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Bombay High CourtIndian Cases

Barthels And Luders Gmbh vs M.V. “Dominique” on 9 October 1987

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Bombay High Court
Barthels And Luders Gmbh vs M.V. “Dominique” on 9 October, 1987
Equivalent citations: AIR1988BOM380, AIR 1988 BOMBAY 380, (1988) MAH LJ 728
Author: Sujata Manohar
Bench: Sujata Manohar
1. This is a Chamber Summons taken out by the plaintiff to the suit and defendant to the counter-claim for excluding from the suit the counter-claim filed by the defendants. The present suit has been filed by the plaintiff, a company incorporated in the Federal Republic of Germany and having its registered office at Hamburg to recover a sum of DM. 45,365 which is equivalent to Rs. 2,99,409, together with interest thereon in respect of various spare parts applied and repairs carried out to the 1st defendant vessel at Hamburg and elsewhere. The suit was filed under the admiralty jurisdiction of this court when the 1st defendant vessel was in Bombay. The vessel arrived in Bombay on 12-11-1986. The suit was filed on 27-11-1986 and the 1st defendant vessel was arrested under an order of 29th Nov., 1986 of this court. The defendants furnished a security in the form of Bank Guarantee in the sum of Rs. 4,50,000 as per the order of arrest and secured the release of the vessel under instrument of release dt. 24-12-1986 issued by the Admiralty Registrar of this court. The vessel thereafter left the Port of Bombay.

2. The 1st defendant is the vessel while the 2nd defendant is the owner of the vessel. The 2nd defendant has its registered office at Limassol, Cyprus. The defendants have filed their written statement and counter-claim on or about 4-8-1987. In the counter-claim the defendants have claimed damages equivalent to Rs. 36,72,801.90 from the plaintiff for defective repairs to the suit ship and for alleged improper and negligent manner in which repairs to the generator of the 1st defendant vessel were carried out at Hamburg and Bremen by the plaintiff.

3. The present Chamber Summons is taken out by the plaintiff for excluding the counter-claim. According to the plaintiff, the counter-claim does not arise under the admiralty jurisdiction of this court. They also submit that the claim under the counter-claim has, arisen outside the jurisdiction of this court and have further submitted that since the counter-claim is for unliquidated damages and will require separate and independent evidence, there is no common issue in the suit and the counter-claim and the two, therefore, should not be tried together.

4. This High Court was set up as a court of Admiralty under the Colonial Courts of Admiralty (India) Act, 1891. It is now laid down by a number of decisions of this Court (See , Dimitrios Paizis v. Motor Vessel “Nicos”, Kamlakar Mahadav Bhagat v. Scindia Steam Navigation Co. Ltd.) that as the Court of Admiralty this Court exercises the same jurisdiction as was exercised in England by the Court of Admiralty under the Admiralty Courts Act, 1861. Under Section 4 of the Admiralty Courts Act, 1861, the High Court of Admiralty shall have jurisdiction over any claim for the building, equipping, or repairing of any ship, if at the time of the institution of the cause the ship or the proceeds thereof are under arrest of the Court. It is not necessary to examine the other sections of this Act, save and except that under S. 35 the jurisdiction conferred by the Act on the High Court of Admiralty may be exercised either by proceedings in rem or by proceedings in personam. The counter-claim filed by the defendants who are the plaintiffs to the counter-claim does not strictly fall within the admiralty jurisdiction of this court. Is it however maintainable under any other provisions of law in this Court?

5. In the case of The Cheapside reported in 1904 Probate Division, 339 the owners, master and crew who were all foreigners outside the jurisdiction of the English Court, commenced an action in rem in the Admiralty Division against the defendants who were the owners of a British ship for salvage services rendered to the British ship in Northern Russia, outside the ordinary jurisdiction of the English Court. The defendants, that is to say, the owners of the British ship set up a counter-claim in personam for demurrage due by the owners under two charterparties. The counter-claim was sought to be struck off. The Judge in the first instance exercised his discretion in refusing to strike out the counter-claim. The appeal Court upheld this decision and said that the discretion of the judge in refusing to strike out the counterclaim on the ground of embarrassment had been rightly exercised. It upheld the judgment of the Court of first instance that the Court had the jurisdiction to try the counter-claim otherwise than in admiralty, and hence could entertain it.

