INDIAN NATIONAL STEAMSHIP CO LTD Vs. MAUX FAULBAUM

JUDGEMENT

(1.) This is an application by the Republic of Indonesia for an order granting the petitioner leave to take actual possession of and remove 51 reels of cable notwithstanding the appointment of a Receiver by this Court in respect thereof, (in the present suit in which this application is made) and in the alternative for an order vacating the order for the appointment of a Receiver and directing the Receiver to release the said goods, and to give delivery thereof, to the petitioner. The petitioner also seeks to be added as a defendant in the suit for the limited purpose of making and being heard on the present application.

(2.) The case of the petitioner is that it is a sovereign independent State and the Indonesian Purchasing Commission which is a department of the Defence Ministry of the Government of Indonesia purchased 51 reels of cable from Alfred Lohse, Exporters, Hamburg, for the price of 94058 Deutsche Marks which is equivalent to Rs. 1,07,444/- approximately & shipped the said goods on board the vessel S.S. "Shiva Ranjita" for carriage from Hamburg to Djakarta under a Bill of Lading dated 19-12-1952. The freight in respect of the goods was prepaid before the issue of the said Bill of Lading, a copy of which is annexed to the petition and marked A. The said goods were consigned in favour of staff A of the headquarters of the Air Force to the Republic of Indonesia, which is a department of the Ministry of Defence of the said Republic. The petitioner claims to be the endorsee and/or the consignee of the said Bill of Lading and in any event the owner of the goods covered by the said Bill of Lading. The Petitioner further claims to be in constructive possession of the goods and as being entitled to immediate actual possession of the said goods. It appears that the vessel Shiva Ranjita altered its course and at the direction of the Indian National Steamship Company Ltd. who are the owners of the said vessel, she proceeded to Calcutta and there unloaded the entire cargo which was on board the vessel. The Indian National Steamship Co. thereafter on 8-9-1953 tiled a suit in this Court against Maux Faulbaum the charterer of the said vessel being suit No. 3248 of 1953 (in which this application is being made) claiming certain sums alleged to be due to it on account of the arrears of hire of the said vessel and claiming a lien on all goods on board the said vessel including goods which are the subject-matter of this application. On 25-9-1953, Mr. S. Shiha, an advocate of this High Court, was appointed Receiver of the entire cargo of the said vessel by an order of this Court made in the said suit. On 3-2-1954 the petitioner claiming a title paramount to that of the Receiver made an application to this Court in the said Suit No. 3248 of 1953 for leave to be examined pro interesse suo, and for an order directing an enquiry to be made as to whether the petitioner had any and what interest in the said 51 reels of cable and also for direction upon the Receiver to release and give delivery of the said reels of cable. In paragraph 15 of the said petition it was asserted that the petitioner is a sovereign State recognised by the Government of the Union of India, and this fact was admitted in the affidavit in opposition filed on behalf of the Indian National Steamship Co., Ltd. On 1-4-1954 this Court acceded to that application of the petitioner and directed an enquiry into the interest of the petitioner in the said 51 reels of cable. The enquiry was directed to be held on 25-5-1954. The Court also gave directions for discovery of documents by letter. It appears that pursuant to the said order the solicitor for the petitioner on 3-5-1954 disclosed certain documents and on 14-6-1954 offered inspection thereof to the solicitors for the plaintiff. Further, on 6-7-1954 an application was made by the petitioner for issue of letters of requests for examination of witnesses in Holland, to prove the title of the petitioner to the said goods in the said enquiry, directed by this Court. In the petition filed in support of that application the issues arising in the enquiry were set Out and it was also asserted in paragraph 1 of the petition that the Republic of Indonesia is a sovereign State. It appears that in the affidavit in opposition filed in this proceeding for issue of Letters of Request, the fact of the petitioner being a Sovereign State was admitted. On 29-7-1954 this Court ordered the issue of letters of requests but the said order was made conditional upon the petitioner depositing Rs. 5000/- with its solicitors, prior to the issue of the said letters of requests, In compliance with the said order dated 29-7-1954 the petitioner on 28-8-1954 deposited with its solicitors the said sum of Rs. 5000/-, as directed. On 10-12-1954 the Embassy of the Republic of Indonesia in India made a representation to the Minister for External Affairs of the Government of India stating that the said goods being the public property of the petitioner, which was a foreign sovereign State, were immune from the legal processes of the Courts in this country according to recognised principles of international law and comity of nations and requested the Government to recognis such claim to immunity. On 14-12-1954 the Secretary to the Government of India, Ministry of External Affairs, sent a certificate to the Embassy of the Republic of Indonesia stating that the Government of India accepted the contentions set forth in the said presentation as true and the petitioner is entitled to the immunity as claimed. On 2-2-1955 the notice of motion of the present application was taken out. It appears that the goods are at present lying with the Commissioners for the Port of Calcutta and the Receiver has not yet taken actual possession of the said goods. It is disputed by the petitioner that the plaintiff (Indian National Steamship Co.) has any right, title or interest in the said goods or it has any valid claim for lien in respect of same.

(3.) Mr. B. Das, the learned counsel for petitioner has placed reliance on the case of -- 'Vavasseur v. Krupp', (1878) 9 Ch D 351 (A), and has contended that the Courts in this country have 110 jurisdiction to prevent a foreign sovereign State from removing its property in this country, and consequently notwithstanding the appointment of the Receiver ordered by this Court on 25-9-1953, this Court should release the 51 reels of cable from its custody and give liberty to the petitioner to take delivery of the same from the Port Commissioners and deal with them in such manner as it pleases. It is to be noted that in this case of 'Vavasseur v. Krupp (A)' it was not disputed that the Shells which were the subject-matter of the proceeding in that case, were sold in Germany to the Mikado of Japan and paid for by the agents of the Mikado, and this purchase and sale was a perfectly lawful purchase and sale. (p. 357 top). Further the plaintiff in that case brought an action claiming injunction and damages for infringement of the plaintiff's patent for making shells, against F. Krupp of Essen in Germany, Alfred Longsden, his agent in England, and Ahrens and Co. who were the agents of the Mikado of Japan, and in that action an order for injunction was made restraining the defendants from parting with or delivering the shells to the Government of Japan or to anybody else. Upon that, an application was made on behalf of the Mikado for an order that notwithstanding the injunction, the Mikado might be at liberty to remove the shells. There was no question of the Mikado submitting to the jorisdiction of the Court in the sense that he waived the privilege of immunity from the legal process of the municipal Courts of the country in respect of his public property which was destined to the use or the State of Japan. The Mikado only "submitted to the jurisdiction of the Court as to discovery, as to process and as to costs" (page 356). The Mikado made a conditional appearance in the action and applied to be added as a defendant, for the purpose of relieving his own property from a fetter which had been put upon it by the order of injunction. In the circumstances it was held that by this limited submission to jurisdiction the Mikado did not lose his rights to claim immunity from the processes of the municipal Courts, in respect of the public property of his country.