SCA/625420/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6254 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SECOND PETROMIN SHIPPING COMPANY LTD - Petitioner(s) Versus INDIAN OIL CORPORATION LTD & 1 - Respondent(s) ========================================================= Appearance : MR AS VAKIL for Petitioner(s) : 1, MR NV ANJARIA for Respondent(s) : 1, RULE NOT RECD BACK for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 17/09/2008 ORAL JUDGMENT 1. Heard learned advocate Shri A.S.Vakil for the SCA/625420/2008 2/8 JUDGMENT petitioner and learned advocate Shri N.V.Anjaria for respondent No.1. Since this is a direct legal conflict between the petitioner and respondent No.1, it is not necessary to hear the rest of the parties. 2. Respondent No.1, Indian Oil Corporation, has filed Special Civil Suit No.40 of 1998 before the Civil Judge (S.D.), Gandhidham against the present petitioner and one ERMIS Maritime Corporation. The suit was based on the allegations that vessel of the ownership of the defendant collided with another vessel which resulted into damage to the goods belonging to the plaintiff. It appears that about a year after filing of the suit when vessel in question was berthed at Mumbai, the plaintiff filed application Exh.9 and prayed for following interim relief: “(a) that pending the hearing and final dispsoal of the suit this Hon'ble Court be pleased to issue a temporary order and injunction restraining the Defendants, their officers, employees, assigns, agents and representatives from in any manner attempting to remove / removing the said vessel M.T.Tomis South outside the limits of the port limits of Mumbai. (b) that if the Defendants deposit in this Hon'ble Court the sum of US $ 164190.11 being the Plaintiffs claim i the Suit together with interest thereon at the rate of 18% per annum from the date of the suit till deposit as also a frutehr sum of US $ 20,000/- by way of security for costs of the Plaintiffs in the present suit or such other amount or such other security as this Hon'ble Court may deem fit, the Defendant Vessel, M.T. Tomis South be released from injunction and permitted to proceed with the voyage. (c) for ad-interim reliefs in terms of prayer (a) and (b) above”. 2.1 The plaintiff filed an affidavit in support of SCA/625420/2008 3/8 JUDGMENT the prayers made in application Exh.9. In the affidavit, it was contended that the plaintiff apprehended that as and when a decree is obtained, it would not be in a position to execute the same, as the Defendants had no other asset within the jurisdiction of the Court or outside the jurisdiction in any other part of India. The plaintiff further contended that the defendants be restrained from removing the vessel i.e. M.T.Tomis South from the territorial waters of India until they furnish to the satisfaction of the Court a deposit or any other property or security in satisfaction of any decree that may be passed against the defendants. It was further contended that if the vessel is permitted to sail, the plaintiff even if succeeds in getting a decree, the same would be nugatory. 2.2 Upon perusal of the affidavit, the trial Court on application Exh.9 passed following order: ORDER “M.T.Tomis South vessel has not leave without permission of the Court, Bombay Port Limits. If the defts.or the Captain of the Vessel give the security bond of amount dollars US $ 1,64,190.11 before the plaintiff or before the Court, the order of restraining of the vessel will cease to operate”. 3. It is not in dispute that pursuant to the said order and upon giving the security to the extent of US $ 1,64,190.11 by producing undertaking of PNI (Protection and Indemnity Club), a copy of which is produced at page-64 in the compilation, the defendants were able to move the ship from the port at Mumbai. SCA/625420/2008 4/8 JUDGMENT 3.1 The plaintiff thereupon made an endorsement on the application Exh.9 that the defendant has complied with the order hence, application may be heard along with the suit. Defendant No.2 made endorsement opn 28.6.2004 that the application was heard and order was passed ex-parte after hearing the plaintiff. Defendant No.2 has furnished a letter of guarantee and the application be heard on merits. Apparently, learned Judge passed impugned order on 3rd December, 2007 on the said application Exh.9 to the effect that the earlier order was in the nature of attachment before judgment and the conditions imposed therein are proper and no further order is required to be passed at Exh.9 and the application is disposed of accordingly. 3.2 It is this order which the petitioner has challenged in this petition. 4. Learned advocate Shri A.S.Vakil appearing for the petitioner submitted that the ex-parte ad-interim order passed by the Court on 11.6.1999 below Exh.9 could not have been taken as final order and the petitioner original defendant No.2 had a right to request the Court to pass further appropriate order after bi-parte hearing. He contended that the concerned Court had no jurisdiction to pass the ex- parte order and even if the petitioner fulfilled the condition of offering security to ensure movement of his ship, its rights of bi-parte hearing cannot be taken away. SCA/625420/2008 5/8 JUDGMENT 5. On the other hand, learned advocate Shri Anjaria appearing for respondent No.1-original plaintiff contended that the order dated 11.6.1999 passed by the trial Court below Exh.9 has worked itself out. The petitioner has given the necessary security and under the protection of the Court, moved the ship out of the territories of India. The application Exh.9 has, therefore, exhausted itself. At this stage, therefore, there is no scope for bi-parte hearing and therefore, impugned order is proper. 