2026:MHC:471 A.Nos.6081 of 2025 & 155 of 2026

in C.S.(C.D.) No.314 of 2025

In the High Court of Judicature at Madras

Reserved on

02.2.2026

Delivered on:

06.2.2026

Coram:

The Honourable Mr.Justice N.ANAND VENKATESH

Application Nos.6081 of 2025 & 155 of 2026

in C.S.(Comm.Div.) No.314 of 2025

Om Freight Forwarders Limited,

a company incorporated under the

laws of India having its regd. office

at 101, Jayant Apartments, ‘A’ Wing,

Opp Sahar Cargo Complex, Sahar

Andheri E, Mumbai-400099,

Maharashtra, India, through its

Authorised Signatory

Mr.Raj Ashwin Joshi ...Applicant in A.No.

6081/2025 &

Respondent in A.No.

155 of 2026 &

Plaintiff in CS

Vs

Owners and Parties interested in

M.V.Nereus Progress [IMO 9170913],

a Motor Vessel flying the flag of

St.Kitts and Nevis, lying at the

V.O.Chidambaranar Port and

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in C.S.(C.D.) No.314 of 2025

rep. by her Master ...Respondent in

A.No.6081/2025 &

Applicant in A.No.

155/2026 &

Defendant in CS

CIVIL SUIT filed under ORDER VII Rule 1 of the Civil

Procedure Code read with ORDER IV Rule 1 of the Madras High

Court Original Side Rules and Section 16 of the Admiralty

(Jurisdiction & Settlement of Maritime Claims) Act, 2017 and Rules 2

& 3 of the Rules for Regulating the Procedure and Practice in Cases

brought before the High Court of Judicature at Madras in exercise of

its Admiralty Jurisdiction framed by the High Court praying for a

judgment and decree against the defendant vessel for a sum of

RS.8,82,42,636.70 Ps (comprising of principal amount of US$

73,550.06 (equivalent to Rs.66,10,679.39 Ps) and

Rs.6,90,18,750.20 Ps plus interest of US$ 20,069.03 (equivalent to

Rs.18.03,804.42 Ps) and Rs.55,09,402.66 Ps plus legal costs of

Rs.53,00,000/- along with contractual rate of interest at 18 percent

per annum on the principal outstanding sum of Rs.7,55,97,802/-

from the date of this plaint till the date of realization’ for arrest and

sale of the defendant vessel m.v. NEREUS PROGRESS in as is where

is condition together with the engines, tackles, cranes,

paraphernalia, fixtures, furniture and fittings presently in Indian

waters at V.O.Chidambaranar Port, Tuticorin, Tamil Nadu State,

India within the jurisdiction of this Court and territorial waters of

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A.Nos.6081 of 2025 & 155 of 2026

in C.S.(C.D.) No.314 of 2025

India; for a direction to adjust the sale proceeds of the defendant

vessel m.v. NEREUS PROGRESS against the suit claim; and for costs

of this suit;

APPLICATION No.6081 of 2025 filed under Order XIV Rule 8 of

Original Side Rules read with Sections 4 and 5 of the Admiralty

(Jurisdiction and Settlement of Maritimes) Act, 2017 and Section

151 of the Code of Civil Procedure, 1908 praying to grant an interim

arrest of the Vessel mv NEREUS PROGRESS, flying a flag St.Kitts

and Nevis and having IMO No.9170913 together with engines,

tackles, cranes, derricks, machinery and other paraphernalia and

articles on board the said vessel, presently flying in the

V.O.Chidambaranar Port or wherever she is found within the

territorial waters of India pending disposal of the above suit; and

APPLICATION No.155 of 2026 praying to vacate the ex-parte

order of arrest dated 04.12.2025 passed in Application No.6081 of

2025 in C.S.(Comm.Div.) No.314 of 2025 and order immediate

release of the vessel M.V. NEREUS PROGRESS IMO No. 9170913

from arrest.

For Applicant in

A.No.6081 of 2025 &

Respondent in

A.No.155 of 2026 &

Plaintiff in CS : Mr.Aswin Shankar

Mr.P.Giridharan

Mr.H.Siddharth &

Mr.Sunand Subramanian

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A.Nos.6081 of 2025 & 155 of 2026

in C.S.(C.D.) No.314 of 2025

For Respondent in

A.No.6081 of 2025 &

Applicant in

A.No.155 of 2026 &

Defendant in CS : Mr.Dhruva Gandhi

Ms.Deepika Murali

Mr.R.Anila

Mr.K.Harinarayanan &

Mr.Naishad Bharia

COMMON ORDER

In this common order, the parties will be referred to as they

are arrayed in the civil suit.

