# M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. AND ORS

- **Citation:** [2000] Supp. 2 S.C.R. 440
- **Court:** Supreme Court of India
- **Decided:** 2000-08-17
- **Case number:** Civil Appeal No. 4578 of 2000
- **Bench:** S.B. Majmudar, Umesh C. Banerjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-v-al-quamar-v-tsavliris-salvage-international-ltd-and-ors-17520
- **Pages:** 50

## Headnote

Admiralty law :
Admiralty Courts Act, 1890-Section 15-Civil Procedure Code, 1908Sections 44-A, 112(2) and 140-Execution Petition-For execution offoreign
judgment passed in admiralty jurisdiction-Maintainability of-Applicability
of Section 44-A-Held, Section 44-A of CPC indicates an independent right,
conferred on to a foreign decree holder for enforcement of its decree in lndiaThe factum of the passing of the decree and the assumption of jurisdiction
pertaining thereto, do not obstruct the full play of the provisions of the SecD
lion-Section 112(2) of CPC does not render the Code completely inapplicable
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to admiralty cases.
High Court of Justice Queen's Bench Division, Admiralty Court,
passed a decree in favour of respondent No. 1 who had claimed damages
for repudiation of an LOF salvage contract, against respondent No. 2, the
owner of the petitioner/vessel. When the vessel was found anchored in
Vishakhapatnam Port, falling within the jurisdiction of Andhra Pradesh
High Court, respondent No. 1 filed an Execution Petition before Single
Judge of the High Court under Section 15 of the Admiralty Courts Act and
Section 44-A r/w. Order 21 Rule 10 of Civil Procedure Code, for execution
of the decree.
During pendency of the Execution Petition, decree holder prayed for
interim order of warrant of arrest/attachment against the vessel. Single
Judge granted interim relief on a prima facie view that the Execution
Petition could be filed in the High Court which had otherwise original
admiralty jurisdiction.
Appellant filed petition to vacate the interim order on the ground
that since the vessel was transferred bonafide to "Q" for valuable consideration, who was not party to the original suit, the vessel could not be
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attached for execution of decree against respondent No. 2, the original
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M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD.
441
owner. Single Judge ordered early hearing of the Execution Petition and
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continuance of the interim order. Division Bench held that the Execution
Petition was maintainable and directed the petition to be heard on merits.
In appeal to this court appellant contented that Section 44-A CPC
could not be invoked for enforcement of foreign judgment in the High
Court because in view of Section 112(2) CPC, the Code cannot be made
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applicable to any matter of criminal or admiralty or vice admiralty jurisdiction; and that since the judgment of the English Court is judgment in
personam, the Execution Petition for the arrest of the vessel and subsequent order thereon is not maintainable since arrest of a ship operates in
rem and not in personam; and that a vessel may be arrested for obtaining
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satisfaction of the claim or the execution of a decree in rem especially in a
maritime action having maritime lien, only when a decree in rem is passed,
and therefore, the decree holder has to proceed only against the judgment
debtor and not against the vessel. Appellant alternatively contended that
assuming section 44-A CPC is applicable for the execution of a decree in
personam obtained from an Admiralty Court in Britain but since Section
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44-A is not a self-contained code for execution of a decree, the same is not
exhaustive and the same, as a matter of fact does not displace the common
law and it has to be read along with the well settled principles of common
law in matters relating to execution of decree for a sum of money. The
respondent contended that it is of no significance if the judgment be termed
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to be the judgment in rem or judgment in personam especially in the facts
of the matter under consideration having due regard to the domestic law
and in particular Section 44-A CPC.
Dismissing the appeals, the Court
HELD : Per Banerjee, J.
1.1. The Admiralty jurisdiction of the Andhra Pradesh High Court
does not stand 'frozen' or 'atrophied' in any way whatsoever. The legal
fiction created by Section 44-A makes the Andhra Pradesh High Court, the
Court which passed the decree and as such the competen

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M.V. AL. QUAMAR
v.
TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. AND ORS.
AUGUST 17, 2000
[S.B. MAJMUDAR AND UMESH C. BANERJEE, JJ.]
Admiralty law :
Admiralty Courts Act, 1890-Section 15-Civil Procedure Code, 1908Sections 44-A, 112(2) and 140-Execution Petition-For execution offoreign
judgment passed in admiralty jurisdiction-Maintainability of-Applicability
of Section 44-A-Held, Section 44-A of CPC indicates an independent right,
conferred on to a foreign decree holder for enforcement of its decree in lndiaThe factum of the passing of the decree and the assumption of jurisdiction
pertaining thereto, do not obstruct the full play of the provisions of the SecD
lion-Section 112(2) of CPC does not render the Code completely inapplicable
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to admiralty cases.
