Allowed

Bhanabhai Premabhai Tailor Master v. Nand Aparna (Imo No 9082087)

Gujarat HC26 Jul 2022AS/4/2022

Case brief

AI extract

What is this about?

The High Court granted a decree on admission against the sale proceeds of the vessel Nand Aparna for unpaid crew wages. Relying on the respondent's failure to appear or rebut claims, the court held the dues were admitted and enforced a maritime lien under the Admiralty Act.

What did the court decide?

Decree passed against sale proceeds of vessel Nand Aparna for unpaid wages of approx. Rs. 21.95 Lakhs plus interest at 12% p.a., costs, and a valid maritime lien.

Bhanabhai Premabhai Tailor Master Vs Nand Aparna (Imo No 9082087) — Gujarat HC (2022) — LawSathi Research

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C/AS/4/2022 ORDER DATED: 26/07/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/ADMIRALTY SUIT NO. 4 of 2022
With

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CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2022
 In R/ADMIRALTY SUIT NO. 4 of 2022

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=====================================================

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BHANABHAI PREMABHAI TAILOR MASTER

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Versus

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NAND APARNA (IMO NO 9082087)

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=====================================================

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Appearance:

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NOTICE SERVED BY DS for the Defendant(s) No. 1
MS PAURAMI B. SHETH(841) for the Plaintiff(s) No.
1,2,3,4,5,6,7,8

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=====================================================

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CORAM: HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

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Date : 26/07/2022

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ORAL ORDER

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1.Draft amendment as prayed for in OJCA No.1 of 2022 is granted and the same be carried out forthwith.

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2.Heard learned advocate Ms. Paurami Sheth for the Plaintiffs/ Applicants.

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3.Learned advocate Ms. Paurami Sheth for the Plaintiff submitted that the original Plaintiffs have filed present Suit for outstanding amount of their respective unpaid wages contending interalia that the services of the Plaintiffs were hired for the Defendant Vessel by entering into individual written contract through one

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Page 1 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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M/s. Tapti Waterways Private Limited, that upon
their appointments, the Plaintiffs were entitled
for wages as well regular supply of Fuel, Food
and other bare necessities, that the Plaintiffs
have been paid wages only till October, 2021 and
further wages were due from 01.11.2021 onwards,
that the Plaintiffs have come to know that one
Yes Bank has filed the suit before this Court
and procured arrest of the Defendant Vessel and
later on, in pursuance of the Application of the
Yes Bank, this Court has passed order for sale
of the Vessels, that having come to know about
the directions for sale of the Vessel, the
Plaintiffs preferred the present Suit and prayed
for following reliefs in paragraph 20 of the
Plaint which reads thus :-

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a.That the Defendant Vessel Nand Aparna (IMO
No.9082087 and her Owner be ordered and
decreed to pay to the Plaintiffs the amount
of Rs. 14,75,733/- towards their wages from
01.11.2021 till 20.01.2022 and legal cost
and expenses and further interest thereon
at the rate of 12% p.a. from due date of
payment of wages until payment together
with wages from 21.01.2022 till date of
sign off as per particular of claim;

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b.That the Defendant Vessel Nand Aparna (IMO

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Page 2 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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No.9082087), together with her hull,
engines, gears, tackles, bunkers machinery,
apparel, plant, furniture, fixtures,
appurtenances and paraphernalia, at present
lying at Hazira Port or wherever she is
within the territorial waters of India, be
arrested by a Warrant of Arrest of this
Hon'ble Court and the same be condemned in
respect of the Claim herein and be ordered
to be sold along with her hull, engines,
gears, tackles, bunkers machinery, apparel,
plant, furniture, fixtures, appurtenances
and paraphernalia and the net sale proceeds
thereof be ordered to be applied to the
satisfaction of the Plaintiff’s claim
herein and the cost of this Suit;

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c.That pending the hearing and final disposal
of the suit this Hon’ble Court be pleased
to order and direct the arrest of the
Defendant Vessel Nand Aparna (IMO No.
9082087) along with her hull, engines,
gears, tackles, bunkers machinery, apparel,
plant, furnitures, fixtures, appurtenances
and paraphernalia, at present lying at
Hazira Port, or wherever she is within the
territorial waters of India and also
restrain her from beaching and breaking;

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Page 3 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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d.That pending the hearing and final disposal of the suit this Hon’ble Court be pleased to direct to permit the Plaintiffs to sign off prior to contract period and further direct the concerned Authorities at Hazira Port to arrange for sign off, of the Plaintiff;

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e.for interim and ad-interim orders in terms of prayers (b), (c) and (d) above;

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f.for costs of this Suit;

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4.Learned advocate Ms. Paurami Sheth submitted that though by order dated 20.01.2022, this Court directed to arrest the Defendant Vessel in the present Suit, further directed that the order of arrest was not required to be effected as in the meantime, the Defendant Vessel was already sold and the sale proceeds of a sum of Rs.2,35,00,000/- were directed to be retained in the Registry as per order dated 06.01.2022 in pursuance of the Application filed by Yes Bank, the Plaintiff of Admiralty Suit No. 17 of 2021.

