Zakir Hussain v. M. V. Pfs Supplier Imo No. 9221176 And ANR

SWAROOP SHARAD PHADKE by SWAROOP SHARAD PHADKE Date: 2022.09.07 16:38:13 +0530

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ADMIRALTY AND VICE ADMIRALTY JURISDICTION INTERIM APPLICATION NO.1332 OF 2022 IN ADMIRALTY SUIT NO.1 OF 2020 Zakir Hussain ...

Applicant/Plaintiff

Versus

M.

V.PFS Supplier and Anr.

...

Defendants Mr. Abhishek Khare with Mr. R.P.Shirole i/by Khare Legal Chamber, for Plaintiffs.

CORAM

:

N.J.JAMADAR, J.

DATE :

20th AUGUST, 2022 P.C.:

1.

The Plaintiff has preferred this Application under Order XIIIA and/or Order XII Rule 6 of the of the Code of Civil Procedure, 1908, as amended by the Commercial Courts Act, 2015 (the Code of 1908), for a summary judgment without recording oral evidence in favour of the Plaintiff against the sale proceeds of M. V.PFS Supplier - Defendant Vessel for a sum of Rs.10,70,924/- along with further interest and hardship claim as well as the legal expenses. 2.

The material averments in the plaint can be summerized as under : 2.1 The Defendant Vessel was flying an Indian flag. PFS Shipping India Limited - Defendant No.2 was the registered owner of PFS Supplier. The Plaintiff was employed as Chief Engineer to serve on board the Defendant No.1 Vessel, SSP 1/6

pursuant to an Employment Agreement dated 10th March, 2017 and Article of Agreement for employment of Sea Farers dated 10th March, 2017. In the said capacity, the Plaintiff served on board the Defendant No.1 Vessel from 11 th March, 2017 to 22 nd June, 2017. The Plaintiff avers that under Section 129(1) of the Merchant Shipping Act, 1958 the wages of Sea Farers were required to be paid by Defendant No.2 within four days of discharge. The Plaintiff 'signed off' from the Defendant No.1 Vessel from nd June, 2017. The Defendant No.2 committed default in payment of wages. Hence, the Suit. The Plaintiffs, inter alia, sought the arrest of the Defendant No.1 Vessel.

3.

At the outset, the learned Counsel for the Plaintiff seeks leave to delete the Defendant No.2, the registered owner of the Defendant No.1 Vessel from the array of the Defendants and to prosecute the Suit in rem against the Defendant No.1 Vessel alone.

4.

Leave granted.

5.

Necessary amendment be carried out within a week of uploading of this order. Re-verification is dispensed with.

6.

In the meanwhile, Defendant No.1 Vessel was arrested by an order dated nd September, 2017 passed by this Court in ADMS(L) No.513 of 2017. Eventually, the Defendant No.1 Vessel was ordered to be sold and the sale was confirmed by an order dated 12 th February, 2018. The sale consideration of Rs.4,30,00,000/- after SSP 2/6

deducting the Sheriff's expenses came to be deposited in this Court. 7.

The Plaintiff has taken out this Application with the assertion that the liability to pay the crew wages is an admitted liability and there is no real prospect of Defendant No.1 succeeding in defending the claim. In the Application, the Plaintiff has furnished particulars of the claim.

8.

Pursuant to the directions of this Court, the Court Commissioner has verified the original Agreements in respect of the crew member. Post verification, this Application was taken up for hearing.

9.

The Commissioner's Report records, inter alia, as under : Sr.No.

Name of Crew Member Pltf No Claim (In Rs.) Particulars of Documents Seafarer Employment Contract with date Seafarers Article of Agreement with date Zakir Hussain 8,27,741/- Original contract dated 10/03/2017 Original Article dated 10/03/2017 Total 8,27,741/- Notarized True copies of relevant extract of the Continuous Discharge Certificate (CDC) of Plaintiff (this document containing signed on and singed off on Defendant No.1 Vessel and identification of the Plaintiff).

10.

The Plaintiffs claim of having rendered services on board the Defendant No.1 Vessel finds support in the Employment Agreement (Exhibit A) and Sea Farers Articles of Agreement (Exhibit B), duly verified by the Court Commissioner. The SSP 3/6

Article of Agreement (Exhibit B) contains an endorsement under the signature of Master of the Defendant No.1 Vessel that the Plaintiff had 'signed on' the ship on 11 th March, 2017 and 'signed off' from the ship on 22nd June, 2017. The claim of the Plaintiff is further substantiated by the entries in the Continuous Discharge Certificate (Exhibit F) - pages 40 to 42, and the Passport (Exhibit E). 10.

In the light of the aforesaid material of unimpeachable character, the learned Counsel for the Plaintiff submitted that the claim of the Plaintiff is incontrovertible and the Defendant No.1 has no real prospect of successfully defending the claim of the Plaintiff.

11.

I am persuaded to agree with the aforesaid submissions. The fact that the Plaintiff had rendered services on board the Defendant No.1 Vessel, is established beyond the pale of controversy by the aforesaid documents namely the Employment Agreement, Sea-farers Articles of Agreement, Continuous Discharge Certificate and Passport.

11.

I have perused the particulars of claim (Exhibit G). It indicates that as against the total wages for 104 days aggregating to Rs.12,47,741/-, the Plaintiff had received a sum of Rs.4,20,000/-. Thus, the outstanding wages comes to Rs.8,27,741/-. In view of the provisions contained in Section 2(1)(g) read with Section 9(1)(a) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, the claim of the crew for wages constitutes a maritime lien. It also ranks SSP 4/6

first in the order of inter se priority of claimants having maritime lien. It is trite law that crew can proceed in rem against the Vessel and/or sale proceeds of the Vessel, where it is sold consequent to arrest, to enforce their maritime claims for wages. 12.

In the light of the aforesaid position in law and overwhelming material to substantiate the claim of the Plaintiff that he did render the services as crew member, on board the Defendant No.1 Vessel, there is no realistic prospect of the Defendant No.1 successfully defending the claim of the Plaintiff. In the backdrop of the nature of the claim, there does not seem to be any compelling reason not to dispose of the Suit before recording oral evidence.

14.

For the foregoing reasons, I do not find any impediment in passing the summary judgment in favour of Plaintiff and against the sale proceeds of Defendant No.1 Vessel.

15.

Hence, the following order :

ORDER

(i) The Interim Application stands allowed.

(ii) There shall be a summary judgment in favour of the Plaintiff for the sum indicated in the 4 th column of the Commissioner's report extracted above aggregating to Rs.8,27,741/- and against the sale proceeds of the Defendant No.1 Vessel, along with further interest @ 12% p.a. from the date of "sign off" till payment and/or realization.

SSP 5/6

(iii) The Plaintiff is entitled to costs quantified at Rs.25,000/-. (iv) Subject to and upon determination of priorities, the decreetal amount be disbursed to the Plaintiff.

(v) The Plaintiff is entitled to refund of Court Fees, if any, as per rules.

(vi) The Suit also stands disposed.

(vii) Decree be drawn in the aforesaid terms. ( N.J.JAMADAR, J. ) SSP 6/6