The High Court in terms of Order dated 27.2.1997 issued arrest warrant.
The Advocate Commissioner was informed about the decree of the appellant on 25.9.1997.
Hence, this appeal by special leave by the appellant.
Ltd. for a sum of US 4,70,000 and they were directed to pay the balance companysideration within three weeks, failing which the earnest money deposited by them would stand forfeited.
On 7th October 1998, Bombay High Court made a further order in favour of the appellant who filed execution petition in the Bombay High Court.
Advocate companymissioner was also directed to deposit the entire amount to the credit of the suit.
Ltd. On 1.9.1998, Madras High Court accepted the only bid of M s. Jansee Steel Industries Pvt.
The appellant, who is an unsecured creditor, by standing outside the Court cannot claim exclusively on the basis of an order of attachment.
In the execution petition moved by the appellant in February, 1998, Bombay High Court issued numberice under Order 21 Rule 52 of the C.P.C., requesting the Madras High Court to hold the decretal sum in an aggregate amount of US 58,325.64 from and out of the funds deposited by M s. Jansee Steel Industries.
Learned companynsel submitted that the appellant had knowledge of the proceedings pending before the learned Single Judge of the Madras High Court, where all the creditors were seeking relief for disbursement of fund.
Ms. Vijaylaxmi Menon, learned companynsel appearing for the appellant, assailed the impugned order passed by the Madras High Court on various grounds.
The appellant had chosen number to object to the said disbursement and number participated in the proceeding.
Whereas in the Bombay High Court, Appellant filed an admiralty suit A.S.No.27 of 1997 in March, 1997 for recovery of amount of US 39,712.97 i.e. the security of Appellants suit claim.
On 19.03.1997, Bombay High Court directed the order of arrest of Vessel M.V. Eleni.
The appellant ought to have made the claim under Rule 11 of Order XLII of O.S. Rules.
On 25.04.1997, terms and companyditions for sale were approved by the Madras High Court.
Meanwhile, High Court of Madras appointed Respondent No.
Meanwhile after the companyfirmation of the sale, the sale proceeds were disbursed to the crew members of statutory authorities and a direction was issued on 6.10.1998 to the companymissioner to deposit the balance amount of Rs.
Ltd. In April 1998, however, the said sale was set aside in appeal and a fresh sale was directed.
Unaware of such proceedings, Bombay High Court, on 11.09.1997, passed an ex parte decree in the suit filed by the appellant for a sum of US 50,081.74 with interest, which was companymunicated to the Advocate Commissioner Respondent No.2 , appointed by the Madras High Court, with a request to take numbere of their claim against the Vessel.
On 25.9.1998, Bombay High Court passed an order directing the Registrar of the Madras High Court to remit the funds lying pursuant to the Order 21 Rule 52 attachment.
12,38,164/ .
On 24.1.1998, the Madras High Court again companyfirmed the sale in favour of M s. Jansee Steel Industries Pvt.
Before the aforesaid decree transmitted by the Bombay High Court was received by the Madras High Court on 24.1.1998, learned Single Judge of the Madras High Court companyfirmed the sale in favour of M s. Jansee Steel Industry Pvt.
Further, the appellant was the lone claimant before the Bombay High Court whereas all the other claimants were pursuing their claims before the Madras High Court, which alone has jurisdiction to decide on the rights of the parties and the inter se priorities amongst them.
Thereafter, appellant challenged the order dated 06.10.1998 passed by single Judge in Application No.1217 of 1997 in C.S.No.97 of 1997, pleading before the Division Bench of the Madras High Court that on the service of numberice issued by the Bombay High Court under Order 21 Rule 52 CPC, the appellant was entitled to the decretal amount alone and the amount attached ought number to have been disbursed to third parties and the custody companyrt namely the Madras High Court has numberauthority to make rateable distribution.
Ltd. until further orders of the Madras High Court.
Ltd. on 24.10.1997.
Ltd. and directed that the moneys be held over to the account of the suit.
The Sheriff of Mumbai also companymunicated to Respondent No.2 on 21.10.1997 that the Vessel MV ELENI was arrested in due companypliance of Warrant of Arrest dated 18.03.1997 and 21.03.1997 passed by the High Court of Bombay and requested them to take numbere of the arrest order passed by Bombay High Court.
As numbericed earlier, the plaintiff has already filed Appeal No.175 of 1998 in the Madras High Court.
Meanwhile, on 23.4.1998, the sale was set aside and a fresh tender was directed by the Division Bench of the Madras High Court.
Had the appellant brought to the numberice of the Bombay High Court about the proceedings entertained by the Madras High Court, which were much prior to the suit filed by them, the Bombay High Court would number have passed the attachment order.
2 as the Advocate Commissioner.
Ltd. on 05.10.1998 and ordered reimbursement of companyt of sale, payment to the crew members and charges to the statutory authorities.
The said order of attachment was received by the Madras High Court on 16th June, 1998.
Ltd was accepted and the Madras High Court companyfirmed the sale in its favour and the balance amount was directed to be remitted.
On 25.09.1998, Bombay High Court informed the passing of ex parte decree in favour of appellant and asked Registrar of the Madras High Court to remit the funds lying attached pursuant to Order 21 Rule 52 Notice.
On 7.9.1998, Registry of the Madras High Court effected the attachment and returned the numberice of the Bombay High Court with a pro order to the Bombay High Court companyfirming that the monies directed by the Bombay High Court to be attached stood duly held to the credit of the appellant.
Madras High Court companyfirmed the sale made in favour of M s. Jansee Steel Industry Pvt.
Publications with respect to the sale of the said vessel were made in various newspapers.
The Registry of Bombay High Court sent letters dated 28.01.1999, 09.03.1999 and 11.03.1999, requesting the Registrar of the Madras High Court to give reply for number remittance of the attached funds.
After hearing learned companynsel for the parties, Division Bench of the Madras High Court dismissed the application keeping it open for the appellant to lay their claim under Order XLII Rule 11 of Original Side Rules.
Finally, on 03.09.1999, Bombay High Court gave liberty to the appellant, to obtain suitable orders from the Madras High Court and closed the Execution Application.
However, the amount of earnest money lying with the Advocate Commissioner was number returned to M s. Jansee Steel Industries Pvt.
The factual matrix of the case is that in February, 1997 Respondent No.1 filed a suit being C.S.No.97 of 1997 under the Admiralty Jurisdiction of High Court of Madras, for recovery of US 22,705.84 against Respondent No.3 herein along with an application praying for an order of arrest of the vessel which arrived at Port of Madras.
Y. Eqbal, J. This appeal is directed against the judgment and order dated 27.11.2003 passed by a Division Bench of the High Court of Madras in OSA No.175 of 1998, dismissing the appeal of the appellant, upholding inter alia the disbursements made by Single Judge of the sale proceeds received by sale of the ship in question named as motor vessel Eleni.
