Manoj Kumar And 14 ORS v. M. V. Pfs Brave Imo No. 9428580 And 5 ORS

SWAROOP SHARAD PHADKE SWAROOP SHARAD PHADKE Date: 2022.09.07 19:08:22 +0530

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ADMIRALTY AND VICE ADMIRALTY JURISDICTION IN ITS COMMERCIAL DIVISION INTERIM APPLICATION NO.1323 OF 2022 IN ADMIRALTY SUIT NO.24 OF 2018 Manoj Kumar and Ors.

...

Applicants/Plaintiffs

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 Plaintiffs have 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 Plaintiffs against the sale proceeds of M. V.PFS Brave - Defendant Vessel for a sum of Rs.1,11,59,876/- 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. Defendant No.3 was the Manager of the Defendant No.1 Vessel. The Plaintiffs were employed as crew SSP 1/11

members, in various capacities, on board the Defendant No.1 Vessel by the Defendant No.3 in accordance with the provisions of the Merchant Shipping Act, 1958. Defendant Nos.2 and 3 had agreed to pay wages to the Plaintiffs in cash. As Defendant Nos.2 and 3 committed default in payment of wages and also failed to supply the essentials and make provisions for the necessities, the Plaintiffs were constrained to institute a Suit for recovery of the arrears of wages to the tune of Rs.1,11,59,876/- along with interest, hardship claim and legal expenses. The Plaintiffs annexed copies of the Articles of Agreements, Continuous Discharge Certificates and Passports to substantiate their claims. The Plaintiffs, inter alia, sought the arrest of the Defendant No.1 Vessel.

3.

By an order dated 29 th November, 2019, the Suit came to be dismissed as withdrawn qua Defendant No.3. The Defendant No.2, the then registered owner of the Defendant No.1 Vessel, upon being served with the warrant arrest, entered appearance. By an order dated 5 th September, 2019 this Court granted 30 days time to file written statement. Defendant No.2 has not filed written statement. 4.

During the pendency of the Suit, Defendant Nos.4 to 6 came to be impleaded as party Defendants to the Suit. Defendant No.4 - Port Trust has filed a Written Statement, primarily, contending that it has a claim for statutory dues of Rs.1,16,801/- along with the taxes thereon against the Defendant No.1 Vessel. 5.

Defendant No.5 - Argosy Shipping Agency Pvt. Ltd. also claimed a sum SSP 2/11

of Rs.7,10,885/- towards the services rendered to the Defendant No.1 Vessel such as Port dues, manning operations, mechanical, anchorages, etc. 6.

In the meanwhile, Defendant No.1 Vessel was arrested by an order dated 22 nd September, 2017. By a subsequent order dated 4th July, 2018, the Defendant No.1 Vessel was ordered to be sold. 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. 7.

The Plaintiffs have 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 Plaintiffs have furnished particulars of the claim of each of the Applicants in a tabulated format.

8.

Defendant No.2 has been served with the instant Application and an Affidavit of Service came to be filed on 26 th April, 2022. Thereafter, pursuant to the directions of this Court, the Court Commissioner has verified the original Agreements in respect of the crew members. 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 Plaintiff No.

Claim (In Rs.) Particulars of Documents Seafarer Employme nt contract with date Seafarers Article of Agreement with date SSP 3/11

1 Manoj Kumar 14,30,160/- Original Original Article dated Contract 04/04/2017 dated 03/04/2017 2 Shashi Prakash Singh 11,55,220/- Original True Copy (Advocate) of Contract Original Article dated dated 04/05/2017 04/05/2017 3 Shijo Thomas 2,43,866/- Original Original Article dated contract dated 04/04/2017 03/04/2017 4 Mohammad Obaydullah Mondal 10,32,500/- Original a Original Article dated Contract 23/03/2017 dated 23/03/2017 5 Ritunjay Kumar Sinha 19,49,360/- Original Original Article dated Contract 04/05/2017 dated 04/05/2017 6 Riazudeen Kareem 15,52,880/- Original Original Article dated Contract 08/03/2017 dated 07/03/2017 7 Arya Singh 12,09,500/- Original Original Article dated contract dated 14/12/2016 and SSP 4/11

14/12/2016 29/03/2017 and 27/03/2017 8 Anish Mayank 3,77,600/- Original Original Article dated Contract 14/12/2016 dated 15/12/2017 9 Mahadev Namdev Aroskar 3,60,517/- Original Original Article dated Contract 24/01/2017 dated 23/01/2017 10 Manoj Kumar Girish Pandey 2,17,710/- Original Notarized true copy of Contract Original Article dated dated 05/04/2017 03/04/2017 11 Sachin Kumar 2,22,823/- Original Original Article dated Contract 14/12/2016 dated 14/12/2016 12 Subhash Dyandeo Wankhede 2,17,710/- Original Original Article dated Contract 05/04/2017 dated 03/04/2017 13 Bamban Kumar 2,37,180/- Original Original Article dated Contract 23/03/2017 SSP 5/11

dated 23/03/2017 14 Bhandari Jagdish Singh 3,13,290/- Original Original Article dated Contract 07/03/2017 dated 07/03/2017 15 Haridasan Ernhikkal 6,39,560/- Original Original Article dated Contract 07/02/2017 dated 06/02/2017 Total Claim 1,11,59,876/- Notarized True copies of relevant extract of the Continuous Discharge Certificates (CDC) of Plaintiff No. 1 to Plaintiff No. 15 (This document containing Signed on and Signed off on Defendant No. 1 Vessel and Identification of the Plaintiffs) 10.