2. A.No.6081 of 2025 has been filed by the plaintiff seeking

for arrest of the vessel lying at V.O.Chidambaranar Port, Tuticorin

pending disposal of C.S.(C.D.) No.314 of 2025.

3. When A.No.6081 of 2025 came up for hearing on

04.12.2025, this Court passed the following order:

“This application has been filed for arrest

of the vessel MV NEREUS PROGRESS, flying a

flag of St.Kitts and Nevis and having IMO

No.9170913 together with engines, tackles,

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cranes, derricks, machinery and other

paraphernalia and articles on board the said

vessel, presently lying in the V.O.Chidambaranar

Port or wherever she is found within the

territorial waters of India, pending disposal of

the above suit.

2. Heard the learned counsel for the

applicant/plaintiff and carefully perused the

materials available on record.

3. The applicant is the registered owner of

the vessel MV NEREUS PROGRESS, The

respondent/defendant is the motor vessel

NEREUS PROGRESS. The respondent vessel

registered owner is HK Shipping Limited.

4. The applicant has obtained the

respondent Vessel’s Transcript, as of 27.11.2025

from St.Kitts and Nevis International Ship

Registry. The further case of the applicant is that

Nereides Marine Services is nothing but the

Bareboard Charterer of HK Shipping Limited and

it continues to be a Bareboat Charterer of the

Vessel and the present Voyage for which the

respondent vessel is calling at

V.O.Chidambaranar Port, is based on the

instructions of the Nereides Marine Services.

5. The case of the applicant is that on

24.7.2024, the applicant as the owner of the

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in C.S.(C.D.) No.314 of 2025

vessel MV.Bharadwaj Bareboard Chartered MV.

Bharadwaj to Nareides Marine Services, UAE for

a period of 4 years. The parties were governed

by the terms of the Charterparty. Between

September 2024 and August 2025, the

Bareboard Charterer delayed in making

payments of certain hire payment to the

applicant under the Charterparty. Hence, on

26.8.2024, Nereus Marine Private Limited which

is an affiliate Company of the Bareboard

Charterer, agreed to act as a guarantor of the

Bareboat Charterers’ obligations under the

Charterparty. Pursuant to the guarantee

undertaking, the applicant raised invoices upon

the Bareboard Charterer to the total tune of

USD353,293.92 and there was an outstanding of

USD73,550.06. Insofar the invoices that was

raised on the guarantor, it was for the total

amount to the tune of Rs.7,92,52,462.20 out of

which there was a total outstanding of

Rs.6,90,18,750.20.

6. According to the applicant, as of

30.11.2025, a principal sum of USD73,550.06

and Rs.6,90,18,750.20 which approximately

aggregates to Rs.7,56,29,429.59 is due and

payable by the Bareboard Charterer to the

applicant. The demand that was raised by the

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applicant upon the Bareboard Charterer and the

guarantor did not evoke any response. In fact,

the cheques issued in this regard were

dishonored due to insufficient funds/closed

account.

7. It is under these circumstances, the

present suit has been filed for recovery of money

and for arrest and sale of the Vessel belonging

to the defendant.

8. The learned counsel for the applicant

submitted that the applicant has a maritime

claim against the respondent Vessel under

Section 4(1)(h) r/w Section 5(1)(b) and 5(2) of

the Admiralty (Jurisdiction and Settlement of

Maritime Claims) Act, 2017 and therefore is

entitled to assert its maritime claim for the

recovery of the amounts due and payable to the

applicant.

9. This Court is of the considered view

that a prima facie case has been made out by

the plaintiff for grant of arrest. The balance of

convenience and irreparable hardship has also

been established by the plaintiff.

10. For the foregoing reasons, this Court

is of the considered view that to protect the

interest of the plaintiff suit claim, this Court is

inclined to grant an order of arrest of the

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defendant vessel, which is now lying at the

V.O.Chidambaranar Post, Tuticorin, which is

within the Admiralty jurisdiction of this Court.

Accordingly, there shall be an order of arrest of

the defendant vessel MV NEREUS PROGRESS, as

prayed for in this application.

11. Notice to the respondent/defendant

returnable by 8.01.2026. Registry is directed to

issue Warrant of Arrest as per the Admiralty

Rules of this Court forthwith. The learned

counsel for the plaintiff is permitted to

communicate this order to all the authorities

including the Master of the defendant vessel,

through all modes of service including by email.

On receipt of such communication, the

Authorities shall act upon the same

immediately.”

4. After service of notice, the respondent/defendant filed

A.No.155 of 2026 seeking to vacate the interim order granted on

04.12.2025 in A.No.6081 of 2025 and consequently for immediate

release of the vessel.

