R.C. Lahoti, J.

1. This appeal preferred by the plaintiff/appellant is directed against an order dated 24.5.96 passed by a learned Single Judge of this Court directing the release of vessel M.V. Pranburi which was ordered to be arrested and detained by an earlier ex parte order dated 9.4.1996.

2. The facts in brief. The plaintiff entered into a contract dated 19.7.1995 for sale and purchase of non-Basmati Par boiled rice with the Government of Peoples Republic of Bangladesh, defendant No. 1 in the suit, whereunder the plaintiff agreed to sell to defendant No. 1 50,000 MT (5%) of non-Basmati Par boiled rice of Indian origin on the terms and contritions contained in the contract. A total of 40,000 MT (approx.) of rice was supplied by the plaintiff to defendant No. 1 and duly received by the latter.

2.1. For the balance 10,500 MT (5%), the plaintiff entered into a back-to-back contract dated 11.11.1995 with M/s. Doon Valley Rice Ltd (a duly incorporated company with the registered office at Karnal, Haryana, and also at Delhi) defendant No.2, whereunder defendant No. 2 agreed to perform and observe all obligations of the plaintiff under the contract dated 19.7.1995 to the extent of the said quantity of 10,000 MT ( 5%). Under this back to back contract the payment was to be made by partial assignment of Letter of Credit (L/C) to be opened by defendant No. 1 in favour of the plaintiff. The plaintiff- STC was to get US $ 4 per MT as its service charges to be deducted by the negotiating Bank from the bills presented for negotiation under the L/C. The plaintiff was to get a further US $ 4 per MT from the bills presented for negotiation as a foreign agents commission. The negotiation of the document under the L/C assigned to defendant No. 2 was restricted to State Bank of India, Overseas Branch, New Delhi only.

2.2. In January, 1996, the plaintiff received the said US $ 8 per MT on the said supply of 10,500 MT rice as envisaged by the back-to-back contract. The plaintiff believed bona fide the contract to have been performed and the requisite quantity having been duly received by defendant No. 1 in terms of the plaintiffs contract with them. However, the truth was otherwise.

2.3. The plaintiff came to know that out of total 10,500 MT, defendant No. 2 lifted a quantity of 6500 MT on a ship known as M V YANMIT from Kakinada Port at Andhra Pradesh for Chittagong Port in Bangladesh. The ship belonged to Mr. C.Y. Lee (the defendant No. 3) who was the owner of the said vessel. The charter party agreement for the said supply was signed by and between defendant No. 2 and defendant No. 3. M/s. Worldwide Shipping Inc. (the defendant No. 4) having its office at Panambur, New Mangalore, is the agent of defendant No. 2 in India.

2.4. Under the contract supplies were to be made partly at Chittagong Port and partly at Mongla Port in Bangladesh upstream port as compared to Chittagong port. The ship M V Yanmit arrived at Chittagong Port for discharging the cargo in terms of the charter party agreement. The defendant No. 1 wrongly required the cargo to be discharged not at Chittagong Port but at Mongla Port which insistence of defendant No. 1 was contrary to the contract. While the differences were being sorted out, civil commotion, unrest and disturbances broke out in Bangladesh as a result whereof the working at the office of defendant No. 1 and also of the Chittagong Port came to a complete standstill. Taking advantage of this, defendant No. 3 abruptly escaped with the said quantity of 6500 MT rice from Chittagong Port in the night, on or about 26th and 27th February, 1996. The ship is untraceable since then. M.V. Yanmit did not comply with the requirements of Chittagong Port authorities and did not even obtain the mandatory port clearance. The plaintiff believes that defendant No. 3 is attempting to selloff the cargo.

2.5. By letter dated 27.3.1996, the defendant No. 1 has claimed damages from the plaintiff for undelivered quantity of 6500 MT rice which was loaded on MV Yanmit. Defendant No. 1 has also raised yet another claim for short supply of 524 MT in respect of the goods loaded on MV Yanmit which has discharged the goods at Mongla port earlier. Out of the quantity covered by the back-to-back contract the total claim raised by defendant No. 1 is to the tune of US $ 18,68,572.33 equivalent to Rs.6,35,31,549.22 at the exchange rate of US $ 1=Rs.34.

2.6. According to the plaintiff, the defendant No. 2 has in collusion and conspiracy with defendants Nos. 3 and 4 and officers of defendant No. 1 and defendant No. 7the Branch Manager SBI, Karnal, Haryana, cheated and defrauded the plaintiff. The inference drawn by the plaintiff is founded on the following facts:

(i) Defendant No. 2 has recovered the entire amount covered by the LC opened by defendant No. 1 in favour of the plaintiff and assigned to defendant No. 2 without delivering the entire quantity envisaged by the back-to-back contract;

(ii) A quantity of 524 MT rice was short delivered at Mongla Port and the ship MV Yanmit carrying 5600 MT has escaped from Chittagong Port and is untraceable.

(iii) The documents negotiable under the contract through SBI were negotiated through SBI, Karnal, Haryana.

(iv) The charter party agreement between defendants Nos. 2 and 3 has not been furnished at any stage to negotiating bankers of the plaintiff, keeping the plaintiff in dark about the terms settled between defendants Nos. 2 and 3.

(v) Despite ex facie breach by defendant No. 2 of the back-to-back contract they have failed to meet the performance guarantee.

2.7. The defendants Nos. 2 and 3 are liable to pay to the plaintiff the said sum of US $ 18,68,572.33 equivalent to Rs. 6,35,31,459.22 with interest @ 24% p.a. pendente lite and future.

2.8. The defendant No. 3 does not have any property of his own within the territory of India. One of his ships, namely, MV Pramburi was found at New Mangalore Port and was likely to sail off by April 6, 1996. As the cause of action had already arisen to the plaintiff and the plaintiff came to know of the availability and existence of one of the properties of defendant No. 3 within the territory of India the suit was filed on 9.4.96 on the Original Side of the High Court of Delhi. The plaintiff also sought for an ex parte ad interim order.

