ORDER
SHEET APO No.358 of 2012 AS No.20 of 2000 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE HANJIN SHIPPING (S) PTE LTD.Versus PRIME SHIPPING INC.
SIX.
BEFORE: The Hon'ble JUSTICE BANERJEE The Hon'ble JUSTICE SHUKLA KABIR (SINHA) Date :
17. h October, 0012.
Appearance: Mr.Tilak Bose, Sr.Advocate with Mr.Swatarup Banerjee, Mr.S.Roy, Advocates For the appellant.
Mr.S.K.
Das and Mr.S.Dasgupta, Advocates For the respondent.
ASHIM KUMAR BANERJEE, J:- This limited appeal fund admiralty that action.
would was The relate directed facts to by in a disbursement this narrow court in campus of an would depict, the vessel M.V.Prime Value capsized in the river Hooghly while approaching to Calcutta Dock.
It was carrying cargo for various parties including the defendant no.7 being the appellant before us.
The owner of the vessel was a company duly registered under the appropriate laws of the country of Panama.
The limited liability suit was filed under the provisions of the Merchant Shipping Act, 1958 by the said company limiting their liability as against 26 defendants amounting to Rs.32,82,467.02/- that they deposited in Court pursuant to an order passed by the learned Single Judge.
Upon such deposit being made any claim as against the said vessel became unenforceable.
The defendants resisted the limited liability action, altogether 83 creditors joined hands as intervenORS.Thus, the number of creditors became 109 in number.
Defendant nos.4, 6 , 7, 9, 23, 29, 66, 67, 106, 107, 109 and 110 made counter-claim as they were not happy with the limited liability that was calculated by the plaintiff.
The learned Judge while disposing of the suit observed that the counter-claim would fail in absence of parties making the counter-claim did proof as the not adduce any evidence.
The defendant no.7 would say, they could not proceed with their suit filed as against the vessel or proceed with their counter-claim in view of an order of stay passed by the learned Single Judge on June 27, 2001.
We have examined the said order that was passed in consonance with the provisions of the Merchant Shipping Act, 1958 in a limited liability action.
The appellant being the defendant no.7 filed an application before the learned Single Judge, inter alia, praying for a clarification as to the dismissal of the counter-claim.
To that extent, the application was in the nature of a review.
The learned Judge disposed of the application vide judgment and order dated May 11, 2012.
His Lordship did not entertain the application.
Hence this appeal.
The judgment and order of the learned Single Judge would further depict, the defendant no.7 the appellant abovenamed challenged the authority of the representative representing the owner of the ship as according to them the original owner of the ship had already gone in liquidation and the Official Liquidator under the Panamian Law was supposed to be in-charge.
Hence, the insurance company representing or their advocate representing the owner would not be entitled to contest the said application.
His Lordship observed as follows: “As this application is not entertained the issue of whether the power of attorney holder or the Official Liquidator ought to represent the owners of vessel MV Prime Value and the decisions cited in respect thereof need not be considered for the purposes of this application or at this stage.”
We Counsel have being heard ably Mr.assisted Tilak by Bose, Mr.leanred Swatarup Senior Banerjee, learned Counsel appearing for the appellant.
We have also heard Mr.Swapan Kumar Das, learned Advocate appearing for respondent no.1 Pandy Correspondence Private Limited claiming to be the insurance agent of the trustee of the vessel.
The appellant would contend, they approached this court as they got confused in view of a letter written M/S.Mukherjee and Biswas, Advocates appearing at page 283 wherein they totally denied the claim of the respondent no.7.
Mr.Das would, however, say, the counter-claim not having been proved the defendant no.7 would not have any claim at all.
We have considered the rival contentions.
In our view, both of them would be under misconception.
In a limited liability action the owner of a vessel is entitled to limit the liability that would be arising as against the vessel in contemplated question in Section in case 352-A of and an B eventuality of the as Merchant Shipping Act, 1968.
Under Section 352-A ship owner may be responsible to the extent as the assured himself, may limit his liability as provided under Section 362-B in respect any claim arising out of an eventuality causing damage to any cargo or person or any loss resulting in carriage of goods by sea.
Section 352-B would permit the owner to provisions limit of their the liability Convention in and accordance in cases with the where the provision of Convention would not be applicable, the limit shall be in accordance with the rules made in this behalf prescribe.
Accordingly, the owner of the vessel, on the vessel being capsized in the river Hooghly, filed a limited liability suit being A.S.20 of 2000, inter alia, claiming that they would have liability towards 26 defendants in respect of vessel M.V.Prime Value and on their calculation as per the prevalent rules the amount would be Rs.32,82,467.42 that they were permitted to be deposited.
83 defendants subsequently joined hands making the total 109.
Court would Hence, the amount that was deposited in ordinarily be available for distribution amongst the pressing creditORS.Mr.Banerjee, would say, although 83 intervenors initially opposed the limited liability action they did not formally file any claim.
He was perhaps not correct as we find several written statements were filed by those intervenors subsequently added as defendants.
Mr.Banerjee would further say, at the end defendant no.7 would be only pressing creditor claiming its share.
Mr.Das’s contention that the counter claim got rejected hence the defendant no.7 would have no claim, is not tenable in law.
His Lordship’s decision on the counter-claim would forestall the defendant no.7 to make any additional claim.
However, their original entitlement as defendant no.7 in a limited liability suit would always be existing and they would be entitled to their pro-rata disbursement plaintiff as at counter-claim liability per the is action the time calculation of nothing and initial but pressing provided deposit.
denial the just of by Making the claim the a limited that the creditors would be entitled to before the Court.
In case such claim was not proved, that would prevent the claimant to insist on them.
We cannot ignore the fact that the defendant no.7 was the original defendant that was recognized by the plaintiff.
They were one of the 26 defendants the as recognized by plaintiff as their creditor.
Such status could not be disputed merely because they could not prove their counter-claim.
The moment, the plaintiff accepted the defendant no.7 as their creditor and admitted their liability towards them, the defendant no.7 would be entitled to their share pro-rata.
Learned Single Judge did not decide the issue as to whether Mr.Das’s client would be entitled to resist the application.
We do not wish to deliberate much on that.
In our view, the defendant no.7 would only be entitled to protect their interest and would be entitled to protect only to the extent they would be entitled to.
Whether the balance sum would go back to the trustees or their insurance agent, would be decided at an appropriate stage.
The defendant no.7 would have no say in the matter.
The Registrar would pro-rata distribute the amount to these pressing creditors as per the calculation provided in the original suit by the plaintiff and the defendant no.7 would be entitled to its share.
Money would be distributed in according with law and in accordance with the provisions of the Merchant Shipping Act, 1958 and rules framed thereunder.
The appeal succeeds in part and is allowed.
The appeal is disposed of accordingly without any order as to costs.
Urgent certified copy of this order, if applied for be given to the parties upon compliance formalities.
[ BANERJEE,J ].SHUKLA KABIR (SINHA),J.I agree.
[SHUKLA KABIR (SINHA),J dg/pa of all