Patherya - (1.) THIS is an application filed by M/s. Mukherjee & Biswas, Advocates for refund of Rs.46,75,442/- deposited with the Registrar, Original Side, High Court, Calcutta after deducting his commission The case of the petitioner is that certain sums of money was directed to be deposited by order dated 27th June, 2001. Although Written Statements were filed and counter-claims have been rejected, as the said fund has been created for payment to persons who may have a claim against the owners of Vessel, M.V. Prime Value and no payment is to be made, therefore, the monies deposited pursuant to decree dated 10th May, 2006 be returned to it.
(2.) VESSEL M.V. Prime Value was grounded on 19th July, 2000 and monies have been deposited by Thomas Miller, P&I Ltd. through the petitioner herein. On 15th June, 2004 the owners of M.V. Prime Value has gone into liquidation. By virtue of Articles 85, 86, 87, 88 and 89 all corporation whether they expire by their own limitation or are otherwise dissolved, shall nevertheless be continued for a period of 3 years and thereafter trustees appointed will be entitled to collect outstanding debts, sell and convey the property of all kind and divide the monies and property among the stockholders, after payment of debts of the corporation. The petitioner has been authorized by the trustees to seek withdrawal of sums from the Limitation Fund, therefore sums be paid to the petitioner with liberty to remit the same to the U.K. Mutual Steamship Assurance Association (Bermuda) Ltd. (Association). Counsel for the defendant No.7 in opposing the said application submits that the applicant has no authority to seek withdrawal of the sums as the letter dated 11th June, 2010 which has been relied on for initiation of the said application though signed by Thomas Miller, P & I Limited, the vakalatnama filed by the applicant is on behalf of the plaintiff. The money has been deposited by the plaintiff as will be evident from the order dated 27th June, 2001 and it was on deposit of the said sums that all further proceedings by the defendants against the petitioner was stayed. The plaintiff was dissolved on 15th June, 2004 and for seeking realization under the Foreign Laws, the same is to be proved by instituting proper proceedings, namely, a suit. No application can be filed in the Admiralty Suit which has been decreed. Thomas Miller who has authorized the applicant to file the instant application is entitled to file a suit for withdrawal of the unclaimed sums. Therefore, this application warrants no order and the same be dismissed. Having considered the submissions of the parties sums were deposited by the owners of Vessel M.V. Prime Value on a self assessment in June 2001. It appears that Thomas Miller, P & I Ltd. credited the said sum on 13th June, 2001 to the account of M/s. Mukherjee & Biswas, advocates for the plaintiff. Such sums therefore was deposited with the Registrar, Original Side, High Court, Calcutta and is lying with him. In fact a decree for creation of a limitation fund was passed on 10.05.2006. Although counter-claims were filed by the defendant Nos. 4, 6, 7, 9, 23, 29, 66, 67, 106, 107, 108, 109 and 110 the said claims were not proved and therefore rejected by the said decree. No appeal nor application for recall of decree dated 10.05.2006 has been filed by any of the defendants whose counter-claims have been rejected. In fact even in these proceedings none of the defendants except defendant No.7 has appeared to oppose the application. No suit has been filed by any of the defendants making a claim therein. The monies deposited with the Registrar was paid by Thomas Miller, P & I Ltd. and it is this very body which by letter dated 11.06.2010 has authorized the petitioner herein to seek withdrawal of funds.
(3.) ALTHOUGH the U.K. Mutual Steamship Assurance Association (Bermuda) Ltd. (Association) had given cover to the owners of the said vessel, remittance is sought also in the Bank Account of the said Association by Thomas Miller, P & I Ltd. who had remitted sums for deposit. By G.A. 2530 of 2008 the defendant No. 7 has sought payment from the limitation fund created. Such prayer can be granted in favour of the defendant No.7 only if it proves its claim which till today has not been proved. In the affidavit of David William Robert Hunter on behalf of Thomas Miller (Bermuda) Ltd. remittance to the account of the Association on the ground of subrogation has been sought.;