M.S. Rane, J.
1. The subject matter of both the suits herein is the maritime claim arising due to collision between the two vessels Ya Mawlaya and m.t. New World which occurred on 21.12.94 in the international water i.e. coast of Portugal i.e. in the Atlantic Ocean. Plaintiffs in Suit No. 28 of 1996 M/s. Kara Mara Shipping Company Limited, a Cyprus based company are the owners of the vessel Ya Mawlaya. Defendant No. 1 M/s. World Tanker Carriers Corporation are Liberian based company and the owners of the vessel m.t. New World.
2. Both the suits have been filed under Part XA of the Merchant Shipping Act, 1958 (hereinafter referred to as 'the said act' for brevity sake) seeking limitation of their liabilities in respect of any claim arising due to said collision.
3. Defendant No. 1 in Suit No. 28 of 1996, the owners of the colliding vessel m.t. New World have taken strong objection to the maintainability of both the suits asserting that this Court has no jurisdiction to try and entertain the suits as the collision has occurred in international waters of the coast of Portugal and therefore this Court lacks territorial jurisdiction. Said defendant No. 1 insisted the determination of issue of jurisdiction as preliminary issue as provided under Section 9A of the Code of Civil Procedure (Maharashtra Amendment). In as much as Section 9A which is Maharashtra Amendment reads as under :-
9A. Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court, as a preliminary issue (1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside: an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in Sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction.' (Maharashtra Act No. 65 of 1977 (19-12-1977).
By plain reading of the said section it would be noticed that same makes imperative to thrash out jurisdiction issue as preliminary issue and hence the same is being so done.
4. According to the plaintiffs in Suit No. 28 of 1996 i.e. Kara Mara Shipping Company Limited defendant No. 1 are responsible for the said collision. However this Court does not wish to enter into the merits or demerits of rival contentions at this stage of the matter as the Court is addressing itself only to the issue of existence of jurisdiction in the light of provisions of law in the said act.
5. After collision spate of legal proceedings have arisen both in the Courts abroad as well as in this Court by, between and against both the colliding vessels instituted either by the owners of the respective vessels, insurance companies, cargo owners, members of the crew etc. The proceedings have also been taken against sister vessel, arrest orders followed by release orders on guarantee have been made by the concerned Courts of the foreign countries. The vessels Ya Mawlaya belonging to the plaintiffs in Suit No. 28 of 1996 however continues to be under arrest order passed by this Court. The subject-matter of Suit No. 28 of 1996 as also Suit No. 26 of 1995 is the said vessel Ya Mawlaya. It may be stated that other colliding vessel m.t. New World has not come to India or for that matter into the territorial jurisdiction of this Court.
6. As stated earlier besides these two suits there are other suits filed in this Court which are again concerning the vessel Ya Mawlaya. As far as main relief of Suit No. 28 of 1996 is concerned the same is for limitation of claim on liability as provided in Part XA of the said Act. I will briefly mention the proceedings which have been filed in this Court in respect of arrest of the said vessel Ya Mawlaya besides these two suits which are as under :
_____________________________________________________________________________________Sr.No. Date of Filing Suit No. Date of arrest order passed by this Court._____________________________________________________________________________________1. 30.01.1996 04 of 1996 01.02.1996G. Prabhakar v. M.V. YA Mawalaya2. 28.02.1996 17 of 1996 27.02.1996Thirthlal v. M.V. YA Mawlaya3. 27.02.1996 18 of 1996 27.02.1996Pawan Singh v.M.V. YA Mawalaya4. 22.03.1996 25 of 1996 22.03.1996H.D. Mohomed v. M.V. YA Mawlaya5. 22.03.1996 26 of 1996 22.03.1996Galaxy Multi Model Sys. v.M.V. YA Mawlaya_______________________________________________________________________________________
7. Suit No. 26 of 1996 has been filed on 2.5.1995. Plaintiffs in the said suit claim to be Indian based company incorporated under the Indian Companies Act and claim to be the Managers of the said vessel Ya Mawlaya under the management agreement dated 11.4.94. After filing of the suit the plaintiffs in said suit made an application for ad-interim relief on 5.6.95 and on certain condition of deposit certain relief was granted. The vessel Ya Mawlaya arrived at Bombay Port on 14.11.95 and on 16.11.95 an order of arrest of the said vessel by this Court has been passed. In the said suit the plaintiffs in Suit No. 28 of 1996 have made third party application.
