IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 4850 OF 1996. The Board of Trustees of the Port of Mumbai, a body Corporate, constituted under the provisions of the Major Port Trusts Act,1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having its principal place of business at “Vijay Deep”, Shoorjee Vallabhdas Marg, Bombay - 400 038. ..Plaintiffs. Vs. M/s. Dewan Chand Dholandas & Co, A firm carrying on business at H-5/4, Model Town, Delhi- 110 009. ..Defendants. .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla, for Plaintiffs. Mr. P. Rengaraj, Assistant Traffic Manager of Plaintiff, present in person. None for the Defendants. .... Coram: S. J. Kathawalla J. Date: 4th May 2011. JUDGMENT: By this Suit, the Plaintiffs pray for an order and decree against the Defendant to pay to the Plaintiff an amount of Rs. 72,674.04 paise towards the Port Trust charges inclusive of destruction charges as per the particulars of claim being Exhibit “D” to the Plaint and to further pay to the Plaintiffs interest on the sum of Rs. 55,890/- paise at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation. Though the Defendants are served with the Writ of Summons and an Affidavit of service to this effect dated 14th May 2010 is filed in this Court, the Defendant has not 2 s-4850-96 filed its Written Statement and has also not come forward to defend the Suit. The Suit has therefore appeared under the caption “For Exparte Decree”. 2. Shri P. Rengaraj, Assistant Traffic Manager, of the Plaintiffs has filed his Affidavit in lieu of evidence dated 21st April 2011. The said Affidavit is taken on record and marked “X” for identification. A compilation of documents is also filed on behalf of the Plaintiffs. Mr. P. Rengaraj has filed his evidence pursuant to the letter of authority dated 4th March 2010 issued by the Plaintiffs in his favour. The said letter of authority is marked Exhibit “P-1”. 3. It is stated in the Plaint as well as in the Affidavit in lieu of Evidence as follows:- 4. In or about July 1993, the Defendants imported a consignment of 440 bags containing walnuts in shell which was discharged into the custody of the Plaintiffs from the vessel “m.v. ELIZABETH SCHULTE – V-825” by the agents of the said Vessel. Prior to the berthing of the said Vessel, the Vessel Agents had furnished to the Plaintiffs an Import General Manifest (IGM) bearing No. 1476 dated 15th July 1993 of the Vessel showing the cargoes intended to be discharged from the said Vessel at the Port of Mumbai. In the said IGM the said consignment was manifested at item No.31 and the Defendant was shown as the importers/ consignees of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 19th July 1993 and 22nd July 1993 respectively. The original of the said Import General Manifest is tendered in Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the 3 s-4850-96 Photostat copy of the IGM is taken on record and marked as Exhibit “P-2”. 5. The Plaintiffs state that on behalf of the Defendants their Clearing Agents had filed Bill of Entry with the Customs Authorities for clearance of the goods for home consumption. A photocopy thereof was also furnished to the Plaintiffs. In the Bill of Entry the name of the Defendants was shown as importers of the said consignment. The said photocopy of the Bill of Entry is produced before the Court. The same is taken on record and marked as an Exhibit “P-3”. 6. The Defendants as importers / consignees / owners of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same. 7. As the Defendants failed to clear the said consignment within two months from the date of landing thereof, the Plaintiffs became entitled to sell the said consignment under the provisions of the Major Port Trusts Act. The said consignment was therefore listed for sale under Lot No. HH 6736 and notices of sale were issued to the Defendants to clear the said consignment. Before however the said consignment could be sold, the Port Health officer certified that the said consignment had become “unfit for human consumption” and 4 s-4850-96 ordered the same to be destroyed vide his letter dated 15th September 1993. The said certificate was forwarded by the Port Health Officer, who is a Government of India Organization, to the Docks Manager of the Plaintiffs to ensure that the goods were not sold. The said certificate dated 15th September 1993 issued by the Port Health Officer is produced before the Court. The same is taken on record and marked as Exhibit “P-4”. 8. The Plaintiffs then received a letter dated 4th November 1993 from the Defendants. The Defendants pointed out that the Port Health Officer had ordered the goods to be destroyed and therefore they requested the Plaintiffs to destroy the goods at the earliest and stated that they were ready to pay the necessary fees. The said letter dated 4th November 1993 is produced before the Court. The same is taken on record and marked as Exhibit “P-5”. 9. By a letter dated 6th November 1993 addressed to the Defendants the Plaintiffs pointed out that the said consignment imported by the Defendants was lying uncleared in the Docks and that the same had been certified by the Port Health Officer as being unfit for human consumption and was required to be destroyed. By the said letter the Plaintiffs pointed out that arrangements were being made to destroy the said consignment and the Defendants should note their liability towards Port Trust charges including Destruction charges which would be intimated to them. The said letter was signed on behalf of the Plaintiffs by Mr. J.A. Sampath, the then Assistant Manager (Sales) of the Plaintiffs. Mr. P. Rengaraj has deposed that he is familiar with the signature of Mr. J.A. Sampath and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced 5 s-4850-96 before this Court. The same is taken on record and marked Exhibit “P-6”. 