ASHIS KUMAR CHAKRABORTY,J. - (1.) In this application the plaintiff in the admiralty suit has prayed for arrest of the vessel M.V. NEPENTHE (hereinafter referred to as "the said ship"), which is registered in the name of the defendant no.2, a company incorporated under the appropriate laws of the Republic of Liberia and has its registered office at 80, Broad Street, Monrovia, Liberia. The said ship is plying with the flag of Liberia. The plaintiff's case in the suit is that its maritime claim against the said ship is on account of supply of necessaries made to another ship M.V. ARYBBAS registered in the name of the defendant no.3, which is also a company incorporated under the appropriate laws of Republic of Liberia. According to the plaintiff, although the ships, namely, M.V. NEPENTHE and M.V. ARYBBAS and the said vessel are registered in the names of the defendant nos.2 and 3 companies respectively but, the same are beneficially owned by the defendant no.4, another company also incorporated under the appropriate laws of the Republic of Liberia and all the three companies have their office in Greece at 25, Poseidonos Avenue, Moschato, 183 44 Piraeus, Greece. The plaintiff has alleged although the defendant no.4 is the common Ship Manager/Commercial Manager of the said vessel and M.V. ARYBBAS, but it is the defendant no.4 company which floated the defendant nos.2 and 3 companies to evade making payment of the expenses incurred in operation of the vessels which are beneficially owned by it including the said vessel and M.V. ARYBBAS. In the plaint the plaintiff has asserted that the defendant nos.2 and 3 companies have been fraudulently incorporated by the defendant no.4 to take advantage of their separate corporate identity. The defendant no.4 company is the controlling mind of the defendant nos.2 and 3 companies and the defendant nos.2 and 3 ostensibly owning one vessel each have been created solely to defeat the maritime claims which may be enforced against the vessels of which the defendant no.4 is the owner. The beneficial owner of the defendant nos.2 and 3 companies is the defendant no.4 and the said defendants have perpetrated fraud upon the plaintiff. The defendant nos. 2 and 3 are devices of fraud and this is a fit case for lifting of the corporate veil of all the defendant companies. The plaintiff has stated that it shall give further particulars of fraud upon complete and faithful discovery by the defendant companies.
(2.) On January 12, 2018 when the plaintiff moved this application ex-parte, this Court passed an ad-interim order directing arrest of the said vessel, which was lying at Dimond Harbour, within the territorial jurisdiction of this Court. This application was made returnable on January 15, 2018. On the returnable date, the defendant nos.1 and 3 appeared before this Court and prayed for vacating of the order of arrest dated January 12, 2018. On January 15, 2018 the defendant nos.1 and 3 also sought for an opportunity to file an affidavit and they were allowed to do so. On January 17, 2018 an affidavit was filed on behalf of the defendant nos.1 and 3 which was affirmed by one Gurupada Pal, alleging himself to be the authorised representative of the said defendants. In the said affidavit, the defendant nos. 1 and 3 disclosed a copy of an affidavit affirmed by one Mr. Kalliopi Iliopoulou, an alleged director of the defendant no.3 and a copy of another affidavit affirmed by Ms. Fanouria-Eirini Delavinia, an alleged director of the defendant no.4. Although the said Gurupada Pal in its said affidavit sought leave to produce the originals of the said affidavits affirmed by Mr. Kalliopi Iliopoulou and Ms. Fanouria-Eirini Delavinia on behalf of the defendant nos.3 and 4 respectively at the time of hearing of this application but the same were produced before this Court today, after the hearing of this application was concluded on January 19, 2018.
(3.) The defendant nos.1 and 3 who are presently contesting the suit and pressed for vacating of the order of arrest of said vessel, contended under the Indian law a company is a separate juristic entity, its shareholders do not own the assets of the corporate entity and therefore, in an admiralty suit the Court cannot permit lifting of the corporate veil to make the shareholder of a corporate entity to be the owner of the ship belonging to the incorporated company. The said defendants urged that under the Indian law no one can maintain an admiralty suit for arrest of a ship to enforce its maritime claim against another ship on the plea that both the ships are beneficially owned by one company although they are registered in the names of two separate companies. In support of such contention, they cited a Division Bench decision of this Court in the case of Owners and Parties Interested in the Vessel M.V. DONG DO & Anr. -versus- Ramesh Kumar & Co. Ltd. reported in (2000) 1 Cal.LT. 367, a Division Bench decision of the Bombay High Court in the case of Lufeng Shipping Co. Ltd. -versus- M.V. Rainbow Ace & Anr. reported in (2013) 7 Bom.CR. 700 : (2013) 4 AIR Bom.R. 1412 and a single Bench decision of the Bombay High Court Kimiya Shipping INC -versus- M.V. Western Light reported in (2014) 7 Bom.CR. 39. It was further submitted that a Special Leave Petition filed against the Division Bench decision of the Bombay High Court in the case of M.V. Rainbow Ace (supra) was rejected by the Supreme Court on July 16, 2013 and a copy of the said order dated July 16, 2013 was produced by the contesting defendants before this Court.;