5. Heard the learned counsel appearing on either side.

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6. A.No.155 of 2026 has been filed by the defendant to vacate

the interim order granted on 04.12.2025 in A.No.6081 of 2025 by

taking the following stand:

(i) The defendant entered into a bareboat charter-party dated

03.10.2024 with one M/s.Nereides Marine Services, which is the

bareboat charterer in respect of the vessel for a period of three

years. The said charter-party, under Clause 31, provides for

termination and the owners are entitled to terminate the charter-

party inter alia for non payment of hire as stipulated under Clause

15 of the charter-party.

(ii) Clause 15 of the charter-party pertaining to hire has been

substituted by rider clauses to Barecon-2017 and more specifically

Clause 6. In view of the same, since there was a default in payment

of hire, the defendant, through their solicitors, issued a demand

notice dated 22.9.2025 to the bareboat charterer, which failed to

pay the outstanding sum of USD 695,500. Thereafter, it was

followed up with another letter dated 24.9.2025 by informing that

the defendant was considering termination of the charter-party in

terms of Clause 31.

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(iii) In spite of receipt of the demand notice/letter, there was

no response and hence, another notice was issued on 27.10.2025

through the solicitors, by which, it was made clear that the charter-

party would be terminated in case of default. As a follow up

measure, on 06.11.2025, the defendant issued an anti technicality

notice to the bareboat charterer wherein it was stated that if the

payment was not received during the grace period, the defendant

would terminate the charter-party.

(iv) In spite of receipt of the said notice, the payment was not

forthcoming and therefore, the defendant issued a termination

notice dated 13.11.2025 and thereby lawfully terminated the

bareboat charter-party with immediate effect under Clause 31(a)(i)

for being in breach of the terms of hire. In the light of the above

development, the defendant took a stand that with effect from

13.11.2025, the bareboat charter’s relationship with the defendant

vessel stood completely severed.

(v) The possession in the hands of the charterer, at best, can

only be in its capacity as a gratuitous bailee pending repossession

by the owner. Therefore, the order of arrest passed by this Court on

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04.12.2025 subsequent to the termination notice dated 13.11.2025

is unsustainable since the entire foundation of arrest under Section

5(1)(b) of the Admiralty (Jurisdiction & Settlement of Maritime

Claims) Act, 2017 (for short, the Act) is not satisfied.

(vi) Apart from the above, the defendant has also raised

certain other issues to the effect that the claim made by the plaintiff

is unsubstantiated and is based on bald allegations. Hence, the

defendant sought for vacating the interim order dated 04.12.2025

passed by this Court in A.No.6081 of 2025.

7. The learned counsel appearing for the plaintiff submitted

that the purported termination notice does not reduce the status of

the said M/s.Nereides Marine Services (bareboat charterer) as a

gratuitous bailee since the defendant has not taken any steps to

repossess the vessel after allegedly terminating the charter-party,

that apart from that, the defendant has not even taken any steps to

recover the amount due and payable from the bareboat charterer,

that therefore, the issue as to whether there was a valid termination

of the charter-party looms large and that it becomes a triable issue.

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8. It was further submitted on the side of the plaintiff that the

charter-party produced by the defendant would describe the owner

as M/s.H&K Shipping Limited and not as M/s.HK Shipping Limited,

which was shown to be the owner of the vessel, that in the charter-

party, at S.No.30, M/s.H&K Shipping Limited was shown to be under

the care of one M/s.Gulf Maritime Shipbrokers & Consultants

whereas in the equasis, M/s.HK Shipping Limited was shown to be

under the care of the bareboat charterer, that these discrepancies in

the very description of the owner entity is again a triable issue,

which can be decided only in the suit and that since the defendant

has not come forward to offer security and as such, no security is

available with the plaintiff to recover the amount, the interim order

passed by this Court has to be made absolute.

9. The learned counsel for the plaintiff, in order to

substantiate their submissions, relied upon the following judgments:

“(i) of the Hon’ble Supreme Court in

Videsh Sanchar Nigam Ltd. Vs. M.V.

Kapitan Kud [reported in 1996 (7) SCC

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127];

(ii) of a learned Single Judge of this

Court in Value Shipping Limited Vs.

Owners & Parties interested in the

Vessel MV Nadhenu Purna [Application

Nos.138 & 479 of 2024 in C.S.

