Allowed

Ajit Kumar v. M.V. Pfs Supplier Imo NO.9221176 and 2 Ors.

Bombay HC20 Aug 2022ADMS/43/2019

Case brief

AI extract

What is this about?

The High Court allowed a summary judgment application in favor of a seaman claiming Rs. 5.29 lakhs in outstanding wages against the sale proceeds of an arrested vessel sold under the Court's supervision, citing no real prospect of defense.

What did the court decide?

Summary judgment in favor of the Plaintiff for Rs. 5,29,596/- along with 12% p.a. interest and costs of Rs. 25,000/- against the sale proceeds of the Defendant No.1 Vessel.

Ajit Kumar Vs M.V. Pfs Supplier Imo NO.9221176 and 2 Ors. — Bombay HC (2022) — LawSathi Research

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SWAROOP Digitally signed bySWAROOP SHARAD SHARADPHADKE PHADKEDate: 2022.09.0719:08:59 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY AND VICE ADMIRALTY JURISDICTION

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INTERIM APPLICATION (L) NO.12369 OF 2022
IN

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ADMIRALTY SUIT NO.43 OF 2019

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…
Ajit KumarApplicant/Plaintiff
Versus
M.V.PFS Supplier and Ors. ...Defendants

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Mr. Abhishek Khare with Mr. R.P.Shirole i/by Khare Legal Chamber, for Plaintiffs.

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CORAM:
N.J.JAMADAR, J.
DATE :20th AUGUST, 2022

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P.C.:

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1.The Plaintiff has preferred this Application under Order XIIIA and/or
Order XII Rule 6 of the of the Code of Civil Procedure, 1908, as amended by the
Commercial Courts Act, 2015 (the Code of 1908), for a summary judgment without
recording oral evidence in favour of the Plaintiff against the sale proceeds of M.V.PFS
Supplier – Defendant Vessel for a sum of Rs.5,29,596/- along with further interest and
hardship claim as well as the legal expenses.

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2. The material averments in the plaint can be summerized as under :

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2.1The Defendant Vessel was flying an Indian flag. PFS Shipping India
Limited – Defendant No.2 was the registered owner of PFS Supplier. The Plaintiff
was employed as a Junior Officer to serve on board the Defendant No.1 Vessel under

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SSP 1/6

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Employment Agreement dated 22nd April, 2016 and Article of Agreement dated 22nd
April, 2016. the Plaintiff served on board the Defendant No.1 Vessel from 30th April,
2016 to 8th November, 2016. The Plaintif urther avers that an amount off
Rs.5,29,596/- is outstanding towards the wages. The Plaintiff avers that under Section
129(1) of the Merchant Shipping Act, 1958 the wages of Sea Farers were required to be
paid by Defendant No.2 within four days of discharge. Hence, the Suit. The
Plaintiffs, inter alia, sought the arrest of the Defendant No.1 Vessel.

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3.By an order dated 29th November, 2019, the Suit came to be dismissed as
withdrawn qua Defendant No.3.

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4.The Writ of Summons could not be served on Defendant No.2 as the
postal envelope containing writ of summons was returned unserved with the remark
‘left’. An Affidavit of Service to that effect has been filed by Mr. Rajmukar Tiwari,
Bailiff, attached to the Office of the Sheriff of Mumbai. Likewise, the Interim
Application has not been served on the Defendant No.2. The postal envelope
containing the Interim Application also came to be returned unserved with the remark
‘left’. An Affidavit of service has been filed on behalf of the Plaintiffs on 26th April,
2022.

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5.It would be contextually relevant to note that the Defendant No.2
entered appearances in companion suits. In Commercial Admiralty Suit No.19 of
2018, a statement was made on behalf of the Defendant No.2 that the Defendant No.2

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SSP 2/6

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does not wish to file Written Statement for itself, or in the capacity of the then
registered owner of the Defendant No.1 Vessel. In any event, the suit is instituted in
rem against the Defendant No.1 vessel. Therefore, non-appearance of Defendant
No.2 – the registered owner of the Defendant No.1 Vessel, does not constitute an
impediment in proceeding against the sale proceeds of Defendant No.1 Vessel in rem.
6.In the meanwhile, Defendant No.1 Vessel was arrested by an order dated
22nd September, 2017 passed by this Court in ADMS(L) 513 of 2017. Eventually, the
Defendant No.1 Vessel was ordered to be sold and the sale was confirmed by an order
dated 12th February, 2018. The sale consideration of Rs.4,30,00,000/- after deducting
the Sheriff’s expenses came to be deposited in this Court.

