MENA ENERGY DMCC Vs. MT QUEEN HELENA

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 as the Defendant Vessel is likely to sail away.

(2.) Learned Advocate Ms. Paurami Sheth submitted that the Plaintiff has earlier filed Admiralty suit before this Court for balance purchase price and the present suit is filed for loss of profit on the cargo which was sold to Folk Shipping under the Sales Contract dated 17thMay 2018, that since the prices of cargo such as Gasoil are highly volatile and are affected by changes in the global market, they are usually fixed around the date of invoice, payment of which is immediately required to be paid before delivery of cargo, that under the said contract Gasoil which was sold to Defendant No. 2, its price is based on a Platts Index for Arab Gulf and a premium or discount as per the market practices the Pricing of the cargo was as per the Platts quotations which are published, that cargoes of Platts is an independent agency that assesses market prices for Gasoil amongst other products and is used extensively by the oil industry in this region, that tha said Platts Quotation published confirms that the price of Gasoil has substantially increased from the date when the contract with Defendant No. 2 was executed, that had the cargo would have been returned to the Plaintiff, they would have sold the same to a third party at the rate published by Platts, that the Plaintiff has been deprived of this increase of price and therefore forced to incur this loss occasioned due to increase in price of the cargo, that on that basis the Plaintiff has worked out the loss in profit suffered by it, that the plaintiff was negotiating for the present claim but the negotiations failed, that Defendant No. 2 is registered owner of vessel MT Folk Beauty and is beneficial owner/manager of the Defendant Vessel, that till 16/07/2018 Defendant No. 2 was registered owner of the Defendant Vessel and suddenly her ownership has been changed in favour of Defendant No. 3 with a view to play fraud on the Plaintiff inasmuch knowing fully well that they are liable even for the present claim of the Plaintiff, that the vessel has undergone change in name and ownership with sole aim to defeat Plaintiff's claim and claims of other identically situated creditors, that the said registered owners of the vessel are alter-? egos and enjoy identity and commonality of interest and functional integrity with each other, and are in law and effect, one entity, only incorporated with an intention to defraud their creditors which is evident from the Equasis Report, that Since the Plaintiff is not secured for the present claim the Plaintiff is entitled to initiate action in rem even for security pending Arbitration and the Plaintiff has therefore filed the present suit 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 25.10.2018 filed by the advocate for the plaintiff herein and the affidavit of Mr. Raju Prabhatbhai Desai, Authorised Signatory of the Plaintiff above named affirmed on 25.10.2018 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 MT QUEEN HELENA (Imo No. 9341354) (Ex-?name - MT Folk Elegant) along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furnitures, equipments and all appurtenances, at present lying at 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 MT QUEEN HELENA at present lying 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 the principal claim of USD 446,057 being the loss in profit suffered by the Plaintiff, plus costs of the DIFC arbitration amounting to USD 150,000 and USD 50,000 for cost of litigation in India aggregating to USD 646,057 plus 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 MT QUEEN HELENA at present lying at Mundra Port within the Indian territorial waters.