AI Structured Summary
Not yet generated for this judgment
Judgment
V. Narasingh, J
I.A No.5 of 2024
This is an application filed under Order 1 Rule 10 of the Civil Procedure Code by the Paradip Port Authority represented through the Chairman, Paradip Port Authority in ADMLS No.1 of 2024 instituted by the Paradip International Cargo Terminal Pvt. Ltd. (PICTPL) versus M.V. Debi for impleading itself as a Defendant.
Learned counsel for the Intervener-Petitioner, Mr. Parhi submitted that the Plaintiff-Paradip International Cargo Terminal Pvt. Ltd. (in short, “PICTPL”) is a Company incorporated under the Companies Act, 2013. The Plaintiff is a concessionaire of the Paradip Port under the Concessionaire Agreement, on a Public Private Partnership Module, entered into between the Plaintiff and the Paradip Port Trust for 30 years period commencing from April, 2016. In terms of the Concessionaire Agreement, the Plaintiff has constructed and developed a multipurpose berth at Paradip Port on a Build, Operate, Transfer (BOT) basis and the Plaintiff operates a multipurpose clean cargo terminal catering to various customers.
It is stated that the charges at Para-33 of the plaint for realization of which the suit is filed have been raised due to overstay of the Defendant Vessel at the berth of the Plaintiff-PICTPL and on the basis of Concessionaire Agreement noted above.
It is submitted by the learned counsel for the Intervener-Petitioner, Mr. Parhi that admittedly dues of the Paradip Port are part of the claim of the Paradip Port Authority (PPA) and as PPA is in custody of the vessel and claiming that the PPA is a necessary party and in their absence there cannot be any effective adjudication, he seeks a direction to be impleaded as Defendant.
It is further submitted by the learned counsel for the Intervener-Petitioner that since contraband was found from the Board the vessel M.V. Debi- Defendant, the same was seized on 22.12.2023 and the same was intimated amongst others to the PPA and in this background Intervener Petitioner’s claim to be impleaded has been stated in Paragraphs-13,14 and 16 of the application. For convenience of ready reference, the same are quoted hereunder:
“13. That, after seizure of the vessel, the copy of the same has already been served to (i) the Chairman, Paradip Port Trust (ii) the Traffic Manager, PPT and (iii) The Terminal Head, Paradip International Cargo Terminal; and the same is duly acknowledged by them. But, knowingly and intentionally the Customs (Preventive) Commissionerate, Bhubaneswar has not been made opposite party in the ADMLS Suit No.01 of 2024 by them. Hence, the Paradip Port Authority, Bhubaneswar is required to implead as opposite party for proper & fair adjudication of the case.
That entire facts narrated above clearly shows that the Paradip Port Authority is a necessary party for the reason that as of now, the ship is under the custody of the Paradip Port Authority i.e., the present intervener and as per the provisions of Major Ports Act, the Paradip Port is warranted to be issued direction with respect to withholding or releasing of vehicle and for the condition of keeping the vehicle under safe custody, but the plaintiff has not made it a party in this suit.
xxx xxx xxx
That after the seizure of the vessel, the copy of the same has already been served to the present intervener and the traffic manager Paradip Trust and the terminal head of Paradip International cargo terminal and the same is acknowledged by the Paradip Port Authorities despite having knowledge about the same, the Paradip Port Authority has not been made opposite party in the Admiralty Suit by the Plaintiff. Hence, the Paradip Port Authority is required to be impleaded as opposite party for proper and fair adjudication of the case.”
Objection by way of reply affidavit has been filed by the Plaintiff to the application for impleation.
Learned counsel appearing for the Plaintiff, Mr. Kamat opposing the prayer, inter alia, submitted that in admirality jurisdiction, the ship is deemed to be in the custody of the Admirality Court and it is his further submission that the PPA is neither a necessary or proper party at this stage and application is also liable to be rejected in terms of Rule 17 of the Orissa High Court Admirality (Jurisdiction and Settlement of Maritime Claims) Rules, 2020 (hereinafter referred to as “Rules, 2020”).
