AO/59/2002 of MR.MANIK NAKUL DESSAI,VASC0-DA-GAMA,GOA. Vs M/S.GOODFAITH SHIPPING AND ORS., on 5 December 2002

APPEAL FROM ORDER NO. 59/2002 AND C.A. NO.303/2002.

Mr. Manik Nakul Dessai,aged 58 years, son ofNakul Dessai, No.5,Shri Krishna Building,Business Point, Vasco-da-Gama,Goa.... Appellant.VERSUS1. M/s. Goodfaith ShippingCompany, 47-49,Bouboulinas Str. 18535,Piraeus, Greece.2. Master of the Ship M.V.Regina, present inMormugao Port,Mormugao, Goa.3. Seastar Shipping Services,Shipchandlers & Ship Repairers,10, Rex Chambers, Ground Floor,Wallchand Hirachand Marg,Opp. India Dock Red Gate,Mumbai 400 038....Respondents.

Mr. M.S. Sonak and Mr. D. Pangam, Advocatesfor the Appellant.Mr. S.D. Lotlikar, Senior Advocate withMr. A.D. Bhobe, Advocate for the RespondentsNo.1 and 2.CORAM: P. V. KAKADE, J.DATE: 5TH DECEMBER, 2002.JU D G M E N T:

This is an appeal preferred by theplaintiff in Special Civil Suit No.4/2002/Aagainst the Judgment and Order passed by the Civil Judge S.D., Vasco-da-Gama in the said suitdismissing the application for temporaryinjunction by Order dated 29th August, 2002.

2. Admit. Taken up for hearing

immediately by consent.

3. I have heard Mr. Sonak the learned

counsel for the appellant and Mr. S.D.Lotlikar, the learned senior counsel for therespondents.

4. The facts giving rise to the disputein short are thus :- The appellant filed a suit for a Decreein the sum of Rs.8,77,810/- towards theprovisions/stores supplied to M.V. Sunrise I,M.V. Regina and M.V. Spear in the month of May,1999. The appellant has also prayed for a Decreeof Rs.3,95,452/- being interest at the rate of18% per annum on the said amount from 1.6.1999till the filing of the Suit. An amount ofRs.10,600/- is also sought to be recovered asexpenses incurred towards Faxing, Courier Serviceand Legal Notice fees. The appellant furthersought for restraining order against Master of the Ship M.V. Regina from removing the said Shipfrom Mormugao Port till the amount was paid ordeposited in the Court. The appellant alsosought temporary injunction restrainingrespondent No.2 from removing the said M.V.Regina from Mormugao Port till the amount isdeposited in Court.

The learned Trial Judge granted ex parteinjunction restraining the respondent No.2 fromremoving M.V. Regina from the Port of Mormugao.The respondent filed a written statement andreply to the temporary injunction application.The respondent also sought vacation of the Orderdated 5.1.2002 and deposit of an amount ofRs.12,83,862/-. The amount was deposited and inview of that the order of release of the vesselM.V. Regina came to be passed on 9.1.2000.Thereafter the application for temporaryinjunction filed by the appellant/plaintiff cameto be adjudicated on merits and by order dated29th August, 2002 the application came to bedismissed and hence this appeal is filed.5. It is the case of the plaintiff thathe is a Shipchandler and was conducting businessin the name and style as M/s. Manik Nakul Desai.

He is duly licensed to carry out the business forthe said ships at Mormugao Port. The defendantsare owners of Intercontinental Ships/Vesselscarrying goods between different countries.Among the several oceanic ships/vessels which thedefendants own are the following ships to whichplaintiff has supplied provisions when theycalled at Mormugao Port on business of loadingiron ore and sailing to foreign ports. Theplaintiff was appointed by defendants to doshipchandling to their said ships. The plaintiffwas contacted by masters of the respective shipsupon receipt of particular requisitions from thesaid masters of the ships. The plaintiff went onproviding provisions and stores to them from timeto time. The supplies made to the said shipshave been duly acknowledged. Some of theprovisions/stores of one M/s. Seastar ShippingServices Shipchandler from Mumbai were suppliedby them to the plaintiff because they did nothave shipchandling licence at Mormugao Harbour.The plaintiff had supplied provisions/stores fromhis own stores or sources as authorised by thedefendants by fax message as the shipchandler tothe respective three ships by delivery challansrequesting the defendants for payment of USDollars 18,578.56. Inspite of subsequent reminders the defendants did not pay the saidamount and therefore a legal notice was addressedto the defendants to make arrangements forpayment with interest. It was replied to by thedefendants informing that the plaintiff wasacting on behalf of their principals (M/s SeastarShipping Services) and that the defendants had nodirect relationship with the plaintiff. It wasalso informed that the defendants had neverreceived any invoice from the plaintiff and thatthe plaintiff should contact his principal forthe payment. On defendants’ denial to make goodthe payment and inspite of repeated letters, theplaintiff filed the suit and also an applicationfor temporary injunction under Order 39 of theC.P. Code to restrain the vessel of thedefendants M/s. M.V. Regina which was announcedto have arrived at Mormugao. The restrainmentwas prayed for till the amount claimed wasdeposited in the Court or paid to the applicant.

