TaxTMI 
TaxTMI 
2003 (11) TMI 627
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....ent vessel and they are allegedly owned by the 2nd respondent. The first two vessels entered into a contract with the appellant's association for the years 1998-1999 and 1999-2000 but they have not paid the unpaid insurance premium due and payable by the 2nd respondent for various P&I risks for which they had been insured. These unpaid insurance calls being "necessaries" was enforceable within the "admiralty jurisdiction" of the Bombay High Court. 3. For the arrest of the 1st respondent vessel which came to Mumbai Port within the territorial waters of India, a suit was filed by the club inter alia for the prayers : "(a) for a decree against the respondents in the sum of US$1,18,194.89 together with interest at the rate of 12% per annum, which was the unpaid insurance premium amount due to the club and payable by the 2nd respondent; and (b) for arrest of the 1st respondent vessel to secure the claim." 4. On an application for arrest of the 1st respondent vessel having been made, the 2nd respondent appeared and undertook to furnish security in respect of the appellant's claim and further gave an undertaking that until the security is furnished the said vessel will not l....
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....ppearing on behalf of the "Vessel" would inter alia submit: (i) The amount of arrears of insurance premium alleged to be due to the 1st respondent towards release calls is not a maritime claim entitling the Club to invoke the admiralty jurisdiction of the High Court as such unpaid insurance money does not constitute 'necessaries' within the meaning of Section 5 of the Admiralty Courts Act, 1861. (ii) Sufficiently direct and proximate connection between insurance and the vessel is a prerequisite for bringing an action in rem. Insurance is meant primarily as a means of indemnifying and protecting the vessel owner against the loss of his vessel and/or claims that that may arise as a result of damage or loss caused by the vessel. Although it may be a commercial necessity but the same would not come within the purview of the term 'necessaries' within the meaning of the provisions of the said Act. The provisions contained in the Admiralty Courts Act of 1840 and 1861, Section 22 of the Supreme Court of Judicature Act, 1925, the 1952 Brussels Arrest Convention as also the Administration of Justice Act, 1956 disclose one uniform feature that in order that a....
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....o unpaid insurance premium would not be a maritime claim also under the head "disbursements made on account of a ship". (vii) In the decision of this Court in M.V. Elisabeth [1992]1SCR1003 , it was merely held that the High Courts in India will have an extended jurisdiction under the Admiralty Courts Act, 1861 and the said principle cannot be further extended. (viii) As the maritime jurisdiction of the High Courts in India was derived from the pre-independence statutes and as the High Courts of India exercise the same jurisdiction as that of the courts in England, it must necessarily be held that the interpretation of the word "necessaries" rendered by the English Courts and which has been followed by other courts except by the American Court should prevail. 9. Mr. Prashant S. Pratap, the learned counsel appearing on behalf of the Club, on the other hand, would submit that: (i) "necessaries" are the things which a prudent owner would provide to enable a Ship to perform the functions wherefore she has been engaged and, thus, the provision of services would come within the definition of necessaries. (ii) The term "necessaries" must be construed ....
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.... having been so arrested shall have been brought into and be in the registry of the said court, in either such case the said court shall have full jurisdiction to take cognizance of all claims and causes of action of any person in respect of any mortgage of such ship or vessel, and to decide any suit instituted by any such person in respect of any such claims or causes of action respectively. 4. COURT TO DECIDE QUESTIONS OF TITLE, ETC.: The said Court of Admiralty shall have jurisdiction to decide all questions as to the title to or ownership of any ship, or vessel, or the proceeds thereof remaining in the registry, arising in any cause of possession, salvage, damage, wages or bottomry, which shall be instituted in the said court after the passing of this Act. 6. THE COURT IN CERTAIN CASES MAY ADJUDICATE, ETC.: The High Court of Admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel or in the nature of towage, or for necessaries supplied to any foreign ship or seagoing vessel, and to enforce the payment thereof, whether such ship or vessel ma....