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5.Learned advocate Ms. Paurami Sheth submitted that the order dated 20.01.2022 was served to the Owner of the Defendant Vessel through email dated 21.01.2022 at 7.26 pm but the Defendant

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Page 4 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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Vessel has till date not appeared through its
erstwhile Owner or file written statement. Even
after the Defendant Vessel was sold and sale
proceeds were deposited with the Registry, the
erstwhile Owners have not entered appearance in
any of the Suit filed against the Defendant
Vessel.

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6.Learned advocate Ms. Paurami Sheth further submitted that even after the Defendant Vessel was sold, the Plaintiffs continued to serve on board the Defendant Vessel until new owner initiated the process to take over the possession of the Defendant Vessel on 15.02.2022 and they have been signed off on 14.02.2022.

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7.The Plaintiffs have then filed above Application under which, the Applicants/Original Plaintiffs seeks a summary judgment/decree against the Defendant Vessel under Order XIII-A read with Order VIII Rule Xof the Code of Civil Procedure, 1908 (“CPC”) as amendedby the Commercial Courts Act, 2015 read with Section 12 of of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017.

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8.It is submitted by the Plaintiffs/Applicants in the above Application that immediately after taking possession of the Defendant Vessel, the

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Page 5 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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new Owner requested the Plaintiffs/Applicants to
continue on Board the Vessel and accordingly
paid them wages for the period from 15.02.2022
to 19.02.2022, that the Applicants are therefore
entitled to wages for a sum of Rs. 21,95,950.00
calculated for the period from 01.11.2011 to
14.02.2022 i.e. date on which they served for
the erstwhile Owner, that even after the
Defendant Vessel was sold and sale proceeds were
deposited with the Registry, the Defendant
Vessel has till date not appeared through its
erstwhile Owner, or filed written statement and
the dues of the Plaintiffs have been admitted
inasmuch as they have not been denied, that the
Plaintiffs have maritime lien consequently
entitled to be paid first in priority and has
prayed for the following reliefs in Civil
Application No.1 of 2022 :-

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a) Pass an order and decree on admission in favour of the Plaintiffs and against the Defendant vessel NandAparna (IMO NO 9082087) and her owners, for the principal amount of towards wages of INR 21,95,550. 00 plus accrued interest till date of this Application amounting to 65,867.00 and cost of litigation aggregating to INR 1,00,000.00 with further interest at the rate of 12 % per annum on INR 21,95,550.00 from date of order till realisation as per Schedule

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Page 6 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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and further passed decree that each Plaintiff is
entitled for the amount mentioned against their
respective name in the Schedule.

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9.The Schedule referred herein above and annexed to the Application of due salary is reproduced herein under:

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SCHEDULE OF SALARY DUE OF CREW OF NAND APARNA

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FROM 01.11.2021 TO 14.02.2022

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`N`	`NAME`	`RANK`	`MONTHLY` `(INR)`	`NOV.` `(INR)`	`DEC.` `(INR)`	`JAN.` `(INR)`	`FEB` `(INR)`	`Total`
`1.`	`BHANABHAI` `PREMABHAI` `TAILOR`	`MASTER`	`1,22,295`	`1,22,295`	`1,22,295`	`1,22,295`	`61,148`	`489,180`
`2.`	`AMIT HARI` `AYYER`	`C/` `OFFICER`	`1,08,772`	`---`	`1,05,386`	`1,08,772`	`54,386`	`322,930`
`3.`	`SATISH` `NAIN`	`CH/ENG`	`2,05,023`	`1,23,014`	`2,05,023`	`2,05,023`	`102,512`	`738,083`
`4.`	`MANISH` `KUMAR`	`2ND/ENG`	`88,772`	`88,772`	`88,772`	`88,772`	`44,386`	`355,088`
`5.`	`SHIVKUMAR` `JAYANTIBHAI` `PATEL`	`OS`	`15,000`	`15,000`	`15,000`	`15,000`	`7,500`	`60,000`
`6.`	`SURAJ KUMAR` `PANDEY`	`AB`	`27,046`	`27,046`	`27,046`	`27,046`	`13,523`	`108,184`
`7.`	`RAKESH` `KUMAR` `ARVINDBHAI` `PATEL`	`TR.OS`	`7,500`	`7,500`	`7,500`	`7,500`	`3,750`	`30,000`
`8.`	`VINAY KUMAR`	`COOK`	`30,695`	`--`	`30,695`	`30,695`	`15,348`	`92,085`

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10.This Court issued Notice on the said
Application upon Simcement Private Limited,
Mumbai, the erstwhile Owner of the Defendant
Vessel vide order dated 06.07.2022 and directed
the Plaintiffs/Applicants to serve to Simcement
Private Limited, Mumbai through email. Learned
advocate Ms. Paurami Sheth submitted that in

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Page 7 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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pursuance of the said order, the notice is
served upon Simcement Private Limited, Mumbai
vide Email dated 18.07.2022 and tendered copy of
the said Email indicating.

