N. J. Jamadar, J
1) The defendant-Vessel has preferred this application, seeking dismissal of the Suit on the ground that the plaintiff being an unregistered partnership firm, was incompetent to institute the suit and the plaintiff’s claim is not a Maritime Claim. The applicant has also sought the return of the security furnished by the applicant along with the interest and damages in the sum of Rs.20,00,000/-, for the wrongful arrest of the applicant-Vessel.
2) Background facts can be stated in brief as under:-
(a) Pragati Marine Services Private Limited is the registered owner of M.V Kumar (I.M.O.No.9084621) the defendant-Vessel. United India Marine Services, the plaintiff, claimed to be a partnership firm. During the period of December, 2019 to February 2021, the plaintiff claimed to have delivered supplies and rendered repairs and technical services to the defendant-Vessel and her sister Vessels pursuant to the purchase orders issued by the registered owner.
(b) Plaintiff claimed against the said supply and services to the defendant-Vessel and her sister Vessels namely M.V Mangalam, Sea Hunter and Westsea Hawk, an outstanding principal amount of Rs.61,76,453/-, and interest at the rate of 2% per month on the principal sum of Rs.49,21,608/-, was due and payable. Asserting that the plaintiff had Maritime Claim against the defendant – Vessel, the plaintiff instituted the suit, seeking a decree in the sum of Rs.61,76,453/-, along with interest, costs and legal charges. The plaintiff prayed for arrest of the defendant-Vessel.
(c) By an order dated 6th September, 2021, this Court ordered the arrest of the defendant-Vessel. On 26th September, 2021, the owner entered appearance before this Court and furnished security of Rs.73,73,959/-. Thereupon, the defendant-Vessel came to be released from order of arrest.
(d) The owner has moved this application with the contention that the arrest of the defendant-Vessel was patently wrongful. Two grounds are primarily pressed into service. One, the plaintiff is not a registered partnership firm and, therefore, the Suit itself is not tenable. Two, the plaintiff’s claim in the suit not being a Maritime Claim under the provisions of The Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017 (“the Admiralty Act, 2017”), defendant-Vessel could not have been arrested.
(e) It is contended on behalf of the defendant that, in the plaint, an ambiguous assertion is made that the plaintiff is a partnership firm without disclosing as to whether it is registered or not. Since the plaintiff is not a registered partnership firm, the bar under Section 69 (2) of the Partnership Act, 1932 (“the Act, 1932”), comes into play and the suit is incompetent. Secondly, the defendant contends the claim arose out of alleged breach of MOU dated 17th March, 2021, incorporating the terms of the contract. Thus, at best, the plaintiff’s claim arose out of the terms of the contract between the parties and it cannot assume the character of a Maritime Claim. The claim in the suit, according to the defendant, represents a pure and simple commercial dispute, amenable to the jurisdiction of Ordinary Civil Courts and not Admiralty Court. Thus, this application seeking dismissal of the suit, return of the security and damages.
3) The plaintiff has resisted the application by filing an affidavit-in-reply. It is contested that the suit does not represent a Maritime Claim. Plaintiff asserts, the Maritime Claim arose on account of the marine services rendered by the plaintiff to defendant-Vessel and her sister Vessels at the instance of the owner. It is denied that the plaintiff is an unregistered partnership firm. According to plaintiff, the defendant has not succeeded in bringing material on record to clearly demonstrate that the suit is barred under the provisions of Section 69 (2) of the Act, 1932. In any event, according to the plaintiff, the delay in seeking release of the defendant-Vessel and also in moving application after furnishing security, impinges upon the instant application. Thus, the claim for damages is stated to be wholly unsustainable.
4) In rejoinder, the defendant, apart from controverting the contentions in the affidavit-in-reply, categorically asserts that the plaintiff firm came to be registered on 7th April, 2022, much after the institution of the suit, arrest of the defendant-Vessel and release thereof pursuant to the order of the Court. A copy of the firm registration certificate is annexed to the affidavit-in-rejoinder, in support of the contention that the firm was indisputably not registered on the date of the institution of the suit. Thus, the defendant prayed for the dismissal of the suit.
5) I have heard Mr. Kolse Patil, the learned Counsel for the applicant-defendant and Mr. Prathamesh Kamat, the learned Counsel for the plaintiff at some length. With the assistance of the learned Counsel for the parties, I have perused the pleadings, affidavit in support of the application, reply and rejoinder thereto. I have also perused the documents pressed into service on behalf of the parties to substantiate their respective contentions.
