*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.376/1989 The Board of Trustees of the Port of Bombay. ..Plaintiff -VERSUS- Metro Moulding and another. ..Defendants ............... Mr.Parag Kandhar i/b Mulla & Mulla, Advocate for the Plaintiff. Mr.I.A.Bootwala i/b M/s Bootwala & Company, Advocate for the Defendant No.2. ............... CORAM: A.P.DESHPANDE, J. Dated 06th July, 2009. 24th July, 2009 PC:- 1 The Plaintiff is a body corporate constituted under the provisions of the Major Port Trusts Act, 1963 as amended by the Major Port Trusts (Amendment) Act, 1974 (herein after referred to as “the said Act”). The Defendant No.1 is a firm and is importer/ owner/ consignee of the consignment which was imported in or about October, 1985. The Defendant No.1 had imported one container containing 1000 bags of High Density Polythelene which was manifested at Item No.130 in the Import General Manifest No. 2368 dated 03.10.1985 of the Vessel i.e. Lakotai Express. The General Landing Date and the Last Free Day of the cargo of the said Vessel fell on 04.10.1985 and 9.10.1985 respectively. The container *2* containing 1000 bags has been referred to as suit consignment in the plaint. The Defendant No.2 who alone has contested the claim is the Shipping Agent of the vessel ‘Lakotai Express’ which discharged the consignment in the custody of the Plaintiff Port Trust. The Plaintiff has averred in the plaint that it is owner of the docks at Mumbai and under the provisions of the said Act it is required to take charge of the goods landed from ships coming to Mumbai. Thus, it is averred that the Plaintiff is entitled to levy wharfage, demurrage and other charges in respect of the goods landed and stored at the docks in Mumbai according to the Scale of Rates duly prescribed, published and brought into force under the provisions of the said Act. 2 With a view to justify the claim made in the plaint the witness for the Plaintiff has placed on record the printed scale of rates on the basis of which the amount of charges are worked out. According to the Plaintiff, the Defendants were bound and liable to take delivery and clear the consignment within seven clear days from the date of landing of the consignment and to pay the Plaintiff wharfage, demurrage and other charges which accrued thereon for the period during which the said consignment remained on the premises of the Plaintiff. By an order dated 30.09.1987, the Additional Collector of Customs ordered absolute confiscation of the consignment under the provisions of the Customs Act. Based on the above pleadings, the Plaintiff has filed the present suit for recovery of an amount of Rs.8,95,000/- together with future interest at the rate of 15% per annum from the date of filing of the suit till the realisation of the amount. *3* 3 The Defendant No.1 despite service of summons, chose not to appear and thus, has not contested the suit. 4 The Defendant No.2 opposed the claim in the suit by denying its liability and by contending that as a Shipping Agent the Defendant No.2 cannot be held liable for payment of the said charges to the Plaintiff. 5 Touching the pleadings my predecessor has framed the following issues :- 1. Whether the Plaintiff proves that the Defendant No.2 is the Bailor/ Owner of the suit consignment as stated in paragraph No.5 of the plaint? 2. Whether the pre-confiscation charges of the suit consignment amounted to Rs.8,93,395.05 as stated in paragraph No.7 of the plaint? 3. Whether the Plaintiff is entitled to recover the amount of Rs. 8,93,395.05 being the pre-confiscation port trust charges in respect of the suit consignment together with a sum of Rs. 1,605.95 being interest @ 15% p.a. From 24.09.1988 till 02.10.1988 aggregating to Rs.8,95,000/- as stated in paragraph No.12 of the plaint? 4. To what reliefs, if any, are the Plaintiff entitled? 5. What order? 6 The main issue touches the existence of liability and extent of liability of a Shipping Agent for payment of charges to the Port Trust. The Plaintiff has examined one witness in support of its case by name Mr.Sunil Deshmukh who is Assistant Manager of the *4* Plaintiff. The Plaintiff has placed on record the original documents on which the claim is based. The Plaintiff’s witness has filed an affidavit in lieu of Examination-in-Chief and has been cross- examined by the learned counsel for the Defendant No.2. Most of the documents were admitted by the Defendant No.2 and were thus marked from Exhibits P/1 to P/4. The order passed by the Additional Collector of Customs is also filed on record and exhibited. The letters addressed by the Plaintiff to the Defendant No.1 are also placed on record together with working sheet prepared by the Plaintiff and the docks scale of rates at Exhibit P/9 together with copies of pages 10 and 11. With a view to point out that the claim made in the present suit is not asper the docks scale of rates, the witness was cross examined and the witness did admit that the Plaintiff did not weigh the consignment and thus, according to the Plaintiff the amount was not charged on the basis of the weight of the consignment. The witness denied that the rate specified at No.93(a)(ii) is applicable to the suit consignment. The commodity which was imported was packed in the bags and the bags were in the container. During the cross-examination it was also suggested to the witness that the Defendant No.2 did not discharge the cargo as the Defendant No.2 was not incharge and controller of the vessel. 