Bhargav D. Karia, J
Heard learned advocate Mr. Manoj Khatri for learned advocate Mr. Pankeet P. Aundhiya for the plaintiff and learned advocate Ms. Paurami Sheth
for defendant No.2.
1. By an order dated 02.08.2021, this Court directed to arrest the Defendant Vessel MV SHIV SHAKTI and further ordered that in the event of the
defendants and/or those interested in depositing in this Court a sum of Rs.95,53,755/- together with other expenses and interest at the rate of 3% p.a.
or in the alternatively furnishing Bank Guarantee of any Nationalised Bank of India of the amount of Rs.95,53,755/- from the date of Suit till its
payment, the said Arrest Warrant shall not be executed against the Defendant Vessel MV SHIV SHAKTI.
2. Upon service of the Arrest Warrant, Defendant No. 2, Shree Krishna Stevedores Pvt. Ltd. entered appearance and further filed two Applications.
In OJCA No. 2 of 2021, the Defendant No. 2/Applicant sought for Vacating order dated 02.08.2021 and in the alternative and without prejudice to
their rights to reduce the security amount to INR 62,66,114 commensurate with the amount outstanding under the Consent Terms dated 17.09.2020.
3. Defendant No. 2/Applicant also filed OJCA No. 1 of 2021 and sought for modification of the arrest order and permit the Defendant Vessel to sail
while remaining under arrest pending Application for vacating stay.
4. The Suit and the Applications were heard earlier on 13.09.2021. At that time Ms. Paurami Sheth, Learned Advocate for Defendant no.2/ Applicant,
submitted that under the Consent Terms dated 17.09.2020 filed before the Bombay High Court the parties agreed to settle all disputes under the MOA
dated 20.09.2018 relating to the sale of the Defendant vessel M.V. Shiv Shakti by Respondent No. 2 / Plaintiff to the Applicant, that as per the said
agreement the Applicant already paid the 1st Installment of INR 75,00,000 in due time but the Plaintiff/Respondent No. 2 though undertook to provide
documents mentioned in Clause 5(ii) of the said Consent Terms simultaneously and transfer title in the Defendant Vessel M.V. Shiv Shakti to the
Applicant failed to do so, that the Applicant has been always ready and willing to pay the balance installments from the date they fell due and also
called upon the Plaintiff to comply their obligation but since the Plaintiff failed to comply with its obligations further installments could not be paid, that
the Applicant has already paid 95.26% of the Purchase Price of the Vessel and ready and willing to pay the amount the Consent Terms dated
17.09.2020, that the Applicant is losing approx. INR 1,00,000 per day charter hire on the vessel on account of the Arrest, that there has been no
question of depositing the amount of security claimed towards the interest and cost for no fault of Defendant No. 2 and requested to modify the order
dated 02.08.2021 pending hearing of OJCA No. 2 of 2021 for vacating the said order and submitted that the security, if any, be reduced to the
principal sum outstanding under the Consent Terms amounting to INR 62,66,114 and Defendant No. 2 be permitted to deposit with the Registry of this
Court without prejudice to all other rights and contentions of the Applicant.
5. Mr. Manoj Khatri, learned Advocate appearing for Mr. Pankeet Aundhiya, Learned Advocate for Respondent No. 2 / Plaintiff on that day
submitted that under the Consent Terms dated 17.09.2020, the Applicant was obliged to hand over the cheques â€" one for INR 26,11,114 towards the
2nd installment and the other for INR 9,00,000 towards the 4th installment â€" on release of the vessel arrested by the Bombay High Court but has
failed to do so and thereby the Applicant is in breach of its obligations under the Consent Terms and MOA, that the Applicant is liable for interest and
legal costs being incurred by Respondent No. 2/Plaintiff for recovering its outstanding dues, that though the Applicant has possession of the Vessel
since 2018 and has been earning Charter Hire from it, has wrongfully withheld payment and hence reduction in security is not required to be granted
to Defendant No. 2 for release of the vessel. In pursuance of query put to Mr. Manoj Khatri, learned Counsel for the Plaintiff whether the plaintiff
will be ready to deposit the documents mentioned in Consent Terms dated 17.09.2020 and if so, when, the Counsel submitted that the Plaintiff will
deposit the documents within three weeks with the Registry and the same may be retained with the Registry till further orders.
