Sushil Kaushik and 13 Ors. Vs M. v. Pfs Courage Imo No. 9428566 and 2 Ors.

SWAROOP Digitally signed bySWAROOP SHARAD SHARAD PHADKE PHADKE Date: 2022.09.0719:07:42 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ADMIRALTY AND VICE ADMIRALTY JURISDICTION INTERIM APPLICATION NO.3013 OF 2022

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IN

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ADMIRALTY SUIT NO.63 OF 2018

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Sushil Kaushik and Ors. …Applicants/Plaintiffs
Versus
M.V.PFS Courage 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 Plaintiffs have preferred this Application under Order XIIIA and/or

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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 Plaintiffs against the sale proceeds of M.V.PFS
Courage – Defendant Vessel for a sum of Rs.75,68,342/- 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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2.1 The Defendant Vessel was flying an Indian flag. PFS Shipping India

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Limited – Defendant No.2 was the registered owner of PFS Courage. Defendant No.3
was the Manager of the Defendant No.1 Vessel. The Plaintiffs were employed as crew
members, in various capacities, on board the Defendant No.1 Vessel by the Defendant

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SSP 1/8

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No.3 in accordance with the provisions of the Merchant Shipping Act, 1958.
Defendant Nos.2 and 3 had agreed to pay wages to the Plaintiffs in cash. As
Defendant Nos.2 and 3 committed default in payment of wages and also failed to
supply the essentials and make provisions for the necessities, the Plaintiffs were
constrained to institute a Suit for recovery of the arrears of wages to the tune of
Rs.75,68,342/- along with interest, hardship claim and legal expenses. The Plaintiffs
annexed copies of the Articles of Agreements, Continuous Discharge Certificates and
Passports to substantiate their claims. The Plaintiffs, inter alia, sought the arrest of
the Defendant No.1 Vessel.
3.The Defendant No.2, the then registered owner of the Defendant No.1
Vessel, was served with the Writ of Summons. An Affidavit of Service is filed by Mr.
Ramesh Yadav, Bailiff attached to the Office of the Sheriff of Mumbai. The Defendant
No.2 did not file Written Statement. Thereupon, by an order dated 22nd November,
2019 the Suit was ordered to be transferred to the list of undefended Suit as against
Defendant No.2. By an order dated 29th November, 2019, the Suit came to be
dismissed as withdrawn qua Defendant No.3.

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4.In the meanwhile, Defendant No.1 Vessel was arrested by an order dated
22nd September, 2017. By a subsequent order dated 4th July, 2018, the Defendant No.1
Vessel was ordered to be sold. The sale was confirmed by an order dated 19th July,
2018. The sale consideration of Rs.5,50,00,000/-, after deducting the Sheriff’s

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SSP 2/8

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expenses, came to be deposited in this Court.

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5.The Plaintiffs have 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
Plaintiffs have furnished particulars of the claim of each of the Applicants in a
tabulated format.

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6.Defendant No.2 has been served with the instant Application and an
Affidavit of Service came to be filed on 26th April, 2022. Thereafter, 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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7. The Commissioner’s Report records, inter alia, as under :

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`Sr.`	`Name of Crew`	`Plaintiff`	`Claim`	`Particulars of`	`Documents`
	`Member`	`No`	`(In Rs.)`	`Seafarer Employment` `agreement with date`	`Seafarers Article of` `Agreement with date`
`1`	`Mr. Sushil Kaushik`	`1`	`2,97,817/-`	`Original agreement` `dated 04/02/2016`	`Original Article dated` `04/02/2016`
`2`	`Mr. Amit Dilip Dhore`	`2`	`2,06,080/-`	`Original agreement` `dated 13/07/2016`	`Not produced`
`3`	`Mr. Shabbir Hussain` `Ansari`	`3`	`7,78,400/-`	`Original agreement` `dated 02/01/2017`	`Original Article dated` `02/01/2017`
`4`	`Mr. Kundan Kumar`	`4`	`7,08,400/-`	`Original agreement` `dated 02/01/2017 and` `06/04/2017`	`Original Article dated` `02/01/2017 and` `06/04/2017`
`5`	`Mr. Virender Singh`	`5`	`73,920/-`	`Original agreement` `dated 14/04/2017`	`Original Article dated` `14/04/2017`

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SSP

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`6`	`Mr. Manjeet Singh`	`6`	`1,14,240/`	`-Original agreement` `dated 06/04/2017`	`Original Article dated` `06/04/2017`
`7`	`Mr. Kamaldeep Singh`	`7`	`6,82,080/`	`-Original agreement` `dated 03/04/2017`
`8`	`Mr.` `Veeramany` `Chellappan`	`8`	`5,63,360/`	`-Original agreement` `dated 13/07/2016`	`Original Article dated` `14/07/2016`
`9`	`Antony Valiyakariyil` `Antony`	`9`	`2,80,000/`	`-Original agreement` `dated 19/10/2016`	`Original Article dated` `20/10/2016`
`10`	`Bhism Kumar Dwivedi`	`10`	`8,03,040/`	`-Original agreement` `dated 19/10/2016`	`Original Article dated` `20/10/2016`
`11`	`Narendra Singh`	`11`	`6,02,765/`	`-Original agreement` `dated 19/04/2016`	`Original Article dated` `19/04/2016`
`12`	`Rajeev Biswas`	`12`	`7,28,000/`	`-Original agreement` `dated 22/02/2017`	`Original Article dated` `22/02/2017`
`13`	`Manas Kumar Das`	`13`	`6,49,600/`	`-Original agreement` `dated``02/01``/2017 and` `08/04/2017`	`Original Article dated` `02/01/2017`
`14`	`Pradeep` `Kumar` `Kumaresan`	`14`	`80,640/`	`-Original agreement` `dated 02/01/2017`	`Original Article dated` `20/01/2017`
	`Total`		`65,68,342/`	`-`

