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Judgment
The petitioner and the respondents entered into an agreement on 21st January, 2021 for time-charter of two vessels for plying between the banks of a
river in Jharkhand: commonly known as “Ro Ro Servicesâ€. The agreement provides for payments for the period of charter which is from 21st
January, 2021 to 30th April, 2022 and the mode and manner of payment and freight charges together with termination of contract. The agreement
provides that termination can unilaterally be made by either of the parties, being the owners and the charterers (the petitioner and the respondents
respectively before this Court) to terminate the agreement by giving 60 days’ notice to each other.
Disputes between the parties were carried to this Court in November, 2020 which was decided by orders dated 3rd November, 2020 and 4th
December, 2020 by the Division Bench which gave certain directions on the respondents to make payments to the petitioner. Such payments were
duly made and the disputes were sorted between the parties.
The instant petition is a new dispute arising out of the agreement, as stated above, but containing more or less similar factual issues.
According to learned counsel appearing for the petitioner, the respondents have plied the two vessels from 21st January, 2021 onwards but have only
made over freight charges for January and February of this year. Counsel submits that no further charges have been made by the respondents.
Counsel relies on Clause 18 of the said agreement to submit that once the dispute reaches the jurisdictional Court, the respondents cannot retain any
right over the said vessels and must return the same to the petitioner.
Learned counsel appearing for the respondents relies on several Clauses in the agreement to emphasise that the petitioner as the owner of the vessels
failed in its obligation to make timely repairs to the vessels by reason of which the vessels are not in a usable condition. It is also submitted that the
termination of the agreement on 3rd June, 2021 is contrary to Clauses 4 and 12 of the agreement which mandates a notice period of 60 days to the
party who receives the notice of termination. Counsel further submits that the respondents have made over a security deposit of Rs.52 lakhs which is
sufficient to cover the claims of the petitioner in respect of unpaid freight charges.
Upon hearing learned counsel appearing for the parties, this Court is of the view that the issues of repair, maintenance or the security deposit being
sufficient to cover the claims of the petitioner is not relevant at this stage. Clause 18 of the agreement, though curiously worded, makes it clear that
disputes and differences between the parties shall be referred to the jurisdictional Court, in this case, the Calcutta High Court and once the dispute has
been referred to the Court, the charterers (the respondents here) cannot hold on to the vessel anymore. This is the only reasonable construction which
can be made of Clause 18 since the syntax thereof is a bit confusing. The petitioner does not claim any of the unpaid freight charges at this stage but
only return of the vessels from the custody of the respondents. It may also be relevant to note that repair and maintenance of the vessels can only be
done once the vessels are returned to the petitioner. There is no defence to the fact that the respondents have not paid the freight charges after
February, 2021. The respondents, therefore at the very least, should be held to the effect of Clause 18 of the agreement.
In view of the above, there shall be an order in terms of prayer (c) of the application. Mrs. Mahuya Dutta (Biswas) of Bar Association Room No.9 is
appointed as a Receiver to take possession of the vessels, namely, D.B. RAJAVEER-X (Regn. No. JMR-0001) and M.V. GOURH (Regn. No.
W.B. 1251) from the respondents within a week from date. The Receiver shall be entitled to all forms of assistance including appointing an agent for
carrying out the directions in this order and for taking possession of the vessels from the custody of the respondents. The Receiver shall also be
entitled to seek police assistance, if required. The remuneration of the Receiver shall be Rs.50,000/-and shall be borne by the petitioner and the
petitioner shall arrange for the travel and other incidental expenses of the Receiver.
Since the learned counsel for the petitioner submits that no other orders are necessary on this application, GA/2/2021 is disposed of in terms of the
above.