3. On 9.4.1996 the learned Single Judge directed the ship to be arrested.

4. By order dated 24.5.1996 the learned Single Judge has directed the interim order dated 9.4.1996 to be vacated.

5. The plaintiff has preferred this appeal. It came up for hearing before a Division Bench during vacation. On 5.6.96 after hearing both the parties the DB made the following order:

CM 2176/96

The appellant has sought an injunction for detention of M.V. Pranburi which is stated to be owned by respondent No. 3.

The learned Single Judge while holding that third respondent was connected with M.V. Pranburi and in turn with respondent No. 8 has dismissed the application for stay only on the ground that this Court had no jurisdiction to pass an order of restraint in view of the provisions of Merchant Shipping Act, 1958.

We have gone through the appeal and have also heard Counsel for the parties and we feel that ends of justice will be met and equity demands that the respondent No. 8 should furnish a security in the sum of Rs. 2 crores to entitle it to remove the vessel from the port. We, therefore, direct respondent No. 8 to furnish security in the sum of rupees two crores in the form of a Bank guarantee to the satisfaction of the Registrar of this Court within two weeks from today. The moment the Bank guarantee is given the ship M.V. Pranburi can be removed from New Manglore Port.

With these observations CM stands disposed of.

The intimation of this order be also sent to respondent Nos. 5 and 6 and copy of this order be given DASTI to Counsel for the parties.

6. Before proceeding further we may briefly examine what the learned single Judge has found and what has persuaded him in declining the interim relief sought for by the plaintiff-appellant.

6.1 The ex parte interim relief having been allowed to the plaintiff and the ship having been arrested, an application under Order 39 Rule 4 read with Section 151 CPC was filed seeking vacating of the order of arrest granted ex parte. The application was filed on behalf of one TJT Services Company Ltd. It was claimed that M.V. Pranburi was registered with Harbour Department, Bangkok and belonged to the applicant. It had nothing to do with the controversy arising for decision in the suit, nor with defendants 3 and 4 and hence the ship was liable to be released and set at liberty. The application was supported by an affidavit of Suvit Jantrasomvoon claiming himself to be the attorney of the applicantTJT Services Co Ltd. In reply, the plaintiff pointed out that all the averments made in the application were false and in fact it was the third defendant C.Y. Lee who had put up the applicant-company in a bid to mislead the Court and seek release of the ship. The learned Single Judge having scrutinised all the relevant material documents on record rejected the application filed by TJT Services Co. Ltd. and held as under:

Having regard to the documents on record, it appears that C. Y. Lee, the third defendant, is connected with M.V. Pranburi and TJT Services Company Ltd and others. Therefore, prima facie, the applicant was not right in stating in the application that the applicant and the said vessel were not involved with any transaction or matter connected with the plaintiff or any contract that might have been entered into and/or existing between the parties to the suit/and that none of the defendants are the shareholders or Directors or owners of the applicant-company or of the said vessel. The applicant has not come out with the correct information which it was bound to disclose in its application. The applicant is guilty of suppresio veri. The application is accompanied by an affidavit of Mr Suvit Jaritrasomboon, Attorney of the applicant TJT Services Company Limited. The averments made in the application not being true and complete, Suvit Jantrasomboon and TJT Services Company Ltd must explain why the information was not fully disclosed and why certain important and fundamental aspects of the matter were suppressed. (page 43 and 44 of paper book)

6.2 The learned Single Judge has held that the plaintiff had a very strong prima facie case and there was truth in the allegation that the third defendant was in illegal possession of 6724 MT of rice and was liable to restore the said quantity to the plaintiff or to defendant No. 1 for the plaintiff. However, having analysed the provisions contained in the Merchant Shipping Act, 1958, especially those contained in Sections 443, 444 and 3(15) of the Act, the learned Single Judge formed an opinion that these were special provisions relating to the detention of foreign ships and are complete as a Code by themselves. Widely interpreted the word damage, as occurring in Section 443 of the Act, covered the case of a damage arising out of a breach of commercial contract also. To be entitled to relief of arrest and detention of a ship, the plaintiff could have had recourse only to the provisions contained in Section 443 of the Act and for that purpose, was bound to approach a High Court having jurisdiction by reference to the vessel. Looked at from this angle, the High Court competent to grant the relief would be the High Court exercising jurisdiction over the territorial water in which the ship was anchored. Resort could not be had for the purpose of determining territorial jurisdiction to Section 20 of the CPC.

6.3 The learned Judge has further held that the case of the plaintiff was spun entirely around Section 443 and the plaintiff has to stand or fall by reference to the provisions of said Section 443. The Merchant Shipping Act is a self contained Code covering all the relevant matters concerning merchant shipping. It being a special piece of legislation in the field of merchant shipping, the jurisdiction of the Court to deal with matters of detention and arrest of the ship will be governed by Section 443 of the said Act and not by Section 20, CPC. As the High Court of Delhi is not a Court competent to exercise jurisdiction by reference to Section 443 inasmuch as the ship MV Pranburi was at New Mangalore Port the Court at Delhi did not have jurisdiction to direct arrest and detention of the ship.

6.4 The learned Single Judge has thus held that the plaintiff was ill-advised in invoking the jurisdiction of High Court of Delhi (Original Side)

7. It is submitted by the learned Counsel for the plaintiff/appellant that the view taken by the learned Single Judge is too technical; the learned Judge ought to have determined the jurisdictional competence of the Court to entertain the suit by reference to Section 20, CPC while the assistance should have been derived from the provisions contained in Section 443 of the Merchant Shipping Act read with the provisions contained under Orders XXXVIII and XXXIX of the CPC so far as the jurisdiction to grant interim relief was concerned. Learned Counsel for the respondent has forcefully defended the impugned order and submitted that the drafting of the plaint/the framing of the suit as also of the application for interim relief- all go to show that the claimant plaintiff was entirely banking upon Section 443 of the Merchant Shipping Act and at the stage of appeal it is not permissible to the plaintiff to make a departure from and shift the stand taken by him before the learned Single Judge and attempt laying a new foundation for otherwise fumbling case.