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.... said ship or any share thereof to be sold, and may make such order in the premises as to it shall seem fit. 12. Section 2 of Colonial Courts of Admiralty Act, 1890 reads thus: "2. Colonial Courts of Admiralty. - (1) Every court of law in a British possession, which is for the time being declared in pursuance of this Act to be a Court of Admiralty, or which, if no such declaration is in force in the possession, has therein original unlimited civil jurisdiction, shall be a Court of Admiralty, with the jurisdiction in this Act mentioned, and may for the purpose of that jurisdiction, exercise all the powers which it possesses for the purpose of its other civil jurisdiction, and such Court in reference to the jurisdiction conferred by this Act is in this Act referred to as a Colonial Court of Admiralty.... (2) The jurisdiction of a Colonial Court of Admiralty shall, subject to the provisions of this Act, be over the like places, persons, matters, and things, as the Admiralty jurisdiction of the High Court in England, whether existing by virtue of any statute or otherwise, and the Colonial Court of Admiralty may exercise such jurisdiction in like manner and to as fu....
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....der their existing domestic laws or regulations to arrest, detain or otherwise prevent the sailing of vessels within their jurisdiction." HISTORY OF JURISDICTION OF THE HIGH COURT: 16. The jurisdiction of the High Court of Admiralty in England used to be exercised in rem in such matters as from their very nature would give rise to a maritime lien - e.g. collision, salvage, bottomry. The jurisdiction of the High Court of Admiralty in England was, however, extended to cover matters in respect of which there was no maritime lien, i.e., necessaries supplied to a foreign ship. In terms of Section 6 of the Admiralty Act, 1861, the High Court of Admiralty was empowered to assume jurisdiction over foreign ships in respect of claims to cargo carried into any port in England or Wales. By reason of Judicature Act of 1873, the jurisdiction of the High Court of Justice resulted in a fusion: of admiralty law, common law and equity. The limit of the jurisdiction of the Admiralty court in terms of Section 6 of the 1861 Act was discarded by the Administration of Justice Act, 1920 and the jurisdiction of the High Court thereby was extended to (a) any claim arising out of an agreement relating ....
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....ot been defined in the Act of 1861. It was given a meaning by judicial pronouncements. 23. It stands accepted that having regard to the legislative and executive policy, England and Wales never considered the arrears of insurance premium as a 'necessary'. The Courts of England further maintained a distinction between a maritime claim and maritime lien. The decisions cited by Mr. Bharucha go to show that the English Courts proceeded on the premise that for the purpose of considering as to whether any necessary has been supplied to a ship or not must have a sufficient and direct connection with the operation of the ship. It held that unpaid insurance premium is not a maritime claim as it is not needed to keep it going. [See Queen v. Judge of the City of London Court (supra), Heinrich Bjorn (supra), The Andre Theodore (supra), The Aifanourious (supra). The English Courts, thus, refused to put a wide construction on that term. 24. A similar view was also adopted by an Australian High Court in Gould v. Cornhill Insurance Co. Ltd. [1 DLR 4th Ed. 183]. 25. In The Riga (1869) L.R. 3 A&E 516, it is stated: "The definition of the term "necessaries" given by Lord Ten....
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.... of crew, it is important to bear in mind that it has long been established that no distinction need be drawn between the supply of necessaries and the payment for such supply." 28. Identical view has been taken by a Court of Durban in M.V. Emerald Transporter 1985 2 SALR 448 with reference to the provisions contained in Admiralty Jurisdiction Regulation Act 105 of 1983 wherein it was held that services which are insured solely to the benefit of the ship owner would not be classed as necessaries. The said decision was, however, rendered in the context of ranking of claims against a fund comprising of sale proceeds of the vessel M.V. Emerald Transporter. 29. The House of Lords in The River Rima (supra) considered the provisions of Article 1(1)(k) of the 1952 Brussels Arrest Convention incorporating "goods or materials wherever supplied to a ship for her operation or maintenance" as a maritime claim. Having regard to the provisions contained in Section 6 of Admiralty Court Act, 1840 and Section 5 of Admiralty Court Act, 1861 it was held: "In other words, what is now called a claim in respect of goods or materials supplied to a ship for her operation or maintenance is t....
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....acts of insurance increased not only having regard to the experience gathered by the contracting parties but also by the legislators and the Court. A lot of amendments in the statutes as also interpretive changes took place. The decisions rendered by different courts on marine insurance law even frequently apply to non-marine insurance. With the increase in marine traffic, the insurance law also developed and new varieties of insurance covers came into being. There has been a considerable expansion of the practice of insurance against various forums of legal liabilities which the assured may incur to the third parties. 35. P&I mutual insurances cover the liabilities of assured shipowner incurred to third parties. In Modern Admiralty Law by Aleka Mandaraka-Sheppard at page 642, it is stated: "P&I mutual insurance (P&I associations) cover the liabilities of their assured shipowner incurred to third parties, which include cargo claims, pollution liabilities, damage to harbours, piers, etc., and personal injury' or loss of life claims, which are all excluded from the RDC clause. In addition the P&I association insures the remaining one-fourth of the assured' liabili....