8. As far as Suit No. 28 of 1996 is concerned the same has been filed on 29.3.1996 in this Court. It may be stated that when the said suit was filed the vessel Ya Mawlaya was already in India and under the arrest order passed in Suit No. 26 of 1995 on 16.11.1995.
9. As stated earlier after collision the proceedings were also adopted in the Courts in foreign countries. Brief mention whereof is made as under:
(i) Cereol, the 4th defendant in Suit No. 28 of 1996 filed suit against both ships Ya Mawlaya and New World in US Court on 28.12.1994 claiming to be the owners of the cargo on the vessel Ya Mawlaya;
(ii) 1st defendant World Tanker Carriers Corporation filed a suit against the owners of the vessel Ya Mawlaya in US Louisiana Court on 30.1.1994;
(iii) Kara Mara Shipping Company Ltd., plaintiffs in Suit No. 28 of 1996, filed arrest petition against the vessel New World in Maritime Court in Lisbon on 30.1.1995;
(iv) On 17th and 20th January, 1995 World Tanker Carriers Corporation, 1st defendant in Suit No. 28 of 1996 applied to US Court for arrest of the vessel Ya Mawlaya and sister vessels Ya Latif and Ya Jaleel.
(v) On 28.1.1995 Kara Mara Shipping Company Ltd. and plaintiffs in Suit No. 28 of 1996 filed suit in Hong Kong Supreme Court for limitation of liability;
(vi) On 2.2.1995 heirs of crew members of New World vessel who died in the collision filed a suit in Louisiana Court against the owners of both the vessels claiming compensation;
(vii) On 8.2.1995 Kara Mara Shipping Company Ltd. plaintiffs in Suit No. 28 of 1996 filed suit against World Tanker Carriers Corporation (defendant No. 1 in Suit No. 28 of 1996) in Hong Kong Supreme Court for loss and damages;
(viii) On 14.2.1995 M/s. Kara Mara Shipping Company Ltd. plaintiffs filed another suit in Hong Kong Supreme Court against the World Tanker Carriers Corporation for loss and damages arising out of the collision.
It may be stated that the Courts abroad have passed certain orders of arrest and release on furnishing guarantee bonds etc. The issue of jurisdiction was raised by the present plaintiffs i.e. Kara Mara Shipping Company Ltd. in Louisiana Court. It is stated that the said Court proceeded to hold that it had no jurisdiction but it is informed that in appeal the Appellate Court of that country has remanded the matter back for consideration.
10. Now I will briefly advert to cause of action in the light of issue of jurisdiction as far as Suit No. 26 of 1995 is concerned. Plaintiffs in the said suit M/s. SNP Shipping Services Pvt. Ltd. State of claim that they were appointed as Managers by M/s. Kara Mara Shipping Company Ltd. (who are plaintiffs in Suit No. 28 of 1996) in respect of their vessel Ya Mawlaya by an agreement dated 11.4.94 at the fixed annual management fee. Copy of the said agreement has been annexed as Ex. A to the plaint. In para 23 of the plaint the plaintiffs in that suit averred the cause of action and jurisdiction. Para 23 reads as under :-
23. The plaintiffs state that the cause of action for themselves has arisen within the jurisdiction of this Honourable Court inasmuch as the management agreement was entered into at Bombay. The crew and officers were recruited in Bombay. The crew and officers arc subject to the provisions of the law relating to certification as applicable in Bombay. The plaintiffs are entitled to be indemnified in Bombay and to limit their liability in accordance with the Indian law. The first defendant is also within the jurisdiction of this Honourable Court. This Honourable Court has thus jurisdiction to receive, try and dispose of the suit.
11. It may be mentioned that in-this suit the plaintiffs as the Managers of vessel Ya Mawlaya have sought limitation of liability of their claim in accordance with or as provided under Section 352D(5) of the said act. As noticed earlier said suit has been filed on 12-5-1995 when Ya Mawlaya was not in Indian territorial water. Said vessel was brought to Bombay on 14.11.95 and order of arrest was passed by this Court in respect of said vessel Ya Mawlaya on 16.11.1995.
