K. P. Marine Services Engineers And Consultant v. Tug Varahi And ANR

1/9 SHERIFF REPORT NO.44 OF 2019

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMMERCIAL ADMIRALTY SUIT (L) NO.55 OF 2019 K.P.Marine Services Engineers & Consultants)....Plaintiff V/s.

Tug Varahi & Anr.

)....Defendants ---- Mr.Bimal Rajasekhar a/w Vikrant D.Shetty and Sarina Electricwala i/by Taurus Legal for plaintiff.

[Mr.Kumar Shreekant (proprietor) of plaintiff present]. Mr.Manoj R.Khatri for defendants.

[Mr.Sanjay H.Mangi (Proprietor of defendant-vessel present]. [Mr.Satish D.Chitgopekar-Dy.Sheriff of Mumbai present]. ---- CORAM :K.R.SHRIRAM,J DATE : 8.11.2019 P.C.:- 1.

Mr.Rajasekhar and Mr.Khatri state that plaintiff and defendant no.2 are present in court and identify them. 2.

Parties have amicably settled the matter and entered into consent terms dated 8.11.2019. The consent terms signed by proprietor of plaintiff, proprietor of defendant no.2 who is the owner of defendant no.1-vessel and their respective advocates is taken on record and marked `X' for identification. All statements accepted as undertakings to this Court and all undertakings accepted. 3.

The undertaking of plaintiff through Mr.Rajasekhar to pay

2/9 poundage if any is accepted. Mr.Rajasekhar submits in response to the submissions of Deputy Sheriff that poundage as 1% was payable on the amount of Rs.1,75,00,000/- which is the consideration being paid by plaintiff to defendant for purchase of defendant no.1-vessel, that what the Deputy Sheriff is submitting, is incorrect. Mr.Rajasekhar submits that 1% poundage that the Sheriff is entitled, will be only on the amount that plaintiff would have recovered pursuant to the execution of the warrant of arrest by the Sheriff of Mumbai. But in this case it is plaintiff who is paying Rs.1,75,00,000/- to purchase the vessel. Mr.Rajasekhar states that in paragraph-30 of the plaint it is averred that defendant no.2 who is the owner of defendant no.1 vessel had entered into Memorandum of Understanding with plaintiff to sell defendant no.

1 vessel for the consideration of Rs.1,85,00,000/- and by this consent terms plaintiff is paying only Rs.1,75,00,000/-. Therefore, at the most plaintiff would have benefited by the arrest is only sum of Rs.10,00,000/- and the Sheriff would be entitled to only 1% of poundage on the amount of Rs.10,00,000/-. I agree with Mr.Rajasekhar. Therefore, undertaking of Mr.Rajasekhar to pay Rs.10,000/- being 1% poundage on Rs.10,00,000/- to Sheriff of Mumbai by 11.11.2019 is accepted.

For ease of reference, consent terms is scanned and reproduced below :-

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9/9 5.

Mr.Rajasekhar for plaintiff states that there is no caveat against released entered in the caveat warrant book at 14.05 hrs. on 8.11.2019. Mr.Rajasekhar also produces endorsement made to that effect by the Section officer of the department. 5.

In the circumstances following order is passed :- (a) Suit stands disposed with no order as to costs ; (b) Refund of court fees if any, in accordance with Rules ; (c) Defendant no.1-vessel to be released forthwith ; (d) The communication from the Sheriff of Mumbai addressed to the concerned port and customs regarding release of defendant no.1vessel is permitted to be sent by plaintiff by fax/email/hand delivery; (e) Instrument of release dispensed with.

6.

In view of the above, Sheriff Report No.44 of 2019 dated 17.10.2019 stands disposed.

7.

All interim applications stand disposed.

8.

All to act on authenticated copy of this order. (K.R.SHRIRAM,J)