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11.Learned advocate Ms. Paurami Sheth submitted
that the averments made in the plaint and
Application with respect to their unpaid wages
have gone unchallenged inasmuch as the
registered Owner of the Defendant Vessel despite
service of the Arrest Warrant and Notice of
Application have not rebutted the same and
thereby admitted the dues of the Plaintiffs, the
Plaintiffs have maritime claim and maritime lien
under Section 4 (1) (0) and 4 (1) ( w ) read
with section 9 of the Admiral (Jurisdiction and
Settlement of Maritime Claims) Act, 2017 (For
short “ the Admiralty Act”) and consequently
entitled to be paid first in priority out of
sale Proceeds lying with the Registry of this
Court and hence the plaintiffs are therefore
required to be granted a decree on admission for
wages for principal amount of Rs.21,95,550/-plus
accrued interest till date of this Application
of Rs.65,867/-and cost of litigation of
Rs.1,00,000/-aggregating to Rs.23,61,417/- with
further interest at the rate of 12% per annum on
Rs.21,95,550.00 from date of order till its
realization as per Schedule.

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Page 8 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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12.MS. Sheth, the learned advocate has also invited attention of this Court to the following documents annexed with the Plaint and above Application:

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a.The Employment Contracts (Page Nos. 15 to 54 of the Plaint),

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b.Letter dated 03.01.2022 addressed to M/s. Tapti Waterways Private Limited Copy of chart showing outstanding Amount of wages(Page Nos. 55 to 56 of the Plaint)

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c.reply dated 04.01.2022 of M/s. Tapti Waterways Private Limited(Page No. 57 of the Plaint)

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d.Article of Agreement for Employment of
Seafarers (Page Nos. 7 to 22 of the
Application)

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13.In support of her submissions, Ms. Sheth, the learned advocate relied on the following judgments:

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I Order passed by this Court in Credit Suisse AG v.MV Sam Hawk (dated 04.02.2021).

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II Order passed by this Court in Yes Bank V.
NandAparna AS No. 16/21 dated 12.07.2022

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III Order passed in the case of Raj Shipping
Agencies vs. Barge Madhwa and Anr., 2020 SCC
OnLineBom 651.

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Page 9 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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14.This Court considered the submissions
advanced by Ms. Paurami Sheth, the learned
advocate for the plaintiffs, gone through the
Plaint and affidavit-in-support, the Civil
Application and the documents annexed with the
Plaint and the Application. It is evident from
Employment Contract, Letters of the Plaintiff
addressed to M/s. Tapti Waterways Private
Limited and reply of M/s. Tapti Waterways
Private Limited annexed with the Plaint that the
plaintiffs have been employed to serve on the
Defendant Vessel through M/s. Tapti Waterways
Private Limited and they were not paid wages
from 01.11.2021. It is further evident from
Article of Agreement for Employment of Seafarers
that the plaintiffs served upon the defendant
Vessel for erstwhile Owner till 14.02.2022 and
hence they are entitled for the wages till that
date. Thus having considered the submissions
thereto and more particularly in view of the
fact that the Plaintiffs/Applicants herein have
the claim against the sale proceeds of the
vessel lying with this Court, I am of the view
that the prayers sought in the present Civil
Application for passing decree deserves to be
allowed.

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15. Further, it is evident from Employment

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Page 10 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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Contract, Letters of the Plaintiff addressed to
M/s. Tapti Waterways Private Limited and reply
of M/s. Tapti Waterways Private Limited annexed
with the Plaint that the plaintiffs have been
employed to serve on the Defendant Vessel
through M/s. Tapti Waterways Private Limited,
they were not paid wages from 01.11.2021. It is
also evident from Article of Agreement for
Employment of Seafarers that the plaintiffs
served upon the defendant Vessel for erstwhile
Owner till 14.02.2022 and hence they are
entitled for the wages till that date. Thus it
is proved that the Plaintiffs served on the
Defendant Vessel and have not been paid wages
and their claim stand proved.

