1 mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3123 of 2009 in Admiralty Suit No. 37 of 2009 P.K.Kalara and 2 ors ..Plaintiffs vs. M.V.Crown 1 and ors ..Defendants Notice of Motion No.3156 of 2009 in Admiralty suit no.36 of 2009 Sayed Ahmad Sayed Ebrahim Mujawar ..Plaintiff vs. M.V.Crown 1 and 2 ors. ..Defendants Ms.Jane Cox for plaintiffs in both motions Mr.Harsh Pratap for defendant nos.1 and 2 in both motions Mrs.Jyotsna Pandhi for defendant no.3 in both motions. CORAM: S.C. DHARMADHIKARI J. 10th December, 2009 P.C. 1 These are the notices of motion by the crew members of the first defendant 2 vessel. They are praying for an order of arrest and sale of the vessel in order to satisfy their dues. 2 It has been pointed out on affidavit that the vessel is lying in the Port of Bombay. It is stated that the earned wages of the plaintiffs for the period 3rd February, 2009 to 11th June, 2009 which are quantified to the tune of Rs.27,19,000/- have now increased to much larger figure. It is stated that the outstanding amount is such that repeatedly accommodating the defendants has not served any purpose. Ms.Cox, therefore, applies for sale of the vessel. 3 On the other hand, Mr.Pratap appearing on behalf of the defendants states that the motions have been placed before this Court from time to time and on 14th September, 2009 the principal amount was stated to be Rs.36.39 lacs. The defendants have shown their bonafides by depositing 50% 3 of this amount and for balance 50% they had sought time. That was on the basis that the vessel was being hired on a time chartered basis. The offers were received. However, subsequently the offers were not materialised. Mr.Pratap disputes that the balance amount of the principal sum has not been deposited in Court. 4 With the assistance of the learned Counsel appearing for the parties, I have perused both the motions and affidavits on record. There is no denial or dispute of the liability. Further, there is no dispute with regard to the defaults committed by the defendants in complying with the orders and directions of this Court. However, it is urged by Mr.Pratap that on account of unforeseen circumstances that the business prospects could not materialise and, therefore, the order was not complied with. It is not a willful and deliberate violation 4 of the order passed by this Court. In these circumstances, he submits that the defendants have no objection if the order of arrest of the subject vessel is passed but at this stage this Court should not direct sale of the same. 5 Ms. Cox states that the correct figure of the principal sum outstanding is as above. Although, Mr.Pratap would urge that liability of the plaintiffs is disputed and statements recorded earlier are without prejudice to the rights and contentions of the defendants, yet, from the record and more particularly from the affidavit in reply I do not find any material being placed to dispute the dues. All that is stated in the affidavit is that the liability is not admitted. The sums due and payable are towards the wages of the crew members, which claim falls within this jurisdiction. However, beyond this statement, nothing is placed on record which 5 would demonstrate that the calculations and computation made by the plaintiffs is incorrect. Every single statement on affidavit is nothing but an attempt to gain sympathy of the Court. The dues of the defendants towards the Bank etc. are being highlighted only to urge that if drastic orders are passed the defendants business would come to complete standstill. That is hardly any justification for not paying the earned wages of the crew members who have been employed and have worked on the first defendant vessel. 6 Repeatedly I have accommodated the defendants when they desired to show their bonafides by bringing in amount so as to atleast cover the principal sum due and payable. However, even that opportunity has been misused and the defendants failed to abide by their own statements. The matter was adjourned to enable them to bring in the 6 money but even adjournments have not resulted in the principal amount being secured. For all these reasons, it is directed that the subject vessel/defendant no.1 shall be arrested and the motions are made absolute in terms of prayer clause (b). 7 If the defendants fail to bring in the balance principal sum as directed earlier by 11th January, 2010, then, Sheriff of Mumbai to take steps to sell the first defendant vessel. Thereafter the sale proceeds be deposited in this Court. Motions are made absolute in the above terms. 8 All concerned to act on an authenticated copy of this order. (S.C.DHARMADHIKARI J.)