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....n. The salient features of the claim which received clarificatory amendment in 2000 are as under: "For the clause to operate it needs to be specifically incorporated into an LOF contract, of whatever form, LOF 2000 contains a box to be ticked if the parties agree to the incorporation of the SCOPIC clause. If the clause is incorporated it then needs to be invoked by salvor. This can be done even if there is no threat to the environment. Invoking the clause completely replaces the right of the salvor to claim under Article 14, even in respect of services performed before the invocation of the clause. The provisions of Articles 14(5) and (6), however, continue to remain effective. Within two days of the clause being invoked, Clause 3 obliges the shipowner to put up security for the salvor's claim under the clause in the amount of US $ 3,000,000. If the shipowner fails to do so, Clause 4 entitles the salvor to withdraw from the SCOPIC clause, provided the security is still outstanding at the date of withdrawal. Clause 5 provides that SCOPIC remuneration is to be calculated by reference to an agreed tariff of rates that are profitable to salvors, calculated by refe....
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....ual basis, each other's claim. Thus, the members play a dual role of both beneficiary and benefactor. We have noticed the concept of such clubs. The Indian statutes operating in the field are pointer to the fact that such insurance has become more and more commercially expedient. No ship having regard to the ramification in international law can sail without such insurance. Apart from the 1952 Brussels Arrest Convention, the Merchant Shipping (Oil) Pollution Act, 1961 makes insurance compulsory. 41. As would be noticed hereinafter, P&I insurance cover to call at major ports in India is new a statutory requirement, CHANGING SCENARIO: 42. The advancement in Taw would be evident from the 1999 Arrest Convention whereby significant changes to the law relating to in rem claims and arrest has been made. Pursuant to Article 14 of the 1999 Arrest Convention, such changes would come into force six months after ratification by the 10th State. 43. The countries which have ratified the Convention are as follows: "Algeria, Antigua and Barbuda, Bahamas, Belgium, Belize, Benin, Burkina Faso, Cameroon, Central African Republic, Comoros, Congo, Costa Rica, Cote d'Ivoire,....
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....vention was to restrict the possibilities of arrest with regard to seagoing vessels flying the flag of a contracting State. Such an arrest was allowed for maritime claims against the vessel or against the sister ship belonging to the same owners. What would be the maritime claim is specified in Article 1 of the Convention. Other claims can only be secured if the vessel's home port is situated in a non-contracting State. 46. Apart from those restrictions resulting from the Convention, all kinds of claims can be secured by an arrest and there is no need to prove a connection with the operation of the vessel. As for example, a guarantee given by the owners for a subsidiary company or other principal debtor is as suitable as a claim resulting from the purchase of the ship or any other goods by the owners. However, in terms of Article 1(k) of the Convention claims for "goods or materials" supplied to a ship for her operation or maintenance are acknowledged as maritime claims. 47. What was expressly excluded in 1952 convention has been included in 1999 convention. The restrictions imposed under 1952 convention as regard 'Maritime claim' to operation of ship and maintena....
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....f India AIR2003SC2902 while referring to an amendment made in U.K. in relation to a provision which was in pari materia with Section 118 of the Indian Succession Act, 1925, this Court observed: "...The constitutionality of a provision, it is trite, will have to be judged keeping in view the interpretive changes of the statute effected by passage of time." 51. Referring to the changing scenario of the law having regard to the declaration on the right to development adopted by the World Conference on Human Rights and Article 18 of the United Nations Covenant on civil and Political Rights, 1966, it was held: "It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26.11.1950, but while doing so the court is not precluded from taking into consideration the subsequent events which have taken place thereafter. It is further trite that that the law although may be constitutional when enacted but with passage of time the same may be held to be unconstitutional in view of the changing situation. Justice Cardoze said : "The law ha....