6) Though the defendant took a ground that the claim in the suit is not a Maritime Claim as it arises out of a contract i.e. MOU purportedly executed between the plaintiff and owner of the defendant-Vessel, yet, the submissions substantially revolved around the tenability of the suit on the ground that the plaintiff firm is not a registered partnership firm.
7) For the sake of completeness, it may be expedient to note that there are adequate pleadings supported by the documents in the nature of purchase orders and invoices, which indicate that the plaintiff’s claim is indeed a Maritime Claim covered by Section 4 (1) (l) of the Admiralty Act, 2017. Thus, at this stage, the second count of challenge based on the claim in the suit being a Maritime Claim does not merit determination as it is essentially a question of fact, which warrants adjudication.
8) The first ground of challenge, namely, the interdict in instituting the suit for want of registration of the plaintiff firm, however, deserves consideration as the defendant has made an endeavor to draw home the point that absence of registration of the partnership firm, constitutes a bar to the tenability of the Suit under Section 69 (2) of the Act, 1932.
9) On facts, however, there does not seem much controversy. In the plaint, as rightly submitted by Mr.Kolse Patil, the plaintiff has not made a categorical assertion that it is a registered partnership firm. The plaint simply proceeds on the premise that it is a partnership firm. At any rate, the plaintiff firm was not registered till 7th April, 2022, as is evidenced by the copy of firm registration certificate (Exhibit-B1). The suit came to be instituted on 6th September, 2021.
10) The pivotal question which thus crops up for consideration is, whether the bar under Section 69 (2) of the Act, 1932, operates and renders the suit legally infirm ? Mr. Kolse Patil, submitted that in view of the incontrovertible position that the plaintiff firm was not registered on the date of the institution of the suit, the bar under Section 69 (2) of the Act, 1932, operates with full force and vigor. Laying emphasis on the peremptory language of the provisions contained in Section 69 of the Act, 1932, Mr. Kolse Patil would urge that a suit by unregistered firm to enforce a contract entered in the ordinary course of business is legally untenable. Mr. Kolse Patil urged with a degree of vehemence that Section 69 of the Act, 1932, bars suits of all types and a particular type of suit is not saved from the bar incorporated in Section 69 (2) of the Act, 1932.
11) An earnest endeavor was made to draw home the point that the Admiralty Act, 2017, provides a remedy, which is non-exclusive, concurrent, and does not by itself create a right. The special remedy provided under the Admiralty Act, 2017, of arresting a Vessel, according to Mr. Kolse Patil, does not change the character of the suit, which for all intent and purpose, remains a commercial suit. Thus, the embargo on filing a suit by an unregistered firm operates even where the suit is instituted in the Admiralty Division of this Court.
12) Mr. Kolse Patil submitted with force that the Admiralty Act, 2017, does not by itself create a new right and provide a machinery, which was hitherto not available. According to Mr. Kolse Patil, if the provisions of Section 69 (2) of the Act, 1932, are held to be not applicable to an Admiralty suit, it would lead to an absurd situation in as much as a suit instituted before the Civil Court would be barred by the provisions contained in Section 69 (2) of the Act, 1932, whereas a suit before the High Court can be instituted and prosecuted by an unregistered partnership firm.
13) Taking the Court through the pleadings in the plaint, Mr. Kolse Patil would urge that the claim in the suit relates to the supplies delivered and/or services rendered under the contract between the parties in usual course of the plaintiff’s business. Therefore, the bar under Section 69 (2) of the Act, 1932, is squarely attracted.
14) To lend support to these submissions, Mr. Kolse Patil placed a strong reliance on the judgments of the Supreme Court in the cases of Seth Loonkaran Sethiya and Others Vs. Mr. Ivan E. John and Others (1977) 1 SCC 379 , M/s Shreeram Finance Corporation Vs. Yasin Khan and Others (1989) 3 SCC 476, Shakti Bhog Food Industries Limited Vs. Central Bank of India and Another (2020) 17 SCC 260 and a Division Bench Judgment of this Court in the case of Balaji Constructions Co., Mumbai and Others Vs. Mrs. Lira Siraj Shaikh and Others (2006) 1 Bom CR 698 and judgment delivered by learned Single Judge in the case of Kolhapur Ice and Cold Storage Co. Through Partner Vs. Rajput Dairy Through Brijlal Uddip Singh 2014 (1) Mh.L.J 367.
