be served before filing plaint, on party to be served before filing plaint, on party who has entered caveat. who has entered caveat. who has entered caveat. Any person instituting a suit against any Any person instituting a suit against any Any person instituting a suit against any person in respect of which a caveat has been person in respect of which a caveat has been person in respect of which a caveat has been entered in the "Caveat Warrant Book" shall, entered in the "Caveat Warrant Book" shall, entered in the "Caveat Warrant Book" shall, before filing the plaint, serve a copy thereof before filing the plaint, serve a copy thereof before filing the plaint, serve a copy thereof upon the party on whose behalf the caveat has upon the party on whose behalf the caveat has upon the party on whose behalf the caveat has been entered or upon his Advocate and annex to been entered or upon his Advocate and annex to been entered or upon his Advocate and annex to the plaint a statement of such service. the plaint a statement of such service. the plaint a statement of such service. It is significant to note that under Rule 935, copy It is significant to note that under Rule 935, copy It is significant to note that under Rule 935, copy of the plaint is to be served on the caveator even of the plaint is to be served on the caveator even of the plaint is to be served on the caveator even before the suit is filed. Then comes Rule 936, which before the suit is filed. Then comes Rule 936, which before the suit is filed. Then comes Rule 936, which is also of importance. Rule 936 reads as under:- is also of importance. Rule 936 reads as under:- is also of importance. Rule 936 reads as under:- "936. Within three days from the filing "936. Within three days from the filing "936. Within three days from the filing of the plaint, the party on whose behalf of the plaint, the party on whose behalf of the plaint, the party on whose behalf the caveat has been entered shall, if the the caveat has been entered shall, if the the caveat has been entered shall, if the sum in which the suit has been instituted sum in which the suit has been instituted sum in which the suit has been instituted does not exceed the amount for which he does not exceed the amount for which he does not exceed the amount for which he has given the undertaking, give security has given the undertaking, give security has given the undertaking, give security in such sum or pay the same into the in such sum or pay the same into the in such sum or pay the same into the registry, or if it exceeds the amount, registry, or if it exceeds the amount, registry, or if it exceeds the amount, give security in the sum in which the give security in the sum in which the give security in the sum in which the 7 suit has been instituted or pay the same suit has been instituted or pay the same suit has been instituted or pay the same into the registry." into the registry." into the registry." It is clear from the provisions of Rule 936 that it It is clear from the provisions of Rule 936 that it It is clear from the provisions of Rule 936 that it casts an obligation on the caveator to furnish casts an obligation on the caveator to furnish casts an obligation on the caveator to furnish security within a period of three days from the security within a period of three days from the security within a period of three days from the filing of the plaint. The entire controversy with filing of the plaint. The entire controversy with filing of the plaint. The entire controversy with which I am presently concerned is, whether under Rule which I am presently concerned is, whether under Rule which I am presently concerned is, whether under Rule 936, the caveator is obliged to give security of the 936, the caveator is obliged to give security of the 936, the caveator is obliged to give security of the amount which is mentioned in his undertaking or he is amount which is mentioned in his undertaking or he is amount which is mentioned in his undertaking or he is to give security of the suit claim. It is clear from to give security of the suit claim. It is clear from to give security of the suit claim. It is clear from the provisions Rule 936 that the caveator is under an the provisions Rule 936 that the caveator is under an the provisions Rule 936 that the caveator is under an obligation to mention in his caveat the amount of obligation to mention in his caveat the amount of obligation to mention in his caveat the amount of which he is willing to give security. Now, this which he is willing to give security. Now, this which he is willing to give security. Now, this amount of security which the caveator has to mention amount of security which the caveator has to mention amount of security which the caveator has to mention would obviously be the amount which in the estimate would obviously be the amount which in the estimate would obviously be the amount which in the estimate of the caveator, is sufficient to secure the interest of the caveator, is sufficient to secure the interest of the caveator, is sufficient to secure the interest of the Plaintiff during the pendency of the suit. of the Plaintiff during the pendency of the suit. of the Plaintiff during the pendency of the suit. Now, in view of the provisions of these Rules, in a Now, in view of the provisions of these Rules, in a Now, in view of the provisions of these Rules, in a suit where the caveat has been filed following suit where the caveat has been filed following suit where the caveat has been filed following situation may arise. situation may arise. situation may arise. (i) The amount mentioned in the caveat (i) The amount mentioned in the caveat (i) The amount mentioned in the caveat may