Zakir Hussain v. M.V. Pfs Brave, Imo No.9428580 And ANR

SWAROOP SHARAD PHADKE SWAROOP SHARAD PHADKE Date: 2022.09.07 19:08:42 +0530

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ADMIRALTY AND VICE ADMIRALTY JURISDICTION INTERIM APPLICATION NO.3090 OF 2022 IN ADMIRALTY SUIT NO.2 OF 2020 Zakir Hussain ...

Applicant/Plaintiff

Versus

M.

V.PFS Brave and Ors.

...

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 Brave - Defendant Vessel for a sum of Rs.4,86,324/- 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 Brave. The Plaintiff was employed as Chief Engineer to serve on board the Defendant No.1 Vessel, pursuant to SSP 1/6

an Employment Agreement dated 24 th January, 2017 and Article of Agreement for employment of Sea Farers dated 25 th January, 2017. In the said capacity, the Plaintiff served on board the Defendant No.1 Vessel from 25 th January, 2017 to 11 th March, 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 on 11 th March, 2017. The Defendant No.2 committed default in payment of wages. An amount of Rs.3,51,124/- is outstanding towards the Plaintiff's wages. Hence, the Suit. The Plaintiffs, inter alia, sought the arrest of the Defendant No.1 Vessel. 3.

The Writ of Summons could not be served on Defendant No.2 as the postal envelope containing writ of summons was returned unserved with the remark 'left'. An Affidavit of Service to that effect has been filed by Mr. Rajmukar Tiwari, Bailiff, attached to the Office of the Sheriff of Mumbai. Likewise, the Interim Application has not been served on the Defendant No.2. The postal envelope containing the Interim Application also came to be returned unserved with the remark 'left'. An Affidavit of service has been filed on behalf of the Plaintiffs on 26th April, 2022.

4.

It would be contextually relevant to note that the Defendant No.2 entered appearances in companion suit. In Comm. Admiralty Suit Nos.19 of 2018, a statement was made on behalf of Defendants that the Defendant No.2 does not wish SSP 2/6

to file written statement for itself or in the capacity of the then registered owner of the Defendant No.1 Vessel. In any event, the suit is instituted in rem against the Defendant No.1 vessel. Therefore, non-appearance of Defendant No.2 - the registered owner of the Defendant No.1 Vessel, does not constitute an impediment in proceeding against the sale proceeds of Defendant No.1 Vessel in rem. 5.

In the meanwhile, Defendant No.1 Vessel was arrested by an order dated nd September, 2017 passed by this Court in ADMS(L) No.514 of 2017 (ADMS No.20 of 2018. Eventually, the Defendant No.1 Vessel was ordered to be sold and the sale was confirmed by an order dated 19 th July, 2018. The sale consideration of Rs.5,50,00,000/- after deducting the Sheriff's expenses came to be deposited in this Court.

6.

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 Nos.1 and 2 succeeding in defending the claim. In the Application, the Plaintiff has furnished particulars of the claim. 7.

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.

8.

The Commissioner's Report records, inter alia, as under : SSP 3/6

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 4,51,324/- Original contract dated 24/01/2017 Original Article dated 25/01/2017 Total 4,51,324/- 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).

9.

The Plaintiff's claim of having rendered services on board the Defendant No.1 Vessel finds support in the Employment Agreement (Exhibit A), Sea Farers Articles of Agreement (Exhibit B), duly verified by the Court Commissioner. The 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 25th January, 2017 and 'signed off' from the ship on 11 th March, 2017. The claim of the Plaintiff is further substantiated by the entries in the Continuous Discharage Certificate (Exhibit F) - pages 39 to 41 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 Nos.1 and 2 have no real prospect of successfully defending the claim of the crew members.

11.

I am persuaded to agree with the aforesaid submissions. The fact that the SSP 4/6

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.

12.

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 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. 13.

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 a crew member, on board the Defendant No.1 Vessel, there is no realistic prospect of the Defendant Nos.1 and 2 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 :

SSP 5/6

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.4,51,324/- 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.

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