15) In contrast to this, Mr. Kamat, the learned Counsel for the plaintiff would urge that the provisions contained in Section 69 (2) of the Act, 1932, on their plain reading do not govern the situation in the case at hand. The arrest of the defendant-Vessel was not in pursuance of the contractual obligations. Mr. Kamat submitted right to arrest a Vessel for enforcement of the Maritime Claim is a statutorily right under the Admiralty Act, 2017. A claim for the supplies delivered and service rendered, according to Mr. Kamat, clearly constitutes a Maritime Claim under Section 4 (1) (l) of the Admiralty Act, 2017. It thus partakes character of the statutory right.
16) To bolster up of this submission, Mr. Kamat placed a strong reliance on the judgment of this Court in the case of Raj Shipping Agencies Vs. Barge Madhwa and Another 2020 SCC OnLine Bom 651.
17) Mr. Kamat would further urge that an Admiralty action for arrest of Vessel to enforce the Maritime Claim has its basis in common law as well and amounts to a common law remedy. The provisions contained in Section 69 (2) of the Act, 1932, do not impinge on the statutory and common law remedies. Enactment of Admiralty Act, 2017, according to Mr. Kamat, was not to supplant the common law remedy.
18) To lend support to the submissions that the bar under Section 69 (2) of the Act, 1932, is restricted to a suit to enforce the contractual obligations and not statutory right, or common law right, Mr. Kamat placed a strong reliance on the judgment of the Supreme Court in the case of Shiv Developers through its Partner Sunilbhai Somabhai Ajmeri Vs. Aksharay Developers and Others 2022 SCC OnLine SC 114 and a judgment of Punjab and Haryana High Court in the case of Mount Shivalik-Hospitality Pvt Ltd Vs. M/s J. Salwan and Company CR 669 of 2022.
19) In the alternative, Mr. Kamat would urge, the issue as to whether the plaintiff firm is an unregistered partnership firm is the matter for adjudication and the same can not be decided in an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, on the basis of material pressed into service on behalf of the defendant.
20) The aforesaid submissions now fall for consideration.
21) The relevant part of section 69 of the Act, 1932 reads as under :-
“69. Effect of non-registration -
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm….”
22) On a plain reading, it becomes evident that a suit instituted by an unregistered partnership firm against a third party for enforcement of any right arising from a contract,the firm has entered into with such a third party, would be barred on account of the firm being not registered. To attract the bar, three conditions must be satisfied. One, the plaintiff firm is not registered as of the date of the institution of the suit and the person/persons suing is/are not shown in the register of firms as partner/partners of the firm. Two, the suit is against a third party-defendant. Three, the suit is for enforcement of right arising from a contract of the firm with such a third party.
23) Applying the aforesaid test to the facts of the case at hand, it would become clear that first two conditions can be said to have been made out. It could not be positively asserted much less demonstrated by positive evidence that the plaintiff firm was registered under the provisions of the Act, 1932, on the day of institution of the suit. Nor the contention of the defendant that the plaintiff firm came to be registered on 7th April, 2022, much after the institution of the suit, could be controverted. Indisputably, the unregistered firm professes to sue the defendant, a third party. The controversy thus boils down to the question as to whether the instant suit is for enforcement of right arising from a contract?
24) It was urged on behalf of the defendant that very claim of the plaintiff that it had delivered supplies and rendered services is rooted in contract. Institution of an Admiralty Suit is an exercise of remedy and not enforcement of as statutory right. In contrast, the plaintiff asserts the suit is for enforcement of a statutory right, if not a common law right. The fact that the transaction arose out of a contract between the parties is not determinative.
25) What is the import of the expression for enforcement of a right arising from a contract, as distinguished from enforcement of a statutory right or common law right, came up for consideration before the Supreme Court in the case of Raptakos Brett and Co. Ltd Vs. Ganesh Property (1998) 7 SCC 184. In the said case, the question arose in the context of the right of a landlord to evict a tenant upon expiry of the term of lease.
26) The Supreme Court after an elaborate analysis observed that under the law of the land i.e. the Transfer of Property Act, 1882, the erstwhile landlord is entitled to the restoration of possession by enforcement of statutory obligation of the erstwhile tenant, as statutorily imposed on him under Section 108 (q) read with 111 (a) of the Transfer of Property Act, 1882. The non-compliance of the statutory obligation by defendant when made the subject matter of a corresponding legal right of the erstwhile landlord can not be said to be giving rise to enforcement of any contractual right of the plaintiff arising from the expired contract of tenancy.