8. Two questions arise for decision in the appeal: firstly, whether the Court at Delhi has the territorial jurisdiction to entertain the suit; and secondly, whether the Court at Delhi has the jurisdiction to direct arrest and detention of the ship anchored at New Manglore Port which is outside the territorial jurisdiction of Civil Court at Delhi.

9. So far as the question of the vesting of the territorial jurisdiction in the Civil Court at Delhi is concerned, the learned Counsel for the plaintiff-appellant has submitted that under Clause (c) of Section 20, CPC a Court within the local limits of whose jurisdiction the cause of action, wholly or in part arises has the jurisdiction to entertain the suit. According to the plaintiff, this is how the cause of action has arisen to the plaintiff at Delhi: (i) under the contract entered into between the plaintiff and defendant No. 1, payment was to be made at Delhi through the learned counsel drawn at a Delhi bank; (ii) that the learned counsel was assigned by the plaintiff to defendant No .2 for payment to be made at Delhi pursuant to the back-to -back contract; (iii) that 40,000 MT of rice was supplied by the plaintiff from Delhi to defendant No. 1; (iv) that the back-to-back contract between the plaintiff and defendant No. 2 under which the defendant No. 1 was to supply 10,000 MT rice to defendant No. 2 was signed at Delhi, (v) that the defendant has received a claim of US $16,68,512.33 (equivalent to Rs. 35,31,549.22) against the plaintiff at Delhi; (vi) and that the performance guarantee was given by defendant No. 2 to the plaintiff at Delhi.

10. It is well settled that prima facie the jurisdiction has to be determined from the averments made in the plaint. If the jurisdictional facts are disputed, the Court shall frame an issue thereon and having tried the issue may ultimately form an opinion either in favour of or against having territorial jurisdiction to try the suit. If the Court may form an opinion against the plaintiff the plaint shall be ordered to be returned for presentation to proper Court. However, by the time disputed jurisdictional facts come to be tried and determined the Court is not powerless to entertain a prayer for the grant of interim relief for by the time the issue relating to jurisdiction may come to be tried and decided, the plaintiff may have suffered irreparably; nay his suit may have been rendered infructuous. Thus, the jurisdiction to grant an interim relief is there, though the jurisdictional competence of the Court to try a suit may itself be under challenge. The Court while hearing a prayer for the grant of ad interim injunction would certainly apply its mind to jurisdictional facts whether prima facie it appears to have jurisdiction to try the suit or not. However, the formation of such an opinion would be prima facie only because the issue is yet to be tried. Formation of such a prima facie opinion is an obligation cast on the Court so as to guard itself against likely misuse of its jurisdiction amounting to the abuse of process of the Court. Having formed such a prima facie opinion the Court may arrive at a finding that the territorial jurisdiction appears to vest in it or it is likely to have jurisdiction to try the suit and there is a likelihood of the plaintiff being able to substantiate all such averments on the basis whereof it proposes to invoke the territorial jurisdiction of a Court then the Court shall have the jurisdiction to pass interlocutory orders and granting interim relief so as to protect the interest of the parties.

11. It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a Court of law. The cause of action means, therefore, every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant (South East Asia Shipping Co. Ltd. v. Nav Bharat Enterprises Pvt. Ltd., 1996(3) SCC 443).

12. If what has been stated in para 9 hereinabove is true and the plaintiff is in a position to demonstrate availability of the facts referred to in para 9 hereinabove, it cannot be denied that by reference to Section 20(c) of the CPC, the High Court of Delhi (Original Side) would have jurisdiction to entertain and try the suit.

13. We now proceed to examine if in the facts and circumstances of thecase, the plaintiff is entitled to an interim relief by way of arrest and detention of the ship ex debito justitiae. Is it necessary for him to have recourse to Section 443 of the Merchant Shipping Act, 1958 only, or whether such a relief can be allowed to the plaintiff de-hors the provision contained in Section 443 above said The answer to this question would depend on construing the nature and scope of the provisions contained in Section 443 of the Act.

14. Sections 443, 444 and 3(15) of the Merchant Shipping Act, 1958, which would be relevant for the purpose of deciding the question arising herein are reproduced herein:

443. Power to detain foreign ship that has occasioned damage(1) Whenever any damage has in any part of the world been caused to property belonging to the Government or to any citizen of India or a company by a ship other than an Indian ship and at any time thereafter that ship is found within Indian jurisdiction, the High Court may, upon the application of any person who alleges that the damage was caused by the misconduct or want of skill of the master or any member of the crew of the ship, issue an order directed to any proper officer or other officer named in the order requiring him to detain the ship until such time as the owner, master or consignee thereof has satisfied any claim in respect of the damage or has given security to the satisfaction of the High Court to pay all costs and damages that may be awarded in any legal proceedings that may be instituted in respect of the damage, and any officer to whom the order is directed shall detain the ship accordingly.

(2) Whenever it appears that before an application can be made under this section, the ship in respect of which the application is to be made will have departed from India of the territorial waters of India, any proper officer may detain the ship for such time as to allow the application to be made and the result thereof to be communicated to the officer detaining the ship and that officer shall not be liable for any costs or damages in respect of the detention unless the same is proved to have been made without reasonable grounds.

(3) In any legal proceedings in relation to any such damage aforesaid, the person giving security shall be made a defendant and shall for the purpose of such proceeding be deemed to be the owner of the ship that has occasioned the damage.

444. Power to enforce detention of ship.(1)Where under this Act a ship is authorised or ordered to be detained, any commissioned officer of the Indian Navy or any port officer, pilot, harbour master, conservator of port or customs collector may detain the ship.

(2) If any ship after detention, or after service on the master of any notice of, or order for, such detention proceeds to sea before she is released by Competent Authority, the master of the ship shall be guilty of an offence under this sub-section.

