P L D 2016 Balochistan 26
Before Jamal Khan Mandokhail, J
Messrs BEST OASIS LTD. ---Plaintiff/Applicant.
Versus
Messrs S.Q. CORPORATION through Proprietor ---Respondent/Defendant
Admiralty Suit No.1 of 2015, decided on 18th December, 2015.
Admiralty Jurisdiction of High Courts Ordinance (XLII of 1980) --
----Ss. 3 & 5 ---Civil Procedure Code (V of 1908), O. VII, Rr. 10 & 11 ---Suit for recovery of
money ---Rejection/return of plaint ---Grievance of plaintiff was that defendant did not make
payment of consideration amount regarding vessel purchased from plaintiff ---Defendant sought
rejection of plaint on the ground that admiralty jurisdiction was not applicable -Validity -Suit for
recovery of amount of sale and damages for non -payment of such amou nt in respect of a ship did
not come within the jurisdiction of High Court under the provisions of Admiralty Jurisdiction of
High Courts Ordinance, 1980 ---Adjudication of suit would be coram non judice ---When court
lacked jurisdiction, then under O. VII, R .10, C.P.C., the plaint should, at any stage of the suit, be
returned to plaintiff to be presented to the court having jurisdiction in the matter, instead of
rejection of plaint ---High Court converted application of defendant from rejection of plaint into
application under O. VII, R.10, C.P.C. for return of the plaint ---Application was allowed in
circumstances.
Talat Waheed Khan for Applicant/Plaintiff.
Habib Tahir for Respondent/Defendant.
Date of hearing: 16th November, 2013.
ORDER
JAMAL KHAN MANDOKHAIL, J. ---The plaintiff in the plaint contended that on -
19th December 2014, the plaintiff sold a vessel namely TULA to the defendant. A memorandum
of agreement was executed, which contains terms and conditions of the transaction. The plaintiff
claims that the defendant has stopped payment of the vessel, therefore, the present suit was filed
with following prayer:
"It is respectfully prayed on behalf of plain tiff thatreek Honorable Court may be pleased
to pass judgment and reeh is in favour of pla intiff and against the defendant as under:
1. Judgment and Decree for US$ 11,15,226/. to be paid by the defendant to the plaintiff
with future markup thereon 20% from the date of suit till realization:
2. To restrain the defendant, his agents, nominees , administrators and everybody for and
on his behalf through or under him in any capacity from removing the said vessel MT
TULA .from Gadani to any other place and/or dismantling the same, converting into
scrap and/or selling the same for his own wrongful gain to any person and/or to misuse
the same for his own wrongful benefit.
3. To issue warrant of arrest of vessel MT TULA and it may not be allowed to leave
the limits of territorial jurisdiction of this Hon'ble Court.
4. To award damages of US$ One M illion with future markup at the rate of 20%
from the date of suit till realization.
5. Cost of the Suit, and, any other relief which this Honorable Court may deem fit and
proper under the circumstances of the Case, may also be granted though not prayed for
here in specifically but the plaintiff is founded entitled thereto under the Law and equity."
2. The suit was contested by the defendant by way of filing of a written statement, raising legal
objections with regard to maintainability of the suit. The defendant also filed an application
under Order VII, Rule 11, C.P.C. with a request to reject the plaint. The plaintiff/respondent filed
reply to the application. The parties agreed to dispose of the application in the first stance, hence
the arguments of the learned counsel for the parties were heard.
3. Learned counsel for the applicant/defendant stated that the claim PLD of the
respondent/plaintiff is with regard to payment of the amount in terms of the memorandum of the
agreement. According to him, t he agreement contains an arbitration clause, which says that in
case of any dispute with regard to fulfillment of the terms and conditions of the agreement, the
same shall be referred to the single arbitrator, therefore, this Court has no jurisdiction to e ntertain
the suit. The learned counsel added that even otherwise, the vessel in question has already been
dismantled and converted into scrape, therefore, no vessel is in existence, as such, this Court in
admiralty jurisdiction cannot entertain the suit, w hich is liable to be rejected. The learned counsel
stated that even otherwise the suit for recovery and damages is not maintainable under the
provision of the Admiralty Jurisdiction of High Courts Ordinance, 1980 (called hereinafter as
"the Ordinance"), th erefore, the plaint is liable to be rejected.