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Notarized True copies of relevant extract of the Continuous Discharge Certificates (CDC)
of Plaintiff No. 1 to Plaintiff No. 14 (This document containing Signed on and Signed off
on Defendant No. 1 Vessel and Identification of the Plaintiffs)

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8.The Plaintiffs claim of having rendered services on board the Defendant
No.1 Vessel finds support in the respective Employment Agreements and Sea-farers
Articles of Agreements duly verified by the Court Commissioner. The claim of the
respective Plaintiffs is further substantiated by the true copies of Continuous
Discharge Certificates (CDCs) and Passports. Continuous Discharge Certificates of
Plaintiff Nos.1 to 14 are annexed at Exhibits F-1 to F-14 (pages 215 to 252) of the
plaint. The entries in the Continuous Discharge Certificates reflecting the dates of

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SSP

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‘sign in’ and ‘sign off’, lend support to the claims of the respective Plaintiffs as regards
the services rendered on board the Defendant No.1 Vessel. The claim of the
respective Plaintiffs is further substantiated by the true copies of the Passports
Exhibits E-1 to E-14 (pages 192 to 214 of the Plaint).

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

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10.I am persuaded to agree with the aforesaid submissions. The fact that the
Plaintiffs had rendered services on board the Defendant No.1 Vessel, in varying
capacities, is established beyond the pale of controversy by the aforesaid documents
namely the Employment Agreements, Sea-farers Articles of Agreements, Continuous
Discharge Certificates and Passports. To add to this, crew salary claim as per Section
129 of the Merchant Shipping Act, 1958 (Exhibit G to the Plaint) is furnished by the
Master of the Defendant No.1 Vessel. It indicates the date of joining, date of sign off,
wages per day/month, advance, if any, paid and the period since which the wages are
due. Interest is charged @ 18% p.a. on unpaid wages. A scanned copy of the certificate
issued by the Master of PFS Courage is appended below :

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SSP 5/8

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11.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,

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the claim of the crew for wages constitutes a maritime lien. It also ranks first in the
order of in 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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SSP 6/8

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12.In the light of the aforesaid position in law and overwhelming material to
substantiate the claim of the Plaintiffs that they did render the services as crew
members, on different positions, on board the Defendant No.1 Vessel, which is
encapsulated in the Master’s Certificate (Exhibit G) extracted above, there is no
realistic prospect of the Defendant Nos.1 and 2 successfully defending the claim of the
Plaintiffs. Since the Defendant No.2 chose not to contest the claim of the crew
members, there does not seem to be any compelling reason not to dispose of the Suit
before recording oral evidence.

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13.In any event the maritime lien of the crew members commands highest
priority, as noted above. Hence, I do not find any impediment in passing a summery
judgment in favour of the Plaintiffs and against the sale proceeds of Defendant No.1
Vessel.

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14.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 each of the

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Plaintiffs for the sum indicated against the name of the respective Plaintiff in the
second last column of Exhibit G, under the caption “Balance of Wages” extracted
above, aggregating to the sum of Rs.58,64,591/- and against the sale proceeds of the
Defendant No.1 Vessel, along with further interest @ 12% p.a. from the date of “sign

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SSP 7/8

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off” till payment and/or realization.

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(iii)Each of the Plaintiffs 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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amounts be disbursed to the Plaintiffs through their Advocates for onwards remittance
to the respective Plaintiffs, who are Sea-farers.

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(v)It is, however, made clear that the Plaintiffs will pay the income
tax and other statutory dues directly and that the Advocates for the Plaintiffs shall, in
no manner, be liable / responsible for deducting the income tax at source or the
service tax etc.

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(vi)By an order dated 15th November, 2017, the Plaintiffs were

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allowed to pay the court fees as and when decreetal amount was received. The
Prothonotary and Senior Master should ensure that the court fee amount is deducted
from the amount payable to the Plaintiffs before paying any money to the Plaintiffs.

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(vii)The Suit also stands disposed.

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(viii) Decree be drawn in the aforesaid terms.

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( N.J.JAMADAR, J. )

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SSP

Sushil Kaushik and 13 Ors. v. M. v Pfs Courage Imo No. 9428566 and 2 Ors.

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Sushil Kaushik and 13 Ors. v. M. v Pfs Courage Imo No. 9428566 and 2 Ors.

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