(3) When a ship so proceeding to sea takes to sea, when on board thereof in the execution of his duty any person authorised under this Act to detain or survey the ship, the owner master or agent of such ship shall each be liable to pay all expenses of, and incidental to, such person being so taken to sea and shall also be guilty of an offence under this sub-section.

(4) When any owner, or master or agent is convicted of an offence under Subsection (3), the convicting Magistrate may inquire into and determine the amount payable on account of expenses by such owner, master or agent under the sub-section and may direct that the same shall be recovered from him in the manner provided for the recovery of fines.

3. Definitions.(15) High Court, in relation to a vessel, means the High Court within the limits of whose appellate jurisdiction

(a) the port of registry of the vessel is situated;

(b) the vessel is for the time being, or

(c) the cause of action wholly or in part arises;

15. The Merchant Shipping Act, 1958 (Act 44 of 1958) is an act to foster the development and ensure the efficient maintenance of an Indian mercantile marine in a manner best suited to serve the national interests and for that purpose to establish a National Shipping Board and a Shipping Development Fund, to provide for the registration of Indian ships and generally to amend and consolidate the law relating to merchant shipping, as its preamble indicates.

16. Sections 443 and 444 are to be found contained in Part XVI of the Act which is entitled Penalties and Procedure.

17. A bare reading of Section 443 indicates that it is beginning of a legal proceeding but not an end thereof. The provision is intended to provide a summary, urgentrather an emergent relief to the Government or to any citizen of India or a company against a non-Indian ship causing damage if found within Indian jurisdiction. She would be arrested and detained merely on an application made to the High Court as defined in Section 3(15). Sub-section (2) of Section 443 contemplates arrest and detention of a ship before the filing of an application to the High Court if the filing of the application is contemplated and is imminent. The owner, master or consignee may have the ship released subject to giving security to the satisfaction of the High Court. Sub-section (3) makes it clear that there have to be legal proceedings thereafter in relation to any such damage which had led to the arrest and detention of the ship and in those proceedings the person giving security being made a defendant.

18. The object, scope and mechanism of the remedy provided by Section 443 of the Act can well be explained by extensively quoting from the classical judgment of the Supreme Court in M.V. Elisabeth v. Hawan Investment & Trading Pvt. Ltd Goa, AIR 1993 SC 1014 [LQ/SC/1992/193] . The opening sentence of para 84 states the Merchant Shipping Act, 1958 provides a detailed code of substantive and procedural rules regulating shipping as an industry and controlled exercise over it by Competent Authorities. But a reading of the judgment clearly indicates that Section 443 does not exclude exercise of jurisdiction and availability of remedies under common law de-hors the provisions of Merchant Shipping Act. The following extracts from the judgment make it very clear:

But the jurisdictional questions concerning arrest of foreign ships for enforcement of claims against the ship owner as a transporter of goods, which in England are regulated by the Supreme Court Act, 1981, are in many respects left unregulated by Indian legislation. While the provisions of various international conventions concerning arrest of ships, civil and penal jurisdiction in matters of collision, maritime liens and mortgages etc. have been incorporated into the Municipal laws of many maritime States, India, as stated above, lags behind them in adopting these unified rules (See, for example, the Brussels Conventions listed above; see also the Administration of Justice Act, 1956 and the Supreme Court Act, 1981 in corporating the international rules into English law). By reason of this void, doubts about jurisdiction often arise, as in the present case, when substantive rights, such as those recognised by the Carriage of Goods by Sea Act are sought to be enforced. The remedy lies, apart from enlightened judicial construction, in prompt legislative action to codify and clarify the admiralty laws of this country. This requires thorough research and investigation by a team of experts in admiralty law, comparative law, and public and private international law. Any attempt to codify without such investigation is bound to be futile. (Para 84)

A ship travelling from port-to-port stays very briefly in any one port. A plaintiff seeking to enforce his maritime claim against a foreign ship has no effective remedy once it has sailed away and if the foreign owner has neither property nor residence within jurisdiction. The plaintiff may therefore detain the ship by obtaining an order of attachment whenever it is feared that the ship is likely to slip out of the jurisdiction, thus leaving the plaintiff without any security.(Para 48)

A ship may be arrested (i) to acquire jurisdiction; or (ii) to obtain security for satisfaction of the claim when decreed; or (iii) in execution of a decree. In the first two cases, the Court has the discretion to insist upon security being furnished by the plaintiff to compensate the defendant in the event of it being found that the arrest was wrongful and was sought and obtained maliciously or in bad faith. The claimant is liable in damages for wrongful arrest. (Para 49)

The attachment by arrest is only provisional and its purpose is merely to detain the ship until the matter has been finally settled by a competent Court. The attachment of the vessel brings it under the custody of the marshal or any other authorised officer. Any interference with his custody is treated as a contempt of the Court which has ordered the arrest. (Para 50)

It is by means of an action in rem that the arrest of a particular ship is secured by the plaintiff. (Para 57)

The arrest of the foreign ship by means of an action in rem is thus a means of assuming jurisdiction by the competent Court. (Para 57)

In the absence of any statute in India comparable to the English statutes on admiralty jurisdiction, there is no reason why the words damage caused by a ship appearing in Section 443 of the Merchant Shipping Act, 1958 should be so narrowly construed as to limit them to physical damage and exclude any other damage arising by reason of the operation of the vessel in connection with the carriage of goods. The expression is wide enough to include all maritime questions or claims. If goods or other property are lost or damaged, whether by physical contact or otherwise, by reason of unauthorised acts or negligent conduct on the part of the ship owner or his agents or servants, wherever the cause of action has arisen, or wherever the ship is registered, or wherever the owner has his residence or domicile or place of business, such a ship at the request of the person aggrieved, is liable to be detained when found within Indian jurisdiction by recourse to Secs. 43 and 444 of the Merchant Shipping Act, 1958 read with appropriate rules of practice and procedure of the High Court. These procedural provisions are but tools for enforcement of substantive rights which are rooted in general principles of law, apart from statutes and for the enforcement of which a party aggrieved has a right to invoke the inherent jurisdiction of a superior Court. (Para 80)

