BARTHELS AND LUDERS GMBH Vs. M V DOMINIQUE

JUDGEMENT

(1.) This is a Chamber Summons taken out by the plaintiff to the suit and defendant to the counter-claim for excluding from the suit the counter-claim filed by the defendants. The present suit has been filed by the plaintiff, a company incorporated in the Federal Republic of Germany and having its registered office at Hamburg to recover a sum of DM. 45,365 which is equivalent to Rs. 2,99,409, together with interest thereon in respect of various spare parts applied and repairs carried out to the 1st defendant vessel at Hamburg and elsewhere. The suit was filed under the admiralty jurisdiction of this court when the 1st defendant vessel was in Bombay. The vessel arrived in Bombay on 12-11-1986. The suit was filed on 27-11-1986 and the 1st defendant vessel was arrested under an order of 29th Nov., 1986 of this court. The defendants furnished a security in the form of Bank Guarantee in the sum of Rs. 4,50,000 as per the order of arrest and secured the release of the vessel under instrument of release dt. 24-12-1986 issued by the Admiralty Registrar of this court. The vessel thereafter left the Port of Bombay.

(2.) The 1st defendant is the vessel while the 2nd defendant is the owner of the vessel. The 2nd defendant has its registered office at Limassol, Cyprus. The defendants have filed their written statement and counter-claim on or about 4-8-1987. In the counter-claim the defendants have claimed damages equivalent to Rs. 36,72,801.90 from the plaintiff for defective repairs to the suit ship and for alleged improper and negligent manner in which repairs to the generator of the 1st defendant vessel were carried out at Hamburg and Bremen by the plaintiff.

(3.) The present Chamber Summons is taken out by the plaintiff for excluding the counter-claim. According to the plaintiff, the counter-claim does not arise under the admiralty jurisdiction of this court. They also submit that the claim under the counter-claim has arisen outside the jurisdiction of this court and have further submitted that since the counter-claim is for unliquidated damages and will require separate and independent evidence, there is no common issue in the suit and the counter-claim and the two, therefore, should not be tried together.