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....al with the situation amply after having considered more or less the entire gamut of judicial precedents. Barker, J's judgment in the New Zealand case ((1980) 1 NZLR 104 (NZSC)) very lucidly sets, out that the court has to approach the modem problem with some amount of flexibility as is now being faced in the modern business trend. Flexibility is the virtue of the law courts as Roscoe Pound puts it. The pedantic approach of the law courts are no longer existing by reason of the global change of outlook in trade and commerce. The observations of Barker, J. and the findings thereon in the New Zealand case (1980) 1 NZLR 104 with the longish narrations as above, depicts our inclination to concur with the same, but since issue is slightly different in the matter under consideration, we, however, leave the issue open, though the two decisions as above cannot be doubted in any way whatsoever and we feel it expedient to record that there exists sufficient reasons and justification in the submission of Mr. Desai as regards the invocation of jurisdiction under Section 44-A of the Code upon reliance on the two decisions of the New Zealand and Australian Courts." 56. No statutory law in....
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....es of law recognised by the generality of maritime States and can therefore be regarded as part of our common law. The want of ratification of these conventions is apparently not because of any policy disagreement, as is clear from active and fruitful Indian participation in the formulation of rules adopted by the conventions, but perhaps because of other circumstances, such as lack of an adequate and specialised machinery for implementation of the various international conventions by co-ordinating for the purpose the Departments concerned of the Government. Such a specialised body of legal and technical experts can facilitate adoption of internationally unified rules by national legislation. It is appropriate that sufficient attention is paid to this aspect of the matter by the authorities concerned. Perhaps the Law Commission of India, endowed as it ought to be with sufficient authority, status and independence, as is the position in England, can render valuable help in this regard. Delay in the adoption of international conventions which are intended to facilitate trade hinders the economic growth of the nation." (Emphasis supplied) 60. M.V. Elisabeth (supra) is an authori....
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....her created by actual hypothecation or by implication, or operation of law, may be enforced in the admiralty." 66. It is true that this Court is not bound by the American decisions. The American decisions have merely a persuasive value but this Court would not hesitate in borrowing the principles if the same is in consonance with the scheme of Indian law keeping in view the changing global scenario. Global changes and outlook in trade and commerce could be a relevant factor. With the change of time; from narrow and pedantic approach, the Court may resort to broad and liberal interpretation. What was not considered to be a necessity a century back, may be held to be so now. INDIAN STATUTES OPERATING IN THE FIELD: 67. Section 352N of the Indian Merchant Shipping Act, 1958 makes such an insurance compulsory which reads as under: "352-N. Compulsory insurance or other financial guarantee. - (1) The owner of every Indian ship which carries 2000 tons or more oil in bulk as cargo, shall, in respect of such ship, maintain an insurance or other financial security for an amount equivalent to - (a) one hundred and thirty-three Special Drawing Rights for each ton of t....
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....ust in any event not be less than the limit of liability under the 1976 Limitation Convention. The "relevant insurance certificate" will need to be produced during Port State Control inspections and by the Australian Customs Service on entering or leaving Australian ports. A six months period of grace will be allowed before full enforcement action is undertaken; ships without sufficient documentation on board will be given a warning until 5th September, 2001. Thereafter ships will be detained until the requirement documentation is produced. AMSA officials have indicated that although the Notice requires that the amount of cover be set out in the Certificate of Entry it will be assumed if a dollar amount is not set out that Club cover in any event extends at least to the cover provided under the 1976 Convention as amended. AMSA officials have also indicated that if a vessel does not carry any original certificate of Entry they will be satisfied with the provision of a photocopy on the vessel's first visit. However on the second and subsequent visits vessels will be expected to carry an original Certificate of Entry. Please contact the....
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....ncial responsibility may include the following: a. Affidavit of self-insurance and most recent audited financial statement; b. Insurance certificate and insurance policy; c. Surety bond; d. Financial guarantee, accompanied by guarantor's evidence of self insurance; e. Letter of credit; f. Certificate of entry evidencing coverage by a Protection and Indemnity Club; or g. Certificate of deposit with assignment of negotiable interest. Interim Approval A completed application form and appropriate documentation evidencing proof of financial responsibility which is submitted by 31 August 2000 will be deemed approved by ADEC for purposes of meeting the 1 September 2000 deadline. Following adoption of final regulations, ADEC will review each application to ensure that it meets the requirements of the statute and regulations. A formal approval will be given to those vessels which qualify, and non-qualifying applicants will be given 30 days to submit additional information as requested by the Department. Application Form A copy of ADEC's application form is attached. In Section (c), par....