12. Suit No. 28 of 1996 has been filed on 29-3-1996 with main reliefs as claimed vide prayers (a) and (b) which read as under:
(a) that this Hon'ble Court be pleased to declare that the plaintiffs are entitled to limit their liability under the provisions of the Indian Merchant Shipping Act, 1958 in the sum of Rs. 3,32,88,597/- (as per the particulars thereof at Exhibit 'J' to the plaint and no more in respect of the collision between the plaintiffs' vessel m.v. Ya Mawlaya and the Defendants vessel m.t. New World that occurred in the Atlantic Ocean on or about 20-12-1995;
(b) that this Hon'ble Court may be pleased to set up a limitation fund in terms of the provisions of the Indian Merchant Shipping Act.
13. As far as cause of action and jurisdiction is concerned this is how the plaintiffs in the said suit have averred:-
76. The Plaintiffs submit that the said vessel m.v. Ya Mawlaya is within the coastal waters of the port of Bombay since 16.11.1995. The said vessel m.v. Ya Mawlaya is situate within the appellate jurisdiction of this Hon'ble High Court. The plaintiffs accordingly submit that this Hon'ble Court has Admiralty and Vice-Admiralty jurisdiction to entertain and try the present suit.
14. It may be mentioned that this suit has been filed on 29-3-1996 and the vessel Ya Mawlaya had arrived at Bombay Port on 14.11.1995 and this order of arrest was passed on 16.11.1995. It would thus be noticed that on the date when the present suit was filed the said vessel Ya Mawlaya was within the territorial jurisdiction of this Court. In this suit also certain ad-interim/interim reliefs have been granted from time to time.
15. It is on these backgrounds of the facts and circumstances and the stage where various litigations stand in this Court that the objection with regard to the maintainability of both the suits has been taken asserting that the vessel Ya Mawlaya is Cyprus Vessel and thus a foreign ship and undisputedly collision had occurred in international waters, off coast of Portugal. The other colliding vessel New World is also a foreign ship. Since the collision had not taken place within the territorial waters of this Court the provisions of the said act i.e. Merchant Shipping Act, 1958 would not apply both being foreign vessels and place of occurrence being in the international waters.
16. It is further asserted that Section 2 of the said act regulates ambit and scope and the applicability of the provisions of the said act. The said section provides that even when a provision of the said act is to be applied to foreign ship same has to be in the Indian territorial waters. It is stressed and emphasized that only when occurrence of collision takes place in Indian waters then only as provided under Section 2 of the said act the Indian Courts finder its Admiralty jurisdiction will get the jurisdiction. In support of this submission reliance is placed on the decision of the supreme Court in the case of Captain Subash Kumar v. The Principal Officer, Mercantile Marine Deptt. Madras. : 1991CriLJ2000 It is further submitted that there is a presumption of the applicability of territoriality of the statutes and the act cannot be construed so as to applying to foreigners in respect of acts done by them outside the dominion of the sovereign power enacting the statute. Reference is made to certain decisions and in particular stress is laid on the judgment of the Supreme Court in the case of British Indian Steam. Navigation v. Shanmughavilas Cashew : 1990(48)ELT481(SC) Reference in this respect is also made to certain decisions of the English Court in the light of provisions of UK Merchant Shipping Act of 1854. To mention one or two such cases are: (i) Cope v. Doherty (1858) 2 DJ. 614 and (ii) The Amalia (1863) 1 N.S. 471. Referring to the rations of these cases it is asserted that the said decisions clearly demonstrate the applicability of the territoriality the presumption to the limitation on liability provisions. It is further submitted that by enacting Section 2 of the said act Parliament has recognised the said territoriality principles.
17. It is therefore submitted that the provisions of part XA are subject to the initial test of Section 2 of the said act irrespective of the fact as to whether or not the provisions of part XA would be applicable to the foreign ships or not and even if it is assumed that the same are applicable same would apply to foreign ship involved in an occurrence in Indian territorial waters.
18. By referring to Section 3(15) and 352C of the said act it is pointed out by and on behalf of the defendants that the same are subject to the preliminary requirements of Section 2 of the said act.
19. Learned Counsel for the defendants further submitted that international conventions would not override Section 2 of the said act in any way even if there exists any ambiguity in interpreting Section 2 read with part XA of the said act the convention cannot render any assistance for resolving the same.
20. I will briefly advert to the submissions made by and on behalf of the plaintiffs in both the suits to meet the various challenges of the defendants in respect of maintainability of the suits on the grounds of lack of jurisdiction.