27) The Supreme Court adverted to the composite nature of the cause of action, a part of which resting in contract and another in the statutory provision and observed as under:-
"....22. The net effect of this discussion, therefore, is that the plaint as framed by the plaintiff respondent is based on a composite cause of Action consisting of two parts. One part refers to the breach of the covenant on the part of the defendant when it failed to deliver vacant possession to the plaintiff lessor on the expiry of the lease after 15th March, 1985 and thereafter all through out and thus it was guilty of breach of covenants 14 and 17 of the lease. The second part of the cause of Action, however, is based on the statutory obligation of the defendant lessee when it failed to comply with its statutory obligation under Section 108(q) read with Section 111 (a) of the Property Act. So far as this second part of the cause of Action is concerned it cannot certainly be said that it is arising out of the erstwhile contract...."
(emphasis supplied)
28) The aforesaid pronouncement was followed with approval by the Supreme Court in the case of Haldiram Bhujiawala and Anr. Vs. Anand Kumar Deepak Kumar and Anr (2000) 3 SCC 250 . In the case of Haldiram Bhujiawala (supra), the plaintiff therein had instituted a suit for permanent injunction restraining the defendant from infringing plaintiff’s trade mark and from using the trade mark/ name “Haldiram Bhujiawala” or any identical name/mark deceptively similar thereto and for damages etc. In the context of the challenge to the tenability of the Suit on the ground that the firm was not registered, the Supreme Court considered following two questions:
"....8. The points that arise for consideration are :
(i) whether Section 69(2) bars a suit by a firm not registered on the date of suit where permanent injunction and damages are claimed in respect of a trade marks as a statutory right or by invoking Common Law principles applicable to a passing-off action?
(ii) whether the words 'arising from a contract' in Section 69(2) refer only to a situation where an unregistered firm is enforcing a right arising from a contract entered into by the firm with the defendant during the course of its business or whether the bar under Section 69(2) can be extended to any contract referred to in the plaint unconnected with the defendant, as the source of title to the suit property?...."
29) Point No. 1 was answered as under:-
".....9. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even if only a Common Law right is being enforce came up directly for consideration in this Court in M/s. Raptokas Brett Co. Ltd. v. Ganesh Property, [1998] 7 SCC 184. In that case, Majmudar, J. speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of suit by an unregistered firm in respect of a statutory right or a common law right. On the facts of that case, it was held that the right to evict a tenant upon expiry of the lease was not a right 'arising from a contract' but was a common law right or a statutory right under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, it must be held in the present case too that a suit is not barred by Section 69(2) if a statutory right or a common law right is being enforced.
10. The next question is as to the nature of the right that is being enforced in this suit. It is well settled that a passing off action is a common law action based on tort (vide) Bengal Waterproof Ltd. v. Bombay Waterproof Manufacturing Company and Anr., [1997] 1 SCC99. Therefore, in our opinion, a suit for perpetual injunction to restrain the defendant not to pass-off the defendant's goods as those of plaints by using the plaintiffs' trade mark and for damages is an action at common law and is not barred by Section 69(2). The decision in M/s. Virendra Dresses Delhi v. M/s. Varinder Garments, AIR (1983) Delhi 482 and the decision of the Division Bench of the Delhi High Court in M/s. Bestochem Formulation v. M/s. Dinesh Ayurvedic Agencies and Ors., RFA (OS) 17/99 dt. 12.7.99) state that Section 69(2) does not apply to a passing-off action as the suit is based on tort and not on contract. In our opinion, the above decisions were correctly decided. (The special leave petition No. 18418 of 1999 against the latter was in fact dismissed by this Court on 28.1.2000.) The learned senior counsel for the appellants no doubt relied upon Ruby General Insurance Co. Ltd. v. Pearey Lal Kumar and Anr., [1952] SCR 501. That was an arbitration case in which the words "arising out of a contract" were widely interpreted but that decision, in our view, has no relevance in interpreting the words "arising from a contract" in section 69(2) of the Partnership Act.
11. Likewise, if the reliefs of permanent injunction or damages are being claimed on the basis of a registered trade mark and its infringement, the suit is to be treated as one based on a statutory right under the Trade Marks Act and is, in our view, not barred by Section 69(2).
12. For the aforesaid reasons. In both these situations, the unregistered partnership in the case before us cannot be said to be enforcing any right "arising from a contract". Point 1 is therefore decided in favour of the respondent-plaintiffs...."
30) In the case of Shiv Developers (supra), after following the aforesaid pronouncements, the legal position was summarized by the Supreme Court as under:-
"....35. In our view, the questions arising in this matter could be directly answered with reference to the principles enunciated by this Court in the case of Raptakos Brett & Co. Ltd. v. Ganesh Property: (1998) 7 SCC 184, which have further been explained and applied by this Court in the cases of Haldiram Bhujiawala and Purushottam (supra). We may take note of the principles vividly exposited in the case of Haldiram Bhujiawala (supra) that to attract the bar of Section 69(2) of the Act of 1932, the contract in question must be the one entered into by firm with the third-party defendant and must also be the one entered into by the plaintiff firm in the course of its business dealings; and that Section 69(2) of the Act of 1932 is not a bar to a suit filed by an unregistered firm, if the same is for enforcement of a statutory right or a common law right......."