(Comm.Div.) No.4 of 2024 dated

08.2.2024];

(iii) of a Division Bench of this Court in

Owners & Parties interested in the

Vessel TINA Vs. STX Corporation, Seoul,

Korea rep.by its Authorized Signatory

Mr.S. Senthil [O.S.A.No.256 of 2016

dated 24.10.2018];

(iv) of a learned Single Judge of the

Bombay High Court in Siem Offshore Redri

AS Vs. Altus Uber [reported in 2018 SCC

OnLine Bombay 2730];

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(v) of a Division Bench of the Bombay

High Court in Altus Uber Vs. Siem

Offshore Redri AS [reported in 2019

SCC OnLine Bombay 1327];

(vi) of the Hon’ble Supreme Court in

Great Eastern Shipping Company

Limited Vs. State of Karnataka

[reported in 2020 (3) SCC 354];

(vii) of a learned Single Judge of the

Singapore High Court in the Chem Orchid

[reported in 2015 SGHC 50];

(viii) of a learned Single Judge of the

Kuala Lampur High Court in New World

P&I Service Co.Ltd. Vs. the Disponent

Owner and/or the Demise Charterer of

the Ship and/or Vessel ‘Es Valor’ of the

Port of Monrovia, Liberia [Huihong

(Tianjin) Shipping Lease Co.Ltd.

Intervener] [reported in 2024 Malayan

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Law Journal Unreported 3653];

(ix) of the Court of Appeal (Civil

Division) of England and Wales in Bridge Oil

Ltd. Vs. Owners and/or Demise

Charterers of the ship Giuseppe de

Vittorio [reported in 1998 (3) LRC 214];

(x) of the Court of Appeal of the

Democratic Socialist Republic of Sri Lanka in

Navi Bunkering Crop Vs. M.V.Evangeli

[reported in CA/REM/02/2018];

(xi) of the Court of Appeal (Civil

Division) of England and Wales in Songa

Product & Chemical Tankers III AS Vs.

Kairos Shipping II LLC [reported in

2025 EWCA Civ 1227]; and

(xii) of the Court of Appeal (Civil

Division) of England and Wales in Ark

Shipping Company LLC Vs. Sil Verburn

Shipping (IOM) Ltd. [reported in 2019

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EWCA Civ 1161].”

10. Per contra, the learned counsel for the defendant

submitted that there is an undisputed claim made by the owner of

the vessel, that the liability has been acknowledged by the bareboat

charterer, that on the admitted amount not being repaid back to the

defendant, the charter-party agreement provides for termination of

the agreement, that accordingly, the agreement stood terminated

through the termination notice dated 13.11.2025 with immediate

effect, that the defendant had also sought for the vessel’s location

to enable repossession of the same, that even thereafter, the

defendant took active steps to effect repossession by e-mail dated

15.11.2025 and communication dated 19.11.2025, that the

requirement of the defendant is only to take effective steps to

repossess the vessel pursuant to the termination notice and that the

said requisite has been sufficiently fulfilled in the case in hand.

11. The learned counsel appearing for the defendant further

submitted that the bareboat charterer is holding the vessel in

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possession as a gratuitous bailee solely for the benefit of the owner,

that therefore, the order of arrest passed on 04.12.2025 after the

issuance of the termination notice dated 13.11.2025 is

unsustainable in law, that the claim made by the plaintiff arising in

connection with the charter-party with that of the bareboat

charterer cannot be fastened on to the vessel of the defendant and

that it goes beyond the scope and ambit of Section 5(1)(b) of the

Act.

12. The learned counsel for the defendant also submitted that

the plaintiff is a complete stranger to the charter-party and does not

have the locus standi to dispute or question the recourse taken by

the defendant and that the plaintiff cannot question the validity of

the termination of the charter-party undertaken by the defendant.

13. In so far as the alleged discrepancy in the name of the

owner of the vessel is concerned, it was contended on the side of

the defendant that the bareboat charter was between M/s.HK

Shipping Limited and the bareboat charterer, that just because it

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has been shown as M/s.HK Shipping Limited in some of the

documents, that, by itself, would not create any doubt as was

contended by the plaintiff and that the company’s seal that was

affixed in those documents clearly established the name of the

entity as M/s.HK Shipping Limited, Marshal Islands.

14. The learned counsel appearing for the defendant also

relied upon the decision of the Court of Appeal of England and Wales

in Songa Project & Chemical Tankers III AS and the decision of

the Federal Court of Australia in the Ships Hako Endeavour etc.

Vs. Programmed Total Marine Services Pty Ltd. [reported in

2013 FCAFC 21].

15. This Court has carefully considered the submissions of the

learned counsel on either side and perused the materials available

on record.

16. At the outset, before dealing with the issues that have

been raised in these applications, this Court must bear in mind the

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factors to be considered for the release of a vessel arrested

pursuant to a claim made by filing an admiralty suit.

17. The oft quoted judgment of the Hon’ble Apex Court in

Videsh Sanchar Nigam Limited must be borne in mind wherein it

has been held that the crucial question is as to whether the plaintiff

has made out a prima facie case.

18. When the interim order has been passed by this Court on

04.12.2025, this Court, on considering the entire materials, was

satisfied that the plaintiff, in fact, made out a prima facie case. As a

corollary, it must also be held that the proceedings initiated by the

plaintiff was not vexatious or frivolous so as to halt the proceedings

in limine.