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....s. DC/C-SH/7200 dated 4th October, 1995 and DC/C-SH/2/3661 dated 9th July, 1996 and in view of recent experience gathered from the storm which hit the harbour on 18th and 19th June, 1996. It has been decided that vessels which do not possess valid P&I club cover or suitable Insurance Cover will not be decked. The intention of the Port is to eliminate all sub-standard, vessels or ships without insurance cover, making Mumbai a port of call, because a mishap to such a vessel will render the port liable for expenses of wreck removal or other damages caused. 2. therefore, notice is hereby given that from 1st November, 1996, ships, which do not possess valued insurance cover will not be given an anchorage berth in the Mumbai Port for cargo work or for any other purpose, this notice period is given so that the owners, agents and shippers proposing to load cargo have sufficient time to ensure that such cargoes will be loaded on duly protected ships. Sd/- Deputy Conservators CALCUTTA PORT TRUST HARBOUR MASTER (PORT)'S OFFICE CIRCULAR NO. 10 DATED 26.6.2001 To All Shipping Agents To safeguard Port interest for damage cost of repairs due ....
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....not confined merely to what is requisite barely to support life, but includes many of the conveniences of refined society. A racing bicycle was held a necessary for an apprentice earning 21s. a week and living with his parents; 78 L.T. 296" 82. In The Canadian Law Dictionary, the term 'necessaries' has been defined as follows: "In the case of ships, the term denotes whatever is fit and proper for the service on which the ship is engaged, whatever the owner of that vessel, as a prudent man would have ordered if present at the time. Victoria Machinery Depot Co. Ltd. v. The 'Canada' and the 'Triumph', (1913) 15 Ex.C.R. 136, 14 D.L.R. 318." 83. In Ballentine's Law Dictionary, the term 'necessaries' has been defined as follows: "Under the maritime law permitting the master of a ship to pledge the owner's credit for necessaries, the word does not import absolute necessity, but the circumstances must be such that a reasonable prudent owner, present, would have authorized the expenditures, and it is usually sufficient if they are reasonably fit and proper, having regard to the exigencies and requirements of the ship, ....
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....catalogue of claims which entitle a claimant to proceed with an action in rem in the courts of Scotland are stated in section 47(2) of the Administration of Justice Act 1956 which provides, inter alia: "This section applies to any claim arising out of one or more of the following, that is to say ...(d) any agreement relating to the use or hire of any ship whether by charter or otherwise; 88. The learned author, however, noticed the shortcomings in the statutes operating in United Kingdom and made a prophecy to the effect that contract of maritime insurance may be included in the list of claim giving the right of arrest in the following terms: "The current position is, therefore, that claims arising out of contracts of marine insurance are not claims which entitle a claimant to proceed by way of action in rem and claimants in respect of P.&I. Club membership are in no better position than those claiming in respect of traditional hull and cargo insurance. In this context there is one respect in which the insurance cover offered by P.&I. Clubs differs from hull and cargo insurance and which has yet to receive the attention of the courts. Certain heads of P.&I. Cov....
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....amage, wreck removal, insurance premiums, commissions, brokerage and agency fees, and ship sale contracts are all significant steps to correct those recognized deficiencies, while still retaining the exhaustive list of maritime claims which is the heritage of the common law Admiralty jurisdiction. The remainder of the 1999 Convention contains nothing revolutionary, the radical UK proposal on associated ship arrest having been rejected by the conference, hut there are a number of provisions which provide useful clarification of the law. The active participation in the conference of delegations from China, Russia and the USA leads one to hope that these major states may, despite their relatively low rate of ratification of other maritime conventions, find this one sufficiently non-controversial to commend it to their legislatures. " 91. The learned author further stated: "The principles of international law relating to jurisdiction have evolved significantly since 1952, in Europe in particular under the European Convention on Jurisdiction and Judgments 1968, but also with the development in English Law of the doctrine of forum non convenient in cases such as the "ABDIN DA....