31) In the light of the aforesaid exposition of law, it is well neigh settled that the bar under Section 69 (2) of the Act would apply, if the suit is for the enforcement of the right arising from a contract. If the plaintiff, on the contrary, seeks to enforce a statutory or common law right and the underlying contract between the parties constitutes a historical fact or the foundation of jural relationship, that, by itself, would not render the suit as one for enforcement of a right arising from contract.
32) Mr. Kolse Patil, took the Court through the pleadings in paragraph Nos.1 and 5 of the plaint, to bolster up the submissions that the claim arises out of the contract pure and simple. It was urged that the plaintiff’s case was that on the basis of the purchase orders and/or requisitions of the owner of the defendant-Vessel, supplies were rendered to the defendant-Vessel and her sister Vessels. In this view of the matter, according to Mr. Kolse Patil, the suit can only be said to be for enforcement of the right arising out of the contract.
33) Per contra, Mr. Kamat would submit that the claim in the instant suit is a Maritime Claim within the meaning of Section 4 (1) (l) of the Admiralty Act, 2017. Arrest of a Vessel in connection with a Maritime Claim under Section 5 of the Admiralty Act, 2017, is clearly in exercise of the statutory right and, therefore, the suit to enforce a Maritime Claim is not barred under Section 69 (2) of the Act, 1932.
34) Mr. Kolse Patil joined the issue by canvassing a submission that the plaintiff’s right to sue did not arise under the Admiralty Act but under the provisions of Contract Act, 1872. It is only the plaintiff’s remedy to arrest a ship that arises under the Admiralty Act, 2017. In substance, Mr. Kolse Patil would urge plaintiff’s Maritime Claim would not exist but for a breach of contract.
35) Recourse to the provisions contained in Admiralty Act, 2017, would be of assistance in resolving the controversy. Under Section 2 (1)(f) of the Admiralty Act, 2017, Maritime Claim means a claim referred to in Section 4 of the Admiralty Act, 2017. Relevant part of Section 4 reads as under:-
"...4. (1) The High Court may exercise jurisdiction to hear and determine any question on a maritime claim, against any vessel, arising out of any—
(a) dispute regarding the possession or ownership of a vessel or the ownership of any share therein;
(b) dispute between the co-owners of a vessel as to the employment or earnings of the vessel;
(c) mortgage or a charge of the same nature on a vessel;
(d) loss or damage caused by the operation of a vessel;
(e) loss of life or personal injury occurring whether on land or on water, in direct connection with the operation of a vessel;
(f) loss or damage to or in connection with any goods;
(g) agreement relating to the carriage of goods or passengers on board a vessel, whether contained in a charter party or otherwise;
(h) agreement relating to the use or hire of the vessel, whether contained in a charter party or otherwise;
(i) salvage services, including, if applicable, special compensation relating to salvage services in respect of a vessel which by itself or its cargo threatens damage to the environment;
(j) towage;
(k) pilotage;
(l) goods, materials, perishable or non-perishable provisions, bunker fuel, equipment (including containers), supplied or services rendered to the vessel for its operation, management, preservation or maintenance including any fee payable or leviable;
(m) construction, reconstruction, repair, converting or equipping of the vessel;
(n) dues in connection with any port, harbour, canal, dock or light tolls, other tolls, waterway or any charges of similar kind chargeable under any law for the time being in force;
(o) claim by a master or member of the crew of a vessel or their heirs and dependents for wages or any sum due out of wages or adjudged to be due which may be recoverable as wages or cost of repatriation or social insurance contribution payable on their behalf or any amount an employer is under an obligation to pay to a person as an employee, whether the obligation arose out of a contract of employment or by operation of a law (including operation of a law of any country) for the time being in force, and includes any claim arising under a manning and crew agreement relating to a vessel, notwithstanding anything contained in the provisions of sections 150 and 151 of the Merchant Shipping Act, 1958 (44 of 1958);
(p) disbursements incurred on behalf of the vessel or its owners;
(q) particular average or general average;
(r) dispute arising out of a contract for the sale of the vessel;
(s) insurance premium (including mutual insurance calls) in respect of the vessel, payable by or on behalf of the vessel owners or demise charterers;
(t) commission, brokerage or agency fees payable in respect of the vessel by or on behalf of the vessel owner or demise charterer;
(u) damage or threat of damage caused by the vessel to the environment, coastline or related interests; measures taken to prevent, minimise, or remove such damage; compensation for such damage; costs of reasonable measures for the restoration of the environment actually undertaken or to be undertaken; loss incurred or likely to be incurred by third parties in connection with such damage; or any other damage, costs, or loss of a similar nature to those identified in this clause;
(v) costs or expenses relating to raising, removal, recovery, destruction or the rendering harmless of a vessel which is sunk, wrecked, stranded or abandoned, including anything that is or has been on board such vessel, and costs or expenses relating to the preservation of an abandoned vessel and maintenance of its crew; and
(w) maritime lien.