5.1 He also contended that the order passed by the learned Judge was in the nature of attachment before judgment. Vacating such an order would render the plaintiff protectionless in case the decree is ultimately passed. 6. He also contended that the defendant No.2 having removed the ship under the order of the Court upon fulfilling the condition, now cannot seek vacating of such an order which may damage the plaintiff in the context of jurisdiction of the trial Court. 7. Having thus heard learned advocates appearing for the parties, I find that undisputably order dated 11.6.1999 was passed by the trial Court ex-parte. In the said order, the learned Judge put certain conditions only upon fulfilling which the defendants were permitted to move the ship. Undisputadely, such condition was fulfilled and ship was moved and to that extent the ex-parte order stood complied with. SCA/625420/2008 6/8 JUDGMENT This, however, does not mean that the defendants cannot insist for bi-parte hearing on application Exh.9 after filing the reply. The condition imposed by the trial Court were ex-parte only upon hearing the plaintiff and the defendants had no opportunity to put forth their case. It may be that considering the urgency involved, the defendants chose to comply with the condition and moved the ship instead of opposing the ex-parte ad-interim order and seeking rejection of Exh.9 application at the outset. This, however, does not mean that the defendants cannot raise legal contentions before the trial Court and urge the trial Court to hear the application Exh.9 bi-parte and press for final order thereon in accordance with law. To this limited extent, defendants' rights cannot be taken away. 8. Learned advocate, Shri Anjaria, for the original plaintiff, however, is justified in urging that having taken the benefit of part of the order dated 11.6.1999 by removing the ship, of-course, after fulfilling the conditions, the defendants cannot urge before the trial Court that now the ship is no longer within the jurisdiction of the Court and the Court would cease to have jurisdiction to entertain the suit. However, this is not the same thing as to suggested, that on other grounds if the defendants have legal submissions to place before the trial Court to point out that application Exh.9 even otherwise, should not have been entertained, they are precluded from doing so. 9. Though in the impugned order, learned Judge has SCA/625420/2008 7/8 JUDGMENT recorded that he has heard the parties before passing the order, it appears that no legal arguments were advanced. In any case, none of the contentions are recorded in the order. Learned Judge can be understood to have conveyed that no further order is required on application Exh.9. He disposed of the application accordingly. Surely, interim injunction application cannot be disposed of in this manner after passing ex-parte ad-interim injunction in favour of the plaintiff. Such an application should meet with a logical legal end either in the form of confirming the relief to enure till final disposal of the suit or to vacate the relief and release the defendant from the clutches of the interim injunction. 10.Though, there is considerable delay on part of the petitioner in pursuing his remedy, it is stated by the learned advocate for the petitioner that so far trial has not even commenced and issue are also not framed. 11.Under the circumstances, impugned order 3.12.2007 is quashed. Learned trial Judge is requested to hear both sides on final relief that can be granted on application Exh.9 and pass order thereon in accordance with law. It is clarified that neither in this application Exh.9 nor in the main suit, it would be open for the petitioner herein to contend that simply because under the interim order dated 11.6.199 vessel moved from Mumbai, the trial Court ceased to have jurisdiction to entertain the suit. SCA/625420/2008 8/8 JUDGMENT All other contentions of both sides are kept open. The anxiety of the original plaintiff that if ultimately, the petitioner is permitted to withdraw the security, the decree even if passed in the favour of the plaintiff would be nugatory may be one of the grounds to consider while deciding application Exh.9. But, the same cannot be the sole ground and legal contentions of both sides have to be gone into before deciding what final order should be passed on the application. It will be open for the petitioner to request for early conclusion of the said application and the learned Judge will consider the same depending upon the workload. 12. Accordingly, petition is disposed of. Rule is made absolute to the aforesaid extent. (AKIL KURESHI, J.) ashish//