SIVA BULK DMCC Vs. M.V. GLOBAL DIAMOND

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 likely to sail away.

(2.) Learned Advocate Ms. Paurami Sheth, has submitted that the Plaintiff had chartered the vessel m.v. MORNING ORCHID vide a charter party dated 13.02.2018 to one Ray Group Lines Co. Ltd. for whose performance World Way Marine Transportation and Logistics Co. Ltd. (for short "WWMT") guaranteed, that Ray Group Lines Co. Ltd. defaulted on its obligations and hence WWMT is required to pay the amount being a Guarantor, that though the registered owner of the Defendant vessel is shown one Grand Pacific Navigation Corp. for all practical purposes the Defendant vessel is beneficially owned by WWMT as in the Performance Guarantee dated 13.02.2018 given by WWMT and signed by Mr. Chou, Ching-Hui, the managing director of WWMT states that WWMT is the "part owner and registered shareholder" of the Defendant vessel and another vessel, m.v. Global Dream, that the conduct of WWMT clearly suggests that WWMT is the beneficial owner of the Defendant vessel and that created the companies fraudulently and designed to deceive creditors and hence a fit case to look beyond the registered ownership of the vessel and to pierce the corporate veil, that the Plaintiff has various claims against Ray Group Lines Co. Ltd. under the Charter party and since it has failed to make payment of the same, the Plaintiff is entitled to look to WWMT being the guarantor for the said amounts, in terms of the performance guarantee, that the Plaintiff issued a Demand Letter vide email dated 07.08.2018 demanding the payment of the sums due to the Plaintiff under the Charter Party, that the plaintiff has not been paid till date, that the Plaintiff has also initiated an arbitration against Ray Group Lines Co. Ltd. for the aforementioned claims but it would not bar to proceed against WWMT being the primary obligor under the Performance Guarantee and the liability is not conditional on the Plaintiff first proceeding against the Charterer, that the Plaintiff has maritime claim and hence filed the present suit and inter alia prayed for arrest of defendant vessel for outstanding amount.

(3.) Upon hearing Ms. Paurami Sheth, Learned Advocate for the plaintiff and upon reading the plaint herein declared at Ahmedabad on 21.01.2019 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 21.01.2019 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, M.V. Global Diamond [IMO No. 9145774] along with her hull, engines, gears, tackles, bunkers, machinery, apparel, plant, furniture's, equipments and all appurtenances, at present lying Dindayal 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 Dindayal Port do effect the arrest, seizure or detention of the defendant Vessel at present lying at Dindayal 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 amount of USD 1,021,072.30 along with further interest@ 12% p.a. on the principal amount of USD 916,890 from the date of filing of this suit till payment / realization as per the Particulars of Claim, the said Warrant of Arrest shall not be executed against the defendant Vessel M.V. Global Diamond at present lying at Dindayal Port within the Indian territorial waters.