6. The defendant no.1 contested the

claim stating that they were carrying on businessas Managers of various Ships and vessels andduring the stay of vessels at Indian ports, thedefendant makes supplies to the vessels andprovisions to the crew. In the present case the vessels M.V. Sunrise I, M.V. Regina and M.V.Spear on or about 1995 on behalf of the owners ofthe vessels have appointed Seastar ShippingServices, Mumbai as their Shipchandler to bemanaged by them and which would call on Indianports before the said three vessels came toMormugao port. The defendants on behalf of theowners inquired with Seastar Shipping Servicesabout the list of items required by the vesselsof their rivals and after negotiations with thedefendants, the supply to be made was agreedupon. To comply with the said requirementSeastar Shipping Services engaged services of theplaintiff as they used to do so for the past 12years. The plaintiff informed Seastar ShippingServices that the port authorities at Mormugaohad insisted on plaintiff obtaining authorityletter from the agents of the vessel permittingthe plaintiff to supply provisions/stores to thevessels. In short, it is the case of thedefendants that the plaintiff was notindependently acting in the said case in makingsupplies to the said vessels but was acting asagent of the plaintiff and, as such, was notentitled to the amount claimed from thedefendant, and it was necessary for him torecover the said amount from Seastar Shipping Services or the third party involved in the case.

Services or the third party involved in the case.

7. In the course of the hearing, Mr.Lotlikar, learned senior counsel for thedefendants, submitted that no doubt theydeposited the suit amount in the Court, but itwas under coercion and therefore the said depositcannot be said to be made under the provisions ofOrder 39, Rule 5 of C.P. Code though theplaintiff had sought to attach the vessel M.V.Regina in the Mormugao port. Having consideredall material aspects and submissions of both thesides, it is apparent that the application fortemporary injunction specifically made twoprayers namely:- restrainment of M.V. Reginawhich had arrived at Mormugao Port and orderdirecting the Surveyor incharge and shippingMaster Mercantile Marine Department of Port ofMormugao and other authorities not to allow theMaster of the vessel M.V. Regina to remove orsail the ship away from Mormugao Port untilfurther orders of the Court.

8. Accordingly by an ex-parte order theship was arrested and eventually it was releasedby the Order of the court only after the suitclaimed amount was deposited by the defendants in the Court. Now therefore in one sense theapplication was partly redundant because thepurpose thereof was served and hence at the timeof adjudication, the learned Trial Judgedismissed the application regarding redundantprayer which was already fulfilled. The onlyquestion which remained to be answered waswhether the amount deposited by the defendantswas required to be repaid to the defendants, orwhether it should be retained in the Courtpending the adjudication of the suit.

9. In my considered view, the moot

question around which the case revolves iswhether the plaintiff, acted on his own whilemaking supplies to the three ships or acted asagent of defendant No.1 and therefore was notentitled to the suit claimed payments from thedefendants. This question, in my view, will haveto be adjudicated at the time of final hearing ofthe suit on merits and therefore without furtherelaboration I hold that the appeal against theorder has to be disposed of with certaindirections to the Trial Court in this regardwithout making payment of the deposited amount tothe defendants only on the ground that the defendants were allegedly coerced into paying anddepositing the amount in the Court.

10. Under the circumstances, therefore,it is hereby directed that the learned TrialJudge shall expedite the hearing of the suit asit involves limited issues and adjudicate onmerits after giving opportunity to both the sideswithin six months from the date of receipt ofthis order. In the meantime the deposited amountshall be invested in any nationalised bankinitially for a period of six months and ifrequired for further time pending the suit.

11. With these directions, Appeal fromOrder stands disposed of with no order as tocosts.

P. V. KAKADE, J.

sl.