High Court of Justice Queen's Bench Division, Admiralty Court,
passed a decree in favour of respondent No. 1 who had claimed damages
for repudiation of an LOF salvage contract, against respondent No. 2, the
owner of the petitioner/vessel. When the vessel was found anchored in
Vishakhapatnam Port, falling within the jurisdiction of Andhra Pradesh
High Court, respondent No. 1 filed an Execution Petition before Single
Judge of the High Court under Section 15 of the Admiralty Courts Act and
Section 44-A r/w. Order 21 Rule 10 of Civil Procedure Code, for execution
of the decree.
During pendency of the Execution Petition, decree holder prayed for
interim order of warrant of arrest/attachment against the vessel. Single
Judge granted interim relief on a prima facie view that the Execution
Petition could be filed in the High Court which had otherwise original
admiralty jurisdiction.
Appellant filed petition to vacate the interim order on the ground
that since the vessel was transferred bonafide to "Q" for valuable consideration, who was not party to the original suit, the vessel could not be
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attached for execution of decree against respondent No. 2, the original
440
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD.
441
owner. Single Judge ordered early hearing of the Execution Petition and
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continuance of the interim order. Division Bench held that the Execution
Petition was maintainable and directed the petition to be heard on merits.
In appeal to this court appellant contented that Section 44-A CPC
could not be invoked for enforcement of foreign judgment in the High
Court because in view of Section 112(2) CPC, the Code cannot be made
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applicable to any matter of criminal or admiralty or vice admiralty jurisdiction; and that since the judgment of the English Court is judgment in
personam, the Execution Petition for the arrest of the vessel and subsequent order thereon is not maintainable since arrest of a ship operates in
rem and not in personam; and that a vessel may be arrested for obtaining
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satisfaction of the claim or the execution of a decree in rem especially in a
maritime action having maritime lien, only when a decree in rem is passed,
and therefore, the decree holder has to proceed only against the judgment
debtor and not against the vessel. Appellant alternatively contended that
assuming section 44-A CPC is applicable for the execution of a decree in
personam obtained from an Admiralty Court in Britain but since Section
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44-A is not a self-contained code for execution of a decree, the same is not
exhaustive and the same, as a matter of fact does not displace the common
law and it has to be read along with the well settled principles of common
law in matters relating to execution of decree for a sum of money. The
respondent contended that it is of no significance if the judgment be termed
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to be the judgment in rem or judgment in personam especially in the facts
of the matter under consideration having due regard to the domestic law
and in particular Section 44-A CPC.
Dismissing the appeals, the Court
HELD : Per Banerjee, J.
1.1. The Admiralty jurisdiction of the Andhra Pradesh High Court
does not stand 'frozen' or 'atrophied' in any way whatsoever. The legal
fiction created by Section 44-A makes the Andhra Pradesh High Court, the
Court which passed the decree and as such the competency of the High
Court to entertain the execution proceeding cannot be doubted in any way.
[449-F-G; 474-G]
M. V. Elisabeth and Ors. v. Harwan Investment and Trading Private Ltd.
Hanoekarr House, Swatontapeth, Vasco-De Gama, Goa, etc., [1993) Suppl. 2
sec 433, referred to.
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442
SUPREME COURT REPORTS
[2000] SUPP. 2 S.C.R.
1.2. The High Court has rightly decided the applicability of the Code
of Civil Procedure even in Admiralty jurisrin:tion. If the intent of the
legislation was to do away with the applicability of the provisions of the
Code of Civil Procedure, in terms of Section 112(2) or the Code, then in
that event question of continuance of Section 140 of the Code would not
have arisen. In accordance with the salutary principle of interpretation
and one of the golden canon of statutory interpretation being that the
latter provision shall prevail over the earlier provision and in the event of
the Adaptation of Laws Order deemed it expedient to exclude applicability
of the Civil Procedure Code in terms of Section 112(2), question of incorporating Section 140 or continuing therewith and in any event in the Civil
Procedure Code, would not have arisen. The insertion of Section 140 in the
Code is clear and unambiguous to the effect that Section 112(2) does not
render the Code completely inapplicable to admiralty cases.
[452-E-F; 453-G; 454-A]
The Bombay and Persia Steam Navigation Company Ltd. v. Shepherd
and Haji Ismail Hossein, ILR (1888) XII Bombay 237, approved.
State of Ukraine v. Elitarious Ltd.; Jolly George Verihese and Am: v.
The Bank of Cochin, AIR (1980) SC 470 and Videsh Sanchar Nigam Ltd. v.
M.P. Capitan Kud and Ors., (1996] 7 SCC 127, referred to.
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Halsbury~· Laws of England (4th Edition Vol. I), referred to.
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1.3. Section 4 being a general provision which excludes the operation
of the CPC in specific instances as mentioned therein and since exclusion
of admiralty jurisdiction is not specifically mentioned, the applicability of
CPC is not barred, since there is no such general exclusion. (457-D-E]
2.1. Section 44-A of the Civil Procedure Code indicates an independent right, conferred on a foreign decree holder for enforcement of its
decree in India. It is a fresh cause of action and has no co-relation with
jurisdictional issues. The factum of the passing of the decree and the
assumption of jurisdiction pertaining thereto, do not really obstruct the
full play of the provisions of Section 44-A. It gives a new cause of action
irrespective of its original character and as such it cannot be termed to be
emanating from the admiralty jurisdiction as such. The enforcement
claimed is of an English decree and the question is whether it comes within
the ambit of Section 44-A or not. The decree itself need not and does not
say that the same pertains to an admiralty matter; neither it is required
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD.
