IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24.07.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE K.VENKATARAMAN O.S.A.NOS.411 to 413 of 2003 Owners and parties interested in the vessel MV Neetu now lying at the port of Visakhapattinam, are represented by its Master .. Appellant in all the appeals Vs. 1.M/s.Mayar (HK) Limited, Lippo Centre, Tower-1, 604, 6th Floor, 89, Queensway, Admiralty Hongkong rep. by its Vice President, C.P.Vohra 2.M/s.Vilson Shipping Pvt. Ltd., A-3, World Trade Avenue, Tuticorin, rep. by its Branch Manager Gasper Silva .. Respondents in all the appeals These O.S.As. have been preferred under Order XXXVI Rule 11 of Original Side Rules against the order and decreetal order in Application Nos.2221, 2396 and 2397 of 2003 in C.S.No.371 of 2003, dated 18.07.2003 respectively. For Appellant : Mr.R.Srinivas For Respondents: Mr.S.Vasudevan - - - - https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) This judgment shall govern these three appeals. 2.It was a suit filed by the respondents herein, seeking damages for a sum of Rs.1,14,95,000.00 equivalent to US 2,42,000.00 calculated as per the prevailing exchange rate of USD 1 = Rs.47.50 together with interest at the rate of 18% p.a. from the date of this plaint till date of realisation and also seeking for arrest and sale of the vessel MV NEETU in as is where is condition, presently in Indian Waters at the Port of Visakhapatnam and also for a direction to adjust the sale proceeds against the suit claim with interest and costs. 3.At the time of initiation of proceedings, the plaintiffs filed A.No.2221 of 2003 for arrest of the vessel and the said application was countered by the defendant. On enquiry, the learned Single Judge has found that there was prima face proof for the claim to an extent of Rs.21,21,000/- and there was a direction to furnish bank guarantee and accordingly, it was furnished by the appellant and the same was accepted by the Court. Aggrieved over the said order, an appeal has been preferred by the defendant. Apart from that, an order of the arrest of the ship was originally granted at the time of initiation of the suit. Aggrieved over the same, the appellant filed A.No.2396 of 2003 for vacating the said order. He also filed an another application in A.No.2397 of 2003, where he sought for security to be furnished by the plaintiffs, since the arrest of ship originally sought for was not justified. 4.All the applications were taken up for consideration by the learned Single Judge. In A.No.2221 of 2003, there was a direction for furnishing security to an extent of Rs.21,21,000/-, wherefrom O.S.A.No.411 of 2003 has arisen. So far as the other two applications were concerned, they were dismissed. Aggrieved over the same, the other two appeals, namely O.S.A.Nos.412 and 413 of 2003, have been taken up by the defendant. All these three appeals were taken up for consideration by this court. 5.At the time when the matter was taken up before this Court, the learned counsel for the respondents/plaintiffs brought to the notice of the Court that at the time when Application No.2221 of 2003 for arrest of vessel was taken up for consideration, the Court has found that prima facie there was liability to an extent of Rs.21,21,000/- and therefore, a direction was given by the Court for furnishing security. Accordingly, the defendant had furnished bank guarantee to that extent. While the matter stood thus, he has preferred an appeal https://hcservices.ecourts.gov.in/hcservices/ challenging the said order. The learned counsel would further add that though the said bank guarantee was furnished before the Court, it was only for a stipulated period and thereafter, it was not extended and thus, there was breach of the order and therefore, the circumstances warranted for initiating contempt proceedings. Accordingly, contempt proceedings were made in Contempt Petition No.634 of 2007 and the same is also pending before the learned Single Judge. The contemnor has not appeared before the Court. The learned counsel further reiterated that the bank guarantee originally given was not extended. On the basis of the bank guarantee originally furnished, the interim order of arrest of ship was also annulled and the ship was allowed to move and the ship was also released. Under these circumstances, now the respondents/plaintiffs are without remedy in respect of Rs.21,21,000/-, which according to the learned Single Judge, prima facie proof was also available and hence necessary orders have got to be passed. 6.The learned counsel for the appellant would submit that it is true, pursuant to the order passed in application No.2221 of 2003, bank guarantee was given to the extent of Rs.21,21,000/-. It was stated in the last hearing that there was communication addressed to the defendant/appellant and the counsel has also received a fax message to the effect that the bank guarantee was not extended and the extension of bank guarantee would be done within a period of two or three months and under these circumstances, it has got to be considered by this Court. Further, the learned counsel would submit that the order of dismissal of both the application Nos.2396 and 2397 of 2003 has got to be set aside. 7.After looking into the materials available and in appraisement of facts and circumstances of the case, the Court is of the considered opinion that all the three appeals have got to be dismissed. So far as O.S.A.No.411 of 2003 is concerned, there was an application for arrest of vessel in respect of the claim. The learned Single Judge has found that there was prima facie proof in respect of the claim of Rs.21,21,000/- and there was a direction to furnish bank guarantee. Accordingly, the defendant has given the same, but it was not extended and there was a breach of the order. When the matter was taken up, the learned counsel for the appellant/defendant fairly conceded that it was not extended. Under these circumstances, contempt petition has been filed by the respondents herein and hence it has got to be proceeded with. Hence the O.S.A.No.411 of 2003 has got to be dismissed and the proceedings have got to be proceeded with in the contempt petition. 8.So far as Application No.2396 of 2003 was concerned, it was filed to vacate the order of arrest of ship. Now, at this juncture, it does not arise for consideration and so far as Application No.2397 of 2003 was concerned, security was asked for, since the interim order of arrest was passed without any https://hcservices.ecourts.gov.in/hcservices/ justification. This Court is unable to consider the other two appeals, since the Court cannot appreciate the conduct of the appellant what has been evidenced and recorded above. Under these circumstances, leaving it open to the parties to raise their respective contentions on the merits of the matter at the time of trial before the learned Single Judge, the Court is of the considered opinion that all the three appeals have got to be dismissed. Accordingly, all these three appeals are dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To The Sub Asst. Registrar,(O.S.) High Court, Madras. +1cc to Mr.S.Vasudevan, Advocate Sr 40075 SSV (CO) km/5.8. O.S.A.NOS.411 to 413/2003 https://hcservices.ecourts.gov.in/hcservices/