LexMAYAR (H.K.) LTD. AND ORS. versus OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPRESS AND ORS.
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A MA YAR (H.K.) LTD. AND ORS. v. OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPRESS AND ORS. JANUARY 30, 2006 B [RUMA PAL AND P.P. NAOLEKAR, JJ.] Admiralty Suit·-lndian Carriage of Goods by Sea Act, 1925--Section 2 and Schedule to the Act-~ivil Procedure Code 1908-0rder VII Rule //, Order V Rule 2. Section JO-Power of High Court to grant stay--Charter C Party Agreement between plaintiff and defendant company---Defendant agreeing to carry on board the vessel a quantity of limber logs from various ports of Malaysia to Calcutta Port--Out of 642 logs, 5 78 Jogs lying on deck of the vessel and described as deck cargo in BOL-At Calcutta Port short landing of 456 logs lying on deck-Plaintiff filing admiralty suit in the High D Court at Ca/cul/a alleging breach of Charter Party Agreement by failing and neglecting to carry on board the vessel the agreed quuntity of logs--Single Judge directing arrest of the vessel--Subsequent direction to release vessel on PNB submilling /el/er of intent for furnishing the hank guarantee- Defendants filing application under Order VII, Rule 11 for dismissal of suit in Iimine alleging that Calcul/a Court has no jurisdiclion to entertain the E suit and that the suit does not disclose any cause of action-Single Judge dismissing the application--Division Bench granting permanent stay of the suit and held that under the forum selection clause the Singapore Court alone has jurisdiction to entertain the suit-Allowing the appeal, held that since the defendant had not made out a case for stay of proceedings of the F Admiralty Suit, the High Court erred in passing an order of permanent stay- However, High Court was justified in holding thG: the powers under Order VII. Rule 11 could not be exercised for rejection of suit. Admiralty Suit--Civil Procedure Code-Order VII. Rule 11 and Section 10--rejection of plaint-Scope of power--Court has to read the entire plaint G as a whole to find out whether it discloses a cause of action-··Plainl cannot be rejected on the basis of allegalions made by the defendant- -As avermenls made in the plaint do disclose the cause of action, the High Court \fas rig/11 in holding that powers under Order VII, Rule 11 could not be exercised for rejection of suil. H 860 ( \ MAY AR (HK) LTD.•·. OWNERS & PARTIES, VESSEL M.V. FORTUNE EXPRESS 86 J Admiralty Suit-Civil Procedure Code 1908, Order VII, Rule //- A Calcutta High Court (Original Side) Rule, admiralty rules 3, 4, 6, 27- Jurisdiction-Admiralty Suit claiming damages for short delivery of cargo- Defendant taking the plea of exclusion of jurisdiction under Forum selection clause in the agreement between the parties-No reference to the said clause in the plaintiff's pleading-Whether it is a case of suppression of material facts-Held, it cannot be considered a case of suppression and the question B of jurisdiction ought to be adjudicated on the basis of the material placed on record at the trial. Civil Procedure Code, Order VI, Rule 2-Admiralty Suit-Pleadings- Materia/ facts-Material facts are the facts on which a party relies for his C claim or defence-Plaintiff has to plead the facts on which he relies to prove his case and it is for defendant to plead the facts on which his defence stands-Plaintiff not required to plead facts on which defendant's defence stands. Exclusion Clause-Civil Procedure Code 1908, Order VI, Rule 2- ffi When the Court has to decide question of jurisdiction pursuant to an ouster clause it is necessary to construe ii properly to see whether there is ouster of jurisdiction of other Courts-When the clause is clear, unambiguous and specified, accepted notions of contract would bind the parties-Unless the absence of ad idem can be shown, other courts should avoid exercising jurisdiction. F Civil Procedure Code 1908, Order VI, Rule 2-Admiralty Suit-Stay of suit on the ground of abuse of the process-Held defendant would be required to show very strong case in his favour-The power could be exercised by the court only if the defendant is able to show that the impugned action is F frivolous, vexatious or is taken simply to harass the defendant or where there is no cause of action in law or in equity. Indian carriage of Goods by Sea Act, 1925-Article Ill clause (6), Section 2-Limitation-Forum non convenience-Transportation of goods by sea in ships from Malaysia to Calcutta port-Short landing of goods at G Calcutta Port-Filing of Admiralty Suit in the Hig
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