Explanation.— For the purposes of clause (q), the expressions “particular average” and “general average” shall have the same meanings as assigned to them in sub-section (1) of section 64 and sub-section (2) of section 66 respectively of the Marine Insurance Act, 1963 (11 of 1963).”
36) The power to arrest a Vessel in rem is to be found in Section 5 of the Admiralty Act, 2017. Relevant part of which reads as under:-
"....5. Arrest of Vessel in rem - (1) The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that—
(a) the person who owned the vessel at the time when the maritime claim arose is liable for the claim and is the owner of the vessel when the arrest is effected; or
..........
(2) The High Court may also order arrest of any other vessel for the purpose of providing security against a maritime claim, in lieu of the vessel against which a maritime claim has been made under this Act, subject to the provisions of sub-section (1):
Provided that no vessel shall be arrested under this sub-section in respect of a maritime claim under clause (a) of sub-section (1) of section 4...."
37) It would be contextually relevant to note that under Sub Section (1) of Section 4 of the Admiralty Act, 2017, there are number of claims, which have been designated as Maritime Claims, which can not conceivably be a subject matter of contract between the parties. Some are purely tortious. Therefore, not all the claims which have been designated as Maritime Claims under various clauses of Sub Section (1) of Section 4 emanate from the contract between the parties. Though a closed list of claims is provided in Sub Section (1) of Section 4 of the Admiralty Act, 2017, yet, a Maritime Claim has a definite juridical connotation under the Act, 2017.
38) On a conjoint reading of the provisions contained in Section 4 and 5 of the Admiralty Act, 2017, it would be difficult to agree with the broad proposition that the measure of arrest of the Vessel in rem under Section 5 is merely a remedial measure and does not partake the foundation of a statutory right.
39) Mr. Kamat was justified in placing reliance on the judgment of this Court in the case of Raj Shipping Agencies (supra), wherein it was held that a person who has been conferred with a right in rem to arrest the vessel to perfect his Maritime Claim can be said to have a statutory right. The observations in paragraph Nos. 36 and 40 are relevant and hence extracted below.
"....36. A right to invoke the Admiralty jurisdiction by an action in rem in respect of a maritime claim, which is not a maritime lien, is also known as a statutory right in rem. Such rights are also described as statutory liens. A closed list of maritime claims is set out in Section 4 of the Admiralty Act. Maritime liens are also included in this as they are also maritime claims.
............
40. A person who has a maritime claim, and that would include maritime lien against a vessel, has a right in rem conferred by the Admiralty Act, to arrest the vessel to perfect his claim. It is a right provided by law. This is a very valuable right which cannot be taken away or destroyed by implication or inference unless there is an express provision in any law to this effect....."
40) In my view, once a claim satisfies the description of a Maritime Claim, be it in the nature of a Claim arising out of the supply of the essentials or services rendered to the Vessel, the person having such Maritime Claim is entitled to the rights under the Admiralty Act, 2017, and the fact that such right arose out of an underlying contractual relationship, pales in significance. To deny the protection of the measures provided in the Admiralty Act, 2017, on the ground that such person is not entitled to institute the suit on account of the bar created under Section 69 (2) of the Act, 1932, would render the right to arrest the Vessel in rem nugatory.
41) The submission that though such person has the remedy to arrest the Vessel but can not institute a suit overlooks the fact that an application for arrest of the Vessel under Rule 1066 of the Rules for Regulating the Procedure and Practice in Cases Brought Before the High Court under the Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017, can be in a suit instituted in rem. It would thus be a contradiction in terms to urge that an unregistered partnership firm can have the remedy of arrest of the Vessel under Section 5 of the Admiralty Act, 2017, and yet can not institute a suit in Admiralty jurisdiction.
