1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 3634 OF 1988 The Board of Trustees of the Port of Bombay ..Plaintiff versus Poonam Woollen Mills & Anr. ..Defendants Mr. U. J. Makhija with Mr. Parag Khandhar i/b. M/s. Mulla & Mulla & Craigie Blunt & Caroe for Plaintiff. None for Defendants. CORAM : DR. D. Y. CHANDRACHUD , J. DATED : 15TH JULY, 2009. P.C. : 1. The suit has been instituted on 17th May 1988 by the Board of Trustees of the Port of Bombay for recovery of pre-confiscation charges in the amount of Rs.9,47,000/- together with interest at the rate of 15%. 2. In or about May 1985 the 2nd Defendant as an agent of a vessel discharged into the custody of the Plaintiff two consignments, one consisting of 36 bales and the other consisting of 35 bales containing woolen rags. Prior to the berthing of the vessel, the 2nd Defendant had 2 furnished to the Plaintiff an Import General Manifest dated 17th May 1985 wherein the consignments were manifested at Item Nos. 73 and 74. The General Landing Date and the Last Free Day of the cargo were 18th May 1985 and 22nd May 1985 respectively. 3. The 1st Defendants were the importers / consignees / owners of the two consignments and the 2nd Defendant was the bailor and as such owner within the meaning of the expression in Section 2(o) of the Major Port Trusts Act as amended. The case of the Plaintiffs is that the Defendants were therefore bound and liable to take delivery within seven clear days on the payment of the Port Trust charges which had accrued in accordance with the Docks Scale of Rates. The Defendants failed to clear the consignments. 4. By two orders both dated 16th August 1986 passed by the Additional Collector of Customs, the consignments were ordered to be confiscated under Section 111(d) of the Customs Act, 1962. The consignment incurred Port Trust charges from 22nd May 1985 until 5th August 1986. The total Wharfage amounted to Rs.446/- and demurrage amounted to Rs.4,17,500/-. The Plaintiff also incurred Sale Warehousing charges of Rs.560/- and Transportation charges of Rs.2,200/-. The total Port Trust charges consequently amounted to Rs.4,20,706/-. 3 5. By a letter dated 3rd July 1987 the Plaintiffs called upon the Defendants to pay the accrued Port Trust charges. This was followed by letters dated 26th September 1987 and 11th August 1987. The demand made by the Plaintiffs was reiterated by letters dated 22nd August 1987, 26th September 1987 and 7th October 1987. The Plaintiffs addressed the aforesaid letters of demand. The 2nd Defendants declined to pay the amount demanded. 6. A Written Statement has been filed by the 2nd Defendant. The following issues has been drawn up: 1. Whether the Plaintiffs prove that Defendant No.2 is the owner / bailor of the suit consignment as stated in paragraph 7 of the Plaint? 2. Whether the pre-confiscation charges of 2 suit consignments amounted to Rs.4,20,706.16 on each consignment as stated in paragraph 7 of the plaint? 3. Whether the Plaintiffs are entitled to recover the amount of Rs. 8,41,412/- being the pre-confiscation port trust charges in respect of first and second suit consignment together with a sum of Rs. 1,05,588/- being interest @ 15% p.a. From 3rd July 1987 till 14th May 2008 aggregating to Rs.9,47,000/- as stated in paragraph 20 of the plaint? 4. To what reliefs, if any, are the Plaintiffs entitled? 4 5. What order ? 7. The Plaintiffs have relied upon an Affidavit in lieu of Examination-in- chief of Mr. S. M. Deshmukh, who is the Assistant Docks Manager, and on a compilation of the original documents. The witness for the Plaintiff has verified the correctness of what is stated in the affidavit. On 29th June 2009 and 6th July 2009 directions were issued by the Court by which the Defendants were furnished with an opportunity to cross-examine the witness of the Plaintiff. The Defendants and their Advocates have remained absent. The examination of the Plaintiff’s witness has in the circumstances been concluded. 8. Re : Issue No. 1 : The Plaintiff has duly established that both the 1st and 2nd Defendants are owners of the suit consignments by virtue of the definition of the expression contained in Section 2(o) of the Major Port Trust Act 1963, as amended. 9. Re : Issue No. 2 : The pre-confiscation charges have been duly proved on the basis of the evidence of Mr. S. M. Deshmukh, Assistant Docks Manager. The witness has duly deposed to the computation of the charges in paragraphs 5 and 6 of the Examination-in-Chief. The computation has been made on the basis of the Docks Scale of Rates. The 5 Working Sheets have also been produced at Item Nos. 16 of the compilation. The claim has therefore been proved. 10. In view of the answer to Issue Nos. 1 and 2, Issue No. 3 will have to be answered in the affirmative. The suit shall accordingly stand decreed in terms of prayer clause (a) with the modification that the Plaintiff will be entitled to interest at the rate of 9% on the principal sum of Rs.8,41,412/- from the date of the suit until payment or realisation. (DR. D. Y. CHANDRACHUD, J.)