SAHIDA ISMAIL Vs. PETKO R SALVEJKOV

JUDGEMENT

(1.) THE Plaintiff Mrs. Sahida Ismail has filed this suit in this Court in its Admiralty and Vice-admiralty Jurisdiction. In this suit, the steamship Petko R. Salvejkov is made defendant No. 1; the Indian Agents of the owners of the ship Messrs. J. M. Baxi and Co. are made defendant No. 2 and the consignees of the cargo in Colombo are made defendant No. 3. Defendants Nos. 1 and 2 have taken out the present notice of motion for an order that the warrant for arrest issued by this Court on June 8, 1971 be superseded and set aside: that the guarantee executed by the second defendants in favour of the Admiralty Registrar on June 8, 1971 be cancelled and returned to the second defendants and that it may be held that this Court has no jurisdiction to entertain the suit in exercise of its admiralty and vice admiralty jurisdiction.

(2.) THE facts on the basis of which the notice of motion is argued are not as all in controversy. On December 17, 1970 the plaintiff consigned a cargo of 569 Metric Tonnes of Big Onions to the third Defendants and the said cargo was shipped on Board per, Defendant No. 1 ship from Bombay, Defendant No. 2 issued a bill of lading for the cargo on defendant No. 1 ship. The bill of lading and other documents were negotiated by the plaintiff through the Indian Overseas Bank with the People's Bank at Colombo, Under the bill of landing, the cargo was to be delivered against the documents which had been negotiated with the People's Bank at Colombo. It is the case of the plaintiff that the first defendant without production of the bill of lading and without any authority from the plaintiff or from the People's Bank at Colombo delivered the cargo tot he third defendants. The case of the plaintiff is that such delivery is in contravention of the terms and conditions of the Bill of lading and, she has suffered a loss to the extent of Rs. 2,34,997/- being the value of the cargo. The suit is filed to recover this amount of loss on the ground that the claim in the suit is a maritime claim against the first defendant for which the plaintiff has a maritime lien over the first defendant. It is the contention of the plaintiff that she is entitled to have the first defendant-ship arrested for satisfaction of the claim in the suit. The plaintiff has also obtained leave under Clause 12 of the Letters Patent prior to the institution of the suit.

(3.) THE plaint was presented to this Court on June 7, 1971, during the Summer Vacation,. On that very day Vaidya. J. after hearing the Counsel for the plaintiff and the Attorneys of defendant No. 1 ship issued a warrant for arrest of defendant No. 1-ship and directed that the said warrant should not be executed against defendant No. 1- ship in case the security as therein provided was furnished to the satisfaction of the Admiralty Registrar. The sip was arrested that every night. On the next day, on June 8, 1971 defendant No. 1 through its attorneys moved the Court by raising a preliminary objection regarding the jurisdiction of this Court. On that day, it appeared under protest. The Attorneys of defendants No. 1 and defendant No. 2 undertook to the Court that the guarantee in the sum of Rs. 2,45,000/- would be duly executed by partner of defendant No. 2 in the course of the day and/or latest by the next day. In view of the said undertaking, by consent of parties, this Court ordered that defendant No. 1-ship should re released forthwith. This order was passed by this Court without prejudice to the contention of defendant No. 1 that the Admiralty Court at Bombay had no jurisdiction to entertain the suit or arrest the ship during the pendency thereof.