443
under Section 44-A of the Code. Though, however, in the facts of the
matter under considerat!on, the decree has been passed by tbe High Court
of England (a Superi9r Court) in its Admiralty jurisdiction. Registration
in this country, as a decree of a superior foreign Court having reciprocity
with this country would by itself be sufficient to bring it within the ambit of
Section 44-A. The conferment of jurisdiction in terms of Section 44-A,
cannot be attributed to any specific jurisdiction but an independent and an
enabling provision being made available to a foreigner in the matter of
enforcement.of a foreign decree. [466-C-G]
Hunt v. B.P. Exploration Co. (Libya) Ltd., [1980] 144 CLR 565; Huntv.
B.P. Exploration Co. (Libya) Ltd., [1980] 1 NZLR 104, referred to.
'The Conflict of Laws" Vol.I 13th Edition by Dicey and Moris, referred
to.
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2.2. Whereas claim cannot but be termed to be a genus-lien is a
particular species arising out of the genus and the two terms, namely,
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claim and lien cannot be identified with each other so as to accord same
meaning. There are two attributes to maritime lien : (a) a right to a part of
the property in the res; and (b) a privileged claim upon a ship, aircraft or
other maritime property in respect of services rendered to, or injury
caused by that property. Maritime lien thus attaches to the property in the
event the cause of action arise ad remains attached. It is inchoate and very
little positive in value unless it is enforced by an action. It is a right, which
springs from general maritime law and is based on the concept as if the
ship itself has caused the harm, loss or damage to others or to their
property and this must itself make good that loss. [ 462-C-E; 463-A-C]
Maritime Law Christopher Hill, 2nd Edition, referred to.
2.3. As regards the concept of proceeding in term and proceeding in
personam, it should be understood as actions being related to the same
subject matter and are alternative methods pertaining the same claim and
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can stand side by side. [ 463-C]
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The City of Mecca [1881] 6 P.D. 106; Alletta [1974] 1 Lloyed's Law
Reports40 'Sylt' [1991] l Lloyd's Law Reports 240; 'Despina G.K.' [1983] 1
All ER 1, referred to.
World Tanker Carrier Corporation v. SNP Shipping Services Private
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SUPREME COURT REPORTS
(2000) SUPP. 2 S.C.R.
Ltd. & Anr., [1998] 5 SCC 310, referred to.
3.1. Section 44-A is an independent provisions enabling a set of
litigants whose litigation has come to an end by way of a foreign decree and
who is desirous of enforcement of the same. It is an authorisation given to
the foreign judgments and the Section is replete with various conditions
and as such independent of any other common·law rights, and enabling
provision for a foreign decree holder to execute a foreign decree in this
country, has been engrafted on to statute book to wit : Section 44-A of the
Code. [472-E-G]
3.2. By virtue of Section 44-A(3), all defences under Section 13(a) to
(0 are available to a defendant. Section 44-A depicts an altogether different scheme for enforcement of foreign judgments through Indian Courts.
[ 473-D; 474-C]
Begg Dunlop & Co. v. Jagannath Marvari, ILR 39 Calcutta 104,
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referred to.
Civil Procedure Code, 15th Edition Vol. I by Mulla, referred to.
Per Majmudar, J. (Concurring)
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1.1. What is excluded by Section 112(2) CPC by the phrase "nothing
contained herein" is the sub-topic dealing with "appeals to the Supreme
Court". It is not made applicable by sub-section (2) of Section 112 to admiralty or vice-admiralty jurisdiction, amongst others. In short, the bar of
Section 112(2) operates within and is confined to the question of "appeals to
the Supreme Court". Neither can it go backward to any other Parts from IF
VI nor can it go forward and touch upon any other subsequent provisions
found in parts VIII to XI of the C.P.C. It is to be noted that Section 47
dealing with execution proceedings is found in Part-II. It is miles away from
Part-VII dealing with "appeals wherein is found Section 112(2). This aspect
can be further highlighted from having a look at Section 4 which is a genG
era! provision excluding the operation of the entire C.P.C. to special jurisdictions or situations as contemplated by sub-sections (1) and (2) thereof,
No general exception or exclusion of the entire body of the Code to admiralty jurisdiction is found. (480-H; 481-A-C; 481-E]
1.2. The Admiralty Court, being the Andhra Pradesh High Court,
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could have under these circumstances validly entertained the suit and
M.V. AL. QUAMAR "· TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.] 445
would have been perfectly competent to pass a decree in rem against the
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ship as well as the decree in personam against its owner Defendant No. 2 if
it had submitted to its jurisdiction for getting the ship bailed out. Such suit
is perfectly maintainable in the Andhra Pradesh High Court in exercise of
its admiralty jurisdiction. [487-C-D]
M. V. Elisabeth and Ors. v. Harwan Investment and Trading Private Ltd.,
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Hanoekarr House, Swatontapeth, Vasco-De Gamma, Goa, etc., [1993] Suppl.
