TMI Blog2000 (8) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil Procedure for executing the decree issued by the High Court of Justice Queens Bench Division Admiralty Court in an action by the first respondent against the second respondent herein claiming damages for repudiation of an L.O.F. salvage contract. Needless to record that the second respondent was said to be the owners of the vessel M.V.AL QUAMAR ex AL TABITH. The factual score depicts that pending the Execution Petition, the decree holder prayed for an Interlocutory Order to issue a warrant of arrest against the vessel together with Hull: tackle: Engines: Machinery equipments stores etc. The learned Single Judge of the Andhra Pradesh High Court on 15th September, 1999 granted an interim order as prayed for on a prima facie view of the matter that the Execution Petition can be filed in the High Court which is otherwise having original admiralty jurisdiction. The records depict that the appellant herein filed a petition to vacate the interim order principally on the ground that the ownership of the ship having been transferred bona fide and for valuable consideration to Quamar Shipping Ltd., the ship as attached in terms of the order of 15th September, 1999, cannot possibly be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limited extent, we are inclined to safeguard the interest of the appellant by directing the first respondent to furnish an undertaking to the satisfaction of the Registrar (Judicial) of this Court to pay a maximum amount of ₹ 600 U.S. Dollars per day from 19.11.1999 (date of hearing this appeal) onwards till the date of disposal of E.P. and also to pay crews wages subject to the proof of actual expenditure being furnished by the appellant to the first respondent in respect of all the items. The O.S.A. is dismissed subject to the above direction. No costs. We consider it a fit to be heard by Division Bench. In terms of the order as above, the Execution Petition itself was placed before the Bench of the learned Chief Justice wherein upon recording concurrence as regards the maintainability of the petition it was observed that the execution petition be heard on merits and hence the Special Leave Petition before this Court under Article 136 of the Constitution being SLP No.4410 of 2000. Incidentally, be it noted that there is in the record of this Court another SLP being SLP No.18616 of 1999 against the judgment of the Division Bench of the High Court as passed earlier a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction as was so vested in the Madras High Court prior to the transfer. Needless to say that since Visakhapatnam is also included in the State of Andhra Pradesh, the port of Visakhapatnam falls within the admiralty jurisdiction of the High Court of Andhra Pradesh. It is in this context observations of this Court in M.V. Elisabeth Others v. Harwan Investment and Trading Pvt.Ltd., Goa AIR 1993 SC 1014 seem to be of some assistance. This Court in paragraph 26 of the report observed: Assuming that the admiralty powers of the High Courts in India are limited to what had been derived from the Colonial Courts of Admiralty Act, 1890, that Act, having equated certain Indian High Courts to the High Court of England in regard to admiralty jurisdiction, must be considered to have conferred on the former all such powers which the latter enjoyed in 1890 and thereafter during the period preceding the Indian Independence Act, 1947. What the Act of 1890 did was, as stated earlier, not to incorporate any English statute into Indian law, but to equate the admiralty jurisdiction of the Indian High Courts over places, persons, matters and things to that of the English High Court. As the Admiralt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aptation of Laws Order 1950 and as a matter of fact, the state of affairs prevailing in the pre-Independence period has been set right by the legislation of 1950 (Adaptation of Laws Order). A look at the provisions of two Parallel Codes of Civil Procedure 1882 and 1908 together with the moderation after Independence will obviously clarify the situation. The Parallel Codes and the present Section 112 thus runs: Code of 1882 Code of 1908 Present Section 112 616. Nothing herein contained shall be understood- (a) to bar the full and unqualified exercise of Her Majesty's pleasure in receiving or rejecting appeals to Her Majesty in Council, or otherwise howsoever, or (b) to interfere with Judicial Committee of Privy Council, and for the time Being in force, for the presentation of appeals to Her Majesty in Council or their conduct before the said Judicial Committee. [And] nothing in this Chapter apples to any matter of criminal or admiralty or vice admiralty jurisdiction. or to appeals from orders and decrees of Prize Courts 112.(1) Nothing contained in this Code shall be deemed- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action to enforce a claim for damage, loss of life or personal injury arising out of a collision between ships or the carrying out or omission to carry out a manoeuvre by one or more of two or more ships or non- compliance with the collision regulations is assigned to the Queenss Bench Division and taken by the Admiralty Court. The same applies to every limitation action, and generally to causes and matters involving the exercise of the High Courts admiralty jurisdiction, or its jurisdiction as a prize court. The word Prize has also been dealt with in Halsburys Laws of England (4th Edn. Vol. I ) in paragraph 352 which reads as below: 352. Prize. The High Court is a prize court within the meaning of the Naval prize Acts 1864 to 1916, as amended by any subsequent enactment, and has all such jurisdiction on the high seas and throughout Her Majestys dominions and in every place where Her Majesty has jurisdiction as, under any Act relating to naval prize or otherwise, the High Court of Admiralty possessed when acting as a prize court. The Admiralty Court takes causes and matters involving the exercise of the High Courts jurisdiction as a prize court. The issue arises as to whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, to