Calcutta High Court
Tarsons Products Limited vs The Owners And Parties Interested In The … on 1 May, 2025
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
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ORDER SHEET
AS-COM 1 of 2025
IA No.GA-COM 1 of 2025
IN THE HIGH COURT AT CALCUTTA
ADMIRALTY JURISDICTION
ORIGINAL SIDE
(COMMERCIAL DIVISION)
TARSONS PRODUCTS LIMITED
VS
THE OWNERS AND PARTIES INTERESTED IN THE VESSEL MV SOL
PROGRESS ( IMO NO: 9322865) AND ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 1st May, 2025.
Appearance :
Mr. Krishnaraj Thaker, Sr. Adv.
Mrs. Sreenita Ghoshdastidar, Adv.
Ms. Sneha Singhania, Adv.
Ms. Rishita Sarkar, Adv.
for the plaintiff.
Re : AS-COM/1/2025
The Court : The plaint filed in Admiralty Suit (Com) No.1 of 2025
has been affirmed on 30th April, 2025 and has been filed today. On being
mentioned citing urgency the suit has been listed for presentation of
plaint in the supplementary list of this date.
The plaintiff has inter alia sought for a decree for damages against
the defendants jointly and severally with a further claim of interest
pendent lite and interest upon judgment. There is also an alternative
prayer for enquiry into the loss and damages suffered by the plaintiff and
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a decree for such sum as may be found due upon the enquiry against the
defendants jointly and severally. The plaintiff has also sought for arrest
of the vessel MV SOL PROGRESS (IMO NO: 9322865) [hereinafter
referred to as the said vessel] being the defendant no.1 and for appraisal
and sale of the same.
In paragraph 36 of the plaint it has been stated that the said vessel
has arrived at Kolkata Port on 30th April, 2025 and is scheduled to sail
away on 3rd May, 2025. The plaintiff has sought for dispensation of the
formalities under Section 12A of the Commercial Courts Act, 2015 on the
ground that its endeavour to initiate an action for arrest of the said
vessel being an urgent interim relief will be frustrated if the vessel sails
away from Kolkata Port. The plaintiff has also sought for leave under
Order II Rule 2 of the Code of Civil Procedure, 1908 (in short CPC).
After hearing the plaintiff and considering the averments made in
the plaint, the plaint is presented and admitted subject to scrutiny by
the department upon dispensing with the formalities under Section 12A
of the Commercial Courts Act, 2015 and granting leave under Order II
Rule 2 of CPC.
Re: IA No. GA-COM/1/2025
The plaintiff is granted leave to file supplementary affidavit to the
affidavit of arrest.
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On a perusal of the affidavit of arrest and the plaint filed in this suit
the following facts emerge:-
1.
The plaintiff placed an order for certain equipments (hereinafter
referred to as the said goods) on Waldorf Technik GmbH being
part of Hahn Automation Group Engen GmbH, Germany
(hereinafter referred to as the Shipper).
2. The plaintiff entered into an agreement with the defendant no.4
for carriage of the said goods from Hamburg to Kolkata.
3. The said goods after a pre-shipment survey were packed in 12
wooden boxes and were made over to the defendant no.4 who on
receipt thereof issued a clear bill of lading.
4. The said goods so packed were carried from Hamburg to Abu
Dhabi Terminal, Khalifa Port by the vessel MV EUGEN MAERSK
(IMO 9321550). The goods from Abu Dhabi Terminal, Khalifa Port
was carried to Jebel Ali Terminal by MV MARCHEN MAERSK
(IMO 9632143). The goods from Jebel Ali Terminal was
transported to Colombo by MV MAERSK BALTIMORE (IMO
9313917). All these vessels were owned by the defendant no. 2.
5. The goods were ultimately carried from Colombo to Kolkata Port
by MV SOL PROGRESS (IMO No. 9322865) being the defendant
no. 1 vessel.