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7.The Plaintiff has taken out this Application with the assertion that the
liability to pay the crew wages is an admitted liability and there is no real prospect of
Defendant Nos.1 and 2 succeeding in defending the claim. In the Application, the
Plaintiff furnished particulars of the claim of each of the Applicants in a tabulated
format.

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8.Pursuant to the directions of this Court, the Court Commissioner has
verified the original Agreements in respect of the crew members. Post verification,
this Application was taken up for hearing.

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9.The Commissioner’s Report records, inter alia, as under :

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SSP 3/6

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`Sr.No.`	`Name of Crew Member`	`Pltf No`	`Claim`	`Particulars of D`	`ocuments`
			`(In Rs.)`	`Seafarer Employment` `Contract with date`	`Seafarers` `Article of` `Agreement` `with date`
`1`	`Ajit Kumar`	`1`	`5,29,596/-`	`Original contract dated` `22/04/2016`	`Original Article` `dated` `22/04/2016`
	`Total`		`5,29,596/-`

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Notarized True copies of relevant extract of the Continuous Discharge Certificate (CDC) of Plaintiff
(this document containing signed on and singed off on Defendant No.1 Vessel and identification of the
Plaintiff).

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10.The Plaintiff’s claim of having rendered services on board the
Defendant No.1 Vessel finds support in the Employment Agreement (Exhibit A), Sea
Farers Articles of Agreement (Exhibit B), duly verified by the Court Commissioner.
The Article of Agreement (Exhibit B) contains an endorsement under the signature of
Master of the Defendant No.1 Vessel that the Plaintiff had ‘signed on’ the ship on 30th
April, 2016 and ‘signed off’ from the ship on 8th November, 2016.

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11.In the light of the aforesaid material of unimpeachable character, the
learned Counsel for the Plaintiff submitted that the claim of the Plaintiff is
incontrovertible and the Defendant Nos.1 and 2 have no real prospect of successfully
defending the claim of the Plaintiff.

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12.I am persuaded to agree with the aforesaid submissions. The fact that the
Plaintiff had rendered services on board the Defendant No.1 Vessel, is established
beyond the pale of controversy by the aforesaid documents namely the Employment

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SSP 4/6

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Agreement and Sea-farers Articles of Agreements.

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13.In view of the provisions contained in Section 2(1)(g) read with Section
9(1)(a) of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017,
the claim of the crew for wages constitutes a maritime lien. It also ranks first in the
order of inter se priority of claimants having maritime lien. It is trite law that crew
can proceed in rem against the Vessel and/or sale proceeds of the Vessel, where it is
sold consequent to arrest, to enforce their maritime claims for wages.

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14.In the light of the aforesaid position in law and overwhelming material to
substantiate the claim of the Plaintiff that he did render the services as crew member,
on board the Defendant No.1 Vessel, there is no realistic prospect of the Defendant
Nos.1 and 2 successfully defending the claim of the Plaintiff. In the backdrop of the
nature of the claim, there does not seem to be any compelling reason not to dispose of
the Suit before recording oral evidence.

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15.For the foregoing reasons, I do not find any impediment in passing the
summary judgment in favour of Plaintiff and against the sale proceeds of Defendant
No.1 Vessel.

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16.Hence, the following order :

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ORDER

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(i) The Interim Application stands allowed.

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(ii)There shall be a summary judgment in favour of the Plaintif or the sumf

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SSP 5/6

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indicated in the 4th column of the Commissioner’s report extracted above aggregating
to Rs.5,29,596/- and against the sale proceeds of the Defendant No.1 Vessel, along
with further interest @ 12% p.a. from the date of “sign off” till payment and/or
realization.

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(iii)The Plaintiff is entitled to costs quantified at Rs.25,000/-.

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(iv)Subject to and upon determination of priorities, the decreetal

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amount be disbursed to the Plaintiff.

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(v)The Plaintiff is entitled to refund of Court Fees, if any, as per

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rules.

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(vi)The Suit also stands disposed.

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(vii)Decree be drawn in the aforesaid terms.

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( N.J.JAMADAR, J. )

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SSP

Ajit Kumar v. M.V. Pfs Supplier Imo NO.9221176 and 2 Ors.

Case brief

What is this about?

What did the court decide?

Ajit Kumar v. M.V. Pfs Supplier Imo NO.9221176 and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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