19. The Court must always bear in mind that where a strong

triable case has been made out by the plaintiff, the Court has to be

circumspect in releasing the ship that has been arrested in the

absence of any other security since, if a foreign ship leaves the

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shores of the Indian territorial waters, it will be very difficult to get

hold of it and it may not return to the jurisdiction of the Indian

Courts and thereby the plaintiff will lose their right for ever to

initiate proceedings in rem in this country. These principles laid

down in the said judgment of the Hon’ble Apex Court must be borne

in mind while dealing with the application filed by the defendant for

vacating the interim order.

20. The said judgment of the Hon’ble Apex Court was taken

into consideration by a learned Single Judge of this Court in Value

Shipping Limited wherein this Court applied the test as to whether

the plaintiff has ‘a reasonably arguable best case’.

21. The most crucial and important issue that has been raised

on the side of the defendant is that the bareboat charter-party

dated 03.10.2024 was validly and lawfully terminated through the

termination notice dated 13.11.2025, that thereafter, the interim

order of arrest has been passed by this Court on 04.12.2025, that

therefore, the requirements under Section 5(1)(b) of the Act are not

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satisfied and that consequently, the interim order of arrest needs to

be vacated by this Court.

22. On a careful reading of Section 5(1)(b) of the Act, it is

seen that the Court must be satisfied that the demise charterer of

the vessel is liable for maritime claim at the time when the claim

arose and such demise charterer is, indeed, the demise charterer or

the owner of the vessel at the time when the arrest is effected.

(emphasis supplied)

23. In order to deal with the above issue, this Court has to

take into consideration the sequence of events as narrated by the

defendant.

24. The defendant claims to be the owner of the vessel since

20.2.2014. The bareboat charterer was appointed by the defendant

for the defendant’s vessel pursuant to a charter-party dated

03.10.2024 with effect from 11.11.2024. Due to the alleged failure

on the part of the bareboat charterer to remit the hire charges,

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demand notices were issued by the defendant on 22.9.2025,

24.9.2025 and 27.10.2025 followed by the anti technicality notice

dated 06.11.2025. Since the bareboat charterer failed to cure the

defects within the stipulated period, the termination notice dated

13.11.2025 came to be issued thereby terminating the bareboat

charter-party.

25. On a careful reading of the charter-party, it is seen that

Clause 31(a)(i) provides for terminating the bareboat charter-party

for the breach of the terms of hire.

26. Thus, according to the defendant, on such termination, the

bareboat charter-party ceased to have any right, control, possession

or interest in the vessel and even if the bareboat charter-party

continues to hold possession illegally, it can only be held to be in

their capacity as a gratuitous bailee holding the vessel to the

owner’s order. The specific case of the defendant is that as per the

bareboat charter-party dated 03.10.2024, the parties have agreed

that English Law will govern them, that hence, the English Maritime

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Law only imposes a condition that the owner of the vessel must take

all reasonable efforts to repossess the vessel and that the said

requirement had been fulfilled in this case.

27. To substantiate the above stand taken by the defendant,

heavy reliance was placed on the judgment of the Federal Court of

Australia in the Ships Hako Endeavour etc., wherein in the

opinion of Rares,J, it was held as follows:

“63. I am of opinion that as a matter of

principle the terms of cll 28 and 29 of the

Barecon 2001 form of charterparty can operate

as they were intended without requiring the

owners, first, to physically retake possession of

the ship following her withdrawal and the

termination of the charterparty: Reardon-Smith

Line [1976] 1 WLR at 998D-G. The charterer

becomes entitled to possession of the ship under

and by virtue of the contractual rights that the

owners confer on it by the terms of the demise.

But that right to possession and control can be

affected by another of the terms of the Barecon

2001 form. Thus, cl 29 provides that upon

withdrawal of the ship and termination of the

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charter, the nature of the charterer’s possession

changes from possession for the charterer’s use

and benefit to possession as a gratuitous bailee

for the owners. Possession of the latter kind is

substantively different in character to the

plenary right to possession and use of the ship

formerly enjoyed by the charterer while the

charter remained on foot.

…………..

67. Accordingly, after following Hako

Offshore’s receipt of the notice of termination on

5 March 2012, it held Hako Fortress from then

on as a gratuitous bailee and not as a demise

charterer. It follows that the requirement of s 18

(b) of the Act, that Hako Offshore be a demise

charterer of Hako Fortress on 2 April 2012 when

the writ against her was filed, was not satisfied.

The proceeding below against Hako

Fortress must be dismissed and the security

provided for her release from arrest must be

returned to Dolphin 2.”

