Dismissed

M/S.Nielsen and Kilborne Ltd. v. M/S.Owners and Parties

Madras HC8 Oct 2021CS/768/2006

Case brief

AI extract

What is this about?

Bunker supplier sued the vessel in rem in admiralty to recover the cost of fuel supplied at Cape Town on the orders of the time charterer. The court held there was no contract with the owner or master, that no maritime lien arose, and that the vessel was not liable; the suit was dismissed.

What did the court decide?

Suit dismissed with no order as to costs; the Bank Guarantee furnished by the defendant towards the suit claim was directed to be cancelled and returned to its counsel.

M/S.Nielsen and Kilborne Ltd. Vs M/S.Owners… — Contract and Commercial Disputes | Madras HC (2021)

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CS No.768 of 2006

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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
28.09.2021 08.10.2021
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.768 of 2006
M/s. Nielsen & Kilborne Ltd,
Suite 106, Ai Sufooh Building,
Sheikh Zayad Road, P.O.Box No.37933
Dubai, U.A.E ... Plaintiff
Vs
M/s.Owners and Parties interested
In the vessel M.V.Mirna
Rep by its Master now at the
Port of Tuticorin, Tamil Nadu. ... Defendant
Prayer : Plaint filed under Order XLII Rule II of the High Court Original
Side Rules, praying for the following judgment and decree:-

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(a) for a sum of Rs.1,29,22,430/- together with interest at the rate of 24% per annum on Rs.1,29,22,430/- from the date of plaint till the date of realization in full;

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(b) For arrest and sale of the vessel M.V.Mirna in as is
where is condition, presently in Indian waters at the port
of Tuticorin;
(c) For a direction to adjust the sale proceeds against the
suit claim with interest and costs;
(d) For costs of the suit.
For Plaintiff : Mr.Kalyan Jhabakh
for M/s. Surana and Surana
For Defendant : Mr.S.Raghunathan

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J U D G M E N T

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The plaintiff seeks recovery of a sum of Rs.1,29,22,430/- due and payable for the fuel (bunkers) supplied to the ship M.V.Mirna, while it was

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berthed at Cape Town, South Africa, on 24.09.2006.

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According to the plaintiff on the orders of the charterer of the ship M/s.Crossworld Middle East LLC, Sharjah, represented by one Mr.R.Srinivasan, the plaintiff had supplied 599.998 Metric Tonnes of Intermediate Fuel Oil and 90.004 Metric Tonnes of Marine Gas Oil to the ship M.V.Mirna, which is cited as the defendant in this action under the admiralty jurisdiction of this Court. According to the plaintiff, the orders were placed through e-mail on 13.09.2006 and the plaintiff vide its email dated 14.09.2006 agreed to supply Bunkers as requested. An agreement was reached between the parties to supply 600 to 700 Metric Tonnes of Intermediate Fuel Oil together with 90 to 100 Metric Tonnes of Marine Gas

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Oil, as bunkers for the defendant vessel. According to the plaintiff, the

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supplies were effected on 24.09.2006 and the same was acknowledged by the Master of the ship. An invoice was raised by the plaintiff on 24.09.2006 for the value of USD 280,922.40, and the Bank account to which the payment should be made was also indicated.

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Contending that despite several demands and remainders, the defendant had not made the payment, the plaintiff had come forward with the above suit for recovery of the said sum of 280,922.40 USD equivalent to Rs.1,29,22,430/-. Terming the contract as a commercial contract, the plaintiff would also claim interest at 24% per annum. An order of arrest of

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the ship was also obtained pending suit and the same was vacated upon the defendant furnishing a Bank Guarantee for the suit claim.

