SPAREBANKEN Vs. SPENCE & CO.

JUDGEMENT

(1.) The applicant in Application No. 3101 of 2013 is a third party and he filed the said Application under Order XIV, Rule 8 of O.S. Rules read with Section 10 and 151 of C.P.C., praying to pass an order directing the first respondent herein to pursue their claim against the second respondent and/or against the sale proceeds of M.V.BOS ANGLER only in the Hon'ble Bombay High Court in Admiralty Suit No. 24 of 2011 and consequently, stay all further proceedings in C.S. No. 387 of 2011 on the file of this Court. The facts which are necessary to appreciate the contention of the applicant/third party are as follows:

(2.) The above suit in C.S. No. 387 of 2011 was admitted on 06.06.2011. Earlier, Admiralty Suit No. 24 of 2011 was filed by the applicant before the Hon'ble Bombay High Court on 13.5.2011 for the recovery of Rs. 143.43 crores together with interest @ 12% per annum and an order of arrest of the vessel, M.V. BOS ANGLER was passed by the Hon'ble Bombay High Court in Admiralty Suit No. 24 of 2011 on 13.5.2011. Thereafter, the applicant moved Notice of Motion No. 1817 of 2011 in the Bombay High Court for judicial sale of the vessel on 16.6.2011 and by order dated 8.7.2011, directed valuation of the ship as part of the sale process, and on 11.7.2011, the first respondent/plaintiff in C.S. No. 387 of 2011 took out a notice of motion No. 2043 of 2011 in Admiralty Suit No. 24 of 2011 to intervene in that suit before the Bombay High Court and by order dated 20.07.2011, the Application filed by the first respondent/plaintiff to intervene in the Admiralty Suit No. 24 of 2011 was allowed, and on 3.8.2011, the Bombay High Court ordered sale of the second respondent vessel after hearing all the parties including the first respondent/plaintiff and the first respondent/plaintiff also filed written statement in Admiralty Suit No. 24 of 2011 on 12.8.2011 and the applicant was permitted to bid at the auction and on 30.11.2011, the Hon'ble Bombay High Court confirmed the sale of the vessel in favour of the applicant for US $ 33.1 million. Later, the applicant filed Application No. 4072 of 2011 to get himself impleaded in C.S. No. 387 of 2011 and that was also ordered by this Court. The Hon'ble Division Bench of the Bombay High Court allowed the Appeal No. 679 of 2012 filed by the applicant in Notice of Motion No. 2659 of 2012 in Admiralty Suit No. 24 of 2011 and set aside the order of the learned single Judge dated 19.10.2012 passed in Notice of Motion No. 558 of 2012.

(3.) By virtue of the order of the Division Bench, it is contended by the learned counsel for the applicant that all the parties having claims against the vessel, have to make their claim only in the Bombay High court and therefore, the applicant filed A. No. 729 of 2013 for return of the Plaint in C.S. No. 387 of 2011 to be tried along with the Admiralty Suit No. 24 of 2011 and that petition was closed on 15.07.2013 granting liberty to the applicant to file proper application in accordance with law and thereafter, the present Application No. 3101 of 2013 was filed under Section 10 CPC for the relief aforesaid.