42) I am, therefore, persuaded to hold that an enforcement of a Maritime Claim under Section 5 of the Admiralty Act, 2017, is in exercise of a statutory right created under the Admiralty Act, 2017, and the said Act does not create only an alternate mode for enforcement of the rights.
43) I also find substance in the submission of Mr. Kamat that the enforcement of the Maritime Claim has its genesis in the common law also. The right under Admiralty or Maritime law do not emanate from, and found within, the statutes. In the case of M.V. Elisabeth and Others Vs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa 1993 Supp (2) SCC 433 , on which a strong reliance was placed by Mr. Kamat, the aforesaid nature of the Maritime Claims was expounded as under:-
".....59. Maritime law is as much a part of the general legal system as any other branch of the law. With the merger of the Admiralty and Common Law Courts in England in 1875 and the fusion of their legal precepts and concepts, this branch of the law, despite its peculiarities about actions in rem, is no longer treated as a separate and independent branch. It is not the exclusive preserve of the English High Court, for certain county courts in that country are specially authorised to exercise this jurisdiction. This is much more true of the civil law system where no distinction is drawn between maritime law and other branches of the law, and they are administered alike by the same courts or tribunals.
......
61. Remedy for enforcement of maritime liens was available prior to the introduction of statutes. "Admiralty law was derived from the laws of Oleron, supplemented by the civil law" Per Lord Halsbury, L.C; Currie v. M'.Knight. For a long time the Admiralty Court developed the law independently fighting its battles with the Common Law Courts on the question of jurisdictional boundaries. By statutory intervention the court structure came to be unified and substantive rights and remedies became available without regard to jurisdictional boundaries. Although statutes now control the field, much of the admiralty law is rooted in judicial decisions and influenced by the impact of civil law, common law and equity. The ancient maritime codes like the Rhodian Sea Law, the Basilika, the Assizes of Jerusalem, the Rolls of Oleron, the Laws of Visby, the Hanseatic Code, the Black Book of the British Admiralty, Consolato del Mare, and others are, apart from statute, some of the sources from which the law developed in England. Any attempt to confine admiralty or maritime law within the bounds of statutes is not only unrealistic but incorrect. Although this branch of the law in England is now governed generally by statutes, the law in all its aspects can be understood only by viewing it in the context of decisions of courts and the general principles which are common to common law and equity.
........
63. In tracing the history of admiralty law in India, it is likewise misleading and incorrect to confine it to statutes. Statutes have been codifications of rules of law as developed by usage, practice and custom. As stated by Westropp, C.J., of the Bombay High Court in Bardot & Anr. v. The American Ship Or Vessel `Augusta':
"....If we have jurisdiction to entertain this suit, it must be sought for in the general maritime law administered by Courts of Admiralty ....... we must hold it to be quite clear that the Statutes 3 & 4 Vict. c. 65 (1840), 24 Vict. c. 10 (1861), and 26 & 27 Vict. c. 24 (1863), do not increase or in any wise affect our jurisdiction either in Admiralty or Vice-Admiralty, and that if we have jurisdiction to entertain this cause, that jurisdiction must be sought for outside those Statutes......."
44) The Supreme Court has in terms observed that any attempt to confine Admiralty or Maritime Law within the bounds of statute is not only unrealistic but incorrect.
45) Mr. Kolse Patil canvassed a submission that aforesaid pronouncement would not govern the situation post enactment of the Admiralty Act, 2017. It was urged that the case of M.V. Elisabeth (supra) proceeded on the basis that there were no modern statutes in India governing maritime law and therefore principles of the global common law incorporated in the various international conventions such as the Brussels Convention, 1952 should be deemed to be incorporated in Indian law till appropriate laws were framed in India. Since the parliament has thereafter enacted the Admiralty Act, which is "An Act to consolidate the laws relating to admiralty jurisdiction, legal proceedings in connection with vessels, their arrest, detention, sale and other matters connected therewith or incidental thereto”, according to Mr. Kolse Patil, it is now not open to urge that the Admiralty or Maritime Claim is governed by common law.
46) I find it difficult to accede to this position. Arrest of a Vessel in rem for enforcement of Maritime Claim against the Vessel or its owner has it genesis in common law. Recognition of the said right and regulating the procedure for enforcement of the said right, under the Admiralty Act, 2017, may not denude the said right of arrest of the Vessel in rem, the character of common law right.
47) The aforesaid submission of Mr. Kolse Patil, if taken to its logical end, would indicate that the common law right to arrest the vessel in rem stood codified by the enactment of the Admiralty Act 2017 and, thus, works out the retribution of the contention of Mr. Kolase Patil that enforcement of a maritime claim is not a statutory right.