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The suit is being resisted by the defendant contending that the very

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claim of the plaintiff is not a maritime claim which could be launched against the ship, as an action in rem under the admiralty jurisdiction. It is the case of the defendant that supply of bunkers though would amount to

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supply of necessities for a ship, the same if supplied at the instance of the charterer will not qualify as a maritime claim in order to enable the plaintiff to seek recovery against the ship in an action in rem under the admiralty jurisdiction. It is the further contention that the ship was actually on a time

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charter during the relevant period and it was the charterer namely M/s.Crossworld Middle East LLC, Sharjah, which was in control of the

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vessel and there was no contract between the plaintiff and the defendant or

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the owners of the defendant ship with reference to supply of bunkers to the ship.

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It is the further contention that the plaintiff being a regular supplier of bunkers was aware of the fact that the ship was on a time charter and it is the charterer who is liable for payment of the cost of the fuel supplied to the ship and not the owner of the ship. An additional plea was taken to the effect that the charterer had in fact paid the cost of the bunkers supplied in advance. It is the further contention of the defendant that M/s.Crossworld

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Middle East LLC, Sharjah, the charterer is a necessary party to the suit. The

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conventions relating to arrest of ships where also sought to be relied upon by the defendant to deny its liability. On the above contentions, the defendant sought for dismissal of the suit.

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Upon the above pleadings, the following issues were framed by this
Court:
1.Whether the suit is maintainable in the admiralty
jurisdiction of this Court;
2.Whether the suit is maintainable under the International
Convention on Arrest of Ships, 1999;
3.Whether the plaintiff supplied bunkers to the vessel
M.V.Mirna;
4.Whether the plaintiff is entitled to a maritime lien over the
vessel;
5.Whether the plaintiff has been paid a sum of USD
2,88,900/- by Cross World Middle East LLC for the
supplies made to the vessel at Cape Town on 24.09.2006;

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6.Whether the suit is bad for non joinder of Cross World

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Middle Ease LLC as a party;

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7.Whether the Cross World Middle East LLC alone is

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liable, if at all, for payment in respect of the supplies made

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by the plaintiff;
8.Whether the plaintiff has cause of action against the
defendant or the Vessel M.V.Mirna;
9.Whether the plaintiff is entitled to claim a sum of
Rs.1,29,22,430/- together with interest thereon at 24% per
annum;
10. To what other reliefs the parties are entitled?

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At trial, one Ms.Mary Electra Carol Fernandes, was examined as P.W.1 and Exhibits P1 to P20 were marked. One Mr.Bijesh Thomas, the Power of Attorney agent of the defendant was examined as D.W.1 and Exhibits D1 to D4 were marked.

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I have heard Mr.Kalyan Jhabakh, learned counsel appearing for

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M/s.Surana and Surana for the plaintiff and Mr.S.Raghunathan, learned

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counsel appearing for the defendant.

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Issue Nos. 1 and 2:

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The suit is filed as an action in rem invoking the admiralty

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jurisdiction of this Court when the vessel namely M.V.Mirna was berthed at Tuticorin Port. The fact that this Court has got admiralty jurisdiction over

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the Tuticorin Port is not in dispute. It is fundamental principle of admiralty

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law that in order to enforce maritime claims an action in rem would lie

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against the ship and such action can be launched at the Court within whose jurisdiction the ship was currently berthed at the time of the initiation of the proceedings.

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Maritime Claims) Act, 2017, confers the jurisdiction on the High Court to

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order arrest of any vessel which is within this jurisdiction for the purpose of providing security against a maritime claim which is subject of an admiralty proceeding. The prohibitions contained under Section 7 of the said Act, with reference to actions in personam will not stand attracted in the case on hand, inasmuch as, the plaintiff has come to Court to a specific case that its claims

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is a maritime claim and an action in rem could be maintained for recovery of

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money being the cost of the bunkers supplied to the ship.

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9.2. I therefore do not find any difficulty in concluding that the suit as framed would be maintainable. There is nothing the International Convention of Arrest of Ships, 1999, which prohibits the filing of the suit in this Court. Inasmuch as the fact that the ship was within the admiralty jurisdiction of this Court on the day when the plaint was filed is admitted, I have no hesitation in concluding that issue Nos.1 and 2 should be answered

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in favour of the plaintiff.