That Act, as stated earlier, confers a right to arrest a vessel in respect of any damage caused by a ship. If that expression, in the absence of any other more appropriate statute, is understood sufficiently broadly as an enabling provision to effectively assume jurisdiction over a foreign ship for the enforcement of a substantive right recognised by law, there would be no difficulty in finding a remedy for the right the law has conferred on the cargo owner.(Para 81)

Once a foreign ship is arrested in Indian waters by an order of the High Court, in exercise of the admiralty jurisdiction vested in it by statute, or inherent in it as a Court of record, in respect of any maritime claim against its owner, wherever the cause of action may have arisen, and whether or not the ship is subsequently released by the owner furnishing security, proceedings must continue against the owner as in any other suit. The arrest of the vessel while in Indian waters by an order of the concerned High Court, as defined under the Merchant Shipping Act, 1958 (Section 3(15) attracts the jurisdiction of the competent Court to proceed with the trial, as in the case of any other suit, as an action against the owner, and any decree obtained by the plaintiff is executable against any property of the owner available within jurisdiction including the security furnished by him for release of the vessel. (Para 93)

19. It is thus clear that the provisions of the Merchant Shipping Act referred to hereinabove are enabling provisions to effectively assume jurisdiction on a foreign ship by utilising the opportunity of the ship having been located in the relevant territorial waters. Section 443 read with Section 3(15) is an enabling provision. A High Court though not having territorial jurisdiction over the suit by reference to Section 20, CPC may still exercise the jurisdiction to order attachment by detention of a ship under Section 443 if it be a High Court within the meaning of Section 3(15). Having thus attached the ship and thereby having acquired jurisdiction over it, the proceedings thereafter would -continue as substantive proceedings like any other suit resulting into a decree. This does not mean that a substantive proceedings or suit cannot be initiated before a competent Court or High Courtother than a High Court within the meaning of Section 3(15)- merely because a merchant ship is involved therein.

20. Cannot a High Court seized of jurisdiction over a civil suit exercise powers to order arrest and detention of a ship. The answer can be safely found in various observations made by the Supreme Court in M.V. Elisabeths case (supra). To quote from the judgment of My Lord T.K. Thommen, J:

In India, carriage of goods by sea is governed by the Indian Bills of Lading Act, 1856, the Indian Carriage of Goods by Sea Act, 1925, the Merchant Shipping Act, 1958, and general statutes, such as the Marine Insurance Act, 1963, the Contract Act, 1872, the Evidence Act, 1872, the Indian Penal Code, 1860, the Transfer of Property Action 1882, the Civil Procedure Code, 1908, the Criminal Procedure Code, 1973, the Companies Act, 1956, etc. etc. as well as the general principles of law such as the law of tort, public and private international law, etc. (Para 76)

High Court in India are superior Courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of this Court, the High Courts have unlimited jurisdiction, including the jurisdiction to determine their own powers (see Naresh Shridhar Mirajkar v. State of Mahrashtra, (1966) 3 SCR 744 (AIR 1967 SC 1) [LQ/SC/1966/75] . as stated in Halsburys Laws of England 4th edition, Vol. 10, Para 713:

Prima facie, no matter is deemed to be beyond the jurisdiction of a superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court. (Para 67)

The observation of this Court in Raja Soap Factory v. S.P. Shantharaj (1965) 2 SCR 800 [LQ/SC/1965/12] : (AIR 1965 SC 1449 [LQ/SC/1965/12] ), that Section 151 of the Code of Civil Procedure did not confer on the High Court jurisdiction which was not specifically vested was made in the context of Section 105 of the Trade and Merchandise Marks Act (43 of 1958) which conferred a specific jurisdiction in respect of a passing off action. That observation is not relevant to the question regarding the inherent and plenary jurisdiction of the High Court as a superior Court of record. (Para 68)

The jurisdiction of the High Court is governed by the Constitution and the laws, and the continuance in force of the existing laws is not a fetter but an additional source of power. Access to Court for redressal of grievance being an important right of every person, it is essential that the jurisdiction of the Courts is construed harmoniously and consistently with its vital function in that respect, so that absence of legislation will not jeopardise that right.(Para 91)

The judicial power of this country, which is an aspect of national sovereignty, is vested in the people and is articulated in the provisions of the Constitution and the laws and is exercised by Courts empowered to exercise it. It is absurd to confine that power to the provisions of imperial statutes of a bygone age. Access to Court which is an important right vested in every citizen implies the existence of the power of the Court to render justice according to law. Where statute is silent and judicial intervention is required, Courts strive to redress grievances according to what is perceived to be principles of justice, equity and good conscience. (Para 87)