2 sec 433, referred to.
1.3. It cannot be said in the background of the fact situation that the
Andhra Pradesh High Court, in exercise of its admiralty jurisdiction, was
not competent to even originally entertain such a suit in which a foreign
Court had passed the decree which is sought to be executed before it. Both
the English Admiralty Court, which is, admittedly a Court of competent
jurisdicdon, as well as the Andhra Pradesh High Court, being a corresponding Court of competent admiralty jurisdiction, could not entertain
such a suit in the first instance but could equally be competent to execute
such a decree of Admiralty Court. [ 488-D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4578 of 2000.
From the Judgment and Order dated 22.11.99 of the Andhra Pradesh
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High Court in O.S.A. No. 65 of 1999.
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WITH
Civil Appeal No. 4579 of 2000.
P. Chidambaram, Ashok H. Desai, V. Kotwal, S. Dave, A. Sen, Ms. Bina
Gupta, G.K. Benerjee, Venketesh Dhond, R.N. Karanjawala, Ms. Ruby Singh
Ahuja, Mrs. Manik Karanjawala, R. Rahim and Kailash Vasdev for the appearing parties.
The Judgment of the Court was delivered by
BANERJEE, J. Leave granted in both the SLPs.
By consent of learned Senior Advocates of the parties, the appeals were
heard finally and are being disposed of by this common judgment.
Assumption of Admiralty jurisdiction by Andhra Pradesh High Court
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and passing of an order of arrest in execution of a judgment and decree of the
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SUPREME COURT REPORTS
(2000] SUPP. 2 S.C.R.
High Court of Justice Queen's Bench Division, Admiralty Court in London in
case No. 1994 Folio No. 1693 dated 9.11.1988, is the key issue for discussion
in these :i.ppeals by the grant of special leave.
Adverting to a brief reference .to the factual aspect of the matter at this
juncture it appears that an Execution Petition was filed before the learned
Single Judge of the Andhra Pradesh High Court in terms of Section 15 of the
Admiralty Courts Act and Section 44A read with Order XXI Rule 10 of the
Code of Civil Procedure for executing the decree issued by the High Court of
Justice Queen's Bench Division Admiralty Court in an action by the first
respondent against the second respondent herein claiming damages for repuC
diation of an L.O.F. salvage contract. Needless to record that the second
respondent was said to be the owners of the vessel M. V.AL QUAMAR ex AL
TAB ITH.
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The factual score depicts that pending the Execution Petition, the decree
holder prayed for an Interlocutory Order to issue a warrant of arrest against the
vessel together with Hull: tackle: Engines: Machinery equipments stores etc.
The learned Single Judge of the Andhra Pradesh High Court on 15th SeptemJ:er; 1999 giallB:i GO i1!er:i:n are:-aspiaye::J. :brm aprima facie view of the
matter that the Execution Petition can be filed in the High Court which is
otherwise having original admiralty jurisdiction. The records depict that the
appellant herein filed a petition to vacate the interim order principally on the
ground that the ownership of the ship having been transferred bona fide and
for valuable consideration to Quamar Shipping Ltd., the ship as attached in
terms of the order of 15th September, 1999, cannot possibly be kept under
attachment in execution of the decree against the original owner being the
respondent No.2 herein. The appellant contended that in any event, the latter
being, not a party to the judgment, question of execution on the basis thereof
would otherwise be a total miscarriage of justice.
Incidentally, the learned Single Judge in his judgment has been
pleased to record that the matter in issue involves eminently an arguable
case as regards the maintainability of the Execution Petition and the proper
course should therefore be, as the learned Judge pointed out to hear the
Execution Petition itself at a date early and to continue interim order during
the interegnum.
The records depict that the appellant herein subsequent to the order as
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above moved the Appellate Forum and the Appellate Court while dismissing
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M.V. AL. QUAMAR v. TSAVLIRJS SALVAGE (INTERNATIONAL) LTD. [BANERJEE,!.] 447
the appeal observed as below:-
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"In our view, the opinion expressed by the learned single Judge that
the execution petitioner (first respondent herein) has an arguable case
as regards the maintainability of the E. P. and that the contentious issues
ought to be dealt with more appropriately at the hearing of the E.P.
instead of entering into a discussion at the interlocutory stage, cannot
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be faulted. The E.P. itself has been posted for hearing and the hearing
would have been concluded by now, but for this intervening appeal.
Equally, the other reason given by the learned Judge that vacation of
the interim order would have the potential effect of making the execution petition infructous and, therefore, the interim order ought not be
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vacated before the disposal of the E.P. also appeals to us. Considerations of prima facie case and balance of convenience were rightly
taken into account by the learned single Judge.