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Issue No.3:

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This issue relates to a factual question, as to whether, the plaintiff

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had supplied bunkers to the vessel M.V.Mirna. A deeper perusal of the pleadings and the evidence on record, particularly Exhibits P9 and P10 signed by the Master of the ship would put the controversy beyond pale of any doubt. Once the Master of the ship acknowledges the supply, it is for the defendant to show that no such supply was effected. I find that the defendant has no such case. The contentions of the defendant in the suit are twofold. The primary contention is regarding the liability of the ship to

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answer the claim and the secondary contention is that the charterer of the ship namely Crossworld Middle East LLC, Sharjah, has made the payment in advance. Therefore, issue No.3 is answered to the effect that the plaintiff

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had in fact supplied bunkers to the ship M.V.Mirna, when it was berthed at

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Cape Town on 24.09.2006.

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Issue Nos.4,6,7,8 and 9 :

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These issues relates to the liability of the defendant ship to answer

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the claim of the plaintiff. It is the contention of the plaintiff that the bunkers were supplied upon orders from the charterer namely M/s. Crossworld Middle East LLC, Sharjah, represented by one Mr.R.Srinivasan. The fact that an order was placed by the charterer is demonstrated by Ex.P2 which is an email sent by Mr.Pavan Gupta, the agent of the plaintiff, to Crossworld Far East, with copy mark to CrossWorld Middle East LLC. The said email is in reply to a telecon requesting supply of bunkers to the ship M.V.Mirna. This is followed by a reply from Mr.R.Srinivasan addressed to Mr.Pavan (Gupta), this email which is marked as Ex.P3 requires the plaintiff to send their Bank details urgently and seen that it was sent on 14.09.2006 at 9.49 a.m. This is followed by a third mail which has been marked as Ex.P4 dated

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14.09.2006, wherein the plaintiff has confirmed the supply of bunkers for the vessel M.V.Mirna, between 21.09.2006 and 24.09.2006 the quantity to be supplied is also stated as

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IFO 180 CST/600 MTS at USD 348.50 PMTD

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MGO (DMA)/100 MTS at USD 798.00 PMTD

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The total amount to be remitted is shown as 288,900 USD. The Bank

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details of the plaintiff were also disclosed.

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11.1. Again on 14.09.2006, the charterer namely Crossworld Middle

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East Ltd, had sent a letter under Ex.P6, confirming that the payment for the bunkers supplied will be made by them as the present owner (Charterer of the vessel). The plaintiff was also required to provide a faxed copy of the bunker delivery receipt signed by the Master of the vessel. The letter also states that standard terms and conditions for supply of bunkers would be followed. This letter is followed by another email at 2.25 p.m. on 14.09.2006, wherein the detailed program of the ship is given. The cost of

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supply is also stated therein.

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11.2. Exhibits P9 and P10 demonstrate that the actual supply of

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bunkers was effected on 24.09.2006, between 13.45 hours to 21.50 hours. It is seen from those receipts signed by the Master of the ship, the ship was supplied with 90.004 metric tonnes of Marine Gas Oil and 599.998 metric tonnes of Intermediate Fuel Oil. The total cost of the bunkers supplied as per the invoice marked as Ex.P11 is USD 280,922.49. By letter dated 30.09.2006, the plaintiff had required M/s.Crossworld Middle East LLC, Sharjah, to pay the cost of the bunkers supplied within 24 hours. This is followed by a remainder issued on 05.10.2006 marked as Ex.P12. Since the payment was not made, the plaintiff had sent a final remainder on 11.10.2006. In all these notices, the total sum of money demanded is USD 280,922.49.

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11.3. It is therefore clear from the above that the plaintiff had

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supplied bunkers to the ship M.V.Mirna at Cape Town and the quantities supply has also been acknowledged by the Master of the vessel. However, the Master of the vessel, while acknowledging the quantity supplied had

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said that neither the ship nor the owner of the ship would be liable for the

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cost and it is the charterer namely M/s. Crossworld Middle East LLC, Sharjah, who would be liable for the cost of the bunkers supplied.

