Sengottuvelan, J. - (1.) CRIMINAL Miscellaneous Petition Nos. 5521, 5523, 5525, 5970, 5972 and 5974 are filed by the Banque Francise Du Commerce Exterieur , 21 Boulevard Hansaman, Paris, France, hereinafter referred to as the Bank under S. 482, Crl. P.C. challenging the legality and correctness of the orders passed by the 16th Metropolitan Magistrate, George Town, Madras in C.C. Nos. 160, 161, 162, 440, 441 and 480 of 1985 on his file. Criminal Miscellaneous Petition No. 5611 of 1985 is filed by the Mehrine Marine Movements Pvt. Ltd., hereinafter referred to as the Company, for a direction to the Collector of Madras to accept the tenders. Criminal Misc. Petition Nos. 5267 and 5268 of 1985 are filed by M/s. Hotel Sudarson International ,Egmore, Madras -8, by its Manager, N.S. Mathur, hereinafter referred to as the Hotel, to quash the order of the 16th Metropolitan Magistrate, George Town, Madras, in C.C. No. 160 of 1985, dated 18.5.1985, in so far as it relates to the rejection of the claim of the Hotel towards boarding and lodging expenses of the seamen and crew members of the ship M.V. Sea Heron and for direction to the Collector of Madras to deduct the boarding and lodging expenses of the seamen and Master of ship M.V. Sea Haron from the sale proceeds of the ship M.V. Sea Haron. Criminal Misc. Petition No. 1817 and 5873 of 1985 are filed by the intending tenderers for permission to submit their tenders and for a direction to the Collector of Madras to receive their tenders. Criminal Misc. Petition No. 5951 of 1985 is filed by Lemos Dismantis, hereinafter referred to as the Master, for permission to make his submissions in the above proceedings.
(2.) THE facts of the case are briefly as follows: - -The vessel M.V. Sea Heron a Panama based vessel reached Madras Harbour on 8.1.1985. Due to the failure on the part of the owner of the vessel to pay the salary of crew members and to provide sufficient funds to meet the immediate requirements of the maintenance of the vessel, the crew members filed C.C. Nos. 160, 161, 162, 440, 441 and 480 of 1985, under Ss. 145 and 146 of the Merchant Shipping Act, 1958, hereinafter referred to as the Act, on the file of the 16th Metropolitan Magistrate, George Town, Madras. The Bank who had advanced amounts on mortgage of the said vessel filed three applications in C.C. Nos. 160 to 162 of 1985, before the Magistrate for impleading the said bank as a party respondent. All the three impleading applications (not numbered) were dismissed by the learned Magistrate on the following grounds: The banker who has advanced money to the owners of the ship has filed a petition to implead himself. The proceedings pending here are of a summary nature and the only point to be determined is whether the wages is due to the crew as claimed by them. Any other matter other than the payment of wages is beyond this Court's jurisdiction. Further there is no provision in the Code of Criminal Procedure for impleading the parties. In the circumstances the petition filed by the Banker is dismissed. Having dismissal the impleading applications the learned Magistrate proceeded to adjudicate the reclaims of the crew members and passed an order awarding various amounts as detailed below: The learned Magistrate based his judgment on the admission made by the Master who for all purposes represents the owner of the vessel. The Master specifically stated before the lower Court that he is not denying the liability and that he did not have the money to pay the wages. Thereafter in view of the statement of the Master that he is not in a position to pay the amounts, awarded notices were issued under S. 445 of the Act for distress and sale of the vessel, and notices were also issued to the Consulate General of Panama at Calcutta, in respect of the proceedings of distress and sale. According to facts mentioned in the order of the learned Magistrate, on 25.4.1985 the owners of the ship appeared through their counsel Messrs. King & Patridge and sought for an adjournment promising to settle the matter and the case was adjourned to 30.4.1985 and on that date the owner's counsel appeared and sought further time and the case was adjourned to 7.5.1985. On 7.5.1985 the counsel for the ship owner appeared and requested further time. The matter was once again posted to 14.5.1985 as a last chance for them to make the payment. Inspite of the undertaking the owners did not pay the amount. The learned Magistrate on a perusal of the pleadings and the documents and also the undertaking of the Master found that the amounts claimed as above stated are payable to the members of the crew and that the ship owners are liable to pay the said amount On an application by the crew members the learned Magistrate appointed the Collector of Madras as the Receiver to sell the vessel in order to pay the claim of the members of the crew. The Collector in his turn appointed the Company as its agent for the purpose of effecting the sale of the ship and also directed the Company to incur the necessary expenditure the maintenance of the ship, crew members and for the sale of the ship. In pursuance of the orders of the learned Magistrate the Collector advertised in the newspapers for the sale of the ship by calling for tenders. Several tenderers had submitted their tenders and before the tenders could be opened the Bank filed Crl.M.P. Nos. 5522, 5524, 5526 of 1985 and obtained stay of further proceedings in the matter. On a subsequent representation! this Court directed the Collector to keep the tenders pending.
(3.) IN the first instance, in order to have an effective adjudication in the matter, the Master of the vessel is permitted to put forth his contentions in these proceedings. Hence Crl M.P. No. 5951 of 1985 is ordered.;