7 The witness for the Plaintiff who is the Assistant Docks Manager in his affidavit of examination-in-chief in lieu of oral evidence has stated that wharfage was payable in respect of the said consignment under Item No.69 of the Docks Scale of Rates then in force. It is then stated that the demurrage was payable in respect of *5* the said consignment under Item No.III(C)(A)(ii) of the Docks Scale of Rates then in force. The witness has stated thus in examination- in-chief:- “5. The said consignment incurred Port Trust charges whilst the same was in custody of the Plaintiffs. The said Port Trust charges were for the period from the Last Free Day i.e. 9th October, 1985 until one day prior to the date of Confiscation Order i.e. till 29th September, 1987. The said consignment weighed 25456 kgs. Wharfage was payable in respect of the said consignment under Item No.69 of the Docks Scale of Rates then in force at the rate of Rs.22.10 paise per M.T. And amounted to Rs.563.55 paise. Demurrage was payable in respect of the said consignment under Item No.Section III(C)(A)(ii) of the Docks Scale of Rates then in force at the rate of Rs.25/- per M.T. per day for the first 30 days, thereafter at the rate of Rs.37.50 paise per M.T. per day for next 30 days and thereafter at the rate of Rs.50/- per M.T. per day for the remaining 660 days and amounted to Rs. 8,89,312.50. The Plaintiffs had also incurred Sale Warehousing charges under Item No.E(1) of the Docks Scale of Rate then in force, at the rate of Rs.28/- per M.T. and the same amounted to Rs.714/- paise. The Plaintiffs had also incurred Removal charges at the rate of Rs.110/- per M.T. and the same amounted to Rs.2,805/-. Thus, the total Port Trust charges in respect of the said consignment amounted to Rs. 8,93,395.05 paise, which the Defendants were bound and liable to pay to the Plaintiffs. In the usual course of business, the Plaintiffs have prepared a working sheet for the purpose of noting down the calculations. I have personally verified the correctness of the calculations made in the working sheet. The calculations made therein are correct. I produce the working sheet and pray that the same may be taken on record and marked as Exhibit.” 8 In view of the above evidence, I am satisfied that the demurrage and wharfage charges receivable by the Port Trust amount to Rs.8,93,395.05 paise as stated in paragraph No.7 of the *6* plaint. 9 Coming to the main defence raised by the Defendant No. 2 that the shipping agent is not liable to pay the wharfage, demurrage and other charges to the Port Trust. The learned counsel for the Plaintiff has placed reliance on the judgment in case of Trustees of the Port of Madras Vs. M/s KPV Sheikh Mohd. Rowther & Company (AIR 1995 SC 1922) where a similar issue had arisen for consideration of the Apex Court and the Apex Court had addressed the issue in regard to the point of time till which liability of the steamer and the steamer agent would continue. In that context, the Apex Court observed:- “Once the goods are handed over to the Port Trust by the steamer and the steamer agents have duly endorsed the bill of lading or issued the delivery order, their obligation to deliver the goods personally to the owner or the endorsee comes to an end. The subsequent detention of the goods by the Port Trust as a result of the intervention by the Customs authorities cannot be said to be on behalf of or for the benefit of the steamer agents. Generally, if there is a delay in taking delivery of the goods by the consignee within a reasonable time, the steamer or its agent can warehouse the goods. In such an event the warehouseman has an independent claim against the consignee or endorsee for the demurrage charges. The position cannot be different merely because the Customs authorities have intervened. The position of the Port Trust is the same as that of a warehouseman whose responsibility to the goods is also said to be a bailee. It cannot be said that the steamer or its agents have undertaken any responsibility for the custody *7* of the goods after the transit has come to an end and after the bill of lading has been duly endorsed or a delivery order issued. By the endorsement of the bill of lading or the issue of a delivery order by the steamer agents, the property in the goods vests on such consignee or endorsee, and thus it appears to be clear that the steamer or the steamer agents are not responsible for the custody of the goods after the property in the goods passes to the consignee or endorsee till the customs authorities actually give a clearance.” 