It does not in any way prohibit the institution of a suit or other legal proceeding against a ship/Vessel owned by the Corporate Debtor when invoking the Admiralty Jurisdiction of this Court. "The said provision prohibits the institution of a suit or other legal proceeding against the Corporate Debtor only. The Court observes that the bar under Section 33 (5) is applicable only against the Corporate Debtor and not his property which would be a separate entity. where a liquidated amount is stated to be payable by way of damages, the same can only be payable "if it is a genuine pre-estimate of damages fixed by both parties and found to be such by the court". this "Penal Berth Hire" is nothing but a "penalty" in terms of Section 74 of the Contract Act, 1872, and therefore the Plaintiff is required to prove the actual loss for which damages are claimed. the Plaintiff is not entitled to any Penal Berth Hire charges as they were in the nature of a penalty and therefore have to be proved.In other words, the Plaintiff, having already filed its claim before Defendant No.2 (the Liquidator of Tag Offshore Ltd), was not entitled to file and prosecute the present suit as the amounts claimed before the Liquidator as well as in the present suit arose from the same cause of action. The above suit is barred by the principles of res judicata.S.33 (5) provides that "subject to Section 52, when a liquidation order has been passed, no suit or other legal proceeding shall be instituted by or against the corporate debtor." That the suit was not maintainable considering the bar contained in Section 33 (5) of IBC, 2016.
Eventually, the plaintiff instituted the present Admiralty suit to recover berthing charges and other costs.Ĭounsel for the defendants advanced the three main arguments against the present suit:
Meanwhile, the company that owned the ship went into liquidation under the IBC and Defendant No.2 was appointed as the Liquidator. The plaintiffs had also paid other expenses to secure the ship during a storm. The plaintiff, represented by Advocate Prathamesh Kamat for Parinam Law Associates, said that the vessel was docked at its port on 13th February 2019 and they had raised timely bills as berthing charges. for a sum of Rs Rs.9,37,19,098 together with interest 18% p.a. 9705550), the ship owned by Tag Offshore Ltd.
Angre Port Private Ltd filed an interim application under the provisions of Order XIII-A read with Order XII Rule 6 of the Code of Civil Procedure, 1908 (for short the "CPC") seeking a summary judgment against TAG 15 (IMO.
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