21. It is pointed out that this Court as a Court of record gets admiralty jurisdiction under various sources, various Admiralty Courts Act, Customs practice, International convention as also from specific statutes like the said act, Carriage of Goods by Sea Act. Heavy reliance is placed in support of this proposition to the decision of the Supreme Court reported in the case of M.V. Elisabeth and Ors. v. Harwan Investment & Trading Pvt. Ltd., Goa,. : [1992]1SCR1003 It is pointed out that if the Court is vested with Admiralty Jurisdiction then it is vested with power to deal with all the matters pertaining or incidental thereto as held and laid down in the said Supreme Court Judgment.
22. Mr. Sundaram, Ld. counsel further submitted that the defendant-vessel was already under arrest of the order of this Court in other suits in particular Suit No. 26 of 1995 when the Suit bearing No. 28 of 1996 was filed. This Court has passed order of arrest of the 1st defendant-vessel under its Admiralty Jurisdiction. The cause of action as far as earlier Suit No. 26 of 1995 is concerned is distinct and different than that of Suit No. 28 of 1996. In as much as it is pointed out that cause of action in the said earlier suit is based on Section 352D of the said act. It may be stated that relevant paragraph which sets out cause of action in the plaint in the said earlier suit has already been reproduced hereinabove. The plaintiffs in the said suit have brought the said action under the contract. The plaintiffs are Indian based company and has recruited crews on the 1st defendant-vessel. Section 352D in particular Sub-section 3 makes reference to the 'relevant port'. Sub-Section 5B clarifies what is relevant portion. Ld. counsel also states that part XA of the said act has been introduced for giving effect to the international convention. He submits that Section 352C has to be read along with Section 3(15) of the said act and if so done a foreign ship will be entitled to set up in limitation of funds in this country if the ship is within the jurisdiction of this Hon'ble Court when the suit is instituted or application for arrest is made or the cause of action for such application has arisen wholly or in part within the jurisdiction of this Court. It may be stated that the Ld. counsel Mr. Chinoy appearing for the plaintiffs in suit No. 26 of 1995 has also made the same submissions as that of Mr. Sundaram. In support of these submissions heavy reliance is placed on the decision of M.V. Elisabeth and Ors. (supra) in particular para 78 which lays down:
Accordingly a foreign ship falls within the jurisdiction of the High Court where vessel happens to be at the relevant time i.e. at the time when the jurisdiction of the High Court is invoked; or where the cause of action wholly or in part arises.
23. It is further submitted by the Ld. counsel for the plaintiffs that the ratio as laid down by the Supreme Court in the case of Subash Kumar (supra) will not be applicable in the facts and circumstances as obtained in the matter herein. In that case, the ship which sank involved in the incident was well beyond the Indian territorial waters and its Captain was sought to be proceeded against under Part XII of the said act for negligence. It is emphasized that objects and purposes of the Part XA and XII of the said act are different. In as much as in Subash Kumar's case the provisions as contained in Part XII of the said act were sought to be set into operation and the principal question involved was whether the ship was in Indian Waters at the time of casualty i.e. when it sank. Furthermore in that case the ship admittedly sank and therefore there was no question of the same having arrived in the Indian territorial waters. In the instant case admittedly the defendant-vessel had arrived in Indian territorial waters i.e. within the jurisdiction of this Court and that being so the ratio of the decision of the Supreme Court in Elisabeth's case will apply which is the latest decision.
24. The next submission made is that number of suits have been filed in this Court. I have already mentioned hereinabove the various suits that have been instituted against defendant-vessel in this Court. In all there are seven suits including Suit Nos. 26 of 1995 and 28 of 1996. In all action is based on maritime lien and it will be preposterous to suggest that when the owner of the vessel is required to defend the claims in various such suits he will not be entitled to set up claim of limitation of liability which is defensive action as provided in Part XA of the said act. A specific reference is made that this Court has entertained all the suits and passed some adinterim order or the other therein.
25. Referring to the proceedings instituted in Foreign Courts it was asserted that the same will not operate as an impediment in maintaining the suit in this Court in view of the peculiar circumstances and the facts as obtained in the matter herein. It is submitted that the crucial question for resolution at this stage is not the exercise of jurisdiction but the 'existence of the jurisdiction'.