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11.4. It is the contention of the learned counsel for the plaintiff that

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this endorsement was made by the Captain after the supply was completed and therefore, the same cannot bind the plaintiff. Mr.Kalyan Jhabakh, learned counsel appearing for the plaintiff would, relying upon the documentary evidence that has been placed, contend that once the supply is not disputed and the supply having been made to the ship, the claim of the plaintiff would be a maritime claim and the plaintiff would therefore have a

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maritime lien on the ship and as such, it can maintain an action in rem under the admiralty jurisdiction.

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11.5. Contending contra, Mr.S.Raghunathan, learned counsel

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appearing for the defendant would submit that supply of bunkers to a ship, though constitutes supply of necessities it would not constitute a maritime

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claim when the ship was in the custody of a charterer under a time charter

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party. Relying upon the charter party agreements which have been produced as Exs.D3 and D4, Mr.S.Raghunathan, learned counsel, would contend that the liability to pay for the bunkers is that of the charterer and the ship cannot be held liable in an action in rem. The ship or its owners

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cannot be held liable either in an action in rem under the admiralty law or in

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an action in personam.

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11.6. Mr.S.Raghunathan, learned counsel would also contend that

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there is no contract between the plaintiff and the defendant. Pointing out to the email correspondence and other correspondence relied upon by the

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plaintiff marked as Exs.P2 to P8, the learned counsel would submit that the entire correspondence which culminated in the supply of bunkers to the ship on 24.09.2006 was between the plaintiff and Crossworld Middle East LLC,

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at Sharjah and therefore, the defendant had nothing to do with the said

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contract. Heavy reliance is also placed on the endorsement of the Master of the Ship made in Exs.P9 and P10 to the effect that it will be the charterer

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who would be liable for the cost of the bunkers supplied and not the owner

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of the vessel, the learned counsel would submit that this action in rem against the vessel is not maintainable. He would also point out that the vessel could be made liable only in a case where there is a maritime lien over the vessel.

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11.7. Drawing my attention to Article 3 of the Convention on

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Maritime Liens and Mortgages, 1993, Mr.S.Raghunathan, would submit that the ship could be made liable only in respect of a maritime claim, if the person who owned the ship at the time when the maritime claim arose is liable for the claim and is the owner of the ship when the arrest is effected. According to Mr.Raghunathan, since the cost of the bunkers is payable by the charterer and not the owner of the Ship, the Ship cannot be held liable for payment of the cost of the bunkers supplied. He would also invite my attention to the judgment of the Hon’ble Supreme Court in Epoch Enterrepots v. M.V.Won Fu, reported in (2003) 1 SCC 305 , wherein the Hon’ble Supreme Court had after referring to the definition of the term maritime lien in Bold Buccleugh, The, reported in (1843-60) All ER Rep

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125 , had held that maritime liens represent a small cluster of claims which arise either out of services rendered to a maritime res or from damage done

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to a res and listed five several heads of maritime liens as under:

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(a) Damage done by a ship

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(d) Master’s wages and disbursements

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The Hon’ble Supreme Court went on to observe that the limited

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applicability of such a lien would illustrate that not every kind of service or

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every kind of damage which arises in connection with a ship gives rise to a maritime lien.

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11.8. It is common knowledge that a maritime lien travels with a

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vessel in whosesoever possession it comes and many a time an innocent purchaser of the ship may find its properties subject to various claims.