6. This matter was then adjourned to find out when Defendant No. 2 shall deposit the amount of three Installments mentioned in the Consent terms
dated 17.09.2020.
7. Today when the matter is taken up, Ms. Paurami B. Sheth, Learned Advocate for Defendant No. 2 submitted that she has three Demand Drafts in
favour of the Registrar, High Court of Gujarat for a sum of INR 26,11114/-, 27,55,000/- and 9,00,000/- respectively for aggregating amount of INR
62,66,114 and Defendant No. 2 be permitted to deposit the same with the Registry of this Court without prejudice to all other rights and contentions of
the Applicant.
8. Mr. Manoj Khatri, learned Advocate appearing for Plaintiff submits that the Plaintiff will deposit the documents as mentioned in para 5 (ii) of the
Consent Terms dated 17.09.2020 within three week from today without prejudice to all other rights and contentions of the Plaintiff.
9. Heard Ms. Paurami B. Sheth, Learned Advocate for Defendant No. 2/Applicant and Mr. Manoj Khatri, Learned Advocate appearing for
Plaintiff/Respondent No. 2. At this juncture the learned Advocate for Defendant No. 2 submitted that both the parties are in midst of settlement talk
without prejudice to their rights and contentions and agreed that the Demand Drafts to be tendered by Defendant no. 2 may not be encashed for one
week from today.
10. On hearing both parties and perusing the Consent Terms dated 17.09.2020, prima facie it appears that Defendant No. 2 already paid the 1st
Installment of INR 75,00,000 in due time but the Plaintiff failed to simultaneously provide the documents as mentioned in Clause 5(ii) of the Consent
Terms dated 17.09.2020 and transfer title in the Defendant Vessel M.V. SHIV SHAKTI in favour of Defendant No. 2 on receipt of INR 75,00,000
towards the 1st installment.
11. This Court therefore modifies the order dated 02.08.2021 and further pass following order:
(i) Defendant No. 2 is permitted to deposit amount of three installments referred in Consent Terms dated 17.09.2020 aggregating INR 62,66,114 by
three Demand Drafts drawn in favour of the Registrar, Gujarat High Court of total amount of INR 62,66,114 to secure the Plaintiff’s outstanding
claim towards principal amount.
(ii) The registry is directed to accept the said Three Demand Drafts and thereupon issue release order of the Defendant Vessel forthwith.
(iii) The Defendant Vessel thereupon is permitted to sail presently within the Ports of Gujarat.
(iv) In view of submissions of the Learned Advocate for Defendant No. 2 that both the parties are in midst of settlement talk and agreed that the
Demand Drafts tendered by Defendant No. 2 be encashed after one week, the Registry is directed to encash three Demand Drafts of a total
aggregating amount of INR 62,66,114 after a period of one week from today.
(v) The Plaintiff is directed to deposit the documents mentioned in Clause 5(ii) of the Consent Terms dated 17.09.2020 with the Registry of this Court
within three weeks from today, with a copy to Defendant No. 2 and the Registry may retain the same till further orders of this Court.
(vi) The Registry is directed to inform the Port and Custom Authorities at Sikka port of this Order through email immediately at below addresses:
A pojam.gmb@gmail.com
B chsikka2012@yahoo.com
C mail@shreekrishnagroup.in
Dshs@newhorizonship.com
(vii) It is open for the Advocate of Defendant No. 2 to inform Port and Custom Authorities at Sikka port of this Order through email and Port and
Custom Authorities at Sikka port are directed to act with ordinary copy of this order.
(viii) The balance amount of Suit claim of the Plaintiff towards Interest and Cost shall be subject to final adjudication of Suit.
12. This Order is without prejudice to the rights and contentions of both parties.
S.O. to 30.09.2021 for compliance of order.
