N. Patherya, J. - (1.) By this application the applicant Angsley Investments Ltd. seeks dismissal of Admiralty suit No. 9 of 2001 and for return of bank guarantee.
(2.) The case of the Petitioners is that vessel M.V Lima -I on the day the maritime claim of the Plaintiff -Respondent arose was not a ship under Sec. 2 of the Admiralty Court's Act, 1861. In fact it sailed in the territorial waters of India as scrap which will be evident from the Bill of Entry issued in 2001. The said vessel was purchased from the Defendant No. 3 on the basis of an agreement dated 20th July, 2001. Breaking and dismantling are evident as no loading or discharging of cargo is mentioned therein. The Petitioner supplied bunkers to M.V Brave Eagle and another sister ship of the Defendant. For non -payment of sums on account of such bunkers M.V Lima -1 was arrested. Customs Tariff 8908 deals with tariff payable in respect of ships imported for breaking, such sums have been paid. No order of arrest has been passed in respect of M.V Lima -1. The only order passed is an order of injunction. Therefore, in the absence of an order of arrest the said vessel was entitled to sail in the territorial waters of India. The importation date will be effective from the date of bill of lading as held in : (1999) 8 SCC 744. Reliance has also been placed on the unreported decisions of M.V. Laxmi and M.V. Saaba so also 2007 109 BLR 1875. Therefore, orders be passed as sought.
(3.) Counsel for the Plaintiff -Respondent in opposing the said application submits that the Petitioner's case is that the vessel was imported as goods for breaking, scrapping and dismantling purpose, by one M/s. Jain Udyog. Although it has been alleged that Customs Duty was paid no particulars thereof has been given, nor does the same appear from the bill of entry. The order of arrest was vacated upon furnishing of bank guarantee and, thereafter, the vessel has been dismantled. The order of injunction was passed on 14th August, 2001 by the Bombay High Court restraining the owners from dealing with, encumbering or alienating the said vessel. The vessel was not imported as goods for dismantling purposes. It arrived as a foreign vessel and continued to remain so. The Bill of Entry is filed for assessment of Customs Duty. It is not known when the Bill of Entry was filed and the date of importation cannot be equated with the date of Bill of Entry. No particulars of beaching or payment of Customs Duty is evidenced. The foreign vessel was registered in Turkey and there are no documents to evidence transfer to Mercury Shipping Corporation from whom the Defendant No. 3 purchased the foreign vessel.;