26. Mr. Chinoy Ld. counsel for the plaintiffs in Suit No. 26 of 1995 as stated hereinabove has adopted same lines of arguments as advanced by Mr. Sundaram, Ld. counsel appearing for the plaintiffs in. Suit No, 28 of 1996. Since I have already mentioned the submissions made by Ld. counsel Mr. Sundaram it is not necessary to repeat the same. Much less heavy reliance is placed on the provisions of Section 352D(1), (3) and (5) of the said act and it is submitted that these Sections posit that the foreign ship owner has a right both under the statute as also under the convention to set up limitation of fund and/ or give securities upto the limit in or at the relevant port.' In fact, Sub-sections (3) and (5) of the said Section 352D have been enacted for giving effect to Article 6 of the international conventions. The plaintiffs company are Indian company and managers of the defendant-vessel and Section 352F of the said act includes even the managers of the vessels involved in an occurrence in the category of person entitled to apply under part XA for limiting their liability. As far as Suit No. 26 of 1995 is concerned the cause of action is based upon the management agreement which is admittedly entered in this country.
27. As stated hereinabove I have adverted the factual aspects as also the rival submissions made by the Ld. Counsel.
28. The issue upon which counsel have addressed this Court can be neatly stated as under :
1. Whether this Court has jurisdiction to try and entertain the suits herein ?
29. The answer to the aforesaid preliminary issue is in the affirmative for the reasons as will be indicated hereinbelow.
30. At the threshold itself this Court would like to clarify and make distinctly clear that Court is only concerned with the limited issue and aspect of the matter at this stage whether this Court has jurisdiction as far as both these suits are concerned. To be precise the question is about existence of the jurisdiction as distinct from exercise of the jurisdiction.
31. Plaintiffs in Suit No. 26 of 1995 are Indian company and are the managers of defendant-vessel Ya Mawlaya. Section 352F of the said Act which also forms part of Part XA of limitation of liability and applies to the Charterers, managers and operators of the vessel and to the master, member of the crew and other servants of the owner charterer, manager or proprietor acting in the course of their employment in the same manner as they apply 'in relation to the owners' (refer to Sub-section 1 of Section 352F). The plaintiffs in the said Suit No. 26 of 1995 in particular paras 3 and 23 of the plaint have set out about the cause of action and their right to institute the suit. The agreement in question has also been annexed as Ex. A to the plaint which shows that the same has been executed in India and as noticed in Sub-section F of Section 352 allows the managers to bring action in the Court of law to limit their liability. It is settled principle of law that the jurisdiction of the Court to try and entertain any suit has to be considered on the basis of the pleadings and averments contained in the plaint. The decisive factor is the contents of the plaint and the cause of action. Essentially the jurisdiction is to be determined upon the basis of case of the plaintiffs as set out in the plaint. The plaint has to be considered as a whole. The probable or likely defence of the defendant in my view will not be a decisive factor in determining the existence of the jurisdiction of the Court in a particular suit. Therefore considering the fact that the plaintiffs arc Indian based company and they are the managers of the defendant-vessel under Section 352F of the said act they will have right to bring action for limiting liability in this Court. To the extent the submissions advanced on behalf of the plaintiffs in Suit No. 26 of 1995 are well founded.
32. It is also necessary to state that this Court gels Admiralty Jurisdiction through various sources such as Admiralty Courts Act, to mention Admiralty Court Act (1861), Colonial Courts of Admiralty Act, 1890, Colonial Courts of Admiralty Act (India) 1891, Merchant Shipping Act and Carriage of Goods by seas Act. International convention also plays a very vital role in this respect and as submitted by and on behalf of the plaintiffs that the very Part XA also gives recognition to such convention. (Refer Sub-section 5 of the Section 352D of the said Act.)
33. It may further be stated that Part XA in the said act was introduced by way of Amendment in the year 1971 and of statements and objects and reasons in para 4 there is clear reference made to the international convention. The Supreme Court in Elisabeth's case has also recognized and accepted the said position. In the context of dispute para 78 of the said judgment will be relevant:
78. The Merchant Shipping Act, 1958 contains various provisions to enforce territorial jurisdiction. The act being essentially regulatory in character, the various authorities, tribunals and Courts entrusted with the administration and enforcement of the provisions are specifically stated. The High Court is defined under Section 3(15) as follows:
3(15) 'High Court', in relation to a (4)(a) International Convention relating to the Arrest of Seagoing Ships, Brussels, 10 May, 1952 (IMC).
(b) International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, Brussels, 10 May, 1952 (IMC);
(c) International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision, Brussels, 10 May, 1952 (IMC); and
(d) International Conventions for the Unification of Certain Rules of Law relating to Maritime Liens and Mortgages, Brussels, 10 April, 1926 and the Revised Convention on Maritime Liens and Mortgages, Brussels, 29 May, 1967 (IMC).
a vessel, means the High Court within the limits of whose appellate jurisdiction
(a) the port of registry of the vessel is situate;
(b) the vessel is for the time being or
(c) the cause of action wholly or pan arises.