In the same judgment, in the opinion of Buchanan,J, it was held as

follows:

“159. It is clear from the terms of clauses

28 and 29 of the charterparty that a distinction

is made (and made clearly) between termination

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of the charter and recovering physical

possession of the chartered vessel. The right to

repossess the vessel depended upon the event

of termination. It was not co-terminus with it.

The charterparty clearly stated that between

those two events the charterer would hold the

vessel as “bailee only”. Similar provisions were

held by Moore J in CMC (Australia) Pty Ltd v Ship

“Socofl Stream” (1999) 95 FCR 403 (“Socofl

Stream”) to be effective to bring a demise

charter to an end from the time of termination.

The consequence, his Honour found in that case,

was that a demise charterer had ceased to have

that status for the purpose of S 18(b) of

the Admiralty Act. His Honour said (at [30]):

30. Even accepting that a broad

interpretation should be given to the expression

“demise charterer” in S 18(b), is [sic] difficult to

avoid a conclusion that if a charterparty

expressly provided for its termination and the

power to terminate was exercised, then the

charterer ceased to be a demise charterer from

the time of termination at least in the absence of

provisions in the charterparty that suggested

some other result. The effect of the telex notice

of 18 December 1998 was, in my opinion, that at

least at the expiry of the seven days in which

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payment could be made of the amount

demanded by Sovcomflot, Kamchatka no longer

had an unqualified right to possession and

control and thus was no longer a demise

charterer for the purpose of s 18(b) on 5

February 1999.

………..

161. Presumably, the terms “withdraws”

and “withdrawn” as used in these passages

were intended to signify an act of repossession

rather than to refer to a right of the kind given

by clause 28 of the charterparty in the present

case to withdraw a vessel from the service of a

charterer in a formal way. In my respectful

view the observations of Finkelstein,J should

not be preferred to the conclusions of Moore,J

in Socofl Stream. Like Moore,J in that case, it

seems to me that the charterparty in the

present case permits a formal withdrawal of a

vessel from the service of charterers and

termination of the charter at the same time

with immediate effect, followed by a right to

reclaim possession in any of the ways identified

in clause 29.”

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28. It is also relevant to take note of the judgment of the

Court of Appeal (Civil Division) of England and Wales in Songa

Product & Chemical Tankers III AS wherein the relevant

portions read thus:

“43. In my judgment the legal and

commercial features of a bareboat charter are

indeed highly relevant to understanding the

meaning of the provisions of clause 29, but in a

different way. In each of sub-clauses 28(a), (b)

and (d) the termination is expressed to be "with

immediate effect by written notice" (termination

being deemed when the Vessel is an actual or

constructive loss under clause 28(c)). The result

of such termination, whichever of those sub-

clauses is triggered, is that the Vessel ceases to

be at the disposal of the Charterers and they

cease to be under any obligation to pay hire to

the Owners, or to operate, maintain or insure

the Vessel. Neither are the Charterers liable to

indemnify the Owners for loss, damage or

expense in relation to the Vessel. In those

circumstances it is a legal and commercial

imperative that the Owners, whose Vessel is no

longer on hire and is without the benefit of the

Charterers' obligations to operate, maintain,

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insure and indemnify, should have the right to

repossess it at the first opportunity, namely, at

its current port (or its next port of call, if at sea)

and that the Charterers should have a minimum

obligation to care for the Vessel as gratuitous

bailee in the interim. The quid pro quo for that

obligation of the Charterers must be that the

Owners should repossess the Vessel as soon as

reasonably practicable so as to relieve them of

that unremunerated burden.”

29. The learned counsel for the defendant, by relying upon the

above judgment, submitted that the owner of the vessel is only

expected to take necessary steps for repossessing the vessel and

that if the same is done, it satisfies the requirement of the law of

the United Kingdom.

30. It was contended that the demand notices dated

22.9.2025, 24.9.2025 and 27.10.2025 and the anti technicality

notice dated 06.11.2025 make it clear that the defendant was taking

effective steps to repossess the vessel.

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31. The Court of Appeal of Sri Lanka, in the case of Navi

Bunkering Crop, had an occasion to take into consideration the

various judgments of the New Zealand, Australian and Singapore

High Courts wherein the relevant portions read thus:

“This decision was reversed by Steven

Chong,J, who held that the charter had not been

validly terminated, but even if it had, there was

no concept of constructive delivery applicable to

the termination of bareboat charters which

continue until physical redelivery as ‘the

complete transfer of possession and control from

the ship-owner to the charterer is the very

quintessence of a bareboat charter. Thus,

physical redelivery (which effects a reversion of

the transfer of possession and control) is

necessary for its termination.’

Therefore, at the time the in rem writs

were issued by the bunker suppliers and the

cargo claimants, the vessel was still in the

possession of the demise charterers.

