- (1.) I have gone through the erudite and exhaustive judgment prepared by learned brother, U. C. Banerjee, J., in these appeals. I respectfully agree with the conclusion reached by him. However, as the matter at issue has wide repercussions regarding the scope and ambit of admiralty jurisdiction vested in the Chartered High Courts or their successor High Courts, like the High Court of Andhra Pradesh, I deem it fit to record my reasons for concurring with the decision arrived at by learned brother.
(2.) At the outset, admitted and well-established facts deserve to be noted in order to appreciate the contours of controversy posed for our consideration. They can be enumerated as under : 1. Respondent No. 2 before this Court has suffered a foreign decree passed by the High Court of Justice, Queen's Bench Division, Admiralty Court, England in monetary terms by way of damages for breach of contract for salvaging and towing the vessel "M. V. AI Tabish" alleged to be renamed as "M. V. AI Quamar". Respondent No. 1-company before us is the decree-holder. It had filed the suit in the Admiralty Court in England alleging that pursuant to a contract of salvage entered into by Respondent No. 1 with Respondent No. 2, it had mobilized its tug for salvaging and towing the aforesaid vessel which had met rough weather in the high seas. Its further case against Respondent No. 2 is that though the plaintiff was prepared to render services as per the contract it was prevented from rendering the same by Respondent No. 2 which committed breach of contract and hence this suit in the Admiralty Court for damages for breach of contract pertaining to salvaging the said ship. As the alleged breach of contract for salvage had admittedly taken place in London, the suit was filed in the Admiralty Court, England. 2. After getting notice of the filing of the suit, Respondent No. 2 subsequently remained ex parte and a decree for damages for breach of salvage contract was passed by the English Court on 2-11-1998. It was held by that Court that Respondent No. 2 was liable in the sum of US $ 265,000 together with interest @ 9.51% p.a. from 1-6-1994. It was also ordered that copies of the order and judgment were to be served on Respondent No. 2 at their address in Cyprus and the order was to become final and binding after seven days of service. 3. Admittedly the vessel in question for salvaging the same, the contract was entered into by Respondent No. 1 with Respondent No. 2, was not available for being proceeded against in the English Court and only Respondent No. 2 was joined as a party to the litigation. Consequently, the aforesaid money decree passed by the English Admiralty Court remained a decree in personam against Respondent No. 2. 4. The vessel in question having crossed the high seas for discharging the cargo carried by it ultimately was found to have anchored in Visakhapatnam Port in Andhra Pradesh. Thus, admittedly, the res in question was found located in the territorial waters of Andhra Pradesh within the territorial jurisdiction of Admiralty Court of Andhra Pradesh, being the High Court of Andhra Pradesh, as a successor to the Chartered High Court of Madras. 5. Respondent No. 1 decree-holder having come to know about the anchoring of the said ship at Visakhapatnam filed an execution petition invoking Section 44-A of the Civil Procedure Code (for short "C.P.C.") for arrest and detention of the ship and for recovering the decretal amount from Respondent No. 2 judgment-debtor on the ground that it had obtained a foreign money decree from competent Admiralty Court against Respondent No. 2, who was the owner of the said res M. V. Al Tabish. 6. In the said execution petition the res in question, namely, M. V. Al Tabish was joined as a party opponent as it was required by the decree-holder to be attached and sold in execution of its decree against Respondent No. 2. 7. The master of the ship M. V. Al Quamar contested the execution proceedings and raised a preliminary objection about their maintainability in the Andhra Pradesh High Court. The Andhra Pradesh High Court, by its impugned judgment, took the view that the execution petition is maintainable and directed that evidence be led as per Order XXI, Rule 58 of the C.P.C. for deciding the question whether the vessel M. V. Al Quamar really belongs to the judgment-debtor-Respondent No. 2 or to a stranger, third party purchaser, who is said to have renamed vessel M. V. Al Tabish as M. V. Al Quamar and, therefore, according to the appellant-master of the said vessel it has no longer remained the property of the judgment-debtor-Respondent No. 2. The resolution of this question on evidence is pending before the High Court. 8. It is not in dispute between the parties that in the aforesaid execution proceedings pending in the Andhra Pradesh High Court on its Admiralty side, original judgment-debtor of English Court who has suffered decree from the Admiralty Court of England though served has not thought it fit to appear before the Andhra Pradesh High Court and to contest these proceedings. 9. By an ad interim order of the Andhra Pradesh High Court, the ship in question has been attached and is lying detained in Visakhapatnam Port awaiting further orders of the Court. 10. The High Court of Andhra Pradesh, in exercise of its Admiralty jurisdiction, falls within the definition of "District Court", on a conjoint reading of Section 44-A and Section 2(4) as it is the principal Court of original Admiralty jurisdiction as contra-distinguished from its appellate or revisional jurisdiction. In the light of the aforesaid well-established facts on record, the short question arises for our consideration whether the aforesaid execution proceedings are maintainable before the High Court of Andhra Pradesh as an executing Court for enforcing the foreign decree passed by the English Admiralty Court by attachment and sale of the vessel in question.
(3.) Mr. P. Chidambaram, learned senior counsel for the appellant, placed two submissions for our consideration in support of these appeals. The same are as under : 1. Invocation of Section 44A of the C.P.C. by Respondent No. 1 decree-holder of a decree passed by the Admiralty Court is misconceived as the said provision gets excluded by Section 112(2) of the C.P.C. 2. In the alternative, it is contended that even assuming that the said provision applies on the facts of the present case, the Andhra Pradesh High Court is not a competent Court which can entertain such execution proceedings under Section 44-A of the C.P.C. We have to resolve these controversies in the light of the aforesaid admitted and well-established facts on record. It is made clear that if such proceedings are maintainable, then the moot question which arises is whether the attached ship M.V. Al Quamar really belongs to respondent No. 2 judgment-debtor or it belongs to a third party, who is alleged to be the purchaser of the said original ship - M.V. Al Tabish. It admittedly belonged to respondent No. 2 at the time when the suit was filed in the English Admiralty Court by respondent No. 1 on 11-10-1994 and, pending those proceedings, respondent No. 2 is alleged to have sold the said vessel by a Memorandum of Agreement dated 4-2-1997 for a sum of US $ 2,515,000 to a third party and the master of which ship M. V. Al Quamar is contesting the execution proceedings, will have to be resolved and the evidence which is being recorded by the executing Court at present has also to be looked into. We are not concerned with this factual controversy. All that was argued before us and which is to be decided is about the maintainability of the execution petition on demurer, meaning thereby, assuming that the averments in the execution petition are true. That is how Mr. P. Chidambaram, learned senior counsel for the master of the vessel and Mr. F.S. Nariman and Mr. Ashok H. Desai, learned senior counsels for respondent No. 1 decree-holder have addressed us and sought appropriate decision in the present proceedings.;