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....ning, no lien against the ship itself could possibly arise as the result of an insurance policy; "unless the ship is benefited the ship should not pay." In Re Petition of Insurance Co. of Pennsylvanis, 22. F.109, 116 (N.D.N.Y.1884), aff'd sub nom. Insurance Co. of Pennsylvania v. The Proceeds of the Sale of the Barge Waubauschene, 24 F. 559 (C.C.N.D.N.Y.1885). It is no longer appropriate, however, to view maritime insurance this way. Even a vessel that simply sits at a dock without making any attempt to ply the waters must today have hull protection and indemnity insurance. As the district court noted, insurance is something that every vessel today needs just to carry on its normal business." 94. It was further held "We therefore hold that because insurance is essential to keep a vessel in commerce, insurance is a "necessary" under 46 U.S.C. Section 971 and unpaid insurance premiums to give rise to a maritime lien under the FMLA." 95. Equilease Corp. (supra) has a greater persuasive value having regard to the fact that contemporary maritime statutes in England and other countries do not use the term "necessaries" but the American Federal Maritime Liens Act does. ....
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.... sense the term must be construed in a broad and liberal manner. The changing requirement of a ship so as to enable it to trade in commerce must be kept in mind which would lead to the conclusion that P & I Insurance cover would be necessary for operation of a ship. 102. It may be true that there are a large number of insurance covers; from hull and machinery insurance to protection and indemnity cover. But the question is not what insurance would be 'necessary' and what would not be; as the issue has to be considered not only on a mere hypothesis but having regard to the statutes framed by other countries as also the 1999 Arrest Convention. LEX FORT: 103. In Benedict on Admiralty, 6th Edn., Vol. 1, p. 19, it has been stated : "A ship is, of necessity, a wanderer. She visits shores where her owners are not known or are inaccessible. The master is the fully authorized agent of the distant owners but is not usually of sufficient pecuniary ability to respond to unforeseen demands of the voyage. These and other kindred characteristics of maritime commerce underlie the practice of finding in the ship itself security, in many cases, for demands against the maste....
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....e, disputes have to be resolved by reference to the system of law which governs the contract of insurance. The jurisdiction to deal with an action by or against insurers in England and EC Member States except Denmark are now governed by EC Council Regulation No. 44/2001. In other countries, however, the law which is prevailing therein would govern the field. It may be true that some conventions like Brussels and Lugano are no longer relevant in most cases involving EC Member States but they form an important part of the background to the current jurisdictional regime. For defending the limits of the jurisdiction of the case of a particular company the same must, therefore, be governed by the law prevailing therein. The claim may be a maritime claim in a non-contracting country but not in others. The 'Club' in law, therefore, would be entitled to enforce its claims against the 'Vessel' keeping in view the law prevailing in India within whose territorial jurisdiction the ship is found. Only because, the claim can be enforced in our country and not in some other countries, by itself would not lead to the conclusion that it cannot be enforced at all irrespective of the ....
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.... changes are required to be made. We, therefore, in agreement with the judgment of the Bombay High Court, hold that unpaid insurance premium being a maritime claim would be enforceable in India. MAINTAINABILIY OF THE LETTERS PATENT APPEAL: 111. Submission of Mr. Pratap is that by refusing to exercise discretion to reject a plaint by account, no right or liability of the party is decided and by reason thereof the procedure for determining the rights and obligations of the parties are only set in motion. Such an order would akin to an order admitting the plaint, Mr. Pratap would submit. Reliance in this connection has been placed on The Justices of the Peace for Calcutta v. Oriental Gas Company 1872 Vol. VIII Bengal LR 433. 112. It was urged that by not rejecting the plaint the defences set out by the defendant are not obliterated as they will be entitled to raise all such contentions at the trial. Reliance in this connection has been placed on Prahladrai Agarwalla v. Shri Renuka Pal AIR1982Cal259 . 113. Mr. Pratap would further contend that the High Court has misread and misinterpreted the decision of this Court in Shah Babulal Khimji v. Jayaben Kania [1982]1SCR187 11....
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....njust orders to litigants having genuine grievances so as to make them scapegoats in the garb of protecting vexatious appeals. In such cases, a just balance must be struck so as to advance the objection of the statute and give the desired relief to the litigants, if possible." In Shah Babulal Khimji's case (supra), this Court in no uncertain terms referred to the judgment under the Special Act which confers additional jurisdiction to the High Court even in internal appeal from an order passed by the Trial Judge to a larger Bench. Letters Patent has the force of law. It is no longer res integra. Clause 15 of the Letters Patent confers a right of appeal on a litigant against any judgment passed under any Act unless the same is expressly excluded. Clause 15 may be subject to an Act but when it is not so subject to the special provision the power and jurisdiction of the High Court under Clause 15 to entertain any appeal from a judgment would be effective. The decision of this Court in Shah Babulal Khimji's case (supra) has been considered in some details by a Special Bench of the Calcutta High Court in Tanusree Art Printers and Anr. v. Rabindra Nath Pal (2000)....