The prime consideration that tilted the

balance in favour of requiring physical re-

delivery of the vessel for termination was the

interests of the third parties involved. As Steven

Chong,J observed:

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‘It is pertinent to stress that third parties

who provide services to or load cargo on vessels

will often be unaware that the particular vessel

is on bareboat charter. Previously, this placed

them in an acutely vulnerable position because

bareboat chartered vessels were insulated from

arrest. Following legal reforms in many

jurisdictions, this is no longer the case……. The

consultation paper prepared by the Attorney-

General's Chambers which preceded the 2004

Amendment in Singapore noted that, although

allowing a bareboat chartered vessel to be

arrested might, at first blush, appear rather

‘startling’ as it effectively allowed recovery

against the shipowner for the liabilities of the

charterer, this was nevertheless internationally

acceptable and, on the whole, desirable because

‘an effective admiralty regime should not cast

the burden of determining ownership or other

relationship with the vessel on the person

dealing with the vessel’.....The legislative

scheme in Singapore today - as it is the case

across many leading maritime jurisdictions -

therefore appears to have struck the balance in

favour of third parties who can now deal with a

vessel safe in the knowledge that, regardless of

whether the party with whom they directly

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transact is the owner or bareboat charterer, they

can arrest the vessel as security for their claims.

In my judgment, holding that a valid

contractual termination suffices to bring a

bareboat charter to an end in the absence of

physical redelivery may upset the

aforementioned balance. This is because third

parties will find that it is no longer safe to

assume that they have contracted with either

the owner or bareboat charterer of a vessel in all

circumstances. If they deal with the vessel after

contractual termination but before redelivery, it

is possible that they may have in fact dealt with

neither - the owner certainly does not have

control and possession of the vessel during this

curious period where she is in "limbo" whereas

the party in full possession and control is no

longer the bareboat charterer following

contractual termination. In that event, the third

party will have no basis for arresting the vessel

and is thus left without security for its claim.’

(emphasis added)

Other cases that subscribe to this school

of thought include the following:

The Australian case of The Turakina

[1998] FCA 495, in which, the Turakina was sub-

demise chartered by South Pacific Shipping Ltd

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from Deil Shipowners BV. Deil wrote to South

Pacific stating that the charterparty was

terminated with immediate effect. The

charterparty provided that the vessel was to be

in the full possession and complete control of

South Pacific during the charter period. It also

provided that Deil had, after default in payment

of hire, a right to withdraw the vessel but that

the hire of the vessel was to continue until

redelivery. Tamberlin,J held,

‘....there is a significant distinction

between a time or voyage charter and a demise

charter. This distinction resides in the fact that in

a non-demise charter there is no requirement for

delivery or transfer of possession to the

charterer at the commencement of the charter.

Accordingly, redelivery cannot require a transfer

back of possession. In such a case, the services

provided to the charterer are terminated upon

notice of withdrawal. However, in the case of a

demise charter the vessel itself is let and

possession is taken by the charterer. Therefore,

once the vessel is withdrawn from the service of

the charterer, an obligation to redeliver

possession arises because possession has been

delivered at the commencement of the charter.

Redelivery, in its natural and ordinary meaning,

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denotes a delivery back of that which was

originally delivered.....

.....As mentioned  earlier in these reasons,

a mere notification by the owner that redelivery

is required does not itself amount to redelivery.

Having regard both to the demise charter, and

the indications in the authorities as to the

different character of a demise charter which

confers an interest in the vessel and possession

my conclusion is that the notice of withdrawal in

the present case did not operate to terminate

the charter at the time arrest proceedings were

instituted.’

[emphasis added]

Tamberlin,J's analysis was followed by the

High Court of New Zealand in the сasе of ‘The

Rangiora', 'Ranginui and ‘Takitimu’ [2000] 1

Lloyd's Rep 36, which held that demise charter

can only be terminated by repossessing the

vessel; notice alone in insufficient.

In the Australian case of CMS (Aust) Pty

Ltd v Ship Socofl Stream (1999) 95 FCR 403

Moore,J held,

‘In my opinion, consistent with the

approach of Tamberlin,J in ‘The Turakina’ and

Evans LJ in ‘The Guiseppe di Vittorio’, it is

necessary to ascertain from the terms of the

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charterparty whether continuing physical

possession of a vessel by the charterer (pending

the taking of physical possession by the owner

either by redelivery or some other means) is co-

extensive with continuing possession and

absolute control of the vessel of the type

characteristic of a demise charter.’

Having considered the above authorities,

this Court favours the view that a charter by

demise can he terminated only by actual

recovery of possession and control of the Vessel.