The Plaintiffs claim of having rendered services on board the Defendant No.1 Vessel finds support in the respective Employment Agreements and Sea-farers Articles of Agreements duly verified by the Court Commissioner. The claim of the respective Plaintiffs is further substantiated by the true copies of Continuous Discharge Certificates (CDCs) and Passports. Continuous Discharge Certificates of Plaintiff Nos.1 to 15 are annexed at Exhibits G-1 to G-15 (pages 199 to 237) of the plaint. The entries in the Continuous Discharge Certificates reflecting the dates of 'sign in' and 'sign off', lend support to the claims of the respective Plaintiffs as regards SSP 6/11

the services rendered on board the Defendant No.1 Vessel. The claim of the respective Plaintiffs is further substantiated by the true copies of the Passports Exhibits F-1 to F-15 (pages 180 to 198 of the Plaint). 11.

In the light of the aforesaid material of unimpeachable character, the learned Counsel for the Plaintiffs submitted that the claim of the crew members is incontrovertible and the Defendant Nos.1 and 2 have no real prospect of successfully defending the claim of the crew members.

12.

I am persuaded to agree with the aforesaid submissions. The fact that the Plaintiffs had rendered services on board the Defendant No.1 Vessel, in varying capacities, is established beyond the pale of controversy by the aforesaid documents namely the Employment Agreements, Sea-farers Articles of Agreements, Continuous Discharge Certificates and Passports. To add to this, crew salary claim as per Section 129 of the Merchant Shipping Act, 1958 (Exhibit H to the Plaint) is furnished by the Master of the Defendant No.1 Vessel. It indicates the date of joining, date of sign off, wages per day/month, advance, if any, paid and the period since which the wages are due. Interest is charged @ 18% p.a. on unpaid wages. A scanned copy of the certificate issued by the Master of PFS Brave is appended below : SSP 7/11

13.

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, SSP 8/11

the claim of the crew for wages constitutes a maritime lien. It also ranks first in the order of in inter se priority of maritime lien holders. 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. 14.

In the light of the aforesaid position in law and overwhelming material to substantiate the claim of the Plaintiffs that they did render the services as crew members, on different positions, on board the Defendant No.1 Vessel, which is encapsulated in the Master's Certificate (Exhibit H) extracted above, there is no realistic prospect of the Defendant Nos.1 and 2 successfully defending the claim of the Plaintiffs. Since the Defendant No.2 chose not to contest the claim of the crew members, there does not seem to be any compelling reason not to dispose of the Suit before recording oral evidence.

15.

As far as the resistance putforth by the Defendant Nos.4 and 5, by filing written statements, it would be suffice to note that the resistance is essentially in the nature of competing claim against Defendant No.1 Vessel for having rendered services to the Defendant No.1 Vessel, which also constitutes a maritime claim. Defendant Nos.4 and 5 are, therefore, required to substantiate their claims by filing suit or otherwise, and compete with the rest of the claimants against the sale proceeds of Defendant No.1 vessel for priority in payout. In any event the maritime lien of the crew members commands highest priority, as noted above. Hence, I do not find any SSP 9/11

impediment in passing a summery judgment in favour of the Plaintiffs and against the sale proceeds of Defendant No.1 Vessel.

16.

Hence, the following order :

ORDER

(i) The Interim Application stands allowed.

(ii) There shall be a summary judgment in favour of each of the Plaintiffs for the sum indicated against the name of the respective Plaintiff in the second last column of Exhibit H, under the caption "Balance of Wages" extracted above, aggregating to the sum of Rs.94,57,522/- 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) Each of the Plaintiffs is entitled to costs quantified at Rs.25,000/-. (iv) Subject to and upon determination of priorities, the decreetal amounts be disbursed to the respective Plaintiffs through their Advocates for onwards remittance to the respective Plaintiffs, who are Sea-farers. (v) It is, however, made clear that the Plaintiffs will pay the income tax and other statutory dues directly and that the Advocates for the Plaintiffs shall, in no manner, be liable / responsible for deducting the income tax at source or the service tax etc.

(vi) By an order dated 19 th September, 2017, the Plaintiffs were SSP 10/11

allowed to pay the court fees as and when decreetal amount was received. The Prothonotary and Senior Master should ensure that the court fee amount is deducted from the amount payable to the Plaintiffs before paying any money to the Plaintiffs. (vii) The Suit also stands disposed.

(viii) Decree be drawn in the aforesaid terms. ( N.J.JAMADAR, J. ) SSP 11/11