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Judgment
S.J. Kathawalla, J.—This is an action by the Plaintiff, who is a supplier of marine paint. The Plaintiff supplied paints to vessels belonging to/owned/beneficially owned/chartered by the 3rd Defendant and has not received payment in respect of some supplies. The Plaintiff thus alleges that it has a maritime claim/lien and that it is entitled to proceed in rem against the sale proceeds of the 1st Defendant Vessel - Kamal XXIX, the sale proceeds of the 2nd Defendant Vessel - Kamal XXXIII (both Vessels are owned by the 3rd Defendant) and/or the sale proceeds of any other vessels owned by the 3rd Defendant, as also against the 3rd Defendant in personam. The sale proceeds of the 1st and 2nd Defendant Vessels are deposited with the Admiralty Registrar of this Court.
The Plaintiff states that it served the Writ of Summons upon the 3rd Defendant at its office in Gujarat and also upon the 3rd Defendant''s Mumbai office. However the 3rd Defendant''s Mumbai office is sealed and the packet containing the Writ of Summons was returned to the Sheriff of Bombay. Two affidavits of Mrs. S.S. Borde, bailiff attached to the office of the Sheriff of Mumbai in proof of service dated 10th April and 15th November 2014 are on record. I am informed by learned counsel appearing for the Plaintiff that the 3rd Defendant''s Mumbai office is sealed by the Collector''s office. A remark to this effect is also found on the envelope containing the Writ of Summons which was addressed to the 3rd Defendant''s Mumbai office. I am satisfied that the Writ of Summons has been properly served on the 3rd Defendant.
The Plaintiff, by Chamber Summons No. 627 of 2013, sought to amend the Plaint and implead the Vessel Kamal XXXIII as the 2nd Defendant and Jaisu Shipping Company Private Limited as the 3rd Defendant to the suit. Pending the hearing of the said Chamber Summons, on 27th August 2013, the 2nd Defendant Vessel was sold by this Court [in Admiralty Suit (L) No. 577 of 2013]. The Plaintiff therefore amended the Chamber Summons to implead the sale proceeds of the 2nd Defendant Vessel as a party defendant to the suit. The Chamber Summons No. 627 of 2013 was allowed by this Court on 22nd January 2014. After the Plaint was amended the Plaintiff was directed to serve a fresh Writ of Summons on the newly added 3rd Defendant. The Plaintiff accordingly served a fresh Writ of Summon upon the 3rd Defendant at its Ahmedabad office on 22nd August 2014. Thereafter, the suit was listed "For Directions" on 27th October, 18th November and 22nd December 2014. The 3rd Defendant was absent on all these dates and consequently when the suit was listed on 23rd January 2015, this Court directed that the suit should be placed under the caption "For Ex-parte Decree". Belatedly, on 6th July 2015, a vakalatnama was filed on the 3rd Defendant''s behalf and at the request of the 3rd Defendant''s advocate, this court granted the 3rd Defendant time upto 3rd August 2015 to file its written statement. The 3rd Defendant failed to file its written statement by 3rd August 2015 and thus the suit was once again placed under the caption "For Ex-parte Decree".
Today the suit is listed "For Ex-parte Decree". However, none appear for the Defendants. The Plaintiff has tendered an Affidavit of Evidence in lieu of Examination in Chief and Affidavit of Documents, both dated 6th August 2014 of Ms. Flora Das. Ms. Das has confirmed the correctness of the contents of her said Affidavit. The Affidavit of Ms. Flora Das is taken on record and marked as Exhibit "P-1". The Plaintiff also tendered a Compilation of Original Documents comprising 46 documents ("Compilation") which are relied upon by the Plaintiff and in respect of which, the Plaintiff''s witness has deposed in her Affidavit of Evidence. The Compilation is taken on record and is marked as Exhibit "P-2 (Colly)".
It is the Plaintiff''s case that between 2010 and 2011, at the behest and upon orders received from the 3rd Defendant (and persons authorized by the 3rd Defendant) the Plaintiff sold, supplied and delivered paints to various vessels belonging to/owned/beneficially owned/chartered by the 3rd Defendant. The paints were accepted and consumed by the 3rd Defendant/the various vessels without demur or protest. At the time of accepting the paints supplied by the Plaintiff, the 3rd Defendant/its agents and/or the vessels in question (through their officers) endorsed delivery tickets/challans acknowledging receipt of the paints. The Plaintiff states that pursuant to each supply of paints it forwarded its invoices together with supporting documents to the 3rd Defendant. The Plaintiff maintained a running statement of accounts because of the volume of the paints supplied and as and when payments were received from the 3rd Defendant a credit was provided in the Plaintiff''s statement of accounts. Towards the end of 2011, the principal amount due and payable by the 3rd Defendant to the Plaintiff aggregated INR 1,56,06,971.
It is the Plaintiff''s case that the 3rd Defendant, on several occasions, orally assured that payment will be made and cited financial hardship as excuse for non-payment of the Plaintiff''s outstanding dues. In 2012, the Plaintiff addressed several reminders for payment to the 3rd Defendant. The 3rd Defendant never disputed liability but only asked for copies of certain invoices, which it claimed it could not locate. The Plaintiff forwarded these invoices to the 3rd Defendant. However, despite receipt of these invoices, the 3rd Defendant did not release any payment against the Plaintiff''s outstanding invoices. The Plaintiff even caused a legal notice dated 7th June 2012 to be served upon the 3rd Defendant, to no avail. According to the Plaintiff, after accounting for interest at the contractual rate of 1.5% per month (as provided for in the Plaintiff''s invoices), the outstanding amount due and payable on the date of filing of the suit aggregated INR 2,01,76,198. The Plaintiff accordingly filed the present suit praying inter alia for a decree in its favour against the Defendants for a sum of INR 2,01,76,198 together with interest @ 18% per annum from the date of filing of the suit till payment and realization together with costs and poundage as set out in prayer clause (a).
