Judgment:
ORDER
SHEET IN THE HIGH COURT AT CALCUTTA Admiralty Jurisdiction ORIGINAL SIDE GA No.1156 of 2014 AS No.4 of 2014 INDIAN STEEL CORPROATION LTD.Versus THE OWNERS AND PARTIES INTEREST IN THE VESSEL M.V.HAN ZHANG AND GA No.1360 of 2014 AS No.4 of 2014 INDIAN STEEL CORPROATION LTD.Versus THE OWNERS AND PARTIES INTEREST IN THE VESSEL M.V.HAN ZHANG BEFORE: The Hon'ble JUSTICE PATHERYA Date : 30th April, 2014.
Mr.Ratanka Banerjee, Adv., Mr.Krishna raj Thaker, Adv., Mr.Swarjit Dey, Adv.and Mr.Indradeep Basu, Adv..for the plaintiff/petitioner.
Mr.Tilok Kumar Bose, Sr.Adv., Mr.Swatarup Banerjee, Adv., Mr.Subhojit Roy, Adv.with Mr.Rohit Mukherji, Adv..for the defendant/respondents.
THE COURT :-This matter was mentioned by the owners of M.V.Han Zhang for filing of a letter of willingness on the basis of which the subject vessel could be released from arrest.
Along with this matter GA No.1360 of 2014 appearing as New Motion was heard.
By the said application the plaintiff seeks enhancement of security to be furnished by the owners on the basis of letter dated 28.04.2014, by which letter the buyer of the goods has not only terminated the contract but also seeks to be indemnified for the loss arising from breach of contract.
The order dated 21.04.2014 was passed as the goods had not been rejected but in view of the rejection by the said letter the order dated 21.04.2014 be modified Counsel for the owners submits that the said letter dated 28.04.2014 is drafted by Calcutta lawyers and has been issued after receipt of notice of mentioning dated 25.04.2014 The breach Under Section 73 of the Contract Act occurred on 03.04.2014.
The last date of shipment was 05.04.2014 and the order of arrest was passed on 11.04.2014.
No special knowledge of the goods can be attributed to the owneRs.The loss suffered has not been mentioned nor has the cargo been abandoned.
Therefore, the order dated 21.04.2014 calls for no modification or enhancement of security.
Having considered the submissions of the parties it is true that a notice of mentioning was issued on 25.04.2014 and the letter dated 28.04.2014 issued thereafter but all that this would show is the advantage taken by the plaintiff of the notice issued and nothing else.
The termination of contract by the communication dated 28.04.2014 is evident.
Even the said letter may have been drafted in Calcutta but the signatures are of the representatives of the company, which has not been disputed.
Accordingly in view of the termination of contract by the buyers of the cargo, the cargo is lost to the plaintiff.
Admittedly, the cargo has not been sold.
Therefore, the security is enhanced to Rs.7,77,63,152/- and upon filing of the original Court, letter of willingness with Calcutta by the of owners the the Registrar, subject O.S., vessel High for the enhanced amount the said vessel shall stand released from arrest.
This is in modification of order dated 21.04.2014.
Directions are given for filing affidavits.
Affidavit-in-opposition be filed written a fortnight; reply, if any, two weeks thereafter.
Matter to appear in the list five weeks hence.
This however will not prevent the owners from seeking reduction of security in case of sale of goods by the plaintiff.
In view of the order passed this day the plaintiff will be liable for all liabilities arising in respect of Port charges, if any.
This order is passed without prejudice to the rights and contentions of all parties.
Marshal, Port Authorities, Coast guard, Customs Authorities are to act on certified photocopy of this order.
Urgent certified photocopy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(PATHERYA, J.) nm