21. My Lord Justice R.M. Sahai, J. has so stated the law :

Law of 1890 apart, can the Indian High Courts after 1950 be denied jurisdiction to arrest a foreign ship to satisfy the claim of owner of a Bill of Lading for cargo taken outside the country Without entering into any .comparative study of jurisdiction of High Court of England and the High Courts in our country the one basic difference that exists today is that the English Courts derive their creation, constitution and jurisdiction from Administration of Justice Act or Supreme Court Act but the High Courts in our country are established under the Constitution. Under it Art. 225 preserved the jurisdiction, including the inherent jurisdiction, which existed on the date the Constitution came into force and Art. 226 enlarged it by making it not only a custodian of fundamental rights of a citizen but as repository of power to reach its arms to do justice. A citizen carrying on business which is a fundamental right cannot be rendered helpless on premise that the jurisdiction of High Courts stood frozen either under statute of England or any custom or practice prevailing there or the High Court of England cannot exercise the jurisdiction. Brother T.K. Thommen, J., while dealing with right in rem and in personam has considered the justification for conferment of such right to a claimant in respect of a merchant ship travelling from port to port. Can it be successfully urged today that such a ship or its master and owner is immune from tort or breach of contract committee by him in respect of cargo taken out of port. A citizen of a colonial State may or may not but a citizen of an independent republic cannot be left high and dry. The construction of law has to be in consonance with sovereignty of a State. The apprehension that assumption of such jurisdiction would be on general attributes of sovereignty is not well founded. This coupled with expansive jurisdiction that the High Courts enjoyed in relation to Admiralty under 1890 Act preserved under Art. 225 provided justification for direction to arrest the ship, for the tortious act done by master or owner of the ship in respect of goods carried outside the port even if there was no specific provision like Section 6 of the 1961 Act. Entertaining a claim arising out of breach of contract in relation to cargo taken out of any Indian port pertains to jurisdiction. It must arise out of Statute. But the power to direct arrest of a ship in exercise of the jurisdiction is one relating to competency. The High Courts in India being Courts of unlimited jurisdiction, repository of all judicial power under the Constitution except what is excluded are competent to issue directions for arrest of foreign ship in exercise of statutory jurisdiction or even otherwise to effectuate the exercise of jurisdiction. Since the jurisdiction to entertain a suit on tort or contract in relation to cargo going out of the country in a ship is found to exist under 1890 Act the High Court of Andhra Pradesh was competent to direct arrest of the foreign ship when it appeared in Indian waters. The High Court, therefore, rightly negatived the objection to issue direction to arrest the ship. (Para 101)

22. Having read the law so laid down by their Lordships of the Supreme Court, we are clearly of the opinion that though Sections 443 and 444 are to be widely interpreted, so as to cover a large variety of cases within the meaning of the term damage as used therein, yet these provisions do not take away the jurisdiction of the High Court otherwise vested in it by the Constitution and the laws in force other than the Merchant Shipping Act.

23. Take a case by way of illustration. A High Court in the country or any other Civil Court, for the matter of that is seized of a suit within its jurisdiction pecuniary and territorial both. Suit relates to a claim arising out of a commercial transaction in which a ship also intervenes. The jurisdictional territory of such Court does not touch any coastal waters. During the pendency of the suit a ship enters Indian territorial waters. The plaintiff is otherwise entitled to have an interim relief in the suit, now, to have an interim remedy against the ship it is necessary for the plaintiff to abandon his suit and rush to a High Court having territorial jurisdiction over such waters Our answer is no. It will lead to confusion and multiplicity of proceedings. In an appropriate case any Competent Court, more so when it is a High Court, having felt itself satisfied of the availability of a strong prima facie case in favour of the plaintiff, has power to grant a relief in the nature of arrest and detention of a ship if such a relief be necessary to meet the ends of justice.

24. If it is not necessary to have recourse to Section 443 of Merchant Shipping Act alone, does the Court have power to order arrest and detention of ship and if so, what is the source of such power

25. Procedure is but a handmaiden of justice and cause of justice can never be allowed to be thwarted by any procedural technicalities (S.P. Gupta v. UOI, AIR 1982 SC 149 [LQ/SC/1981/463] , 188, 189 and MV Elisabeth (supra) para 85).

26. Section 94 of the CPC confers jurisdiction on the Court to make several orders and issue processes in order to prevent the ends of justice from being defeated including a wide general power to make such other interlocutory orders as may appear to the Court to be just and convenient if it is so prescribed. Even if not prescribed, Section 151 of the CPC saves inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Order XXXVIII prescribes for arrest and attachment before judgment. Order XXXIX prescribes for temporary injunctions and interlocutory orders. In the leading case of Manohar Lal v. Hira Lal, AIR 1962 SC 527 [LQ/SC/1961/365] , Their Lordships have stated the law as under:

It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression if it is so prescribed in Section 94 is only this that when the rules in Order 39 Civil P.C. prescribes the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interest of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.

Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itselfrecognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.

Thus there being no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules, made under the Code, the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39, CPC, if the Court is of the opinion that the interests of justice require the issue of such interim injunction.

27. It is clear that the Court would not assume jurisdiction which it does not have. However, to achieve the ends of justice, the Court is not powerless to make interim directions and issue appropriate precepts/writs/processes if necessary by devising form thereof. While doing so, it may devise its own procedure and methods more so if it is High Court exercising inherent and plenary jurisdiction; the only limitation being it should not come in conflict with any other provision of law to the contrary.

28. In appropriate case the writ of the Court can run even beyond its territorial jurisdiction. To illustrate a power to direct arrest or attachment before judgment is conferred on the Court by Order 38 Rule 5, CPC. Such a warrant of arrest, or an order of attachment can be executed even beyond the territorial jurisdiction of the Court is a situation contemplated by Section 136 of the CPC and Section 46, CPC does not come as a hurdle in the way. There is ample authority for this proposition: See Mariamma v. Ittoop Poulo, AIR 1952 Travancore-Cochin 159 FB, Bhagwan Dass v. Santokh Singh, (1963) 65 PLR 609, [LQ/PunjHC/1963/153] Nataraja v. Bangaru, AIR 1965 Madras 212, Chimandas v. Firm Manager, Mahadevappa, AIR 1961 AP 417 [LQ/TelHC/1960/236] DB, Firm Surajbali Ram Harakh v. Mohar Ali, AIR 1941 Allahabad 212, Kanshi Ram v. Hindustan National Bank, AIR 1928 Lahore 376).