We see no valid ground to suspend the interim order.
The contention of the learned counsel for the appellant that continuance of interim order should be made conditional upon furnishing of
security or at least insisting on an undertaking to indemnify the loss,
does not merit acceptance. Incidentally, it may be mentioned that the
counsel for the appellant did not express any doubts about the solvency
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and financial capacity of the first respondent company.
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However, the grievance of the appellant that on account of the interim
order, the appellant is incurring substantial expenditure day to day, has
to be suitably redressed. To this limited extent, we are inclined to
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safeguard the interest of the appellant by directing the first respondent
to furnish an undertaking to the satisfaction of the Registrar (Judicial)
of this Court to pay a maximum amount of 600 U.S. Dollars per day
from 19.11.1999 (date of hearing this appeal) onwards till the date of
disposal of E.P. and also to pay crew's wages subject to the proof of
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actual expenditure being furnished by the appellant to the first respondent in respect of all the items.
The O.S.A. is dismissed subject to the above direction. No costs.
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SUPREME COURT REPORTS
[2000] SUPP. 2 S.C.R.
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We consider it a fit to be heard by Division Bench."
In terms of the order as above, the Execution Petition itself was placed
before the Bench of the learned Chief Justice wherein upon recording concurrence as regards the maintainability of the petition it was observed that the
Execution Petition be heard on merits and hence the Special Leave Petition
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before this Court under Article 136 of the Constitution being SLP© No. 4410
of 2000. Incidentally, be it noted that there is in the record of this Court another
SLP being SLP© No. 18616 of 1999 against the judgment of the Division
Bench of the High Court as passed earlier and as noticed above, but since both
the matters pertain to self same subject matter, this Bench deemed it fit to hear
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both the appeals together and deal with the same in one judgment.
Before adverting to the most illuminating and lucid submissions of the
learned Senior Advocates Shri P. Chidambaram, for the appellant and Shri
Ashok H. Desai, for the respondent No. I, a brief backdrop of the admiralty
jurisdiction of the country may be a useful introduction: The three erstwhile
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Presidency High Courts (in common and popular parlance Chartered High
Courts) namely, Calcutta, Bombay and Madras were having the Letters Patent
for the conferment of the ordinary original civil jurisdiction and by reason of
the provisions contained therein read with the Admiralty Court Act, 1861 and
subsequent enactment of Colonial Courts of Admiralty Act, 1890 and Colonial
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Courts of Admiralty (India) Act, 1891, the admiralty jurisdiction on the three
High Courts noticed above can be fairly traced. This special Admiralty jurisdiction was saved by the Government of India Act, 1915 as also that of 1935
and subsequently protected in terms of Article 225 of the Constitution.
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By and under the provisions of Colonial Courts of Admiralty Act, 1890,
the High Courts of these three Presidency towns were conferred with the same
jurisdiction as was vested in the High Court of England and the High Courts
were declared to be otherwise competent to regulate their procedure and practice as would be deemed necessary corresponding to the Indian perspective in
exercise of the admiralty jurisdiction by way of rules framed in that regard.
There is thus no manner of doubt that there existed or is existing any fetter in
regard to the exercise of admiralty jurisdiction in so far as the three High Courts
at Calcutta, Bombay and Madras are concerned.
The other introductory aspect pertains to the conferment of admiralty
jurisdiction on to the Andhra Pradesh High Court. In terms of provisions of
Andhra State Act of 1953 (Act 30 of 1953) certain territories from erstwhile
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M.V. AL. QUAMAR v. TSAVLJRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.l 449
State of Madras were included in the State of Andhra Pradesh and the Court
at Andhra Pradesh was re-designated as the High Court of Andhra Pradesh
when the State was so named under the States Re-organisation Act, 1956. The
Andhra Pradesh High Court 'being the successor' of the High Court of Madras
[presently Tamilnadu] has thus the similar jurisdiction as was so vested in the
Madras High Court prior to the transfer. Needless to say that since Visakhapatnam
is also included in the State of Andhra Pradesh, the port of Visakhapatnam falls
within the admiralty jurisdiction of the High Court of Andhra Pradesh. It is in
this context observations of this Court in M. V. Elisabeth & Others v. Hanvan
Investment and Trading Pvt.Ltd,, Goa, AIR (1993) SC 1014 seem to be of some
assistance. This Court in paragraph 26 of the report observed:
"Assuming that the admiralty powers of the High Courts in India are
limited to what had been derived from the Colonial Courts of Admiralty Act, 1890, that Act, having equated certain Indian High Courts to
the High Court of England in regard to admiralty jurisdiction, must be
considered to have conferred on the former all such powers which the
latter enjoyed in 1890 and thereafter during the period preceding the
Indian Independence Act, 194 7. What the Act of 1890 did was, as
stated earlier, not to incorporate any English statute into Indian law, but
to equate the admiralty jurisdiction of the Indian High Courts over
places, persons, matters and things to that of the English High Court. As
the Admiralty jurisdiction of the English High Courts expanded with
the progress of legislation, and with the repeal of the earlier statutes,
including in substance the Admiralty Court Acts of 1840 and 1861, it
would have been reasonable and rational to attribute to the Indian High
Courts corresponding growth and expansion of admiralty jurisdiction
during the pre-independence era. But a restrictive view was taken on
the question in the decision of the High Courts cited above."
