M V LONG HAI Vs. ADANI EXPORTS LIMITED

JUDGEMENT

(1.) PRESENT application has been filed by the applicants, original plaintiffs to review and recall the order dated 2 -2 -2007 to the extent passed in OJCA No.246 of 2006.

(2.) SHRI Apurva Vakil, learned advocate appearing on behalf of the applicant original plaintiff has submitted that OJCA No.246 of 2006 was filed by the original defendant to pass ex parte ad interim relief of arresting the defendant vessel M.V. Long Hai together with her hull, tackle, engines, machineries, equipment spares, gears etc. and by order dated 14 -7 -2006, ex parte arrest order was passed. It is also further submitted that the advocate for the defendant vessel preferred OJCA No.267 of 2006 for preponing the hearing of the suit. It is submitted that the suit and OJCA No.246 of 2006 were listed for hearing on 10 -8 -2006 and on 10 -8 -2006, the plaintiff submitted two letters on record dated 9 -8 -2006 addressed to the plaintiff by the West of England Ship Owners Mutual Insurance Association, Luxembourg. That in view of the aforesaid two letters vide order dated 10 -8 -2006, the order of arrest was vacated and the defendant vessel was permitted to sail out of Mudra Port and the suit was disposed of along with OJCA No.246 of 2006. It is further submitted that OJMCA No.135 of 2006 was filed for recall of the order dated 10 -8 -2006 and sought restoration of the suit. That vide order dated 2 -9 -2006, the suit as well as OJCA No.246 of 2006 were restored to file. That OJCA No.246 of 2006 and OJCA No.267 of 2006 were listed before this Court and in view of the fact that defendant vessel was permitted to sail, this Court disposed of OJCA No.246 of 2006, as no further order was required to be passed. Shri Vakil, learned advocate has submitted that in fact no decision has been taken on merits with regard to vacating/ setting aside the order of arrest dated 14 -7 -2006 and the question with regard to return of security furnished in terms of letter dated 9th August 2006 is required to be decided. Therefore, it is requested to restore OJCA No.246 of 2006, otherwise, the defendant shall have to apply by a separate application for vacating/setting aside the order of arrest dated 14 -7 -2006 and for return of the security furnished in terms of letter dated 9 -8 -2006.

(3.) IT is required to be noted that the prayer of the applicant is to restore OJCA No.246 of 2006. In OJCA No.246 of 2006, the original plaintiff has prayed for an ad interim relief of arrest of the defendant vessel. It appears that the order of arrest has been passed by this Court in the main suit and not in OJCA No.246 of 2006. Till date, no order has been passed in OJCA No.246 of 2006. It is also required to be noted and is not disputed that by subsequent order dated 10 -8 -2006, the order of arrest was modified and the defendant vessel was permitted to sail in view of the production of the letters dated 9 -8 -2006. Thus, when the order of arrest has been modified and the vessel was permitted to sail and has actually sail, there is no question of further arrest of the said vessel and therefore, even if OJCA No.246 of 2006 is restored to file, no fruitful purpose will be served.