29. A question arises: the Court having assumed jurisdiction over a suit, is it debarred from passing interlocutory orders or allowing interim reliefs so long as it has not determined the question of its jurisdictional competence over the suit, once an objection in that regard has been taken We are of the opinion that the jurisdiction to pass interlocutory orders and grant interim reliefs arises by the initial assumption of jurisdiction by the Court and is not dependent on the Court having positively formed an opinion that it has jurisdiction to try the suit. This is basic to good administration of justice, a real necessity, the absence whereof may amount to negation or denial of justice itself. Question of jurisdictional competence of a Court may arise in very many ways and in very many sets of circumstances. If it were to be held that the Court cannot pass any judicial order so long as the question of its jurisdictional competence has not been decided then an astute defendant may successfully deny the plaintiffs right of seeking interim relief by laying challenge to the competence of each and every Court or Tribunal to which the plaintiff may approach to seek justice. Section 26 of CPC provides every suit shall be instituted by presentation of plaint or in such other manner as may be prescribed. Thus presentation of plaint is institution of suit. An inquiry whether the Court has jurisdiction in any particular case is not an exercise of jurisdiction over the case; it is an investigation as to whether the conditions of cognizance are satisfied. A Court is clothed with jurisdiction to see whether it has the jurisdiction to try the case submitted to it. Of necessity, it has the jurisdiction to pass interlocutory orders and grant interim reliefs pending conclusion of such inquiry. Any other view of law may result in the suit itself being frustrated for want of such interlocutory/ad interim orders, though at the end of the inquiry the Court may conclude in favour of the plaintiff.

30. The broad proposition of law is that a decree passed by a Court without jurisdiction is a nullity and its invalidity can be set up whenever and wherever it is sought to be enforced or relied upon. The defect of jurisdiction whether it is pecuniary, territorial or otherwise in respect of the subject-matter of the action, strikes at the very authority of the Court to pass a decree and such a defect cannot be cured even with the consent of the parties. However, want of pecuniary and territorial jurisdictions is subject to two well defined exceptions: an objection in that regard has to be taken before the Court seized of the proceedings, and at the earliest, and if not so taken then the effect shall have to be decided on the anvil of prejudice to the objecting party. (see Kiran Singh v. Charan Paswan, AIR 1954 SC 340 [LQ/SC/1954/68] ).

31. A Full Bench of Patna High Court has examined the question from the point of view of patent and latent lack of inherent jurisdiction in Shyam Nandan Sahay v. Dhanpati Kuer, AIR 1960 Patna 244, It has been held:

A distinction must be drawn between cases where there is an inherent lack of jurisdiction, apparent upon the face of the record, and cases where it is doubtful, or at least not so apparent, whether the Court possesses jurisdiction or not. Where there is total lack of jurisdiction nothing can confer the same on the Court, and an objection to jurisdiction cannot be waived. Therefore, even if such objection has not been raised by any party, the entire proceeding of the Court from the very initial stage is without jurisdiction and void.

Where, however, there is no total lack of jurisdiction, but, on the contrary, the averments in the plaint, if not challenged, manifestly bring the case within the jurisdiction of the Court in which it is filed, its proceedings are perfectly with jurisdiction and want of jurisdiction in such cases can rightly be waived. In other words, this kind of defect in jurisdiction is not fundamental in character and does not amount to anything more than a mere irregularity in the exercise of jurisdiction.

The lack of pecuniary jurisdiction comes under the latter of the above two kinds of defects, and therefore is not fundamental in character. It can be waived by any of the parties, and if not challenged at the proper time, it .cannot be questioned subsequently

In our opinion what has been said by the Full Bench of the lack of pecuniary jurisdiction applies to lack of territorial jurisdiction also.

32. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it its finding thereon cannot be impeached collaterally or on an application for certiorari but is binding until reversed on appeal. Where a quasi judicial authority has jurisdiction to decide a matter it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact (Ujjam Bai v. State of U.P., AIR 1962 SC 1621 [LQ/SC/1961/230] ).

33. The characteristic attribute of a judicial act or decision is that it binds whether it be right or wrong. [Smt Ujjam Bats case (supra)].

34. A Civil Court has inherent power to decide the question of its own jurisdiction although as a result of its inquiry it may turn out that it has no jurisdiction over the suit (Bhatia Co-operative Housing Society v. D.C. Patel, AIR 1953 SC 16 [LQ/SC/1952/65] ).

35. Grant of an interlocutory injunction does not depend on the validity of the suit in which the application is made (Herbert Carberry v. Clark & Greig Ltd., AIR 1937 Calcutta 172). In the context of an application in forma pauperis a Full Bench of Patna High Court has held in Matuki Mistry v. Kamakhaya Prasad, AIR 1958 Patna 264 that filing of application for permission to see in forma pauperis commences a suit for the purpose of empowering the Court to pass an injunction under Order 39, CPC.

36. If it appears from a bare reading of the plaint that the Court does not have jurisdiction to try the suit, the plaint itself may be returned for presentation to a proper Court under Order 7 Rule 10 of the CPC. If the suit appears to be barred by any law the plaint may be rejected under Order 7 Rule 11, CPC. However, at times it may be a disputed question of fact or law or both whether the Court has jurisdiction over the suit or not. Such a question if it be a pure question of law, it can be decided by hearing the parties on a preliminary issue. A learned Judge of Bombay High Court has held in Porbunderwala v. Gulam Hussein, AIR 1974 Bombay 288 on the challenge to the jurisdiction of the Court to entertain the suit being laid by the defendant, it was incumbent upon the Judge to determine that question as a preliminary issue before making absolute the rule issued earlier.

37. However, such a question may arise in a fact situation where evidence must be recorded before recording a finding. The question may be mixed question of law and fact requiring evidence. Sometimes evidence on such an issue which is required to be recorded may be the same as would be adduced on all the issues arising for decision in the suit. Would then the issue be determined as a preliminary issue Interpreting the provisions of Order 14 Rule 2, CPC (as amended) a Full Bench of High Court of Madhya Pradesh has held in Ram Dayal v. Panna Lal, AIR 1979 MP 153 [LQ/MPHC/1979/15] :

The issue as to jurisdiction may be an issue of law or of fact or a mixed issue. The obligation to try the issue of jurisdiction as preliminary arises only when it is an issue of law. Issue of jurisdiction depending on question of fact and or mixed question of law and fact, must be decided on merits at one and the same time, along with the other issues. If the Court finds, on a trial, on merits so far as this issue of jurisdiction goes, that the case is not cognizable by the Court because of want of territorial or pecuniary jurisdiction, the plaint will be ordered to be returned for presentation to the proper Court, and if, on the other hand, it finds that having regard to the nature of the suit, it is not cognizable by the class of Courts to which the Court belongs, the plaintiffs suit will have to be dismissed in its entirety. Discretion to try preliminary issue of law relating to jurisdiction or bar of suit should be exercised only when it is so clear that the decision will decide the suit finally once and for all without recording of any evidence.