There is thus no scope to conclude that the Admiralty jurisdiction of the
Andhra Pradesh High Court stands 'frozen' or 'atrophied' in any way whatsoever.
The discussion above pertaining to the admiralty jurisdiction of the
Andhra Pradesh High Court in our view is rather pertinent more so by reason
of the submissions that the matter in issue pertains to maritime claim. English
legislations after the Admiralty Courts Act, 1890 are galore in the matter of
widening the scope and ambit of the jurisdiction of the Admiralty Courts: We
however, need not go into that aspect of the matter any further, suffice however,
to record our concurrence that jurisdiction of the Indian Courts also has not
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SUPREME COURT REPORTS
[2000] SUPP. 2 S.C.R.
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been 'atrophied' in any way whatsoever. [vide MV Elisabeth (supra)].
The cardinal issue pertains to the invocation of Section 44A of the Code
in the matter under consideration, for enforcement of a foreign judgment in the
Andhra Pradesh High Court stands contradicted by Mr. Chidambaram on two
specific counts. The same being on the first count: the Civil Procedure Code
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cannot possibly be made applicable to any matter of criminal or admiralty or
vice admiralty jurisdiction. The basis of the submission, however, was laid on
Section 112 of the Code. The ouster provision (Section 112) may thus be noted
herein below for its true scope and purport:
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"112. (1) Nothing contained in this Code shall be deemed-
(a)
to affect the powers of the Supreme Court under article 136 or
any other provision of the Constitution, or
(b)
to interfere with any rules made by the Supreme Court, and for
the time being in force, for the presentation of appeals to that
Court, or their conduct before that Court.
( 1)
Nothing herein contained applies to any matter of criminal or
admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts."
Incidentally, Section 112(1)(a) and (b) stand substituted by the Adaptation of Laws Order 1950 and as a matter of fact, the state of affairs prevailing
in the pre-Independence period has been set right by the legislation of 1950
(Adaptation of Laws Order). A look at the provisions of two Parallel Codes of
Civil Procedure 1882 and 1908 together with the moderation after Independence will obviously clarify the situation. The Parallel Codes and the present
Section 112 thus runs:
Code of 1882
Code of 1908
Present Section 112
616.
Nothing
herein
112.(1) Nothing contained
112. (1) Nothing contained
contained shall be underin this Code shall be
in this Code shall be
stooddeemeddeemed-
(a) to bar the full and
(a) to bar the full and un-
(a) to affect the powers of
unqualified exercise of Her
qualified exercise of His
the Supreme Court under
Majesty's pleasure in
Majesty's pleasure in rearticle 136 or any other prorecei ving or rejecting ceiving or rejecting appeals
vision of the Constitution,
appeals to Her Majesty in
to His Majesty in Council,
or
Council, or Otherwise or otherwise howsoever, or
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M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE,!.] 451
(b) to interfere with any
(b) to interfere with any
(b) .to interfere with any
rules made by the Judicial
rules made by the Judicial
rules made by the Supreme
Committee of the Privy Committee of the Privy
Court, and for the time beCouncil, and for the time
Council, and for the time
ing in force, for the presenbeing in force, for the presbeing in force, for the prestalion of appeals to that
entation of appeals to Her entation of appeals to His
Court, or their conduct beMajesty in Council or their
Majesty in Council, or their
fore that Court.
conduct before the said JuConduct before the said Judicial Committee.
[And] ~othing in this Chapter applies to any matter of
criminal or admiralty
or vice-admiralty jurisdiction, or to appeals from
orders and decrees of Prize
Courts.
dicial Committee.
(2) Nothing herein contained applies to any matter
of criminal or admiralty or
vice-admiralty jurisdiction,
or to appeals from orders
and decrees of Prize
Courts.
(2) Nothing herein contained applies to any matter
of criminal or admiralty
or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize
Courts.