6. Under Order 8, Rule 6A of the Code of Civil Procedure & defendant in a suit may set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The proviso set out that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Under Order 8, Rule 6, therefore, once a suit has been filed the defendant can set up by way of counter-claim any right or claim against the plaintiff which arises before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter-claim may be a claim in the nature of damages also. The only restriction as set out in the provision is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a united proceeding Although Order 8, Rule 6A provides that the counter-claim is to be treated as a plaint and is to be governed by the rules applicable to plaints, it is not to be treated as a completely separate suit. In fact under Order 8, Rule 6A Sub-rule (2) the counter-claim is to be treated as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, so that both the proceedings can be disposed of by a common judgment.

7. In the case of T.K.V.S. Vidyapoornachary Sons v. M.R. Krishnamachary the Madras High Court considered the provisions of Order 8, Rules 6A and 6C relating to the suit claim and the counter-claim. The Court observed that Order 8, Rule 6A speaks of a counter-claim as a plaint in one place and as a cross-claim in another place. Nevertheless, in its most operative provision it lays down that the court shall pronounce a single judgment in the suit, both on the original claim and on the counter-claim. The susceptibility of a counter-claim to be dealt with in a single judgment along with a suit claim, runs counter to the idea of the two being regarded as things apart. Rule 6C specifically lays down a special procedure to separate the suit claim from the counterclaim, wherever the separation is called for. This provision emphasises by implication that as a general rule a suit claim and a counterclaim ought properly to be regarded as constituting a unified proceeding. A counterclaim, therefore, between the same parties needs to be only within the pecuniary jurisdiction of the court where it is filed.

8. In the case of Griendtoveen v. Hamlyn and Co. reported in (1892) 8 TLR 231 a suit had been filed by Hamlyn and Co. for damages for breach of contract against a Dutch firm which was outside the jurisdiction of the English Court. Hamlyn and Co. were not granted leave to serve the Dutch firm which was outside the jurisdiction of the court. Thereafter the Dutch firm instituted an action against Hamlyn and Co. in respect of the same subject-matter. Hamlyn and Co. counter-claimed for damages. This counterclaim was based on the same cause of action as the original suit which had not been entertained because the Dutch firm was outside the jurisdiction of the court. When the counter-claim was sought to be excluded by the Dutch firm on the ground that the counter-claim was without jurisdiction, the court refused to exclude the counter-claim holding that the Dutch firm having brought themselves within the jurisdiction by suing in England, the defendants were entitled to counter-claim against them. Lord Coleridge who delivered the judgment said: “It was equally monstrous and absurd to attempt to prevent the English firm from setting up their counter-claim in the action. It was true that the action against the Dutch firm had failed for want of jurisdiction; but now they were suing in this Court, and had so brought themselves within the jurisdiction, and of course were liable to a counter-claim. To hold otherwise would be to effect an injustice as gross as it would be absurd.” He was really “astonished that it should ever have been supposed that in this Court, where, at ail events, justice was the object to be kept in view, so gross an injustice could be allowed to prevail” Although the reasoning is couched in language which is some what emphatic the same would apply to the present counterclaim also. Under Order 8, Rule 6, once the suit is within the jurisdiction of this court, the defendant is entitled to file a counter-claim provided the counter-claim is within the four corners of Order 8, Rules 6A. There is no provision under this Order that the counter-claim must also comply with the requirements as to territorial jurisdiction. The only compliance regarding jurisdiction is in connection with the pecuniary jurisdiction of the court.

9. Under Order 8, Rule 6C however, it is open to the plaintiff to apply for execution of the counter-claim. In the present case, I do not see any reason why the counter-claim should be tried in an independent suit. The claim of the plaintiff relates to repairs which the plaintiff carried out at Hamburg and Bremen. The plaintiffs submitted themselves to the jurisdiction of this court by filing the present action in admiralty. A counter-claim can, therefore, be filed against them under Order 8, Rule 6A. The counter-claim of the defendants is directly related to these same repairs which the plaintiffs had carried out at Hamburg and Bremen. The defendants are defending the suit on the ground that they are not liable to pay any amount to the plaintiff for these repairs because, according to them, these repairs were not properly carried out. As a result the defendans claim to have suffered damages. In the counter-claim they have set out various grounds on which they are making a counter-claim for defective repairs and/or for negligence of the plaintiff in carrying out those repairs. The two claims are, therefore, directly connected and it would be most unfair to the defendants to drive them to a separate suit in a different court.

10. In the premises, the Chamber Summons is dismissed with costs.

11. On the application of the plaintiff, time for filing a reply to the counter-claim extended by 12 weeks from today since the plaintiff is in Hamburg.