LINK ENTERPRISES Vs. MT "FILOMENA LEMBO"

JUDGEMENT

(1.) OJ Civil Application No. 238 of 2005 has been filed by the applicant, original -plaintiff for an appropriate order to permit the original -plaintiff to amend the Memo of Plaint in terms of Annexure 'C' to the application and permit the plaintiff to place on record the documents at Annexure 'A' to the said application by way of additional list of documents which is at Annexure 'M' to the application. OJ Civil Application No. 270 of 2005 has been filed by the applicant, original -defendant for an appropriate order to return the Bank Guarantee in the sum of Rs. 59,73,066 and the Bank Guarantee be discharged accordingly. It is further prayed to direct the opponent, original -plaintiff to pay to the applicant original -defendant a sum of Rs. 5,64,490.18 ps., in respect of the excess security provided.

(2.) IT is the case on behalf of the applicant, original -plaintiff of OJ Civil Application No. 238 of 2005 that Admiralty Suit No. 6 of 2004 is filed for an order of arrest and condemnation of mt. FILOMENA LEMBO [hereinafter referred to as 'the vessel'] for Rs. 12,77,98,570, being the aggregate amount of damages to the cargo of High Speed Diesel (HSD) and Naphtha on account of contamination due to admixing of HSD with Naphtha on board of the said Vessel. It is submitted that the original -plaintiff prayed for an order of arrest of the said Vessel, pending the hearing of the suit. Simultaneously, one another Admiralty Suit No. 5 of 2004 was filed by one M/s. Link Enterprises seeking an order of arrest against the defendant Vessel. This Court, vide common order dated 5.10.2004 passed in Admiralty Suit No. 5 of 2004 and Admiralty Suit No. 6 of 2004, was pleased to issue an order of arrest of the said Vessel, after a biparte hearing and ordered that the defendant should furnish security to the tune of Rs. 8 Crores by way of Bank Guarantee, pursuant to which the said vessel would be released from arrest. It is submitted on behalf of the applicant, original -plaintiff that in the said order the Hon'ble Court recorded that "the security to the tune of Rs. 8 Crores is without prejudice to the rights and contentions of the parties and it will be open to the parties to place on record the material in support of their respective stand viz., enhancement of security on behalf of the Plaintiffs and reduction of security on behalf of the Defendant." Therefore it is submitted that it was kept open to the parties to place the relevant details on record for enhancement of security/reduction of security. It is submitted on behalf of the applicant that the present application is filed by the plaintiff for placing the developments that have taken place subsequent to the order of arrest dated 5.10.2004 and seeking amendment of the plaint for adding the claims to the claim amount as stated in the suit.

(3.) IT is further submitted on behalf of the plaintiff that in view of the subsequent developments of confirming the sale of 2955.216 MT of cargo in favour of Panchshil Exim Private Limited at Rs. 19000 per MT and the reduction of security furnished by the defendant to the extent of Rs. 5,61,49,104/ - and the orders passed by this Court dated 19th July 2005 and 23rd August 2005, the additional expenses suffered by the plaintiff are calculated on the basis of 2955.216 MT till the date of sale of cargo, i.e., 23rd August 2005.