Gms Marine Company Ltd. Vs. the Owners and Parties Interested - Court Judgment

SooperKanoon Citationsooperkanoon.com/1061075
CourtKolkata High Court
Decided OnApr-17-2012
JudgeBISWANATH SOMADDER
AppellantGms Marine Company Ltd.
RespondentThe Owners and Parties Interested
Excerpt:
order sheet ga no.1573 of 2011 as no.15 of 2009 in the high court at calcutta admiralty jurisdiction gms marine company ltd.versus the owners and parties interested in the vessel m.v.vinashin skyi before: the hon'ble justice biswanath somadder date :17. h april, 2012. mr.arijit banerjee, mr.swatarup banerjee, mr.subhojit ray for the petitioner. the court : this is an application taken out by the defendant seeking rejection of the plaint in admiralty suit no.15 of 2009. the short point which has been urged by the learned counsel for the defendant is that the plaint in the suit is based on a settlement agreement dated 26th june, 2008, executed by and between vinashin ocean shipping company limited, being the erstwhile owner of the vessel m.v.vinashin sky and gms marine company limited, a company organized and existing under the laws of british virgin islands. the cause title of the plaint, however, discloses that the plaintiff is a company incorporated under the appropriate laws of korea and carries on business, inter alia, from an address in seoul, korea. the only ground in the affidavit-in-opposition filed on behalf of the plaintiff to the instant application is that there was an inadvertent error committed on the part of the draftsman of the agreement dated 26th june, 2008 and as such the defendant could not escape its liabilities for the breaches it committed. after considering the submissions made by the learned counsel for the defendant and upon perusing the instant application as well as the pleadings filed by the parties, there is no manner of doubt whatsoever that the entire basis of the plaintiff’s claim in the instant admiralty suit is the settlement agreement dated 26th june, 2008. the settlement agreement, as it appears.was entered into and executed by and between the defendant on one hand and gms marine company limited, a company organized and existing under the laws of british virgin islands, on the other. however, the particulars of the plaintiff, as provided in the cause title of the instant admiralty suit, does not disclose it as a company organized and existing under the laws of british virgin islands. instead, it discloses that the plaintiff, gms marine company limited, is a company incorporated under the appropriate laws of korea and carries on business from an address at seoul, korea. although the names of the two companies are identical, they are two distinct and separate entities, one having been incorporated in british virgin islands and another in korea. the stand of the plaintiff that has been disclosed in its affidavit-in-opposition with regard to an inadvertent error committed on the part of the draftsman of the agreement dated 26th june, 2008, is wholly unacceptable, in the light of what has been observed hereinabove. this is not an instance of a mere typographical error. in any event, the plaintiff has not taken any steps to add the draftsman of the agreement dated 26th june, 2008, as a party to the instant admiralty suit. the provisions of order vii rule 11 of the code of civil procedure, 1908, are clearly attracted in the facts of the instant case since the plaint, on the face of it, does not disclose any cause of action enforceable against the defendant. in such circumstances and for reasons stated above, the defendant is entitled to orders in terms of prayers (a) and (b) and the application stands disposed of accordingly. (biswanath somadder, j.) pa
Judgment:

ORDER

SHEET GA No.1573 of 2011 AS No.15 of 2009 IN THE HIGH COURT AT CALCUTTA Admiralty Jurisdiction GMS MARINE COMPANY LTD.Versus THE OWNERS AND PARTIES INTERESTED IN THE VESSEL M.V.VINASHIN SKYI BEFORE: The Hon'ble JUSTICE BISWANATH SOMADDER Date :

17. h April, 2012.

Mr.Arijit Banerjee, Mr.Swatarup Banerjee, Mr.Subhojit Ray for the petitioner.

The Court : This is an application taken out by the defendant seeking rejection of the plaint in Admiralty Suit No.15 of 2009.

The short point which has been urged by the learned counsel for the defendant is that the plaint in the suit is based on a settlement agreement dated 26th June, 2008, executed by and between Vinashin Ocean Shipping Company Limited, being the erstwhile owner of the vessel M.V.Vinashin Sky and GMS Marine Company Limited, a company organized and existing under the laws of British Virgin Islands.

The cause title of the plaint, however, discloses that the plaintiff is a company incorporated under the appropriate laws of Korea and carries on business, inter alia, from an address in Seoul, Korea.

The only ground in the affidavit-in-opposition filed on behalf of the plaintiff to the instant application is that there was an inadvertent error committed on the part of the draftsman of the agreement dated 26th June, 2008 and as such the defendant could not escape its liabilities for the breaches it committed.

After considering the submissions made by the learned counsel for the defendant and upon perusing the instant application as well as the pleadings filed by the parties, there is no manner of doubt whatsoever that the entire basis of the plaintiff’s claim in the instant Admiralty Suit is the settlement agreement dated 26th June, 2008.

The settlement agreement, as it appeaRs.was entered into and executed by and between the defendant on one hand and GMS Marine Company Limited, a company organized and existing under the laws of British Virgin Islands, on the other.

However, the particulars of the plaintiff, as provided in the cause title of the instant Admiralty Suit, does not disclose it as a company organized and existing under the laws of British Virgin Islands.

Instead, it discloses that the plaintiff, GMS Marine Company Limited, is a company incorporated under the appropriate laws of Korea and carries on business from an address at Seoul, Korea.

Although the names of the two companies are identical, they are two distinct and separate entities, one having been incorporated in British Virgin Islands and another in Korea.

The stand of the plaintiff that has been disclosed in its affidavit-in-opposition with regard to an inadvertent error committed on the part of the draftsman of the agreement dated 26th June, 2008, is wholly unacceptable, in the light of what has been observed hereinabove.

This is not an instance of a mere typographical error.

In any event, the plaintiff has not taken any steps to add the draftsman of the agreement dated 26th June, 2008, as a party to the instant Admiralty Suit.

The provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908, are clearly attracted in the facts of the instant case since the plaint, on the face of it, does not disclose any cause of action enforceable against the defendant.

In such circumstances and for reasons stated above, the defendant is entitled to orders in terms of prayers (a) and (b) and the application stands disposed of accordingly.

(BISWANATH SOMADDER, J.) pa