An actual retaking of possession is seen when

physical redelivery of the Vessel has been

achieved. In the absence of actual retaking, such

as in situations where it is impracticable to effect

physical re-delivery there must be some overt

act or active assertion of its rights on the part of

the Owner/lessor of the Vessel to regain

possession and control of the Vessel such as

when the Owner's/lessor's agent attends

onboard the Vessel to announce that it had

retaken possession of the Vessel. A mere notice

of termination, in the absence of an overt act to

accompany that intention of termination, will not

be sufficient to terminate a demise charter.

This is because as explained in length in

Tamberlin,J's judgment in The Turakina (supra)

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demise charter unlike any other charter involves

the grant of possession and control and thus

requires a re delivery.

This Court is also swayed by the claims of

innocent third parties who would otherwise be

left without any redress, as explained in the

judgment of Steven Chong,J, in the Chem

Orchid, in the event the situation of the vessel is

in limbo.”

32. A careful reading of all the above judgments makes it

clear that a charter by demise can be terminated effectively only by

actual recovery of possession and control of the vessel. The only

exception that can be carved out is in cases where it is impracticable

to effect physical redelivery. In such cases, there must be some

overt act or active assertion of rights on the part of the owner of the

vessel. A mere notice of termination in the absence of any overt act

to accompany the intention to possess the vessel will not be

sufficient to terminate a demise charter.

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33. At this juncture, this Court must once again remind itself

about the caution given by the Hon’ble Apex Court in the decision in

Videsh Sanchar Nigam Limited to the effect that once a third

party, which has a valid prima facie claim, loses its security by

permitting the vessel to leave the shores of India, it may lead to

losing their right for ever to entertain proceedings in rem in this

country.

34. In the case in hand, the termination notice was issued on

13.11.2025 in line with Clause 31(a)(i) of the charter-party

agreement. In this termination notice, the defendant inquired about

the location of the vessel. The defendant was also aware of the fact

that the vessel is available at V.O.Chidhambaranar Port, Tuticorin.

Hence, as a prudent claimant, in order to establish the control over

the vessel and to substantiate their intention to repossess the

vessel, the overt act that was expected on the side of the defendant

was to proceed against the bareboat charterer for the recovery of

amount and seek for the arrest of the ship.

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35. Unfortunately, there is not even an averment in the

affidavit filed by the defendant in support of A.No.155 of 2026

seeking to vacate the interim order dated 04.12.2025 nor in any of

the documents relied upon by the defendant that they had taken

any steps for the recovery of amount from the bareboat charterer.

Apart from the fact that there is no material available to show that

the defendant performed some overt act, there is also no material to

prima facie conclude that the defendant actively asserted their right

to regain possession and control of the vessel.

36. Under such circumstances, this Court is not able to come

to a conclusion that the bareboat charterer is holding the vessel in

their capacity as the gratuitous bailee for the owner of the vessel.

This issue gains significance since the Court is dealing with the right

of a third party, who otherwise would be left without any redress. It

is also seen from the records that the bareboat charter-party

describes the entity as M/s.H&K Shipping Limited whereas the

certificate of incumbency shows the name as M/s.HK Shipping

Limited.

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37. Apart from that, M/s.H&K Shipping Limited is under the

control of M/s.Gulf Maritime Shipbrokers and Consultants as per the

bareboat charter-party whereas as per the equasis, it has been

found to be in the care and custody of M/s.Nereides Marine

Services, which is the bareboat charterer. The equasis, which was

last updated on 23.12.2025 as found in page 52 of the paper book

filed on the side of the defendant, it is found in possession of the

bareboat charterer. Hence, when the interim order was passed by

this Court on 04.12.2025, the bareboat charterer continued to be in

possession of the vessel. It is further seen that there is an entity

called as M/s.HK Shipping Limited. There is also a separate entity

called as M/s.H&K Shipping DMCC. Hence, the identity of the entity

also becomes a triable issue.

38. In the light of the above discussions, considering the fact

that the plaintiff has made out a prima facie case, as was indicated

in the earlier order passed on 04.12.2025 and applying the

reasonably arguable best case test and also taking into

consideration the fact that the defendant has not come forward to

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offer any other security, vacating the interim order granted on

04.12.2025 will virtually defeat the rights of the plaintiff. Hence, this

Court finds that the balance of convenience and the test of

irreparable loss and hardship are also in favour of the plaintiff.

Further, this Court is inclined to make the interim order absolute.

39. In the result, A.No.6081 of 2025 stands allowed. The

interim order granted on 04.12.2025 in A.No.6081 of 2025 is made

absolute. Consequently, A.No.155 of 2026 stands dismissed. Post

the civil suit for filing written statement on 26.2.2026.

06.2.2026

Index : Yes

Neutral Citation : Yes

RS

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N.ANAND VENKATESH,J

RS

A.Nos.6081 of 2025 &

155 of 2026 in

C.S.(C.D.) No.314 of 2025

06.2.2026

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