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Pointing out that the charter in question is a time charter and the charterer

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will be in complete control of the vessel and the personal manning the vessel will have to act under the directions of the charterer, Mr.S.Raghunathan, would contend that the liability to pay for the bunkers is on the charterer and not the owner of the ship. The learned counsel would

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also point out that in Interaccess Marine Bunkering Ltd. v. K.M.Allauddin, reported in 2009 (3) CTC 611 , this Court had, after referring the Convention on Maritime Liens and Mortgages, 1993, held that the supply of necessities to a ship will not give rise to a maritime lien. In fact after considering the entire law on the subject, Hon’ble Mr.Justice V.Ramasubramanian, as he then was, had held as follows:

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“ 90. Despite the expansion of the jurisdiction, in England, with several subsequent enactments over a century, no maritime lien was recognised in favour of materials man and the law laid down in Two Ellens, appears to have remained the same. While

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Two Ellens was in 1872, Bankers Trust International v. Todd Shipyard Corporation, The Halcyon Isle, 1980 Ch. D. 197,

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decided over a century later, denied repairmen, a maritime lien.

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It was held therein as follows:

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"As a matter of policy such a claim might not unreasonably be given priority over claims by holders of prior mortgages the value of whose security had thereby been enhanced. If this is to be done, however, it will, in their Lordship's view have to be done by the legislature. It is far too late to add, by judicial decision, an additional class of claim to those which have hitherto been recognised as giving rise to maritime liens under the law of Singapore. " ”

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11.9. Mr.S.Raghunathan, would draw my attention to the judgment of

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the Bombay High Court in Raj Shipping Agencies v. M.V.”Bunga Mas

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Tiga” and another, reported in AIR 2001 Bom 451 , the Bombay High Court held as follows:

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action in rem is devised by the Court to overcome a difficulty of

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personal service on the owner of the vessel. For that purpose, the vessel itself is treated as a person, so that the liability of the owner of the vessel can be enforced against the vessal itself. It

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is thus clear that even for maritime lien there has to be an

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enforceable rights in the plaintiffs against the owner of the vessel. That right is enforceable against the vessel. But existence of a right in the Plaintiffs against the owner of the vessel is a must. Insofar as the present case is concerned, averments in the plaint do not disclose any existing right in the Plaintiffs against the owner of the vessel. In the present case, it is clear that there were two independent contracts in relation to purchase of oil. There was one contract between the owner

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of the Defendant No. 1/ vessel and M/s. North End Oil Pvt. Ltd. whereby the owner of the Defendant No. 1/ vessel agreed to purchase oil at the stated price from M/s. North End Oil Ltd., and the second contract was between M/s. North End Oil Pvt.

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Ltd. and the Plaintffs, whereby M/s. North End Oil Pvt. Ltd.

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agreed to purchase oil from the Plaintiffs at a stated price. The price of oil in both these contracts is different. Insofar as, the purchase of oil by the owner of the Defendant No. 1/ vessel is concerned, there is no privity of contract between the Plaintiffs

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and the owner of the Defendant No. 1/ vessel. Not only that but

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even a demand of the price was made by the Plaintiffs from M/s. North End Oil Pvt. Ltd. and the Plaintiffs have also lodged their claim with M/s. North End Oil Pvt. Ltd. The first Defendant has produced on record receipts which show that the owner of the first defendant vessel has already made

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payment of price of oil to M/s. North End Oil Pvt. Ltd.. It is further to be seen here that in case the Plaintiffs claim against

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the Defendant No. 1/ vessel and its owner is held to be maintainable then, the owner of the Defendant No. 1/ vessel

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would be liable to pay price of the oil to two parties, namely M/s. North End Oil Pvt. Ltd. as also the Plaintiffs. In my

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opinion, adopting such course of action would not amount to

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advancing justice. Insofar as the Judgment of the learned Single Judge in the case of Trans Gulf Oil & Shipping Inc. relied on by the learned Counsel for the Plaintiffs is concerned,

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it is clear from the observations in paragraph 10 of that judgment that in that case there was a specific averments made

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in the plaint that the master of the vessel himself had requested

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supply of bunkers from the Plaintiff. Thus the case disclosed in

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the plaint of that case was a direct contract between the owner of the vessel and the Plaintiff. In my opinion, that is the distinguishing feature between that case and the present case.

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In my opinion, supply of necessity would not make the owner of the vessel liable to pay the price of the supply, unless the Plaintiffs prove that the supplies were made at the instance of either the owner of the vessel or at the instance of the person

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authorised by the owner of the vessel.”