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The case of the plaintiff is that a part of the goods were received by
the plaintiff at Kolkata in damaged condition. This fact has been
acknowledged by the shipper. The plaintiff says that the damage to the
goods give rise to a maritime claim under Sections 4(f) and 4(g) of the
Admiralty (Jurisdiction and Settlement of Maritime Claims) Act, 2017
(hereinafter referred to as the 2017 Act).
The plaintiff says that the maritime claim is enforceable against
any of the defendants since the plaintiff has claimed relief jointly and
severally against all the defendants. The plaintiff, therefore, has sought
arrest of the defendant no.1 vessel, which has, according to the plaintiff,
reached Kolkata Port on 30th April, 2025.
So far as the defendant nos. 1, 2 & 3 are concerned, the plaintiff
has no privity of contract and as such the maritime claim, if any, will be
under Section 4(f) of 2017 Act. The maritime claim as against the
defendant no.4 if any, will be under Section 4(f) and Section 4(g) of the
2017 Act, by virtue of having entered into a contract with the said
defendant no.4 entrusting it to transport the said goods owned by the
plaintiff.
After hearing the plaintiff and considering the materials on
record, I find that the plaintiff has, prima facie, been able to demonstrate
that it has a maritime claim against the defendants be it under Section
4(f) or Section 4(g) of the 2017 Act since the goods were damaged during
transit, it cannot, however, be ascertained at this stage that the damages
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to the goods occurred when the same was in transit in the defendant
no.1 vessel or in the vessels owned by the defendant no. 2. Although,
the plaintiff says that if the goods were received during transhipment by
the defendant no.1 in damaged condition then the documents issued by
the said defendant ought to have mentioned about the cargo/goods to
have been recovered in damaged condition. There is, however, no
evidence to this effect available at this stage. The agreement between the
plaintiff and the defendant no.4 provides for transhipment and in any
event the plaintiff did not object to such transhipment. The plaintiff says
that since it has no privity of contract with the defendant nos. 1, 2 & 3,
the internal documents that may have been issued by the defendant nos.
2 & 3 in favour of the defendant no.1 during transhipment is not known
to the plaintiff. The said documents according to the plaintiff is within
the special knowledge of the defendant nos. 1, 2 & 3. In view of the
provisions of Section 109 of Bharatiya Sakshya Adhiniyam, 2023 (2023
Act) the burden of proving the same is upon the said defendants and as
such it is for the defendants no. 1, 2 and 3 to disclose under whose
custody, the goods were damaged on the plaintiff having established the
fact that the goods were damaged thereby discharging its obligation. The
fact, however, remains that when exactly the goods were damaged is not
clear.
In such circumstances, the plaintiff is unable to even prima facie
demonstrate that the goods got damaged when the same was in custody
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of the defendant no.1. Even though the plaintiff upon paying the price of
the goods had become the owner of the same but at this stage there is
no, prima facie, clinching evidence to hold that the defendant no.1 is
liable for the damages caused to the goods.
An order of arrest has serious consequences and as such in
absence of any clinching, prima facie, evidence to hold that the
defendant no. 1 is liable for the damages, the arrest of the vessel cannot
be directed.
In the aforesaid facts and circumstances, the plaintiff is directed
to serve a notice along with a copy of the plaint and affidavit of arrest
upon the defendant no.1, the vessel being at the present in Kolkata Port,
according to the plaintiff.
The vessel MV SOL PROGRESS (IMO NO. 9322865), defendant
no.1 shall not sail away from Kolkata Port before 2 nd May, 2025 without
leave of Court.
The service of notice shall be effected through to the agent of the
defendant no.1 as also to Master of the vessel and owners at Singapore
by any recognized mode of service and file an affidavit to that effect on
the next date. The officials of Syama Prasad Mookerji Port, Kolkata, the
Central Industrial Security Force (CISF) and the police authorities at
Kolkata shall render all co-operation to the plaintiff and/or its agent to
serve the notice along with copy of the plaint and affidavit of arrest on
the Master of the vessel if the same is in Kolkata Port.
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Let this matter appear in the list on 2 nd May, 2025.
(ARINDAM MUKHERJEE, J.)
snn/pa
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