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TMI Blog2024 (3) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... chh for the petitioner, learned advocate Mr. Hirak Shah for learned advocate Mr. Nikunt K. Raval for the respondent No. 1 and learned advocate Mr. G.H. Virk for the respondent Nos. 4 and 5. 2. Rule, returnable forthwith. Learned advocate Mr. Hirak Shah and learned advocate Mr. G.H. Virk waive service of notice of rule for and on behalf of the respective respondents. 3. Having regard to the controversy in narrow compass, with the consent of the learned advocates for the parties, the petition is taken up for hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : "(A) YOUR LORDSHIPS be pleased to issue writ of Mandamus or any other appropriate writ, order or direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February, 2018 for sale of the vessel bearing registration-MSV Safina Al-Miraz (BDI 1331)(herein after referred to as the 'vessel'). 5.2. The petitioner was declared as a successful buyer and delivery order dated 05.03.2018 was issued by the respondent No. 2-MSTC limited who held the auction on behalf of the respondent Nos. 1 and 3. 5.3. The petitioner made full payment along with the GST and purchase invoice as well as the receipt dated 10.03.2018 for payment were also produced by the petitioner before the respondent No. 1-Commissioner of Customs and accordingly, by communication dated 06.04.2018, the respondent No. 1 directed the respondent No. 5-Port Officer to release the vessel after submission of various required documents. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation dated 03.09.2019 before the respondent No. 1 with regard to denial by the GMB to issue the 'No Due Certificate'. The respondent No. 1 by letter issued in March, 2020 informed the petitioner that there is no obligation on part of the respondent-Commissioner of Customs as the vessel was transferred to the petitioner. Being aggrieved, the petitioner has approached this Court with the aforesaid prayers. 6. Learned advocate Mr. Premal Rachh for the petitioner submitted that the petitioner is a bona-fide purchaser of the vessel and in absence of any outstanding dues quantified by the respondent-GMB as well as in view of the provisions of Section 126 of the Act, when the vessel is confiscated by the Customs Authority under Section 115 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mander, Coast Guard Region and others reported in (2006) 4 SCC 620, such maritime claim would be liable to be recovered irrespective of the confiscation made by the custom authority and such maritime claim would be liable to be paid to the GMB. Reliance was placed to the observations made in paragraph Nos. 28 and 50 of the said decision to submit that the principle of vesting cannot be expanded to the point of extinction of the maritime lien. It was therefore submitted that the GMB was justified in declining to issue 'No Due Certificate' in view of the such position of law. In the alternative, it was submitted that the right of GMB to recover the dues from the original owner may be protected. 9. Considering the above submissions, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal : Provided that where any such conveyance is used for the carriage of goods or passengers for hire, the owner of any conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine not exceeding the market-price of the goods which are sought to be smuggled or the smuggled goods, as the case may be. 126. On confiscation, property to vest in Central Government : (1) When any goods are confiscated under this Act, such goods shall thereupon vest in the Central Government. (2) The officer adjudging confiscation shall take and hold possession of the confiscated goods" 10. It is not in dispute that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring to international conventions, etc. Therefore, reliance placed on the said decision would not be applicable in the facts of the case as there is no quantification from the amount recoverable by the respondent No. 4-GMB from the owner of the vessel which was confiscated by the customs under the provisions of the Custom Act. Moreover, the reliance placed on the provisions of the Admiralty (Jurisdiction and Settlement Maritime Claims) Act, 2017 to submit that maritime claim means mortgage or charge of the same nature on a vessel with regard to exercise of jurisdiction by the High Court under said Act to hear and determine such question on maritime claim against the vessel. Therefore, the judgment rendered by the Apex Court vis-a-vis the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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