4. Learned counsel for the respondent/plaintiff opposed the contention and stated that the
plea raised by the applicant/defendant is unsupported by any evidence, whereas the contents of
the plaint disclosed a cause of action, therefore, the plaint cannot be rejected. He stated that the
plaint could only be rejected if from the statement made therein, this Court comes to a
conclusion that the same is barred by any law. According to him, the suit has rightly bee n filed
under the Ordinance, therefore, the plaint cannot be rejected. He stated that the vessel has not
been broken 100%, rather the applicant/defendant has started dismantling of the vessel and the
scrape has been stored at Gadani Breaking Yard, therefor e, it is still to be considered as vessel, as
such, this Court has the jurisdiction to entertain the stilt.
5. I have heard the learned counsel for the parties and have gone through the record. The
admitted fact of the case is that the parties entered in to sale transaction in respect of the vehicle
through a memorandum of agreement dated 19th December 2014. The plaintiff through the
instant suit invoked the admiralty jurisdiction of this Court, therefore, it would be appropriate to
reproduce Section 3 of the Ordinance as under:
"3. Admiralty Jurisdiction of the High Court.
(1) The Sindh High Court and the High Court of Baluchistan shall have the exercise
within their respective territorial , jurisdiction, Admiralty jurisdiction as is in this
Ordinance provided and the Lahore High Court and the Peshawar High Court shall,
within their respective territorial jurisdiction, have and exercise the said jurisdiction in
cases in which any question or claim relating to aircraft is to be determined;
(2) The Admi ralty jurisdiction of the High Court shall be as follows, that is to say,
jurisdiction to hear and determine any of the following causes, questions or claims:
(a) Any claim to the possession or ownership of a ship or to the ownership of any
share therein or far recovery of documents of title and ownership of a ship, including
registration certificate, log book and such certificates as may be necessary for the
operation or navigation of the ship;
(b) any question arising between the co -owners of a ship a s to possession,
employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage done by a ship,.
(e) any claim for damage received by a ship:
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a
ship or in her apparel or equipment, or of the wrongful act, neglect or default of the
owners, charterers or persons in possession or control of a ship or of the master or crew
thereof or of any other person for which wrongful acts, neglects or defaults, the owners,
charterers of persons in possession of control of a ship are responsible, being an act
neglect or default in the navigation or management of the ship, in the loading, carriag e or
discharge of goods on, in or from the ship or in the embarkation carriage or
disembarkation of persons on, in or from the ship:
(g) any claim for loss of or damage to goods carried in a ship;
(h) any claim arising out of any agreement relating to the carriage of goods in a ship
or to the use or hire of a ship;
(i) any action or claim in the nature of salvage of life from a ship or cargo or any
property on board a ship or the ship itself or its apparel, whether services rendered on the
high sea or within territorial waters of internal waters or in a port, including any claim
arising by virtue of the application by or under section 12 of the Civil Aviation
Ordinance, 1960, (X0C11 of 1960), of the law relating to salvage to aircraft and their
apparel and cargo;
(j) any claim in the nature of towage in respect of a ship or an aircraft whether
services were rendered on the high sea or within territorial waters or internal waters or in
a port;
(k) any claim in the nature of pilotage in respect of a s hip or an aircraft,
(1) any claim in respect of necessaries supplied to a ship:
(m) any claim in respect of the construction, repair or equipment of a ship or dock
charges or dues:
(n) any claim by a master or members of the crew of a ship for wages and any claim
by or in respect of a master or member of the crew of a ship for any money or property
which, under any of the provisions of the Merchant Shipping Acts or the Merchant
Shipping Act, 1923 (XXI of 923), is recoverable as wages or in the Court a nd in the
manner in which wages may be recovered:
(o) any claim by a master, shipper, charterer or agent in respect of disbursement made
on account of a ship:
(p) any claim arising out of an act which is or is claimed to be a general average act;
(q) any claim arising out of bottomry or respondentia;
(r) any claim for the forfeiture or condemnation of a ship or of goods which are being
or have been carried, or have been attempted to be carried, in a ship as a Naval Prize or in
violation of customary law of the sea or otherwise, or for the restoration of a ship or any
such goods after seizure, or for Doritos of Admiralty, together with any other jurisdiction
for the grant of such reliefs as are provided under the Merchant Shipping Acts or the
Merchant Shipping Act, 1923 (XXI of 1923), any other jurisdiction which has vested in
the High Courts as a Court of Admiralty immediately before the commencement of this
Ordinance or is conferred by or under any law and any other jurisdiction connected with
ships or aircraft in respect of things done at sea which has by tradition or custom of the
sea been exercise by a Court of Admiralty apart from this section.