be paid by such of the parties as the Court may direct or as may be Prescribed. It is in this context a rather old decision of the Bombay High Court seem to be apposite. The learned Single Judge of the High Court in the case of The Bombay and Persia Steam Navigation Company Ltd. v. Shepherd and Haji Ismail Hossein (ILR (1888) XII Bombay 237) was pleased to state as below: The rules regulating Admiralty practice provide that a suit shall be commenced by a plaint according to the provisions of the Code of Civil Procedure. They were framed when the Code of 1859 was in force, and when the power of the Court to regulate its procedure was more extended than it is at present. The rules subsequent to the one above referred to, provide for the taking out of a warrant of arrest when the suit is in rem, and make no special provision when the suit is in personam ; but Rule 54 directs that proceedings not provided for by the rules shall be regulated by the rules and practice of the High Court in suits brought in it in the exercise of its ordinary original civil jurisdiction. Though these rules do not apparently contemplate a suit in rem and in personam being combined, they do not ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs of organised peoples with one another. Even so until the Municipal Law is changed to accommodate the covenant what binds the Court is the former, not the latter. A.H. Robertson in Human Rights in National and International Law rightly points out that International Conventional Law must go through the process of transformation into the Municipal Law before the international treaty can become an internal Law.. In view of the aforesaid decision of the Supreme Court, in our opinion, even if a suit appears from the statement in the plaint to be barred by any International Law the plaint cannot be rejected unless such International Law has gone through the process of transformation into Municipal Law. Thus, we conclude that in order to bring a case within the mischief of Order 7 Rule 11(d) of the Code of Civil Procedure, the suit must appear from the statement made in the plaint to be barred by any state- made law including any ordinance, order, bye-law, rule, regulation, notification, custom or usages having in the territory of India the force of law. As the word has not been defined in the Code of Civil Procedure, in arriving at the aforesaid conclusion, we have thought it profi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 112 deal with appeals to the Supreme Court. The specific words used in sub-section (2) of Section 112 to wit: Nothing herein contained (emphasis supplied) cannot possibly negate the Code in its entirety. The word herein as emphasised above has a specific connotation and will have to be given a definite meaning which goes alongwith the entire legislation. In the event the legislature intended a complete ban, then and in that event the words used in sub-section (1) in the normal course of events would have been used since sub-section (1)used the expression nothing contained in this Code- Sub- section (1) pertains to the powers of the Supreme Court and the legislature is specific enough to record the same. In the event of there being similar intent, legislature would have used the similar language and not herein as noticed above. The word herein thus cannot possibly be meant to include the entirety of the Code but to the group of provisions in which it appear. Section 112 thus evidently have two different areas of operation whereas sub- section (1) is wider in its amplitude, sub-section (2) is limited in scope and restrictive in its applicability. This is more so by reason of the dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e totally insignificant. Adverting now to the second count of submissions of Mr. Chidambaram to the effect that the judgment of the English Court cannot but be termed to be the judgment in personam and the Execution Petition for the arrest of the vessel and subsequent order thereon thus is not maintainable: Mr. Chidambaram found fault with the Bench decision of the High Court affirming the maintainability of the Execution Petition since arrest of a ship according to his contentions, operates in rem and not in personam and it is on this score, strong reliance was placed on the decision of the Court of Appeal in the case of The City of Mecca (1881 (6) P.D. 106). Jessel M.R. in the decision under reference stated as below: There is no suggestion from beginning to end that the ship is liable; there is no declaration that the ship is liable, and it does not appear on the proceedings that the ship was even within the jurisdiction at the time the action was commenced against the owners. An action for enforcing a maritime lien may no doubt be commenced without an actual arrest of the ship, but there is no suggestion that they intended anything of the kind, and, in fact, the law does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said. I do not see how it was possible for them to carry and execute a maritime lien when they had not possession of the thing. The vessel was out of their jurisdiction, it was an English vessel, and it naturally left the Portuguese coast; and under the decree of that Court, if a purchaser had to prove his title he could not quote a single word of this judgment or any judgment at all that would justify a sale of that ship. It is a judgment purporting to be a judgment against the persons of the captain and owners, and if they ever find them within their jurisdiction they may execute according to the process they have at their command the judgment against them individually. But as to any judgment against the ship, I doubt if the ship were found there now that they could seize it. But even if they found the ship there, and they could without further process seize the ship and sell it in satisfaction, that would not make this a judgment in rem which any Court in this country could be called on to execute. The decision in The City of Mecca (supra) was, lately followed in the Alletta (1974 1 Llyods Law Reports 40) and Sylt (1991 1 Llyods Law Reports 240). The decision of the