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11.10. Reliance is also placed upon the judgment of the single Judge

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of the Bombay High Court in Socar Turkey Petrol Enerji Dagitim Sav. Ve. Tic. A.S. versus MV Amoy Fortune (IMO No.9583639), reported in CDJ 2018 BHC 788 , wherein the Commercial Division of the Bombay High Court had held that in the absence of privity of contract between the plaintiff and the vessel or its owners, the plaintiff had no cause of action or liability in person which is essential for maintaining an action in rem against the defendant’s vessel. The facts of the case before the Bombay High Court were that the plaintiff’s claim therein arose by reason of bunkers supplied to the plaintiff's vessel. It was claimed that supplies of bunkers being a necessity would give raise to a maritime lien which, according to the plaintiff, could be enforced and crystallised against the defendant’s vessel.

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11.11. The said contention was rejected by the Court pointing out that supply of necessities to the vessel would not constitute a maritime lien

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unless it is shown that the order was placed or requisition was made by the

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Master or the owner or any person acting on their behalf for supply of bunkers. The learned Judge had in fact prepared a chart of various judgments on the question and formulated six questions and tabulated the conclusions of the Courts in various judgments cited before him, depending

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upon the answers given to the six questions formulated by him. The questions formulated are

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1. Whether order placed or requisition made by Master

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and/or owner or any person acting on their behalf for supply

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of bunkers;

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2. Whether any order confirmation issued by bunker supply;

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3. Whether Bunker Delivery Receipt/Bunker Deliver

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Note signed by Master/Chief Engineer contains any clause imposing liability on the vessel/its owners;

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4. Whether invoice raised on owners and/or Master and/or Charterers and/or operators, etc.;

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5. Whether terms and conditions of supply or any other

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term imposing liability on vessel/owners incorporated in the order confirmation or Bunker Delivery Note/ Bunker Delivery Receipt or Invoice;

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Whether any demand for payment made on the owner

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If answers to these questions are in the negative a maritime lien would not

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arise. I had already discussed the facts of the case on hand, the entire documentary evidence available would go to show that the supply of bunkers was made at the instance of the charterer. The confirmation was issued to the charterer, the bunker delivery receipt signed by the Master specifically excludes liability of the vessel or its owner. No invoice had been raised on the owner or the vessel or it’s Master. There is nothing in the terms and conditions of supply which could make either the vessel or its owners liable for the cost of the bunkers.

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11.12. On the facts of the case on hand, I find that all the six

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questions will have to be answered only in a negative and the attempt made by the learned counsel for the plaintiff to explain away the endorsement

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made by the Master of the vessel is very feeble. Even after the failure on the part of the charterers, the plaintiff had not made a demand on the owner of the vessel at any point of time, before seeking arrest of the vessel by instituting the suit. Even the final notice that was issued on 11.10.2006 was addressed only to the charterer. Therefore, in the absence of any evidence to show that there was a contract between the owner or the Master of the vessel

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and the plaintiff, there cannot be a maritime lien for the bunkers supplied.

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11.13. In the absence of a contract, I find it impossible to make the owner of the ship liable. Mr.Kalyan Jhabakh, learned counsel appearing for

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the plaintiff would attempt to invoke Section 70 of the Contract Act, in order to make the owner of the ship liable. I do not think that Section 70

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could be used to fasten the liability on the owner of the ship where there is a specific agreement between the parties that the charterer alone is liable to

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pay for the bunkers and not the owner. Section 70 of the Act cannot also be

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used to fasten the liability on the owner of the ship or the ship itself as the benefit is not enjoyed by a ship or its owner, the benefit goes to the charterer.

