MONJASA PTE LTD Vs. MV GRAND HERMES

JUDGEMENT

(1.) Learned Advocate Ms Paurami Sheth mentioned this matter for urgent circulation today. The permission is granted for urgent circulation and suit is taken up for hearing for urgent interim orders.

(2.) Learned Advocate Ms. Paurami Sheth, has submitted that on or around 16 October 2019 the Plaintiff was approached by One Mr. Soh Yan Zhang from IMC Shipping Co. Pte. Ltd. acting on behalf of the Defendant Vessel and/or master and/or owners and/or charterers and/or managers and/or operators approached the Plaintiff for supply of 450 ?600Mts of IFO 380cst *2010spec* (hereinafter referred to as "Bunkers") to the Defendant Vessel at Lagos between 25 October 2019 - 30 October 2019, that IMC Shipping Co. Pte. Ltd. had intimated that it has authority to place order for bunkers on behalf of the Owner of the Defendant Vessel, that in pursuance of the same the plaintiff agreed and confirmed to supply to the defendant Vessel vide Bunker Confirmation dated 16.10.2019 on its General terms and Conditions, June, 2019, that the said Bunker Confirmation was duly received and acknowledged on behalf of the Defendant Vessel and her Owner, that later on Mr. Soh Yan Zhang inquired with representative of plaintiff whether the bunkering shall take place at inner or outer anchorage to which the plaintiff responded, that the the Plaintiff waited and then inquired the final quantity of the bunkers to be supplied to the vessel and meanwhile on the basis of the order placed to the Plaintiff, completed pre supply formalities and loaded Bunkers, that suddenly Mr. Soh Yan Zhang intimated that they have been considering cancelling the bunker order and asking for cancellation charges for the same, that then acting for the Defendant Vessel, they cancelled the supply for bunkers to the Defendant vessel as a result the Plaintiff had to bear all necessary cost i.e. transportation cost (barge hire, bunker consumption, anchorage cost, agency fee in loading port, inward/outward clearance fee), importation cost, Navy approval cost and paper position cost for having supplied bunkers to the Defendant Vessel which the Plaintiff intimated and thereupon raised Invoice for an amount of USD 52,200 and waited for payment, that till date no payment has been received and hence the supply of bunkers to the Defendant Vessel is governed by the Plaintiff' General Terms and Conditions which also provides for cancellation fees and also for dispute to be resolved through Arbitration, that the Plaintiff is inclined to commence Arbitration as per said Clause 21 of the Plaintiff's General Terms and Conditions, that the Defendant Vessel is presently at Mundra Port and likely to sail away on completion of cargo operations and the present suit is filed for action in rem and also for security pending Arbitration, and interalia prayed for arrest of the Defendant Vessel.

(3.) Upon hearing Ms. Paurami Sheth, Learned Advocate for the plaintiff and upon reading the plaint herein declared at Ahmedabad on 17.03.2020 filed by the advocate for the plaintiff herein and the affidavit of Mr. Raju Prabhatbhai Desai, Authorised Person of the Plaintiff above named affirmed on 17.03.2020 and upon hearing counsel for the plaintiff and upon the Plaintiff giving an undertaking in writing to the Registrar of this Court to pay such sums by way of damages as this Court may award as compensation in the event of the defendant sustaining prejudice by this order, I do order that the Registrar of this Court do issue a warrant for the arrest of the Defendant vessel, MV Grand Hermes - (IMO No. 9445162) along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture's, equipments and all appurtenances, at present lying Mundra Port within the Indian territorial waters and that the Warrant of Arrest be executed at any time of the day or night or on Sundays or holidays and I do further order that the Port Officer and the Customs Authorities at Mundra Port do effect the arrest, seizure or detention of the defendant Vessel at present lying at Mundra Port within the Indian territorial waters or such other place wherever she may be within the territorial waters of India and I do further order that in the event of the defendant and/ or those interested in her depositing in this Court for securing and/or satisfying the Plaintiff's claim in Arbitration of principal amount of Cancellation fee amount of USD 52,200 plus costs Arbitration amounting to USD 100,000 as per the Maritime Law of the United States, Title 9 of the United States Code, and the Uniform Commercial Code as applied in New York plus USD 5,000 for cost of litigation in India aggregating USD 157,200 with further interest at the rate of 2% per month from date of suit till its realization as per particulars of claim, the said Warrant of Arrest shall not be executed against the Defendant Vessel at present lying at Mundra Port within the Indian territorial waters.