SM Monirul Islam Vs. MV You Bang,

SM Monirul Islam, Proprietor of Viva Trade International (Petitioner)

Vs.

MV You Bang, now berthed at Mongla Port, Khulna and others (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Bimalendu Bikash Roy Choudhury

A M Mahmudur Rahman J

Judgment dated : February 2, 1999.

The Admiralty Rules, 1912  Rules 23 and 31

Above rules are enabling provisions and do not in any way circumscribe the discretionary jurisdiction of the Admiralty Court either to reduce or enhance the bank guarantee for release of the ship arrested in a suit claiming damages amounting to more that Taka ten crore by the plaintiff while defendants surveyor opined that the damages was in the region of around Taka seven lakhs. In view of such contradictory claim fixation of Taka one crore as bank guarantee for release of the ship cannot be interfered with…………..(4, 7 & 8).

Lawyers Involved:

Dr. M Zahir Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record — For the Petitioner

M Hafizullah, Senior Advocate, instructed by M Nawab Ali, Advocate-on-Record—For the Respondents.

Civil Petition for Leave to Appeal No. 69 of 1999.

JUDGEMENT

   Mustafa Kamal J.- This petition for leave to appeal by the plaintiff-petitioner is from the judgment and order dated 14-1-99 passed by the Admiralty Court of the High Court Division in Admiralty Suit No.112 of 1998 ordering that the vessel MV You Bang may be released from the order of arrest if the defendant-respondents furnish a Bank Guarantee of Taka 1 crore to the satisfaction of the Admiralty Court against the claim of the plaintiff-petitioner.

2. The plaintiff-petition filed the aforesaid admiralty suit praying for arrest of the said vessel and to take into and hold in custody of the Marshal of the Admiralty Court as security for payment of Taka 10,91,41,259.00, the money claimed in the suit. The plaint was admitted on 24-12-98 and the Admiralty Court ordered arrest of the ship on condition that security be given for Taka 6-1/2 crore for its release. The plaintiff-petitioner accepted the reduced amount of security. The ship owner’s agent filed an application for release of the ship on a reduced Bank Guarantee and also filed a written objection against the petition for arrest. The case of the defendant is that no certificate was issued by the Master and Chief Officer of the vessel and that a survey conducted by the SGS Bangladesh Limited showed a damage to the cargo to the extent of Taka 6,17,959.00 only. The plaintiff-petitioner filed an affidavit-in-opposition. By the impugned judgment and order the Admiralty Court allowed the application of the ship owners’ agent and reduced the amount to be furnished by the ship owners for release of the ship from Taka 6’/2 crore to Taka 1 crore.

3. Dr. M Zahir, learned Counsel for the plaintiff-petitioner, submits that Admiralty Rules 23 and 31 provide for security to be given “in the sum in which the suit has been instituted”. By reducing the amount of Bank Guarantee the plaintiffs claim in effect has been reduced to the revised amount.

4. Rules 23 and 31 of the Admiralty Rules are enabling provisions and do not in any way circumscribe the discretionary jurisdiction of the Admiralty Court to either reduce or enhance the amount of Bank Guarantee for release of the arrested vessel.

5. Dr. M Zahir further submits that in view of the survey report of the petitioner’s surveyor and in view of the fact that the survey was conducted in presence of the Master and Chief Officer of the vessel who also certified about the damaged and lost cargo, the Admiralty Court erred in relying on the survey conducted by the defendant respondents surveyor unilaterally and without notice to the plaintiff.

6. The Admiralty Court has taken note of the fact that the Master and Chief Officer stated that they did not issue any certificate about the damaged and lost cargo. The Admiralty Court also found that at this stage it is not possible to determine what could be the actual damage.

7. While the plaintiff-petitioner contends the entire cargo valued at more than Taka ten crore was damaged the defendants’ surveyor opined that the loss was in the region of around Taka seven lakh.

8. In view of the apparent contradiction in the amount of actual damage claimed by the plaintiff the Admiralty Court exercised its discretionary jurisdiction and fixed the amount of money for release of the vessel from arrest at Taka one crore which far exceeds the actual damage assessed by the defendant-respondent’s surveyor.

In that view of the matter, we do not find any ground for interference.

The petition is dismissed.

Ed.

Source : 51 DLR (AD) (1999) 90.

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