(3) The jurisdiction of the High Court under clause (b) of subsection (2) includes
power to settle any account outstanding and unsettled between the parties the parties in
relation to the ship, and to direct that the ship. or any share thereof, shall, be sold, and to
make such other order as the Court thinks fit.
(4) The reference in clause (1) of subsec tion (2) to claims in the nature of salvage
includes a reference to such claims for services rendered in saving life from a ship or an
aircraft or in preserving cargo, apparel of wreck as, under any law for the time being in
force, are authorized to be mad e in connection with a ship or an aircraft.
(5) The preceding provisions of this section apply:
(a) in relation to all ships or aircraft, whether Pakistani or not and whether registered
or not and whether the residence or domicile or their owners may be;
(b) in relation to all claims, wheresoever arising including, in the case of cargo or
wreck salvage, claims in respect of cargo or wreck found on land; and
(c) so far as they relate to mortgages and charges, to all mortgages and charges
created und er the foreign law;
Provided that nothing in this subsection shall be construed as extending to cases in which
money or property is recoverable under any of the provisions of the Merchant Shipping
Acts or the Merchant Shipping Act, 1923 (XXI of 1923).
6. The above provision of law does not contain any clause entitling a person to file a suit for
recovery of an amount with regard to the sale transaction of a vessel, nor is there any provision
for the performance of an agreement for sale of a ship. The pl aintiff has claimed recovery of the
amount due to non -performance of the obligation on the part of the applicant/defendant in terms
of the agreement. The Ordinance is a special law, which assigns powers to the High Court in
respect of matters mentioned in Section 3. Any suit, subject matter of which does not fall within
the above provision of law, does not lie before this Court in its admiralty jurisdiction. Since the
claim as set forth by the plaintiff in his suit does not come within the purview of sectio n 3 of the
Ordinance, therefore, this court has no jurisdiction to entertain the same, while exercising
admiralty jurisdiction.
7. Besides, the applicant/defendant claims that the ship has been dismantled totally. The
respondent/plaintiff denied 100% dis mantling of the ship, however, he admits the fact that
demolition of the vessel has been started and a portion of the scrape has been stored at Gadani
Ship Breaking Yard. Under the admiralty jurisdiction, this Court can entertain a claim mentioned
in Secti on 3, in respect of a ship, therefore, it would be appropriate to reproduce the definition of
ship, defined in section 2(K) of the ordinance as under:
" 'Ship' includes any description of vessel used in navigation; "
In view of the admission on the part of respondent/plaintiff that the ship has been partially
dismantled and converted into scrape, then no question of its navigation arises. If the vessel loses
its characteristics of navigation, then it cannot be termed as a vessel. Alter demolition, it has now
become scrape, therefore, the ship is no more in existence, as such, the suit is not competent
under the Ordinance, hence this Court has no jurisdiction to entertain the same.
In view of above, it is clear that a suit for recovery of the amount of sale and damages for non -
payment of the said amount in respect of a ship does not come within the jurisdiction of this
court under the Ordinance. Adjudication of the present suit under the circumstances would be
coram non judice. When the court lacks ju risdiction, then under Order VII, Rule 10, C.P.C., the
plaint shall at any stage of the suit be returned to the plaintiff to be presented to the Court having
jurisdiction in the matter, instead of rejection of the plaint. The application filed by the defen dant
under Order VII, Rule 11, C.P.C. is converted into application under Order VII, Rule 10, C.P.C.
and is allowed.
Thus, in view above, the plaint is hereby returned to the plaintiff who may present it before the
forum having jurisdiction in the matter .
MH/14/Bal. Plaint returned.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.