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16.Records indicate that Notices have been
duly served upon the Owner of the Defendant
Vessel. This Court directed that the Warrant of
the order of arrest not required to be effected
on the defendant Vessel in view of her sale but
the Order was duly served upon the Owner of the
Defendant vessel. The Owner of the Defendant
Vessel has not appeared before this Court nor
filed Written Statement within stipulated time
as required under Order VIII Rule Rule 10 of the
CPC, 1908 as amended by the Commercial Courts
Act, 2015. In view of above the liability of
owner can be said to be uncontroverted.

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Page 11 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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17. The Plaintiffs have initiated action in rem against the Defendant Vessel. The fundamental legal nature of an action in rem as distinct from its eventual object is that it is a proceeding against res. Thus, when a ship represents such res as is frequently the case, the action in rem is an action against the ship herself. The action is a remedy against the corpus of the offending ship. It is distinct from an action in personam which is a proceeding inter-partes founded on personal service on Defendant within jurisdiction, leading to a judgment against the person of the Defendant. In an action in rem no direct demand is made against the Owner of the res personally. The distinction between an action in remand an action in personam is therefore a matter of substance and not of mere form.

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18. The original Plaintiffs/Applicants have also filed the above Application under the provisions of Order XIII-A of the CPC, 1908 read with Section 12 of of the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017and sought decree/summary Judgment against the sale proceeds of the Defendant Vessel.

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19. Considering the submissions advanced by the learned advocate Ms. Paurami Sheth for the

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Page 12 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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Plaintiffs, upon perusal of the documents
annexed by the Plaintiffs in support of its
claim and in view of the fact that despite
service, the Registered/Erstwhile Owner has not
entered appearance till date nor filed written
Statement rebutting the averments made in the
Suit remain unchallenged and thereby the dues of
the Plaintiffs have been admitted. I am of the
opinion that from the pleadings and materials on
record, no purpose would be achieved by leading
oral evidence and directing the Plaintiffs to
undergo a full-fledged trial and the same would
be grossly unfair and there is no compelling
reason for the same especially when the
erstwhile Registered Owner of the Defendant
Vessel has admitted its liability by not
rebutting the same and not filing the Written
Statement. It is thus evident that Plaintiffs
have made out a case for grant of decree on non
rebuttal in his favour. It is therefore held
that the Plaintiffs have served as the Crew on
Board and their unpaid wages have maritime lien
on the Defendant vessel as per Section 9 of The
Admiralty Act, 2017.

¶84

20. Taking into consideration the provisions of Order VIII Rule 1 and Order VIII Rule 10 read with Order XIII-A of the CPC, 1908 undisputably the case of the present Plaintiffs and facts and

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Page 13 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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circumstances of the present case, the
Plaintiffs have sought prayers against the
Defendant Vessel by seeking a decree only
against the sale proceeds of the Defendant
Vessel and, therefore, there is force in the
submissions made by Ms. Sheth, the learned
advocate appearing for the applicant.

¶88

21.Even otherwise this Court is of the opinion
that it may on its motion pass a decree in
favour of the Plaintiff on the basis of the
admission of the Plaintiff’ Claim in its
entirety by not rebutting the same or not filing
Written Statement by the erstwhile Registered
owners of the Defendant Vessel even though the
Plaintiffs have not made application
specifically under Order XII Rule 6 of the Code
of Civil Procedure, 1908 while exercising the
powers of the Court under Section 151 of the
Code of Civil Procedure, 1908.

¶89

22. In view of the same, a case has also been made out for passing a judgment/decree in favour of the Plaintiffs on basis of the above submissions. In such circumstances the present suit is decreed as below:

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a)That there be an order and decree that the claim of the Plaintiffs in the Suit is secured in favour of the Plaintiffs by a

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Page 14 of 15

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C/AS/4/2022 ORDER DATED: 26/07/2022

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valid and subsisting maritime lien over the
sale proceeds of the Defendant Vessel NAND
Aparna (IMO No. 9082087), lying with the
Registry of this Court.

¶94

b)That there be an order and a decree in favour of the Plaintiffs and against sale proceeds of Nand Aparna (IMO No. 9082087) for the principal amount as claimed for towards wages at the rate of 12% per annum from the date of payment due till realization.

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c)No other priority except the aforesaid are adjudicated by this Court under Section 9 read with Section 10 of the Admiralty Act, 2017.

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23. The suit stands decreed to the aforesaid extent only. The present suit and Civil Application No. 1 of 2022 is disposed of in the aforesaid terms.

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There shall be no order as to further costs.

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(VAIBHAVI D. NANAVATI,J)

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Pallavi

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Page 15 of 15

Bhanabhai Premabhai Tailor Master v. Nand Aparna (Imo No 9082087)

Case brief

What is this about?

What did the court decide?

Bhanabhai Premabhai Tailor Master v. Nand Aparna (Imo No 9082087)

Case brief

What is this about?

What did the court decide?

What the court decided

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