7-A. To fortify his submission, he relied on the decisions of the Apex Court in the case of Ramesh Hirachand Kundanmal vrs. Municipal Corporation of Greater Bombay and others, (1992) 2 SCC 524, M.V. Elisabeth and others vrs. Harwan Investment and Trading Pvt. Ltd., Hanoekar House, Swatontapeth, Vasco-De-Gama, Goa, 1993 Supp. (2) SCC 433 more particularly Paragraph-49 thereof, and of the Bombay High Court in the case of Board of Trustees of the Port Mumbay Raj Shipping Agencies vrs. Barge Madhwa and another, 2020 SCC OnLine Bom 651 and in the case of Irwin Edmund Sequeira & others vrs. M.V. Karnika (IMO-8521220) in Interim Application No.895 of 2021 in Comm Admiralty Suit No.11 of 2021 dated 22.03.2022.
Rule 17 of Rules 2020 dealing with Interveners is extracted hereunder:
“17. Interveners:- (1) Where property against which a suit in rem is brought, is under arrest or money representing the proceeds of sale of that property is in Court, a person who has interest in that property or money but who is not a defendant to the suit may, with the leave of the Court, intervene in the suit.
Referring to the said Rule, it is urged by the learned counsel for the Intervener-Petitioner, Mr. Parhi that since the vessel is under arrest and admittedly there is a Concessionaire Agreement between the PPA and the Plaintiff-PICTPL which is in vogue and the amount due to PPA is a part of the claim and mounting, PPA ought to have been arrayed as a party and the Plaintiff-PICTPL having failed to do so and he being a necessary party for just adjudication, the application deserves to be allowed.
9-A. He also relied on the same judgment cited by the learned counsel for the Plaintiff-PICTPL i.e. Ramesh Hirachand Kundanmal (supra) and stated that in exercise of its jurisdiction, the Court ought to direct the Plaintiff-PICTPL though dominus litis to add PPA as a Defendant and submitted that the fact scenario in the case at hand warrants such exercise.
On a bare reading of Rule 17 of Rules, 2020 in the considered view of this Court the same would have primacy keeping in view special nature of admirality jurisdiction in terms of Rule making power under Section 16 of the Admirality (Jurisdiction and Settlement of Maritime Claims) Act, 2017 read with Rule 12 of Rules 2020 vis-à-vis under Order 1 Rule 10 CPC.
10-A. It has to be examined as to whether PPA can be held to be “a person who has interest in that property or money” so as to claim to be arrayed as a Defendant. It cannot be lost sight that the
Concessionaire Agreement between the PPA and the Plaintiff-PICTPL is an independent transaction and the concept of custody being advanced by the learned counsel for the PPA is also misconceived during pendency of admirality suit.
It is apt to note here that while resisting the arrest of the vessel non-joinder of PPA so also officials of the Customs under the Special Act (NDPS) was urged on behalf of the Defendant and the same was negatived by this Court by recording its finding at Paragraphs- 30 to 32 by order dated 23.02.2024 passed in I.A No.1 of 2024 arising out of ADMLS No.1 of 2024. For convenience of ready reference, Paragraphs- 30 to 32 is extracted hereunder:
“30. What in essence is pleaded and prayed for by the Defendant by filing I.A No.2 of 2024 “An application challenging the maintainability of the admiralty suit”, inter alia, on the ground of non-joinder of necessary party the Narcotic Department and the Customs Department etc. which was elaborated at the stage of argument, to decide the maintainability of the lis at the threshold.
If the contention of the Defendant is to be accepted then Admiralty Jurisdiction will be denuded of its special feature as distinct from the common law forum which are governed under Section 9 of the Civil Procedure Code.
In the considered view of this Court such approach will defeat the unique nature of jurisdiction exercised by this Court under Act, 2017.”
Hence, on the basis of the materials on record, this Court is not inclined to entertain the prayer of the Paradip Port Authority to be impleaded as a Defendant at this stage.
12-A. But it is made clear that it shall not in any way prejudice the rights of the PPA in terms of Section 10 of Admirality (Jurisdiction and Settlement of Maritime Claims) Act, 2017 read with Rule 20(2) of the Rules, 2020.
I.A is accordingly disposed of.
………………………..