CRESCENT PETROLEUM LIMITED Vs. M V MONCHEGORSK

JUDGEMENT

(1.) THIS Notice of Motion has been taken out by the defendants for dismissal of the suit and for directing the plaintiffs to pay to the defendants sum of U. S. $ 349,518,56 towards the defendants claim for wrongful arrest and detention of the first defendant vessel. Alternatively it is prayed that pending the hearing and final disposal of the suit, the plaintiffs be directed to furnish a Bank Guarantee of a Nationalised Bank in favour of the Prothonotary and Senior Master, High Court, Bombay, in the sum of the defendants claim of U. S. $ 349,518,56.

(2.) THE defendants claim the dismissal of the suit on three grounds. These are:

(3.) IN reply it is submitted by Mr. Pratap, learned Counsel for the plaintiffs, that the reliance on the judgment in Castlegate by the defendants is wholly misconceived. According to the learned Counsel, the law in India does not require that an action in rem would lie only if the owner is also liable in personam. This, according to the learned Counsel, has been settled by the Supreme Court in the case of (m. v. Elisabeth and others v. Harwan Investment and Trading Pvt. Ltd), 1993 Supp. (2) S. C. C. 433. It is the submission of Mr. Pratap that the plaintiffs are relying on principles of English law which are contrary to the position of law under the Admiralty Courts Act, 1861 and the Brussels Convention of 1952, the principles of which form a part of the common Law of India. He submits that the scope and ambit of the Admiralty jurisdiction of the courts in India has been set out elaborately by the Supreme Court in the case of Elisabeth (supra ). He relies on the following paragraphs. 17. It is true that the Colonial statutes continue to remain in force by reason of Article 372 of the Constitution of India, but that does not stultify the growth of law or blinker its vision or fetter its arms. Legislation has always marched behind time, but it is the duty of the Court to expound and fashion the law for the present and the future to meet the ends of justice.