Scotts Engineering, Bangalore vs Rajesh P. Surana & Ors

3. The facts are cumbersome. We may, however, briefly refer to few facts for the purpose of disposal of this appeal.

4. A ship vessel M.V. Sagar owned by respondent No.1 was swept and washed ashore and grounded offshore near Madras Fishing Harbour as a result of several cyclonic storms. All efforts of respondent No.2 herein to refloat the vessel failed, it was abandoned and became a wreck. Since the crew and Master of the vessel were not paid their wages, they filed an admiralty suit in the Madras High Court being C.S.No.57 of 1995. The Court ordered the arrest of the vessel. Respondent No.2 through their agent respondent nos. 3 and 6 entered into a negotiation with the appellant for sale of the ship and finally entered into a Memorandum of Agreement counter-signed by defendant No.5 who was the owner's representative under which the appellant was required to pay a sum of Rs.75 lacs forthwith and balance consideration amount of Rs.1.50 crores was to be paid by 28.4.1995. On 18.4.1995 the appellant paid a sum of Rs.75 lacs and, therefore, he filed an application no.2136 of 1995 arising out of C.S.No.57 of 1995 seeking leave to intervene in the matter as he had already purchased the vessel and also made the payment. The prayer was allowed. After the crew and Master of the said vessel were paid their wages, the suit was dismissed on satisfaction and the order of arrest was vacated. However, before the appellant could perform his part of the contract and pay the balance consideration amount of Rs.1.50 crores in terms of Memorandum of Agreement dated 17.4.1995 it appears another suit was instituted in the High Court being O.A.No.491 of 1995. The High Court has restrained the owner and its agent from alienating or encumbering the said vessel in any manner to a third party. Therefore, the appellant was unable to perform his part of contract and could not pay the remaining consideration amount of Rs.1.50 crores to the owner.

9. We are of the view that the contention of Dr. Dhawan has substance. The suit filed by the plaintiff originally was against defendants 1 to 5. The appellant became a party to the suit instituted by the plaintiff- respondent herein on his own initiative. Even after the appellant was arrayed as defendant no.6 the plaintiff did not care to amend the plaint except making the appellant as defendant no.6. No relief was claimed against defendant no.6. In fact the relief prayed for in the suit was against defendants 1 to 5 jointly and severally. The learned Single Judge passed the decree against defendants 1 to 5. These are all undisputed facts.

11. For the reasons aforestated we are of the view that the Division Bench was not justified in holding that the sum of Rs.1 crore should be paid over to the plaintiff to the extent to which the decree has remained unsatisfied. This appeal is, accordingly, allowed. The order of the High Court is set aside. The Decree of Single Judge is restored. No costs.

C.A.No.8506 of 2001 and C.A.No.8507 of 2001.

12. In view of the order passed in C.A.No.8505 of 2001, these appeals filed by the plaintiff, are devoid of merits and are, accordingly, dismissed. No costs.