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2022 (1) TMI 111 - BOMBAY HIGH COURTMaintainability of suit considering the bar contained in Section 33(5) of the IBC, 2016 - Liquidation proceedings - Seeking a summary judgment against the 1st Defendant Vessel - Defendants having no real prospect of successfully defending the claim of the Applicant/Plaintiff - principles of res-judicata - Penal Berth Hire charges - penal charges or not - HELD THAT:- An action in rem is not against the Corporate Debtor but against the Vessel. The Vessel is a distinct juridical entity and the action proceeds without reference to the owner who is not a party to the suit when filed. Liquidation of the Corporate Debtor does not affect the ownership of the res so as to defeat a maritime claim in respect of the Vessel. The res continues to be in the ownership of the Corporate Debtor and the Liquidator merely acts as a custodian. The status of the res does not change. Hence, the action in rem can be entertained even at the stage of liquidation of the Corporate Debtor as the claim is against the res and not against the Corporate Debtor - by not permitting the action in rem and arrest of the Vessel, the rights in rem given to a maritime claimant under the Admiralty Act would be defeated and denied. The entire purpose of these rights (whether a maritime lien or a maritime claim) is to enable such a claimant to have his claim perfected in law by arrest of the Vessel. If a claimant is not permitted to do so, then his right in rem may stand extinguished and be lost forever. Principles of res judicata - HELD THAT:- The principles of res judicata would apply when the matter in issue in a previously instituted suit is directly and substantially in issue in the subsequent suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In other words, for the subsequent suit to be barred by the principles of res judicata, the matter directly and substantially in issue in the subsequent suit (i) has been directly and substantially in issue in the former suit; (ii) must be between the same parties, or between the parties under whom they or any of them claim, litigating under the same title; and (iii) the former suit has been heard and finally decided on merits. What follows therefrom is that the principles of res judicata would not apply if (a) there is no decision on merits; or (b) if it is between different parties. Considering that the claim made in the present suit is not against Defendant No.2 at all but against the sale proceeds of the 1st Defendant Vessel and which continues to be an action in rem, any adjudication done by Defendant No.2 regarding a claim made by the Plaintiff against Defendant No.2, cannot attract the principles of res judicata qua the present suit, which is seeking a decree only against the 1st Defendant Vessel - the claim in the present suit is not barred by the principles of res judicata. Levy of Penal Berth Hire charges - penal in nature or not - HELD THAT:- The 1st Defendant Vessel agreed to pay these charges when it engaged the services of the Plaintiff – Port. Once the 1st Defendant Vessel contractually agreed to pay these additional charges, Defendant No.2, as the Liquidator of Tag Offshore Ltd. (the owner of the 1st Defendant Vessel), cannot resile from this contractual obligation on the specious ground that Penal Berth Hire charges are really nothing but a penalty and will therefore have to be proved. These charges are nothing but additional charges in the event the contingencies mentioned above are triggered - Penal Berth Hire charges are not a penalty that would be required to be proved by the Plaintiff before it can seek to recover these charges. When Defendant No.2 stated that “as far as the berth/port charges are concerned there is no dispute” it meant that it included all Berth charges/Port Charges including Penal Berth Hire charges - Mr. Arsiwala’s contention that the Plaintiff is not entitled to any amount towards Penal Berth Hire charges, cannot be argued with. This argument, therefore, stands rejected. There will also be a decree in favour of the Plaintiff and only against the sale proceeds of the 1st Defendant Vessel for interest @ 18% per annum on the said sum of ₹ 5,51,00,016/- from 18th December 2020 till payment and/or realization. For the reasons recorded earlier, the claim towards Salvage operations is not granted at this stage and will have to be proved at the trial of the suit - The Plaintiff shall, along with their claim for Salvage operations, also be entitled to agitate their claim for interest prior to 18th December 2020, and legal costs, at the trial of the suit. Application disposed off.
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