Accordingly, a foreign ship falls within the jurisdiction of the High Court where the vessel happens to be at the relevant time i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of action wholly or in part arises.
34. The above principle clearly posits that the presence of vessel in the territorial waters is also one of the criteria for invoking the jurisdiction so also the cause of action. In the first Suit No. 26 of 1995 as noticed earlier on the basis of cause of action suit will be certainly maintainable. As noticed earlier the defendant-vessel Ya Mawlaya admittedly arrived in Bombay on 14.11.1995. True it is that when Suit No. 26 of 1995 was filed said vessel was not in the Indian territory but that will not oust the jurisdiction of this Court considering the cause of action of that suit which is essentially based under Section 352D and 352F of the said act as considered hereinabove.
35. As far as Suit No. 28 of 1996 is concerned same has been filed on 29-3-1996 and it may be stated that when the said suit was filed the defendant-vessel was very much within the territorial jurisdiction, of this Court and it was in fact under the arrest order passed by this Court. Therefore applying the principles as laid down by the Supreme Court in Elisabeth's case the presence of vessel would certainly be a factor that will be germane for determining the jurisdiction of the Court. Section 3(15) of the said act which is reproduced hereinabove and which also makes a reference in para 78 of the judgment of the Apex Court would clearly confer the jurisdiction upon the said Court in such facts and situation. In my view, the ratio of the Apex Court in Elisabeth's case is a complete answer to the various objections raised by and on behalf of the defendants with regard to the jurisdiction of this Court.
36. The decision in the case of Subash (supra) will not be applicable to the facts and circumstances as obtained in the matter herein. The said case arose in the proceedings under Part XII of the said act which is enacted for determination of the negligence in the occurrence of the incident. The provisions as contained in Part XII if one reads aim at fixing the consequences arising out of negligence which are of penal consequence. The purpose and object of both the provisions as contained in Part XA and Part XII are different. In Suhash Kumar's case the Captain was sought to be proceeded with for the act of negligence and in that context the question of jurisdiction was required to be considered by the Apex Court. Admittedly the ship sank after the occurrence and therefore there was no question of its coming within the territorial jurisdiction of this country. In any event, the ratio as laid down in Elisabeth's case as noticed hereinabove which is the latest decision and directly on the point provides a complete answer to the controversy involved in the matter.
37. This much was.said.in the light of the provisions of Sub-section 2 of Section 2 of the said act. But it is apparent by plain reading of the said section that the same has no relation to the existence of the jurisdiction of the Court but will have relevance and would arise 'in the exercise of jurisdiction' in a particular case. As clarified earlier this Court is not concerned at this stage of the matter with its exercise of the jurisdiction but 'the existence of the jurisdiction.' Furthermore, Section 2(2) is not non-obstante section but provides for provisions to the contrary. Part XA provisions in the said act is the self contained code by itself. In as much as Section 352C of the said act provides that the application under the said Part should be made before the High Court which has been defined in Section 3(15) of the said act. It clearly means that the application under the provisions of part XA has to be made before the High Court only. In the instant case, as noticed earlier that when Suit No. 28 of 1996 was filed not only the defendant-vessel was within the territorial jurisdiction of this Court but it was under the arrest order of this Court which means that the jurisdiction of this Court had already been invoked in respect of the defendant-vessel.
38. Considering all these aspects the various objections raised by and on behalf of the defendants with regard to the jurisdiction in my view are not sustainable. The facts and circumstances as obtained in both the suits herein, causes of action which have been stated hereinabove in my view, would confer the jurisdiction upon this Court. The decision of the Supreme Court in Elisabeth's case (supra) is authority on the point and its ratio is supporting the submissions made by and on behalf of the plaintiffs in both the suits. I may state that both sides also cited various authorities of the Courts which included various decisions of the Foreign Courts. However in view of the decision of the Apex Court in the said Elisabeth's case which is a landmark decision, it will be unnecessary to make a reference thereof.
39. In view of the discussions as held hereinabove the issue of jurisdiction is answered in the affirmative i.e. to say it is held that this Court has the jurisdiction to try and entertain both the suits. Preliminary issue is answered accordingly.