SURENDRA OVERSEAS LTD Vs. OWNERS AND PARTIES INTERESTED IN THE STEAMSHIP OR VESSEL S S RAY MAYA BUNDER

JUDGEMENT

(1.) THE solicitors for the Commissioners for the Port of Calcutta, hereinafter referred to as the Commissioners, took out this notice of motion on 17 January 1967. The orders asked for are as follows :- First that directions be given for service of the notice on the Collector of Customs and also on Messrs. Khanbhai esoofbhai, Darukhana, Bombay, the purchaser of the vessel s. s. "ray MAYA-BUNDER" and to the Master of the vessel. Secondly, that directions be given on the Master of the vessel and to Messrs. Khanbhai esoofbhai to remove the vessel or dismantle the vessel upon payment to the commissioners of the sum of Rs. 78,308. 33 being the statutory dues and charges of the Commissioners up to September 1966. Thirdly, that in default of payment of the statutory dues and charges of the Commissioners within one week from the date of the orders to be passed, leave be given to the commissioners to exercise their statutory rights under section 121 of the Calcutta Port Act, 1890 and to take all steps relating thereto. Fourthly, that direction be given to the Collector of Customs to distrain and/or arrest the vessel s. s. "ray MAYABUNDER" and the tackel, apparel and furniture belonging thereto and/or to detain the vessel until the dues of the Commissioners amounting to Rs. 78308. 33 are paid. Fifthly, that in case the sum of Rs. 78,308. 33 remains unpaid for five days next after such distress or arrestment is made direction be given on the Collector of Customs to cause the vessel so distrained or arrested to be sold and to apply the sale proceeds to satisfy pro tanto the claims of the Commissioners. Sixthly, an injunction restraining Messrs khanbhai Esoofbhai, their servants, agents and assigns from removing the vessel and/or from dismantling the vessel and or from removing the dismantled parts or portion thereof and from taking any step for the removal and or dismantling or removing any dismantled part of the vessel without paying the dues of the Commissioners amounting to Rs. 78,308. 33.

(2.) THE grounds in support of the notice are the affidavit of Durga Charan Mukherjee affirmed on 16 January 1967. In that affidavit it is alleged that on or about 30 September 1965 an application was made by some of the crew of the vessel s. s. "ray MAYABUN-DER" under section 145 of the Indian Merchant Shipping Act for non-payment of wages and the Presidency magistrate, 6th Court. Calcutta ordered the seizure and sale of the vessel by public auction on 7 November 1965. The Commissioners came to know of the said order on 14 October 1965 from newspaper reports. A sum of Rs. 46,428. 33 was due and owing by the vessel to the Commissioners as on 31 August 1965. By letter dated 9 September 1965 the Commissioners had called upon the Master of the vessel to pay the said sum. The Master refused to pay the said sum. On or about 18 October 1965 the Deputy Chairman of the Commissioners applied to the Collector of Customs to distrain the vessel for recovery of the dues under section 121 of the Calcutta Port Act. On 1 November 1965 the additional Collector of Customs instructed the Commissioners to make the necessary application in the court of the presidency Magistrate. On 3 November 1965 an application was made by the Commrs. in the Court of the Presidency Magistrate. On 4 November 1965 the plaintiff in this Admiralty Suit made an application in these Court of the 6th presidency Magistrate to vacate the order dated 30 September 1965. On 12 november 1965 an order was made by the 6th Presidency Magistrate staying the operation of the said order for sale and directing the parties including the commissioners to move this Court.

(3.) ON 10 December 1965 the commissioners filed a suit in this court being suit No. 2164 of 1965 claiming a decree for Rs. 46,428. 33 covering 16 bills for the Commissioners' charges for the period ending on 31 August 1965.