10 The judgment in case of KPV Sheikh (supra) has been relied upon and interpreted by the two learned Single Judges of this Court in two separate judgments. Justice R.S.Mohite in the judgment dated 16.12.2005 passed in Writ Petition No.1732/1990 (unreported) has held that the steamer agents are the owners within the meaning of Section 2(o) of the Major Port Trusts Act, more so when no delivery order has been issued. Justice S.R.Sathe in the unreported judgment dated 18.12.2003 passed in Suit No. 2026/1981 has held that the steamer agent is equally liable for payment of the Port Trust charges. Having regard to the judgments rendered by the two learned Single Judges of this Court following the Supreme Court judgment, it is contended that the Defendant No.2 cannot escape from its liability as a steamer agent. 11 Per contra, the learned counsel for the Defendant No.2 has pointed out that the two Judges Bench of the Supreme Court has referred the same question to the Larger Bench for adjudication by a speaking order dated 14.02.2008 in case of Forbes Forbes Campbell & Company Ltd. v/s Board of Trustees, Port of Bombay in *8* Civil Appeal No.2134/2006. After recording the reasons the questions are framed and the appeal has been referred to the Larger Bench. One of the questions framed is as to whether a steamer agent can be construed as owner of the goods carried in his principal’s vessel within the definition of owner in relation to the goods under Section 2(o) of the Major Port Trusts Act, 1963 and the other question is in regard to the liability of the steamer agent for payment of storage charges/ demurrage and other charges which are not cleared by the consignee, even where the steamer agent has not issued the delivery order. It can be, thus, seen that the correctness of the decision of the Supreme Court rendered by the Three Judges Bench in case of KPV Sheikh (supra) has been referred to the Larger Bench. It is also obvious that unless and until the said decision is set aside the same would continue to have binding effect. 12 The learned counsel for the Defendant No.2 then placed reliance on the judgment in case of Trustees of Port of Madras v/s Nagavedu Lungi & Company, (1995) 3 SCC 730. The Supreme Court has held in the said judgment that the importer/consignee or the exporter/ consignor would be liable to pay the demurrage charges and other incidental charges to the Port Trust. The judgment no where exonerates the shipping agent of the liability. The issue that has fallen for consideration in the present suit did not arise for consideration before the Supreme Court in the said judgment on which the reliance has been placed by the learned counsel for the Defendant No.2. 13 Having regard to the law laid down by the Apex Court in KPV Sheikh (supra) as has been interpreted by the two learned *9* Single Judges of this Court, I have no hesitation in concluding that the steamer agent would be liable for payment of the charges to the Port Trust till due endorsement of the bill of lading or issuance of delivery order. It is only when either of the two contingencies occur that the steamer agent’s liability would cease and not otherwise. True it is that the Bench of two learned Judges of the Supreme Court have made a reference to the Larger Bench in regard to the correctness of the law laid down by the three Judges Bench in case of KPV Sheikh (supra). However, till the judgment is set aside by the Larger Bench the view expressed therein would continue to hold good and binding. In that view of the matter it has to be held that the Plaintiff has established that not only the Defendant No.1 but the Defendant No.2 being the steamer agent is also liable to pay the amount of demurrage charges and other incidental charges claimed in the suit. 14 In the result, the suit is decreed in favour of the Plaintif and against the Defendants Nos.1 and 2. The Defendants Nos.1 and 2 shall be jointly and severally liable for payment of the amount of Rs.8,95,000/- together with future interest at the rate of 15% per annum from the date of filing of the suit till the realisation of the amount. The Defendants Nos.1 and 2 shall also pay costs of the suit to the Plaintiff. A decree be drawn accordingly. 15 At this stage, the learned counsel for the Defendant No.2 submits that the issue involved in the present suit is pending consideration before the Larger Bench of the Supreme Court on account of reference being made about the correctness of the law laid down in case of KPV Sheikh (supra), hence, seeks stay of the *10* decree. Be that as it may, as the claim in the present suit is only money claim, I do not deem it appropriate to grant stay of the decree. Hence, the prayer for stay is rejected. JUDGE