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....ished. The powers given to a High Court under the Letters Patent are akin to the constitutional powers of a High Court. Thus when a Letters Patent grants to the High Court a power of appeal, against a judgment of a Single Judge, the right to entertain the appeal would not get excluded unless the statutory enactment concerned excludes an appeal under the Letters Patent." Section 54 of the Land Acquisition Act, 1894 provides for an appeal before the High Court and thereafter to the Supreme Court and despite the same it was held that a letters patent appeal under Clause 15 would be maintainable." 119. The view taken by the Calcutta and Bombay High Count that an order passed in terms of Order 37 of the Code of civil Procedure granting leave to defend would not be a judgment within the meaning of Clause 15 of the Letters Patent may not be of much relevance. 120. In Tanusree Art Printers and Anr. v. Rabindra Nath Pal (2000)3CALLT412(HC) it has been noticed; "In Merchants of Traders (P) Ltd. v. Sarmon Pvt. Ltd., reported in MANU/WB/0157/1997MANU/WB/0157/1997 : (1997)2CALLT38(HC) , learned Division Bench although did not consider this aspect of the matter but held t....
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....nd a preliminary or interlocutory judgment determines only a part of it, leaving other matters to be determined. 81. An analysis of the observations of the Chief Justice would reveal that the following tests were laid down by him in order to decide whether or not an order passed by the Trial Judge would be a judgment : (1) a decision which affects the merits of the question between the parties; (2) by determining some right or liability; (3) the order determining the right or liability may be final, preliminary or interlocutory, but the determination must be final or one which decides even a part of the controversy finally leaving other matters to be decided later. 129. In Lea Badin v. Upendra Mohan Roy AIR1935Cal35, the Calcutta High Court held that an order refusing to appoint a receiver is determinative of a right of the plaintiff and would accordingly be a judgment. 130. Yet again in Chittaranjan Mondal v. Sankar Prosad Sahani AIR1972Cal469 the Calcutta High Court held that an order refusing to grant an injunction restraining execution of the judgment-debtor was a judgment within the meaning of Clause 15. 131. As by reason of an orde....
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....upon before further proceedings were taken in the election petition. Bhagwati, J. speaking for the Court observed thus : We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took. If the preliminary objection was not entertained and a decision reached thereupon, further proceedings taken in the election petition would mean a full-fledged trial involving examination of a large number of witnesses on behalf of the second respondent in support of the numerous allegations of corrupt practices attributed by him to the appellant, his agents or others working on his behalf; examination of a large number of witness by or on behalf of the appellant controverting the allegations made against him; examination of witness in support of the recrimination submitted by the appellant against the second respondent; and a large number of visits by the appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of activity including those in the House of the People. It would mean unnecessary harassment and expenses for th....
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.... 16. Furthermore, the Representation of the People Act provides for a complete machinery. The right of appeal conferred upon a suitor must be considered from that angle. When an order is passed under Section 98 of the Act, the same may be in terms of either Sub-section (1) of Section 86 or otherwise. An appeal lies against a final order. An order passed under Sub-section (1) of Section 86 is also final. It may be that in the event an appeal therefrom is allowed, the matter may be required to be sent back but that would not render an order passed thereunder as an interlocutory one. It does not take away the concept of the finality attached therewith." 141. In Central Mine Planning and Design Institute Ltd. v. Union of India and Anr. (2001)ILLJ1069SC this Court upon referring Shah Sabulal Khimji (supra) held: "Adverting to the facts of this case, Section 17-B of the ID Act confers valuable rights on the workmen and correspondingly imposes onerous obligations on the employer. The order in question passed by the learned Single Judge determines the entitlement of the workmen to receive benefits and imposes an obligation on the appellant to pay such benefits provided in ....