10. The Plaintiffs thereafter received a letter dated 10th November 1993 from the Superintendent of Customs, Preventive General, stating that arrangements be made for destroying the said goods at 3 p.m. on 11th November 1993 at Wadala Incinerator Plot in his presence. It was further pointed out that the consignment would be carted from Timber Pond to Wadala Incinerator Plot under the escort of the Preventive Officer apart from the staff of the Plaintiffs. The said letter dated 10th November 1993 received by the Plaintiffs from the Superintendent of Customs is produced before the Court. The same is taken on record and marked as Exhibit “P-7”. 11. The said consignment was thereafter destroyed on 11th November 1993. Mr. P. Rengaraj deposed that Destruction and other charges in respect of the said goods worked out to Rs.55,890/- in accordance with the Docks Scale of Rates then in force and wages of labours Transportation cost which the Defendant is bound and liable to pay to the Plaintiffs. 12. Explaining how the total Port Trust charges are arrived at, Mr. P. Rengaraj has deposed that the said consignment weighed 11,110 kgs. Wharfage was payable in respect of the said consignment under Section I 3 (iii), of the Docks Scale of Rates then in force at the rate of Rs. 24/- per M.T. and amounted to Rs.269/-. Demurrage was payable in respect of the said consignment under Section II A (4) of the Docks Scale of Rates 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 6 s-4850-96 for the remaining 46 days and the same amounted to Rs.46,760/-. Mr. P. Rengaraj further deposed that the said consignment also incurred bulldozer Charges which amounted to Rs.5,200/-. The said consignment incurred destruction charges for 440 cartons @ Rs.1.25 per cartoon and the same amounted to Rs.550/-. The said consignment incurred Muccadam wages then in force and the same amounted to Rs.105.23 paise. The said consignment incurred scavengers wages, at the rate of Rs.104.32 paise and the same amounted to Rs.625.92 paise. Two Motor lorries were required for transporting the said goods. The said motor lorry charges amounted to Rs.680/-. Detention charges in respect of the said lorries amounted to Rs.1,700/-. Thus, the total Port Trust charges in respect of the said consignment amounted to Rs.55,890/-. 13. Mr. P. Rengaraj has deposed that for the sake of noting down the calculations, the Plaintiffs have prepared working sheet in the usual course of business. Mr. P. Rengaraj deposed that he has personally verified the correctness of the calculations made in the working sheet on the basis of the Docks Scale of Rates. The calculations made therein are correct. The working sheet is produced before the Court. The same is taken on record and marked Exhibit “P-8. The relevant Docks Scale of Rates then in force are produced before the Court. Mr. P. Rengaraj has deposed that he has taken photocopies of the relevant entries of the Docks Scale of Rates for Wharfage, Demurrage, Transportation and other charges. He has compared the photocopies with the original entries in the Docks Scale of Rates. The photocopies are true and correct photocopies of the originals. The photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges are taken on record and marked Exhibit “P-9”. 7 s-4850-96 14. By a letter dated 27th June 1994 addressed to the Defendants, the Plaintiffs informed the Defendants that the said goods were destroyed on 11th November 1993 and called upon them to pay to the Plaintiffs the destruction and other Port Trust Charges amounting to Rs.55,890/- within 15 days of receipt of the said letter. The said letter was signed by Mr. R.N. Shaikh, the then Assistant Docks Manager of the Plaintiffs. Mr. P. Rengaraj has deposed that he is familiar with the signatures of Mr. R.N. Shaikh and identifies the same. He further submits that the contents of the said letter are true and correct. The photocopy of the said letter is produced before this Court. The same is taken on record and marked Exhibit “P-10”. As there was no response, the Plaintiffs by a further letter dated 11th August 1994 referred to their earlier letter dated 27th June 1994 and once again called upon the Defendants to remit the said amount. The said letter was signed by Mr. R.N. Shaikh, the then Assistant Docks Manager of the Plaintiffs. Mr. P. Rengaraj has deposed that he is familiar with the signatures of Mr. R.N. Shaikh and identifies the same. He further submits that the contents of the said letter are true and correct. The photocopy of the said letter is produced before this Court. The same is taken on record and marked Exhibit “P-11”. The Plaintiffs then received a letter dated 5th April 1995 from the learned Advocate for the Defendants acknowledging receipt of the letter dated 11th August 1994 and referring to the earlier communications and it was falsely alleged in the said letter that for the first time on 18th October 1994 the Port Trust Authorities informed the Defendants that the goods were destroyed on 11th November 1993 and that the destruction was done without intimation or