(Emphasis supplied)

38. The case at hand is not one of patent lack of jurisdiction in the High Court of Delhi (Original Side). It is also not a case of lack of jurisdiction by reference to subject-matter of the suit. What is challenged is its jurisdictional competence by reference to territory. The issue so raised is a mixed question of law and fact. It will have to be inquired into. It cannot be said that the Court did not have jurisdiction to make an interlocutory order to meet the ends justice so long as the issue was not decided finally. 39. To sum up, our conclusions are as under:

(i) Section 443 of the Merchant Shipping Act, 1958 does not exclude jurisdiction and availability of remedies under common law, de hors the provision of the Act. It is an enabling provision. A High Court though not having jurisdiction over the suit by reference to Section 20 of the CPC, in the sense that the cause of action or part thereof has not arisen within its territorial jurisdiction may still exercise power to order attachment by detention of a ship under Section 443 if it be a High Court within the meaning of Section 3(15) of the Act;

(ii) A High Court seized of a suit within its competence by reference to pecuniary and territorial jurisdiction, though not a High Court within the meaning of Section 3(15) of the Merchant Shipping Act, 1958, may independent of the provisions contained in Section 443 of the Act exercise jurisdiction to direct arrest and detention of a ship if found in Indian territorial waters and if it may form an opinion that it was necessary to do so in the interest of justice.

(iii) The jurisdiction to pass interlocutory orders and grant interim reliefs arises by the initial assumption of jurisdiction by the Court and is not dependent on the Court having positively formed an opinion that it has jurisdiction to try the suit.

(iv) A Court seized of a suit and a prayer for the grant of ad interim relief may be faced with a doubt or challenge as to the availability of jurisdiction to try the suit in a variety of circumstances. The Court has to act as under:

(a) In the case of inherent lack of jurisdiction apparent on the face of the record, Court cannot exercise jurisdiction over the suit so as to pass any interlocutory order or grant interim relief;

(b) If it appears from a bare reading of the plaint that the Court does not have jurisdiction to try the suit, the plaint itself may be returned for presentation to a proper Court under Order 7 Rule 10, CPC;

(c) If the suit appears to be barred by any law, the plaint may be rejected under Order 7 Rule 11, CPC;

(d) It may be a disputed question of fact or law or bothwhether Court has jurisdiction over the suit or not. Such a question if it be a pure question of law it can be decided on hearing the parties on a preliminary issue. Such a challenge to the jurisdiction of the Court to entertain the suit being laid by the defendant as a pure question of law, it is incumbent upon thejudge to determine that question as a preliminary issue before making absolute the rule issued earlier;

(e) If the determination of jurisdiction of the Court is a question of fact or mixed question of fact and law requiring evidence to be adduced before recording a finding, the determination of the question may in appropriate cases be liable to be postponed till after the determination of all or several other issues if the evidence to be adduced by the parties may be common on the issue of jurisdiction and such other issues.

(v) Every Court has inherent power to decide the question of its own jurisdiction. Characteristic attribute of a judicial act and decision is that it binds whether it be right or wrong unless set aside by a competent forum in appropriate proceedings.

(vi) The Court having assumed initially the jurisdiction over the suit, pending decision on its jurisdictional competence it has power to make interlocutory orders and grant interim relief by way of injunction or otherwise lest the suit itself should be frustrated by the time the Court arrives at a positive finding on the question of its jurisdiction.

(vii) A High Court is a Court of plenary jurisdiction having inherent power to pass such orders as would meet the ends of justice. It can draw upon analogy of what is specifically provided elsewhere and can devise suitable form of process to achieve the ends of justice consistently with the principles of justice, equity and good conscience, the only rider being while doing so it should not offend any provision of law. In appropriate cases its precept/ writ can run even beyond the territory of its jurisdiction.

40. The suit is on the Original Side of Delhi High Court. It is a Court of plenary jurisdiction having inherent power to pass such orders as would meet the ends of justice. By reference to Sections 94 and 151 of the CPC and by drawing upon an analogy of what is provided by Orders 39 and 38 of the CPC, the Court can devise suitable form of process to arrest and detain a ship anchored at the coastal border of the country if it feels satisfied that it was necessary so to do in the interest of justice. We have already held that Sections 443 and 444 of the Merchant Shipping Act, 1958 do not exclude the jurisdiction of a High Court, though not covered by Section 3(15) of the Act, as the High Court exercises territorial jurisdiction over the suit by reference to Section 20 of the CPC. The High Court while drafting its process can draw upon the analogy of Section 443 of the Merchant Shipping Act also. We have already noticed that the learned Single Judge has felt fully satisfied about the genuineness of the case of the plaintiff and availability of a strong prima facie case in its favour. The learned Judge felt inhibited in informing the ex parte order for arrest and detention of the ship because he felt that the High Court of Delhi was not a High Court which could have entertained the plaintiffs prayer under Section 443 read with Section 3(15) of the Merchant Shipping Act with which view, with respect, we do not find ourselves in agreement. We are, therefore, of the opinion that the present one is a fit case which warrants interim relief by way of arrest and detention of the shipping MV Pranburi being allowed to the plaintiff-appellant.

41. For the foregoing reasons the appeal is allowed. The order of the learned Single Judge is set aside. The interim order dated 5.6.1996 made by the Division Bench of this Court as reproduced in para 5 above is confirmed so as to remain in operation during the hearing of the suit. The security if not already furnished may now be furnished within four weeks from today. In view of purely legal controversy arising for decision in the case parties are left to bear their own costs as incurred.