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11.14. Reference could also be made to the oral evidence as to the

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actual intention of the parties. P.W.1 who is a licensed bunker broker herself, has in her cross-examination admitted that she was aware of the fact that Crossworld Middle East LLC, Sharjah, were the time charterers of the vessel at the time when the bunkers were supplied. To a specific question as to why no demand was made on the owner of the ship, P.W.1 had answered

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that at the time when the supplies were made, the plaintiff was only dealing with Crossworld Middle East LLC, Sharjah, and the plaintiff was not aware that Crossworld Middle East LLC, was going to close down business and hence they did not make a demand on the owners. She had also admitted

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that they were only dealing with Crossworld Middle East LLC, Sharjah, and they had made supplies to Crossworld Middle East LLC, Sharjah, earlier

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for which the Crossworld Middle East LLC, Sharjah, has paid the amounts

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due and therefore, they did not approach the owner for an undertaking.

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11.15. To a specific question regarding the endorsements made by the Master in Exs.P9 and P10, P.W.1 had admitted that the plaintiff did not challenge those endorsements. This oral evidence coupled with the law

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declared by this Court and the Hon’ble Supreme Court, impel me to conclude that the defendant namely, the ship or its owners cannot be made liable for the cost of the bunkers supplied to the ship when it was, under a time charter party, in possession of a third party under whose instance the plaintiff had supplied bunkers to the ship.

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11.16. Hence Issue No.4 is answered to the effect that the plaintiff is

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not entitled to a maritime lien over the vessel. Issue No.6 is answered to the effect that the suit is bad for non joinder of Crossworld Middle East LLC,

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Sharjah. Issue No.7 is answered to the effect that the charterer namely Cross World Middle East LLC alone is liable for the payment in respect of

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the supplies made by the plaintiff and Issue No.8 is answered to the effect

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that the plaintiff has no cause of action against the defendant vessel M.V.Mirna.

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Issue Nos.5 :

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Apart from claiming that the ship cannot be made liable and there

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is no maritime lien, the defendant would also set up a plea that the money payable has already paid by the charterers. The defendant would rely upon the payment alleged to have been made on 18.09.2006. According to the defendant, the charterers had made a payment of a sum of 288,900 USD to the account of the plaintiff on 18.09.2006, which according to the defendant is towards the bunker charges for the bunkers that were supplied on 24.09.2006. An email said to have been sent by the plaintiff has also been produced showing that an invoice bearing No.NK-06-4064 dated 14.09.2006 for a sum of 288,900 USD has been raised towards supply of bunkers to the vessel M.V.Mirna at Cape Town. This claim is stoutly denied by the plaintiff.

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12.1. According to the plaintiff, this sum of 288,900 USD represents the money payable by Crossworld Middle East LLC, Sharjah, for supplies effected to a ship by name M.V.Bounty. In reply to the claim of the defendant, the plaintiff by its lawyer notice dated 23.10.2006 while denying the claim had also enclosed copies of the email correspondence between Crossworld Middle East LLC, Sharjah, and the plaintiff, which would go a long way to show that this payment of USD 288,900 was not towards the bunkers supplied to the ship M.V.Marina. The email which is annexed to Ex.P18 dated 14.09.2006 sent at 10.42 a.m. makes a specific reference to the overdue amount of 288.899.75 USD, as outstanding from Crossworld

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Middle East LLC, Sharjah, to the plaintiff and the plaintiff had made it very clear that unless this payment was not made it would not be in a position to supply bunkers to the ship M.V.Mirna at Cape Town.

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12.2. According to the plaintiff, it is in response to the aforesaid email, the charterer namely Crossworld Middle East LLC, Sharjah, had paid

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a sum of 288,900 USD on 18.09.2006. The Invoices raised by the plaintiff

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on Crossworld Middle East LLC, Sharjah, on 08.08.2006 and 17.08.2006 have also been produced as annexures to Ex.P18. The plaintiff had also raised a proforma invoice on Crossworld Middle East LLC, Sharjah, for a sum of USD 280,000 towards bunkers supplied to the ship M.V.Mirna. Another email dated 16.09.2006 sent at around 2.11 p.m. has been produced

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as Ex.P9, wherein Mr.R.Srinivasan of Crossworld Middle East LLC, Sharjah, had required Mr.Pavan Gupta of the plaintiff Company to supply bunkers to M.V.Mirna. The said email also points out that outstanding amount of USD 288,900 has been paid and Mr.V.Mirna payment will be remitted on submission of Invoice of actual quantity. The cumulative effect of this correspondence is that the charterer namely Crossworld Middle East LLC, Sharjah, had not paid the cost of the bunkers in advance. Hence Issue No.5 is answered against the defendant.

