Allowed

Joao Martin Fernandes @ Martin Fernandes., v. the Union of India, Thr. the Ministry of Defense and Anr.

Bombay HC24 Oct 2018FA/65/2017

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa allowed the appeal, quashed the rejection of a civil suit regarding a fishing trawler collision with a Coast Guard vessel at high seas, and restored the suit to the District Judge. The court held impediments under the Admirty Act excluded Central Government vessels from its scope, granting civil court jurisdiction subject to a separate jurisdictional determination.

What did the court decide?

The impugned order rejecting the plaint is quashed and set aside. Civil Suit No. 30 of 2014 is restored to the District Judge's file to be tried on merits.

Joao Martin Fernandes @ Martin Fernandes., Vs… — Civil Procedure and Limitation | Bombay HC (2018)

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mukund

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 1 FA65.17 dt. 24 -10-2018

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IN THE HIGH COURT OF BOMBAY AT GOA

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 FIRST APPEAL NO. 65 OF 2017

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Mr. Joao Martin Fernandes,
Alias Martin Fernandes
43 years of age,
Son of Minguel M Fernandes,
Indian Citizen, r/o H.No.370, 4th Ward
Colva, Salcete, Goa.…Appellant
 Versus

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1.The Union of India
Through the Ministry of Defense,
Raisina Hill,
New Delhi.
2.The Indian Coast Guard,
Through the Director General,
Ministry of Defense,
Government of India,
Coast Guard Headquarters,
National Stadium Complex,
New Delhi 110001….Respondents

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Mr. Nigel Da Costa Frias with Ms. M.Correia, Advocates for the
Petitioner.

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Mr. Mahesh Amonkar, Standing Counsel for the Respondents.

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mukund 2 FA65.17 dt. 24 -10-2018

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Coram : N.M. Jamdar & Prithviraj K. Chavan, JJ.

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Date : 24 October 2018.

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Oral Judgment ( Per N.M.Jamdar, J) :

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First Appeal was initially filed as Writ Petition which has
now been converted into First Appeal by order dated 13 February
2017 passed by this Court.

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2.By this First Appeal, the Appellant-Plaintiff has challenged
the order passed by the learned District Judge, South Goa, Margao
dated 13 January 2016 rejecting the Plaint filed by the Plaintiff.

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3.The Appellant-Plaintiff is the owner of fishing trawler
known as `Sea Messiah'. According to the Appellant, on 24 April
2013 when the fishing trawler went for fishing activities from
Cutbona Jetty at Velim, Goa, there were 29 fishermen on board.
When the fishing trawler was at high seas in the early morning of 25
April 2013 the Coast Guard Vessel ICGS Vaibhav collided with the
trawler of the Appellant. According to the Appellant, the trawler split
into two parts and six crew members perished by drowning. The
Appellant-Plaintiff filed Civil Suit No.30 of 2014 seeking
compensation to the tune of Rs.3,69,07000/- with interest @12% p.a.

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mukund 3 FA65.17 dt. 24 -10-2018

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4. The Respondents-Defendants filed their Written
Statement and contested the Suit. They also raised an issue of the
jurisdiction stating that the incident occurred at high seas beyond the
territorial jurisdiction of the Court. The learned District Judge framed
a preliminary issue on jurisdiction. The learned District Judge,
however, decided the issue of the jurisdiction on a point other than the
one raised by the Respondents that the Civil Court did not have
jurisdiction in view of the fact that jurisdiction in respect of Admiralty
was vested in the High Court. The learned District Judge relied upon
the decision in Kamlakar Mahadev Bhagat Vs. Scindia Steam
Navigation Co.Ltd., Bombay1.

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5.We have heard Mr. Nigel Da Costa Frias, learned counsel
for the Petitioner and Mr. Mahesh Amonkar, learned Standing
Counsel for the Respondents.

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6.The learned counsel for the Appellant submitted that the
decision in Kamlakar Mahadev Bhagat Vs. Scindia Steam Navigation
Co. Ltd., Bombay, was rendered in the context of Bombay City Civil
Courts Act and it has no relevance. The learned counsel also
submitted that the Plaint should not have been rejected and if the
learned Judge was of the opinion that the Civil Court had no

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1 AIR 1961 Bombay 186

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mukund 4 FA65.17 dt. 24 -10-2018

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jurisdiction, the plaint should have been returned.

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7.Both, the learned counsel for the Appellant and the
Respondents have pointed out to us the second proviso to Section 1
(2) of the Admiralty (Jurisdiction and Settlement of Maritime Claims)
Act, 2017, which reads thus:

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“1. (1) This Act may be called the Admiralty (Jurisdiction
and Settlement of Maritime Claims), Act, 2017.

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(2)It shall apply to every vessel, irrespective of the place
of residence or domicile of the owner:

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 Provided that this Act shall not apply to an inland
vessel defined in clause (a) of sub-section (1) of Section 2 of
the Inland Vessels Act, 1917, or a vessel under construction
that has not been launched unless it is notified by the
Central Government to be a vessel for the purposes of this
Act:

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Provided further that this Act shall not apply to a
warship, naval auxiliary or other vessel owned or operated
by the Central or a State Government and used for any
non-commercial purpose, and, shall also not apply to a
foreign vessel which is used for any non-commercial
purpose as may be notified by the Central Government.”

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8.Therefore, the position as on today is that a claim
involving vessel operated by the Central Government will be outside
the purview of the Act, 2017.

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mukund 5 FA65.17 dt. 24 -10-2018

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9.That the incident involved a vessel operated by the
Respondents – Indian Coast Guard i.e. Central Government is not in
dispute, because that is also the case of the Appellant-Plaintiff. In
view of the fact that the Vessel of the Central Government is involved,
the suit cannot be tried under the Act of 2017 and consequently in
this Court.

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10. Section 9 of the Code of Civil Procedure is all
comprehensive. The Civil Court, unless the jurisdiction is expressly
and impliedly barred, can entertain all the suits. In these
circumstances, the impugned order will have to be set aside and Civil
Suit No.30/2014 will have to be restored to the file of the learned
District Judge, South Goa, Margao. While passing the impugned
order, the learned District Judge has not adverted to the issue of
jurisdiction as taken by the Defendants, which we have not foreclosed
by this order. The issue of jurisdiction as taken by the Respondents
will be considered by the learned District Judge on its own merits,
which will also require evidence.

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11. Accordingly, the First Appeal is allowed and the judgment
and order dated 13 January 2016 passed by the learned District Judge,
South Goa, Margao, in Civil Suit No.30 of 2014 is quashed and set

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mukund 6 FA65.17 dt. 24 -10-2018

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aside, The Civil Suit no.30 of 2014 stands restored to the file of the
learned District Judge, South Goa, Margao to be tried as above.

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12.The parties will appear before the learned District Judge,
South Goa, Margao, on 19 November 2018 at 10.00 a.m.

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Prithviraj K. Chavan, J. N.M. Jamdar, J.

Joao Martin Fernandes @ Martin Fernandes., v. the Union of India, Thr. the Ministry of Defense and Anr.

Case brief

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Joao Martin Fernandes @ Martin Fernandes., v. the Union of India, Thr. the Ministry of Defense and Anr.

Case brief

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What did the court decide?

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