This comparative analysis of the provisions of the Code as amended
from time to time unmistakably goes to show that as regards Section 112(a) and
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(b) in the post-Independence period, the powers of this Court under Article 136
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stand substituted in place and stead of His Majesty in Council and the Judicial
Committee of the Privy Council. The Adaptation of Laws Order, however, did
not in fact, add to or alter sub-section (2) of Section 112 which also finds place
in Section 616 of the 1882 Code in identical language. The non exclusion of
sub-section (2) howsoever surprising it may be in independent India, but the
fact remains that the 1950 legislation has chosen not to omit it from the Statute
Book and as such a meaning shall have to be attributed thereto. It is significant
to note that sub-section (2) of Section 112 even after the Adaptation of Laws
Order 1950 speaks of decrees of Prize Courts. In Halsbury' s Laws of England
(4th Edn. Vol.- I ) paragraph 309, the following has been stated to be the
jurisdiction of the Prize Courts:
309. Assignment to Admiralty Court. The whole jurisdiction of the
High Court belongs to all the divisions alike, and all the judges of that
court have equal power, authority and jurisdiction. However, every
action to enforce a claim for damage, loss of life or personal injury
arising out of a collision between ships or the carrying out or omission
to carry out a manoeuvre by one or more of two or more ships or noncompliance with the collision regulations is assigned to the Queens's
Bench Division and taken by the Admiralty Court. The same applies
to every limitation action, and generally to causes and matters involvE
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ing the exercise of the High Court's admiralty jurisdiction, or its
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jurisdiction as a prize court.
The word Prize has also been dealt with in Halsbury's Laws of England
(4th Edn. Vol. I ) in paragraph 352 which reads as below:
352. Prize. The High Court is a prize court within the meaning of the
Naval prize Acts 1864 to 1916, as amended by any subsequent enactment, and has all such jurisdiction on the high seas and throughout Her
Majesty's dominions and in every place where Her Majesty has jurisdiction as, under any Act relating to naval prize or otherwise, the High
Court of Admiralty possessed when acting as a prize court. The
Admiralty Court takes causes and matters involving the exercise of the
High Court's jurisdiction as a prize court.
The issue arises as to whether we have after Independence, available in
this country, the decrees of the Prize Courts or there is even any existence
thereof. Admiralty jurisdiction of the courts as noticed hereinbefore has been
by reason of the Letters Patent and certain other legislations saved by the
provisions of the Constitution. Apart therefrom, question of ascribing any
independent admiralty court as prize court in the country presently, would not
arise: Be that as it may, we do not wish to express any definite opinion in regard
thereto by reason of the fact that the same is not called for in the contextual
facts of the matter under consideration, suffice it to note that a doubt persists
as to the applicability to sub-section 2 of Section 112. In any event, if the intent
of the legislation was to do away with the applicability of provisions of the CP
Code, in terms of Section 112 (2) of the Code then and in that event, question
of continuance of Section 140 of the Code would not have arisen. Incidentally,
Section 140 (1) and (2) is a repetition of Section 645(a) of the 1882 Code. For
convenience sake, Two Parallel Codes of 1882 and 1908 and the present
Section 140 which is in identical language as that of the 1908, Code, is set out
herein below:
Code of 1882.
645-A, In any Admiralty or ViceAdmiralty cause of salvage, towage
or collision, the Court whether it be
exercising its original or its appellate
jurisdiction, may, if it thinks fit, and
upon request of either party to such
Code of 1908/Code of 1976
140.(l) In any Admiralty or ViceAdmiralty cause of salvage, towage
or collision, the court whether it be
exercising its original or its appellate
jurisdiction, may, if it thinks fit, and
shall, upon request of either party to
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cause shall, summon to its assistance,
such cause, summon to its assistance,
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....
...
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE, J.l 453
in such manner as the Court may [by
rule, from time to time,] direct, two
competent assessors, and such
assessors shall attend and assist
accordingly.
in such manner as it may direct or as
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may be prescribed, two competent
assessors; and such assessors shall
attend and assist accordingly.
Every such assessor shall receive such
fees for his attendance as [the Court
by rule prescribes, Such fees] shall be
paid by such of the parties as the Court
[in each case] may direct.
(2) Every such assessor shall receive
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such fees for his attendance, to be
paid by such of the parties as the Court
may direct or as may be Prescribed.
It is in this context a rather old decision of the Bombay High Court seem
to be apposite. The learned Single Judge of the High Court in the case of The
Bombay and Persia Steam Navigation Company Ltd. v. Shepherd and Haji
Ismail Hossein, ILR (1888) XII Bombay 237 was pleased to state as below:
"The rules regulating Admiralty practice provide that a suit shall be
commenced by a plaint according to the provisions of the Code of Civil
Procedure. They were framed when the Code of 1859 was in force, and
when the power of the Court to regulate its procedure was more
extended than it is at present. The rules subsequent to the one above
referred to, provide for the taking out of a warrant of arrest when the
suit is in rem, and make no special provision when the suit is in
personam; but Rule 54 directs that proceedings not provided for by the
rules shall be regulated by the rules and practice of the High Court in
suits brought in it in the exercise of its ordinary original civil jurisdiction. Though these rules do not apparently contemplate a suit in rem
and in personam being combined, they do not expressly or by necessary implication forbid it. The Code of Civil Procedure of 1882 applies
to proceedings on the Admiralty side of the High Court ; section 645A shows that this is so."
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Needless to record here that in accordance with the salutary principle of
interpretation and one of the golden canon of statutory interpretation being that
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the latter provision shall prevail over the earlier and in the event, the Adaptation
of Laws Order deemed it expedient to exclude applicability of the Civil Procedure Code in terms of Section 112 (2) as is being contended by Mr.