Queens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baram contended that in the event however, the proceedings are in personam as in the present case then and in that event, exercise of such a power by a foreign litigant would not arise. The appellant contended that the decree holder has to proceed only against the judgment debtor and not against the vessel and it is on this count a strong criticism has been levelled against the judgment of the High Court to the effect that there has been a total confusion as regards exercise of admiralty power in execution of a judgment in rem and judgment in personam. Admittedly the decree of the English Court is in personam, and against respondent No.2 and not the appellant- petitioner herein. It is on this score further reliance was placed on the decision of this Court in the case World Tanker Carrier Corporation vs. SNP Shipping Services Pvt. Ltd. Anr. [1998 (5) SCC 310] wherein this Court had the following to observe: 20. Under principles of Private International Law, a court cannot entertain an action against a foreigner resident outside the country or a foreigner not carrying on business within the country, unless he submits to the jurisdiction of the court here. This principle applies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aritime claim and not in execution of satisfaction of a judgment especially in view of the statutory provisions of Section 44-A of the Code. Mr. Ashok H. Desai for the respondent No.1 and being the decree holder, however, in no uncertain terms contended that as a matter of fact it is of no significance at all if the judgment be termed to be the judgment in rem or judgment in personam especially in the facts of the matter under consideration having due regard to the domestic law and in particular Section 44A of the Code of Civil Procedure. Before however, dealing with the same, a passage from encyclopedia Britannica (Transportation Law) may be of some significance. Learned authors thereof while referring the components of maritime law had the following to state pertaining the maritime liens: a word of caution at this juncture ought to be introduced by reason of the confusion in populas between a maritime claim and maritime lien whereas claim cannot but be termed to be a genus-lien is a particular species arising out of the genus and the two terms namely, claim and lien cannot be identified with each other so as to accord same meaning. Let us, however, address ourselves on maritim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Merchant ships of different nationalities travel from port to port carrying goods or passengers. They incur liabilities in the course of their voyage and they subject themselves to the jurisdiction of foreign States when they enter the waters of those States. They are liable to be arrested for the enforcement of maritime claims, or seized in execution or satisfaction of judgments in legal actions arising out of collisions, salvage, loss of life or personal injury, loss of damage to goods and the like. They are liable to be detained or confiscated by the authorities of foreign States for violating their customs, regulations, safety measures, rules of the road, health regulations, and for other causes. The coastal State may exercise its criminal jurisdiction on board the vessel for the purpose of arrest or investigation in connection with certain serious crimes. In the course of an international voyage, a vessel thus subjects itself to the public and private laws of various countries. A ship travelling from port to port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, in several cases, ships allowed by their owners to be in the possession and control of charterers have been successfully proceeded against to enforce liens which arose whilst the ships were in control of such third parties. The defendant in an Admiralty action in person is liable, as in other actions in the High Court, for the full amount of the plaintiffs proved claim. Equally in an action in rem a defendant who appears is now liable for the full amount of the judgment even though it exceeds the value of the res or of the bail provided. The right to recovery of damages may however be affected by the right of the defendant to the benefit of statutory provisions relating to limitation of liability. The discussion above has shown us the Anglo-American jurisprudence pertaining to the admiralty matters and the distinction between the action in rem and action in personam being within a very narrow margin but before embarking on to a fuller analysis of the same, let us for the time being transfer our attention to the domestic law in the matter in issue. As regards the domestic law Section 44A of the Civil Procedure Code may be considered as one of the basic elements of domesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed is of an English decree and the question is whether it comes within the ambit of Section 44A or not. The decree itself need not and does not say that the same pertains to an admiralty matter neither it is required under Section 44A of the Code. Though however in the facts of the matter under consideration, the decree has been passed by the High Court of England (a Superior Court) in its Admiralty jurisdiction. Registration in this country, as a decree of a superior foreign Court having reciprocity with this country would by itself be sufficient to bring it within the ambit of Section 44A. The conferment of jurisdiction in terms of Section 44A, cannot be attributed to any specific jurisdiction but an independent and an enabling provision being made available to a foreigner in the matter of enforcement of a foreign decree. It is in this context that Mr. Desai placed strong reliance on a decision of the Commonwealth of Australia 1980 (144) CLR 565: Hunt v. B.P. Exploration Co.