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....ule 14 of the Code of civil Procedure are required to be taken into consideration for the purpose of disposal of application under Order 7 Rule 11(a) of the Code of civil Procedure. The 'Club' in its plaint pleaded: "The Plaintiff is a Protection & Indemnity Association incorporated under the laws of the United Kingdom and carries on business through its Managers, Liverpool & London P&I Management Ltd. at Liverpool, UK. The Plaintiff is a mutual association of ship-owners and offers insurance cover in respect of vessels entered with it for diverse third party risks associated with the operation and trading of vessels. This insurance is commonly known as Protection & Indemnity (P&I) cover in respect of various risks associated with the vessels in their maritime adventure. The 1st Defendant vessel M.V. "Sea Success I" is a sister ship of the vessels "Sea Ranger" and "Sea Glory" which were entered for P&I risks with the Plaintiff Association. The said two vessels were entered into the Plaintiff's Association for the policy year 1999-2000 by Defendant No. 2, Singapore Soviet Shipping Co. Pte. Ltd. who, as per the terms of the insurance and Rules of the Plaintiff As....
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.... the Plaintiff inasmuch as the Plaintiff's suit will be rendered infructuous. There is no other alternative efficacious remedy available to the Plaintiff. 147. The Club has pleaded that the vessel is a sister ship of 'Sea Ranger' and 'Sea Glory' owned and possessed by the second defendant. The Club has also pleaded that the defendant No. 2 is beneficial owner of the first defendant ship. Determination on such assertions would amount to determination of question of fact. If the 'Vessel' denies or disputes the same; an issue in that behalf will have to be framed and decided. 148. Beneficial ownership of a ship is not a question of fact alone. It is a mixed question of fact and law. In William v. Wilcox (1838) 8 Ad. & EL 331 it is held: "It is an elementary rule in pleading that when a state of facts is relied, it is enough to allege it simply, without setting out the subordinate facts which are the means of proving it or the evidence sustaining the allegations." 149. The aforementioned dicta has been quoted with approval in Mohan Rawale v. Damodar Tatyaba, and Ors. (1994)2SCC392 . 150. It may be true that Order 7 Rule 11(a) although au....
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....3. In D. Ramachandran v. R.V. Janakiraman and Ors. [1999]1SCR983 , it has been held that the Court cannot dissect the pleading into several parts and consider whether each one of them discloses a cause of action. 154. In the aforementioned backdrop, the question as to whether the Club had been able to show that the Respondent No. 1 is a sister ship of "Sea Glory" and "Sea Ranger" admittedly belonging to the first respondent is a matter which is required to be gone into in the suit. 155. In ascertaining whether the plaint shows a cause of action, the court is not required to make an elaborate enquiry into doubtful or complicated questions of law or fact. By the statute the jurisdiction of the court is restricted to ascertaining whether on the allegations a cause of action is shown. In Vijay Pratap Singh v. Dukh Haran Nath Singh AIR1962SC941 this Court held: "By the express terms of Rule 5 Clause (d), the court is concerned the ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, ....
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....judices third parties innocently as well as affect the interest of owner, crew member, cargo owner, shipper etc. adversely and, therefore, it is all the more necessary to analyse the plaint meaningfully at the threshold to find out whether it discloses cause of action or not and not on technical and formal reading that if discloses cause of action and wait for trial." 158. The approach of the High Court, in our considered opinion, is not correct. For the purpose of rejecting a plaint it is not necessary to consider whether the averments made in the plaint prove the factum that the defendant No. 1 "Sea Success-I" is a sister ship of "Sea Glory" and "Sea Ranger" or the said two ships are beneficially owned by the defendant No. 2. The reasons which have been assigned in support of the said aforementioned finding that that the ship is a valuable commercial chattel and her arrest undeservingly prejudices third parties as well as affect the interest of owner and others is a question which must be gone into when passing a final order as regard interim arrest of ship or otherwise. For the aforementioned purpose the Vessel herein could file an application for vacation of stay. While cons....
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....rson, A, and also the case of a ship the legal title to which is in one person, A, but the equitable title to which is in another person, B. In the first case the ship would be beneficially owned by A, and in the second case by B. Trusts of ships, express or implied, are however, rare and the words seem to me to be capable also of a different and more practical meaning related not to title, legal or equitable, but to lawful possession and control with the use and benefit which are derived from them. If that meaning were right, a ship would be beneficially owned by a person who, whether he was the legal or equitable owner or not, lawfully had full possession and control of her, and, by virtue of such possession and control, had all, the benefit and use of her which a legal or equitable owner would ordinarily have." 163. Furthermore, the question as to whether the concept of ownership of a ship which has been introduced in 18th Century when there had been no joint stock companies and the concept of shares in a ship so as to encourage the individuals to pool their resources by a sister ship so that they may become co-owners is a matter which is required to be considered at an appro....