Chidambaram, question of incorporating Section 140 or continuing therewith
and in any event in the 1976 Code would not have arisen. The learned Single
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Judge in our view has rightly decided the applicability of the Code of Civil
Procedure even in Admiralty jurisdiction. Reliance was placed in support of the
exclusion of the Code pertaining to Admiralty jurisdiction in the decision of
the Calcutta High Court in the case of State of Ukraine v. Elitarious Ltd.
(wherein I was a party). A mere perusal of the judgment of the High Court,
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however, negates the contention in support of the Appellant. As a matter of
fact, Mr. Ashok H. Desai, appearing for the Respondents relies on the judgment
as a judgment in sub- silencio and we feel it rightly so, since the judgment dealt
with the various provision of C.P.Code vis-a-vis. the Admiralty actions and the
ratio decendi of the decision being Admiralty jurisdiction is not a ordinary
original civil jurisdiction and thus not a suit within the meaning of Section 86
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of the Code. In paragraph 37 of the decision in State of Ukraine v. Elitarious
Ltd. (supra), the High Court upon reference to the Jolly Varghese case (Jolly
George Varghese and another v. The Bank of Cochin, AIR (1980) SC 470
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observed as below:
"37. In this connection reference may be made to decision of the
Supreme Court in (17) Jolly George Varghese and another v. The Bank
of Cochin reported in AIR (1980) SC page 470. While considering
Article 11 of the International Covenant on Civil and Political right to
which India is a signatory, the Apex Court in paragraph 6 of the
Judgment inter alia made the following observations:-
" ............ India is now a signatory to this covenant and Article Sl(c)
of the Constitution obligates the state to "foster respect for International Law and treaty obligations in the dealings of organised
peoples with one another". Even so until the Municipal Law is
changed to accommodate the covenant what binds the Court is
the former, not the latter. A.H. Robertson in "Human Rights - in
National and International Law" rightly points out that International Conventional Law must go through the process of transformation into the Municipal Law before the international treaty
can become an internal Law ........... "
In view of the aforesaid decision of the Supreme Court, in our opinion,
even if a suit appears from the statement in the plaint to be barred by
any International Law the plaint cannot be rejected unless such International Law has gone through "the process of transformation into
Municipal Law". Thus, we conclude that in order to bring a case within
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-
M.V. AL. QUAMAR v. TSAVLIRIS SALVAGE (INTERNATIONAL) LTD. [BANERJEE,!.] 455
the mischiefof Order 7 Rule ll(d) of the Code of Civil Procedure, the
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suit must appear from the statement made in the plaint to be barred by
any state- made law including any ordinance, order, bye-law, rule,
regulation, notification, custom or usages having in the territory of
India the force of law. As the word has not been defined in the Code
of Civil Procedure, in arriving at the aforesaid conclusion, we have
thought it profitable to take aid of Article 13 (3) (a) of the Constitution
of India. Thus, we find no force in the second contention of Mr.
Mukperji."
On the wake of the aforesaid, we are unable to record our concurrence
pertaining to the exclusion of the Code in Admiralty jurisdiction. Significantly,
the Admiralty Rules of the High Court at Madras, which stand adopted by the
Andhra Pradesh High Court in no uncertain terms also negate the submission
in support of the appeal. The relevant Admiralty Rules are however, set out
herein below:
2. A suit shall be instituted by a plaint drawn up, subscribed and
verified according to the provisions of the Code save that if the
suit is in rem, the defendants, may subject to such variation as the
circumstances may require, be described as "the owners and parties
interested in" the vessel or other property proceeded against instead of
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by name.
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29. An attorney instituting a suit against any property in respect of
which a Caveat has been entered in the register of Admiralty suits shall
forthwith serve a copy of the plaint upon the party on whose behalf
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the Caveat has been entered or upon his attorney.
32. If when the suit comes before the Court it is satisfied that the claim
is well founded, it may pronounce for the amount which appears to be
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due and may enforce the payment thereof by order and attachment
against the party on whose behalf the Caveat has been entered and by
the arrest of the property if it then be or thereafter come within the
jurisdiction of the Court.
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34. Every sale under decree of the Court, shall, unless the Judge shall
otherwise order, be made by the Sheriff in like manner as a sale of
movable property in execution of a decree in an ordinary civil suit.
50. Where no other provision is made by these rules, proceedings in
suits brought in the Court in the exercise of its Admiralty Jurisdiction
shall .be regulated by the Rules and Practice of the Court in suits
brought in it in the exercise of its Ordinary Original Civil Jurisdiction.
These rules having co-relation with the ordinary civil jurisdiction thus
cannot but be said to be subscribing to a view contra to that canvassed before
us by the Appellant.
In any event Section 112 is in Part VII of the Code dealing with the
provisions pertaining to appeals: whereas Sections 96 - 108 in Part VII of the
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Code deal with appe~ls from original decrees, Sections 109 - 112 deal with
appeals to the S·1preme Court.