- 1 - 901.chs.884.2011 adms 03.11 skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY & VICE ADMIRALTY JURISDICTION CHAMBER SUMMONS NO. 884 OF 2011 IN ADMIRALTY SUIT NO. 03 OF 2011 Great Pacific Navigation (Holdings) Corporation Ltd. ..Plaintiff -Versus- m.v.TONGLI YANTAI ..Defendant .......... Mr.F.DeVitre, Senior Counsel a/w. Mr.Bimal Rajsekhar for the Plaintiff. Mr.Rahul Narichania a/w. Ms.Purnima Singh, Ms.Pooja Kapadia, Ms.Aarti Shah i/b Mulla & Mulla C.B. & C. for the Defendant. .......... CORAM : S.J. VAZIFDAR, J. DATE : 16TH JUNE 2011. P.C. 1 This Chamber Summons has been filed by the plaintiff to amend the plaint in the midst of the hearing of the defendant’s Notice of Motion No. 196 of 2011 for vacating the order of arrest of the defendant vessel. 2 The arguments commenced on 21st March 2011. After the matter was heard for a few days, Mr.Sancheti, the learned counsel appearing on behalf of the defendant sought time to file further affidavits and documents. - 2 - 901.chs.884.2011 adms 03.11 The application was granted. The arguments continued. There were several affidavits filed. The affidavits continued to be filed even while the arguments were going on with the consent of both the learned counsel. This was on account of the fact that the parties did not wish to delay the hearing of the Notice of Motion. 3 Mr.DeVitre, the learned senior counsel appearing on behalf of the plaintiff did not press the amendments in terms of the paragraph nos. 4 to 8 and 10 of the schedule to the Chamber Summons. He stated that the averments and submissions in the proposed amendment are confined to those already pleaded in the affidavits filed thus far. He further made a statement that any averment or submission in the amendment, which does not find place in the affidavits filed thus far, may be disregarded by the Court at all stages of the suit and proceedings filed therein. The statement is accepted. 4 Mr.Narichania, the learned counsel appearing on behalf of the defendant opposes the Chamber Summons on the ground that the plaintiff has sought to introduce an entirely different case. According to him, the case pleaded in the plaint was limited to the contention that Halcyon Ocean Shipping Limited is the alter ego of Tongli Shipping Company Limited, China. - 3 - 901.chs.884.2011 adms 03.11 4 This submission based on the construction of the plaint is not well founded. The contention that Halcyon Ocean Shipping Company Limited is the alter ego of Tongli, China was indeed an important part of the pleadings. It, however, was not the only basis for the case that Tongli, China is the actual owner of the vessel and that the plaintiff is therefore entitled to file this action in rem. For instance, in paragraph nos. 52 to 57, 64 and 70, it is averred that Tongli Samoa and the defendant vessel are owned directly or indirectly by Tongli, China through their nominees or agents. The plaint has not refer to Halcyon Ocean Shipping Company Limited as the only nominee and agent. There are several other parties/entities which are alleged to be the nominees or agents of Tongli, China. It is further averred that investigation into the shareholding, bank accounts, management contract, insurance policies and vessel financing of Halcyon Ocean Shipping Limited will also reveal that the beneficial owner and controller of the defendant vessel is Tongli, China. One of the documents disclosed by the defendant recently, is relied upon by the plaintiff in support of this very averment. It cannot therefore be stated that the only basis for contending that Tongli, China is the owner of the defendant vessel is that Halcyon Ocean Shipping Limited is its alter ego. 5 The plaintiff has also relied upon various other facts including those referred to in the affidavit of one Nathan Wheeler to establish its case that - 4 - 901.chs.884.2011 adms 03.11 Tongli, China is the real owner of the defendant vessel. These facts, which include a reference to Tongli China’s website and the alleged conversation between the affiant and officers of the shipping yard which sold the defendant vessel to Tongli, China are independant of and in addition to the case that Tongli, China is the owner of the defendant vessel merely by virtue of Halcyon Ocean Shipping Limited being its alter ego. I must clarify that the reference hereto of Halcyon Ocean Shipping Limited the owner, is only for the purpose of this Chamber Summons. The contention regarding Tongli China’s ownership is based not on the registered ownership but on the basis of beneficial ownership. 6 Mr.Narichania contended that the amendments also seek to introduce new facts in support of the case of fraud Relying upon the judgment of the Supreme Court in Bijendra Nath Srivastava v. Mayank Srivastava, AIR 1994 SC 2562, he submitted that this was not permissible. 7 The Supreme Court held that the charge of fraud must be substantially proved as laid and one kind of fraud cannot be substituted by another kind of fraud. Even assuming that the judgment applies to a case of this nature, this is not a case of one type of fraud being substituted by another type of fraud. There is nothing in the judgment which support the - 5 - 901.chs.884.2011 adms 03.11 contention that additional facts or factors in support of the fraud already pleaded, cannot be furnished by way of amendment. 8 In the circumstances, the Chamber Summons is made absolute in terms of prayer clause (a) except in respect of paragraph Nos.4 to 8 and 10 of the schedule to the Chamber Summons. Amendment to be carried out within one week from today. Needless to clarify that the observations in this order are only for the purpose of the Chamber Summons and do not reflect upon the merits of the case. It cannot be relied upon for continuing or sustaining an order of arrest. The defendant shall be entitled to file further affidavits to deal with the amendments It is also agreed on behalf of the plaintiff that the defendant will be entitled to rely upon all the affidavits filed by them thus far in relation to the amendments which have been granted. In other words, even if, no further pleadings are filed, the plaintiff will not contend that the defendant have admitted the averments and submissions in the amended plaint, unless the same have not been dealt with in the existing affidavits. At the request Mr.Narichania, the hearing of the Notice of Motion shall continue forthwith but without prejudice to the defendant’s right to challenge this order in appeal at any stage.