On the Plaintiff''s application, by an order of 17th October 2012, this Court directed the arrest of the 1st Defendant Vessel. Thereafter by an order of 27th August 2013 passed in Admiralty Suit (L) No. 578 of 2013 this Court judicially sold the 1st Defendant Vessel for a sum of INR 3.25 crores. The sale proceeds (after deduction of approved expenses) are lying with the Prothonotary and Senior Master of this Court and as such the present suit continues against the said sale proceeds.
I have gone through the averments contained in the Plaint and the original documents referred to in the Affidavit of Evidence of Ms. Flora Das and separately filed in the Compilation. The Documents produced at Sr. No. 1 are printouts of email communications exchanged between the Plaintiff and the 3rd Defendant. By the said emails the Plaintiff repeatedly asked the 3rd Defendant to make payment of its outstanding dues and as such the 3rd Defendant does not dispute the Plaintiff''s demands. Ms. Das is party to some of the emails and she deposes that those emails to which she is not a party, were sent on her instructions and she confirms correctness of the said emails. The documents at Sr. Nos. 2 to 44 are invoices raised by the Plaintiff and delivery tickets/challans corresponding to each invoice. Ms. Das deposes that the invoice and the delivery ticket/challan at Sr. No. 9 are photocopies because the paints covered by this invoice were supplied overseas and the originals are in possession of the customs authorities or the physical supplier and so she is unable to produce the same. The documents at Sr. Nos. 10 to 14 are original office copies of debit notes raised by the Plaintiff upon the 3rd Defendant towards miscellaneous charges associated with supply of paints and so these do not have corresponding delivery tickets/challans. The documents at Sr. Nos. 16 to 18 and 21 are photocopies of octroi payment challans/receipts. Ms. Das states that the Plaintiff misplaced the originals and that she could not locate the same, despite making efforts to do so. The document at Sr. Nos. 19, 23, 27, 30 and 33 are photocopies of invoices and delivery challans/tickets corresponding to the invoices. Ms. Das states that the originals are misplaced and the Plaintiff cannot locate the original office copies of the invoices and the original delivery ticket/challans, despite making efforts to locate the same. The document at Sr. No. 45 is a photocopy of the legal notice dated 7th June 2012 served upon the 3rd Defendant on Ms Das''s instructions (the original of which is in the 3rd Defendant''s possession). The Document at Sr. No. 46 is a statement of accounts setting out the details of the outstanding sums due and payable by the 3rd Defendant. This statement of accounts is prepared by Ms. Das and the contents thereof tally with Plaintiff''s records. Ms. Das confirms the correctness of photocopies of documents relied upon by the Plaintiff. In view of the deposition of Ms. Das, the documents relied upon by the Plaintiff are admitted in evidence.
Ms. Das in her affidavit, fairly deposes that out of the sum of INR 2,01,76,198 claimed by the Plaintiff, a sum of INR 10,41,612 is due under the invoices raised by the Plaintiff upon Jaisu Shipyard Ltd., a group company of the 3rd Defendant. The Plaintiff thus drops its claim for this amount and confines its claim to INR 1,91,34,574 (i.e. amount which is due from the 3rd Defendant as on the date of filing of the captioned suit).
There is nothing on record which militates against anything that has been averred in the plaint and deposed to by Ms. Das. The deposition of Ms. Das is supported by the documents which have been taken on record. The evidence led for/on behalf of the Plaintiff is in line with averments contained in the Plaint and is uncontroverted. Accordingly, I have no hesitation in accepting the evidence of Ms. Das from which evidence it emerges that as of the date of filing of the suit a sum aggregating INR 1,91,34,574 was due and payable to the Plaintiff by the 3rd Defendant.
In the circumstances and for the reasons aforementioned, I am of the opinion that the Plaintiff has proved its case. The suit is accordingly decreed in terms of prayer clause (a) subject to the decretal sum being reduced to INR 1,91,34,574. Further, having been deprived of its dues the Plaintiff is entitled to interest on the principal amount of 1,47,66,961 @ 18% p.a (i.e. contractual rate of interest) WEF the date of filing of this suit till payment/realization, together with costs and poundage as prayed for. Disbursement by the Prothonotary and Senior Master of the decretal amount from out of the sale proceeds of 1st and 2nd Defendant Vessels in terms of prayer clause (a) shall be subject to and only in accordance with determination of priority of claims made against the sale proceeds by this court. The Plaintiff shall be at liberty to proceed against any other asset belonging to/owned by 3rd Defendant for recovery of the decretal amount (or any part thereof) that remains unsatisfied.
Since the suit is decreed ex-parte, the Plaintiff is entitled to refund of the court-fees, as per rules.
The office shall return the Compilation to the Plaintiff''s advocate upon the Plaintiff''s advocate furnishing a True Copy of this order along with the photostat copy of the Compilation duly certified by him as True Copy.