notice to the owner of the goods. It was further alleged that the goods had been destroyed as per the decision and the certificate issued by the Port Health Officer and 8 s-4850-96 that there was no opportunity given to the Defendants to challenge the decision of the Port Health Officer. It was further wrongly alleged that the goods were unilaterally and arbitrarily destroyed. By the said letter the Defendants had wrongly denied the claim made by the Plaintiffs. The Plaintiffs state that as mentioned herein above by their letter dated 4th November 1993 the Defendants had themselves requested the Plaintiffs to destroy the goods. The contents of the said letter were therefore false. The photocopy of said letter dated 5th April 1995 is produced before this Court. The same is taken on record and marked as Exhibit “P-12”. 15. As there was no response from the Defendants, the Plaintiffs by their further letter dated 23rd January 1996, addressed to the Defendants referred to the earlier letters and once again called upon them to pay to the Plaintiffs the said amount of Rs.55,890/-. The said letter was signed on behalf of the Plaintiffs by Mr. R.N. Shaikh, the then Assistant Docks Manager of the Plaintiffs. Mr. P. Rengaraj has deposed that he is familiar with the signatures of Mr. R.N. Shaikh and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this court. The same is taken on record and marked Exhibit “P-13”. 16. By another letter dated 8th May 1996 the Plaintiffs once again called upon the Defendants to pay said amount of Rs. 55,890/- towards Destruction and other Port Trust Charges. The said letter was signed on behalf of the Plaintiffs by Mr. D.P. Shinde, the then Deputy Cargo Accountant of the Plaintiffs. Mr. P. Rengaraj identifies the signature of Mr. D.P. Shinde and submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is 9 s-4850-96 produced before this Court. The same is taken on record and marked Exhibit “P-14 ”. 17. Since the Defendants failed to pay the said amount or any part thereof, the Plaintiffs filed the present Suit to recover from the Defendants the sum of Rs.55, 890/- together with the sum of Rs. 16,784.04 paise being interest thereon at the rate of 18% per annum from the date of demand i.e. 11th November 1993 till 7th November 1996 aggregating to Rs.72,674.04 paise. The Plaintiffs have also claimed further interest on the principal sum of Rs.55,890/- at the rate of 18% per annum from the date of the suit till payment or realisation and costs of the Suit as per particulars of claim annexed as Exhibit “D” to the Plaint. 18. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of documents filed by the Plaintiffs. From Exhibit “P-2”, it is established that the consignment of the Defendants (consignment of 440 bags containing walnuts in shell) was discharged from Vessel “m.v. ELIZABETH SCHULTE” at the Port of Mumbai. The Defendants are the importers/consignees/owners of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 19th July 1993 and 22nd July 1993 respectively. The Defendants as the importers/ consignees/ owners of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other port trust charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs and till the goods were 10 s-4850-96 destroyed by the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same and hence the same were declared as “unfit for human consumption” by the Port Health Officer. From Exhibit “P-4” it is established that the said goods were declared as “unfit for human consumption” by the Port Health Officer. The said consignment was thereafter destroyed on 11th November 1993. From what is recorded in paragraphs 11 and 12 above and Exhibits “P-8” and “P-9”, it is established that the consignment was destroyed on 11th November 1993. The total Port Trust charges including destruction and other charges on the said consignment amounted to Rs.55,890/-. From Exhibits, “P-10”, “P-11” , “P-13” and “P-14” it is established that the Plaintiffs have written letters to the Defendants calling upon them to pay to the Plaintiffs the destruction and other port trust charges of Rs. 55,890/- and have also clarified in their letters that if the Defendants fail to pay the said amount, the Plaintiffs would charge interest at the rate of 18% per annum till payment. However, the Defendants did not pay the said amount to the Plaintiffs as called upon by the Plaintiffs. 19. As set out hereinabove, though the Defendants are served with the Writ of Summons, and an affidavit of service to this effect dated 14th May 2010 is filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend the Suit. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason why what the Plaintiffs have stated in the Plaint as well as in the Affidavit in lieu of Evidence should not be accepted. 11 s-4850-96 20. In the above circumstances, in my view, the reliefs sought by the Plaintiffs are required to be granted. In view thereof, I pass the following order:- (i) The Defendants are ordered and decreed to pay to the Plaintiffs as per the Particulars of Claim being Exhibit “D” to the Plaint an amount of Rs.72,674.04 paise towards the destruction and other Port Trust charges and further interest on the sum of Rs.55,890/- at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation. (ii) The Defendants to pay costs to the Plaintiffs for this Suit. (iii) The Suit is accordingly disposed of in favour of the Plaintiffs and against the Defendants. [S. J. KATHAWALLA J.]