Heta Asset Resolution. v. M.V. Glory -I, And 5 ORS.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY AND ORIGINAL CIVIL JURISDICTION ADMIRALTY SUIT NO.33 OF 2010 Coromandel International Ltd.
..Plaintiff Vs.
M. V. Glory & Ors ..Defendants WITH NOTICE OF MOTION NO.1870 OF 2018 IN ADMIRALTY SUIT NO.33 OF 2010 WITH ADMIRALTY SUIT NO.12 OF 2011 WITH ADMIRALTY SUIT NO.62 OF 2011 WITH CHAMBER SUMMONS NO.421 OF 2012 IN EXECUTION APPLICATION (L) NO.406 OF 2012 WITH COMMERCIAL ADMIRALTY SUIT NO.1 OF 2011 Mr. Bimal Rajasekhar I/b Ashwin Shaker for Plaintiff in ADMS/33/2010, COMAS/1/2011, ADMS/62/2011 and for Defendant No. 6 in ADMS/12/2011.
(1. Mr. Sajiv Panicker, Authorized Singatory of Plaintiff in ADMS/33/2010 and Mr. Sudarshan Gujar, Authorized Singatory of Plaintiff in ADMS/62/2011 and COMAS/1/2011 are present in court) Mr. V. J. Matthew, Senior Advocate a/w Mr. Vipin Verghese I/b Sandhya Pillai for Defendant No. 3 in ADMS/33/2010 and for Plaintiff in ADMS/12/2011. (Mr. T. X. Harry, Constitutes Attorney of Defendant No. 3 in ADMS/33/2010 and for Plaintiff in ADMS/12/2011 present in court) None for Claimant/Applicant in EXAL/406/2012. CORAM : K.R.SHRIRAM, J.
DATE : 21st JUNE 2019 P.C.:
At the outset, Mr. Rajshekhar appearing for plaintiff in Admiralty Suit Nos.33/2010, 62/2011 and 59/2011, states that an affidavit proving publication of notice under Rule 951 has been affirmed by one Mr. Santosh Koli on 7th June 2019, but due to inadvertence the entire page of the newspapers has not been annexed to the affidavit and only a photocopies of the relevant portion from newspapers have been annexed. The said affidavit, I am keeping on file. Mr. Rajshekhar undertakes to file a fresh affidavit annexing thereto the entire page of
2/11 the newspapers in which notice was given. The fresh affidavit to be affirmed within one week from today. The old affidavit affirmed on 7th June 2019 by Mr. Santosh Koli is in any event retained in file. In four suits listed today, parties have entered into consent terms dated 21st June 2019. There is one more execution application which is listed with these suits. On 7th June 2019, when these 4 suits and the execution application was listed before this court, nobody had appeared for the applicant in the execution application. Mr. Rajshekhar states that even when the execution application was listed independently before Hon'ble Mr. Justice R. I.Chagla on 10th June 2019, the said applicant had not appeared and the court was pleased to direct the said execution application be listed for dismissal on 17th June 2019. On 17th June 2019, the matter was not taken up as the records and proceedings were in this court.
The consent terms entered into between 4 plaintiffs provides for disbursal amongst themselves in the proportion given in the consent terms the entire balance sale proceeds together with accumulated interest. The consent terms, however, does not make any provision for the applicant in the execution application. The amount claimed by applicant in the execution application is Rs.20,93,711.33. Counsel in fairness state that from sale proceeds an amount of Rs.24 lacs be kept aside, in case the execution applicant appears and states his claim for the amount, and the balance amount be disbursed among the 4 plaintiffs. Counsel states that if within three months from today the applicant in execution application does not come forward, then the court can release this amount of Rs.24 lacs together with accumulated interest thereon to 4 plaintiffs. In my view,
3/11 this is a very fair suggestion.
Moreover, notice under Rule 951 has been published on 10th December 2018. Mr. Rajshekhar tenders a certificate dated 21st June 2019 from Prothonotary and Senior Master certifying that no claim has been received pursuant to the notice given under Rule 951. The said certificate is scanned and reproduced herein.
4/11 In view thereof, and as defendants have not come forward to defend any of the suits, I see no reason in accepting the consent terms entered into between 4 plaintiffs to disburse the sale proceeds together with accumulated interest in the proportion mentioned in paragraph 1 of the consent terms. Rs.24 lacs shall be deducted from the amount payable to each of the plaintiffs in the following proportion:
Suit No.
Plaintiff Amount initially receivable as per the settlement agreement Amount to be deducted taking into account the INR 24,000,00 to be set aside for the applicant in execution application (l) No.406 of 2012 Amount to be paid out ADMS/33/2010 Coromandel International Ltd INR 4,10,00,000 INR 5,03,000 INR 4,04,97,000 ADMS/12/2011 Heta Asset Resolution AG (formerly Hypo Alpe-Adria Bank International AG Balance remaining in the account after the other 3 are paid out INR 17,20,000 Balance remaining in the account after the other 3 are paid out and leaving a sum of INR 24,00,000/- in the account ADMS/62/2011 Shiny Shipping & Logistics Pvt Ltd and Ors INR 12,53,195 INR 15,000 INR 12,38,195 ADMS/59/2011 Marodi Service S.A.S.
INR 1,32,11,722 INR 1,62,000 INR 1,30,49,722 INR 24,00,000 The balance amount after deducting the contribution of each plaintiffs towards this Rs.24 lacs shall be paid over to respective plaintiff as provided in the consent terms.
The undertaking of each counsel that, if, later court directs plaintiffs
5/11 to bring back the money to court, plaintiffs shall bring back the amount within 4 weeks of such an order being passed, is also accepted. The consent terms signed by the authorised signatories of each of the plaintiffs and their respective advocates is taken on record and marked "X" for identification. Mr. Rajshekhar and Mr. Matthew state that signatories of each of the plaintiffs whom they are representing, are present in court and identify them. For ease of reference, the consent terms without annextures is reproduced below:
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10/11 Order in terms of consent terms.
All suits and interim applications accordingly stand disposed. Refund of court fees in accordance with rules. No order as to costs.
All to act upon authenticated copy of this order. As regards the execution application, the same to be listed for hearing on 12th July 2019, since it is arising out of admiralty suit, the same to be placed before this court. On the next date, if applicant is not represented, the execution application will be dismissed without further reference to applicant.
11/11 Registry to give notice of today's order alongwith copy of the order to applicant as well as applicant's advocate. Mr. Rajashekhar states he shall also forward a copy of this order. Statement accepted.
(K.R. SHRIRAM, J.)