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Issue No.9 :

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In view of the answers to issues 4, 6, 7 and 8, the issue No.9 has

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to be necessarily answered against the plaintiff concluding that the plaintiff

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has not entitled to a decree for a sum of Rs.1,29,22,430/- as against the defendant.

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In fine the suit is dismissed . However in the circumstances of the

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case, I make no order as to costs. It is gathered that the defendant had
furnished a Bank Guarantee towards the suit claim, pursuant to an order of
this Court dated 01.11.2006 in OSA No.313 of 2006 and same has been kept
alive. In view of the dismissal of the suit, the Registry is directed to cancel
the Bank Guarantee and return the same to the counsel for the defendant.
08.10.2021
Index : Yes
Internet : Yes
Speaking order
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List of Witness examined on the side of the plaintiff:

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PW1 – Mr. Mary Electra Carol Fernandes

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List of Exhibits marked on the side of the Plaintiff:

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_S. No. _	*Exhibits*	*Description of Documents*	*Date*
1	Ex.P1	Power of Attorney	15.08.2011
2	Ex.P2	E-mail sent bythe plaintiff	13.09.2006
3	Ex.P3	E-mail sent bythe defendant	14.09.2006
4	Ex.P4	E-mail sent bythe plaintiff	14.09.2006
5	Ex.P5	E-mail sent bythe defendant	14.09.2006
6	Ex.P6	Letter sent by Crossworld Middle East Limited to the plaintiff	14.09.2006
7	Ex.P7	Standard Terms and conditions for supplyof bunkers	-
8	Ex.P8	E-mail from Crossworld to plaintiff's agent	14.09.2006 & 18.09.2006
9	Ex.P9	DeliveryReceipt bearingNo.034583	24.09.2006
10	Ex.P10	DeliveryReceipt bearingNo.034549	24.09.2006
11	Ex.P11	Invoice raised bythe plaintiff	24.09.2006
12	Ex.P12	Reminder Letter sent bythe plaintiff	30.09.2006
13	Ex.P13	Final demand sent by letter by plaintiff to the Crossworld byregistered post	11102006

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_S. No. _	*Exhibits*	*Description of Documents* *Date*
14	Ex.P14 Series (5 Nos.)	Message from Master of the Vessel to the owners and copy forwarded to the plaintiff bythe defendant -
15	Ex.P15	Copy of the E-Mail from plaintiff to Crossworld 14.09.2006
16	Ex.P16	Remittance advice from DBS Bank, Singapore. 22.09.2006
17	Ex.P17	Letter from the counsel for the defendant 20.10.2006
18	Ex.P18	Reply of the counsel for the plaintiff to the counsel for the defendant along with enclosures 23.10.2006
19	Ex.P19	E-Mail letter from Crossworld to the plaintiff 16.09.2006
20	Ex.P20	E-mail letter from Crossworld to the plaintiff 22.09.2006

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List of Witness examined on the side of the Defendant:

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DW1 – Mr.Bijesh Thomas

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List of Exhibits marked on the side of the Defendant :

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S. No. Exhibits Description of Documents Date
1 Ex.D1 Xerox copy of Power of Attorney 120613
2 Ex.D2 E-mail from LSTM Dry-Chartering to
the Cime Magas 080406
3 Ex.D3 M.V.Sterling Sea Proforma -
Charterparty and the logical
amendments/alterations as per main
terms agreed
Ex.D4 Charterparty in respect of the Vessel
4 M.V.Mirna 070406
08.10.2021
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To
The Sub Assistant Registrar,
Original Side,
High Court of Madras, Chennai 104.