(Libya) Ltd and since the summary of the judgment as is available in the report would sub-serve our purpose we need not go in for longish narration in regard thereto. The summary provides: A judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdiction, although there do not need to be assets within the jurisdiction. See Hospital for Sick Children v. Walt Disney Productions Inc (1968) Ch 52, 69, 77; [1967] All ER 1005, 1011, 1016, which held that an injunction could issue against a corporation not within the Courts jurisdiction and which did not have assets there at the time of the order. I think that, fundamentally, my decision must come down to this: On the one hand, is the Mareva jurisdiction (for want of a better term) merely an instance of the exercise of the Courts general jurisdiction conferred in broad terms by s 16; or is {118} the Mareva jurisdiction to be regarded as legislating in an area which should be left to Parliament? The two opposing points of view are well set out in the various Mareva judgments I have cited on the one hand, and in the South Australian judgments on the other. I consider that this Court does have a Mareva jurisdiction. I do not accept the view that this jurisdiction is in the nature of legislating in an area forbidden to the Courts. I am not impressed by the assumption of fearful authority line of cases. There appears to have been an old English procedure of foreign attac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liberty to apply to have the injunction discharged at any time on short notice. I, for one, do not always agree with the alleged judicial law-making of Lord Denning; on this occasion, I think that he has legitimately spelt out the jurisdiction of the Court and has up-dated old but useful procedures, aimed at enabling the law to deal with the commercial realities of modern business. Accordingly, I am of the view that the Mareva jurisdiction exists in New Zeeland. I find no cause to dissent from the view of Quilliam, J. in Mosen v. Donselaar that the Mareva jurisdiction exists in New Zeeland, which view was accepted without argument in the other New Zeeland decision. The principal consideration is whether BP has given has some grounds for believing that there is a risk of Mr. IIunts New Zeeland assets being removed before the judgment or award is satisfied. Mr. Gatenby, in one of his affirmations, asserted that although the judgment debtor is reputedly an extremely wealthy and substantial businessman, searches and inquiries conducted by or on behalf of the judgment creditor reveal relatively few assets in countries where enforcement can be conducted expeditiously and economical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered more or less the entire gamut of judicial precedents. Barker, Js judgment in the New Zealand case very lucidly sets out that the court has to approach the modern problem with some amount of flexibility as is now being faced in the modern business trend. Flexibility is the virtue of the law courts as Rosco Pound puts it. The pedantic approach of the law courts are no longer existing by reason of the global change of outlook in trade and commerce. The observations of Barker, J. and the findings thereon in the New Zealands case with the longish narrations as above, depicts our inclination to concur with the same, but since issue is slightly different in the matter under consideration, we, however, leave the issue open, though the two decisions as above cannot be doubted in any way whatsoever and we feel it expedient to record that there exists sufficient reasons and justification in the submission of Mr. Desai as regards the invocation of jurisdiction under Section 44A of the Code upon reliance on the two decisions of the New Zealand and Australian Courts. The observations of us, as above, do find some concurrence in Dicey and Moris on The Conflict of Laws Vol.I, 13th E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... replete with various conditions and as such independently of any other common law rights, an enabling provision for a foreign decree holder to execute a foreign decree in this country, has been engrafted on to statute book to wit: Section 44A of the Code. Mr. Chidambaram next contended that there are certain fundamental principles of execution in India and referred to a judgment of Sir Ashutosh Mukherji in the case of Begg Dunlop Co. v. Jagannath Marvari (ILR 39 Calcutta 104). The fundamental principles as recorded therein and as strongly contended by Mr. Chidambaram runs as follows: i. A decree may be executed either by the Court which passed it or by the Court to which it has been sent for execution. (Sec.38 CPC) ii. A decree may be sent to another Court of competent jurisdiction; the Court shall be deemed to be a Court of competent jurisdiction, if such Court would have jurisdiction to try the suit where the decree was passed. (Section 39 (1) (3) CPC). iii. Even after sending the decree to another Court for execution, the original Court does not lose jurisdiction over the matter. Mr. Chidambaram in suapport of his contention of Fundamental Principles has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame been taken out beyond a period of two years after the date of the decree, there is existing a mandatory obligation to serve a notice to show cause against the execution. Such a requirement of the decree being more than 2 years old is not mentioned as regards the provisions of execution of decree filed under Section 44A. This is a new introduction in the 1976 Code and in our view substantiates the reasonings as above and supports the contention of Mr. Desai as regards two separate and independent Schemes for execution. On the wake of the aforesaid, it can thus be safely concluded that while it is true that action in rem and in personam have lost much of significance in the present day world but in the facts of the matter under consideration, we are not really concerned therewith and as such we are not expressing any definite opinion in regard thereto suffice however, to record that we are inclined to lend our concurrence with the views expressed by the Australian and the New Zealand courts apropos judgment in personam and in rem as noticed above. In fine, the legal fiction created by Section 44A makes the Andhra Pradesh High Court, the Court which passed the decree and as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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