P. UDAYA SHANKAR Vs. ANDHRA BANK AND OTHER

JUDGEMENT

(1.) The appellant is a third party to the suit C. S. No. 110 of 1981 on the file of the Original Side of this court. The first' respondent is the plaintiff and respondents 2 to 4 are the defendants in the suit. The plaintiff filed the suit for recovery of a sum of Rs. 43,40,015.83 due to it from the defendants. The plaintiff claimed a charge for the aforesaid dues over the vessel 'M. V. Fareeda.' We find that there was a compromise and the suit was decreed as per the compromise on 13-3-1981. A reading of the relevant clauses, in the decree in the suit leaves no room for doubt that the paramount charge of the plaint'ff over the vessel 'M. V. Fareeda' was countenanced; the said charge has been held to remain in force till the decree dues are paid, in full, and the plaintiff has been given the liberty to execute the decree against the said vessel charged. The plaintiff itself has been appointed as a Receiver of the vessel by order passed in Appln. No. 949 of 1982. The plaintiff took out Appln. No. 2283 of 1982 and direction has been given by this court on the Original Side to the plaintiff to take steps to sell the vessel and report the matter to the court by order dated 9-7-1982. The appellant claims as follows: He was appointed as the Chief Engineer of the vessel 'M. V. Fareeda' owned by the first defendant." by the letter of appointment dated 4-9-1981. The appointment was with effect from 7-9-1981. As per the terms of the appointment, his salary was fixed at Rs. 5000 per month, entertianment allowance of Rs. 2000 per month and a welfare allowance of Rs. 2000 per month all tax free. The appellant was paid salary and other allowance referred to above till 18-10-1981. Thereafter, the first defendant did not pay the salary and other allowances. The appellant sent his resignation on 3-11- 1981. The first defendant did not arrange for his 'signing off' and relieve him. 'The first defendant has not paid the amounts due to the appellant and has not accepted his resignation and arranged for the 'sign off till 17-5-1982. The papers of the appellant were with the Master of the vessel. Hence, the appellant could not ioin any other employer also. In the meanwhile, the appellant came to know about the suit filed by the plaintiff against the defendants for recovery of a sum of Rupees 43,40,015.83, and hence the appellant caused a notice to be issued through his counsel on 5-5-1982, to the plaintiff with copies to the defendants calling upon the pla'ntiff to permit the appellant herein to 'sign off' under protest within a week from the date of receipt of the said notice and hand over the papers of the appellant available in the vessel, and to intimate the appellant as soon as fee sale proceeds of the vessel were deposited into court and also to int'mate to the Court as the Receiver about the appellant's claim. The plaintiff after xeceipt of the notice, has sent a reply through its; lawyer on 11-5-1982. Ultimately, the first defendant addressed a letter to the Shipping Master, Tuticorin, on 13-5-1982, requesting the Shipping Master to arrange to 'sign off' the appellant and marked a copy of it to the appellant The appellant was permitted to 'sign off' on 17-5-1982 to the Shipping Master. Tuticorin Port Trust. The appellant is entitled to the salary and allowance at the rate of Rs. 9000 per month as the details given above, for a total period of seven months and the dues amount to Rs. 63,000 recoverable from the defendants and this amount represents the salary payable to a crew of the vessel viz, the appellant herein. 'The appellant has got a first charge over the assets of the first defendant, including the vessel 'M. R. Fareeda'. Even though the plaintiff is a charge decree- holder, yet, the appellant's salary and other dues will have to be settled before the plaintiff could appropriate the sale proceeds of the vessel. On the basis of the above allegations, the appellant filed APPln. No. 2554 of 1982 in the suit, praying for a d'rection to the plaintiff to pay the sum of Rs.. 63,000 to the appellant from and out of the sale proceeds of the vessel M.L.Fareeda' as and when realised, Shanmukham J. by order dated 12-3-1982 has dismissed the application in limine as not maintainable and that is how the appeal has come to be preferred bv the third party.

(2.) We find that no specific provision of law as such has been quoted in the Judge's summons except referring to the procedural rules of the Original Side and S.151 C P. C. But, we find that before the learned Judge, the claim of the appellant was. sought to be sustained under S. 146 fbl of the Merchant Shipping Act, 1958, hereinafter referred to as the Act. Mr. V. Sridevan learned counsel for the appellant, advanced his submissions only on the basis, that the claim of the appellant could be countenanced by way of an application in the suit itself under the aforesaid provision. The learned Judge considered the provisions of Ss. 145, 146 and 150 of the Act and opined that the expression 'proceeding' occurring in S. 146 of the Act does not envisage that the remedy as claimed by the appellant can be obtained by means of an interlocutory application in the suit already filed by the plaintiff herein, and the appellant has got his remedy in a civil suit. Exception is taken to this reasoning of the learned Judge and hence we feel obliged to examine the position with reference to the concerned provisions of the Act so as to find out as to what could be the import and implications thereof and as to whether S. 146 (b) in particular, on the facts and circumstances of the case, will enable the appellant to maintain an interlocutory application in the suit already laid by the pla'ntiff and in which a decree has ensued and further steps for realisation of the decree dues have been taken by the sale of the vessel.

(3.) Since the learned Judge has dismissed the application of the appellant without going into the merits of the case, but on principle and on a construction of the provision", of the Act, we are proceeding to examine the matter only with regard to the principles involved and without reference to the merits of the case. This, we are. constrained to set out, because Mr. T Raghavan learned counsel appearing for the plaint'ff, does dispute the claim of the appellant that he is a seaman, that amounts are due to him and that his claim will have to be settled first before the plaintiff could appropriate the sale proceeds of the vessel, in respect of which it has obtained a charge decree. For the purpose of deciding the moot question, we are assuming that the allegations put forth by the appellant in his affidavit filed in support of his application are correct. This, assumption is only for the limited purposes of investigation of the legal aspect and it shall not be taken that we have concluded the question of facts. Certain provisions of the Act require reference, though not a detailed study of the same. S. 139 lays down that the right of the seaman to recover wages and salvage is not to be forfeited by any agreement. S. 148 states that the Master of a ship shall, so far as the case permits., have the same rights, liens, and remedies for the recovery of his wages as a seaman has under the Act or any lav/ or custom. Special provisions for the protection of seamen in respect of litigation have been made in the Act by incorporation of Ss. 178 to 183 in Part VII of the Act. Ss. 145 and 146 are found under the caption 'mode of recovering wages', occurring in part VII of the Act and they read as follows