48) Mr. Kolse Patil further submitted that, in any event, the Admiralty Act, 2017, can not be said to have created a liability not existing in common law and given a remedy for its enforcement and, therefore, the right to enforce the Maritime Claim can not be termed as a statutory right.
49) To buttress this submission, Mr. Kolse Patil placed a very strong reliance on the judgment of the Supreme Court in the case of The Premier Automobiles Ltd Vs. Kamlekar Shantaram Wadke of Bombay and Others (1976) 1 SCC 496 , wherein in the context of the jurisdiction of the Civil Court viz a viz an industrial dispute, the Supreme Court has adverted to the classes of cases in which the liability may be established by the statute. In paragraph No 10, the Supreme Court has observed as under:-
".....10. In Dos v. Bridges (1) at page 859 are the famous and oft quoted words of Lord Tenterden, C. J. saying:
Where an Act creates an obligation and enforces the performance in a specified manner, we take it to a general rule that performance cannot be enforced in any other manner.
This passage was cited with approval by the Earl of Halsbury, L.C. in Pasmore and others v. The Oswaldtwistle Urban District Council and by Lord Simonds at page 407 in the case of Cutler v. Wandsworth Stadium Ltd. classic enunciation of the law and classification of the cases in three classes was done by Willes, J "with the precision which distinguished the utterances of that most accomplished lawyer, in the case of Wilerhamption New Waterworks Co. v. Hawkesford"(3A) (vide the speech of Viscount Haldane at page 391 in the case of Neville v. London "Express', Newspaper, Ltd.) The classes are enumerated thus:
"There are three classes of cases in which a liability may be established by statute. There is that class where there is a liability existing at common law, and which is only re-enacted by the statute with a special form of remedy; there, unless the statute contains words necessarily excluding the common-law remedy, the plaintiff has his election of proceeding either under the statute or at common law. Then there is a second class, which consists of those cases in which a statute has created a liability, but has given no special remedy for it; there the party may adopt an action of debt or other remedy at common law to enforce it. The third class is where the statute creates a liability not existing at common law, and gives also a particular remedy for enforcing it .. "With respect to that class it has always been held, that the party must adopt the form of remedy given by the statute......"
50) Mr. Kolse Patil would urge that the present case falls under the first or second class. Liability is created by contract between the parties. Remedy is made available under the Admiralty Act, 2017, as well, apart from the Civil Court. The submission, in my considered view, again loses sight of the fact that the Admiralty Act, 2017, apart from defining as to what constitutes a Maritime Claim, confers a right on a person holding a Maritime Claim to enforce the said right by arrest of the Vessel for the purpose of providing security against a Maritime Claim. I am, therefore, not inclined to accede to the submission on behalf of the defendant that no statutory right is created under the Admiralty Act, 2017.
51) Reverting to the fact of the case, it is necessary to consider the averments in the plaint, to appreciate whether the plaintiff rested his claim solely on the basis of the contract between the parties or lays a Maritime Claim. After narrating the manner in which the transactions were given effect to between the parties, in paragraph No. 4 of the plaint, the plaintiff categorically asserts that the suit has been instituted to enforce its Maritime Claim against the defendant-Vessel for services rendered and supplies delivered to the defendant and her sister Vessels. In paragraph No. 9, the plaintiff has averred in clear terms that the claim for supplies delivered and services rendered constitutes a Maritime Claim as per Section 4 (1) (l) of the Admiralty Act, 2017, and in Paragraph No. 10, the plaintiff asserted that the plaintiff was entitled to arrest the defendant – Vessel for supplies delivered and services rendered on board the defendant Vessel and her sister Vessels, at the instance of the owner. The plaintiff is entitled to invoke the Admiralty jurisdiction of this Court by way of an action in rem and to arrest and sale the defendant-Vessel towards enforcement of its Maritime Claim.
52) The aforesaid pleadings are adequate to sustain a claim on the basis of a professed Maritime Claim enforceable under the provisions of Admiralty Act, 2017. The fact that there is reference to contractual obligation also would, at best, indicate that a part of the cause of action is rooted in contract. However, another part of cause of action is based on the statutory right enforceable under Section 5 of the Admiralty Act, 2017. The pronouncement of the Supreme Court in the case of Raptakos Brett (supra), wherein the law was enunciated in the context of a composite cause of action, would thus squarely govern the facts of the instant case. I am, therefore, not inclined to hold that the suit is barred under the provisions of Section 69 (2) of the Act, 1932. Hence, the application deserves to be rejected.
53) Thus, the following order.
-:ORDER:-
i) The application stands rejected.
ii) Costs in cause.
