1 s3524-1986jud.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 3524 of 1986 The Board of Trustees of the Port of Bombay, a body Corporate constituted under the provisions of Major Port Trst Act, 1963, (38 of 1963) as amended by Act 29 of 1974, having its principal place of business at “Vijay Deep” Shoorji Vallabhdas Marg, Bombay 400 038 .. Plaintiffs v/s. Tekma Machinery Manufacturing Co. Pvt. Ltd. , a company registered under the provisions of the Companies Act having its registered office at ..Defendants Mr.U.J.Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 27th January , 2011 ORAL JUDGMENT. : 1. The plaintiffs have filed this suit for recovery of Rs.68,000/- along 2 s3524-1986jud.sxw with interest at the rate of 15% per annum as set out in the prayer clause (a). The writ of summons was served upon the defendants. However, the defendants have not filed the written statement and therefore the suit was taken up for hearing as undefended suit. 2. Few facts necessary for the disposal of the suit are as under:- The plaintiff is a body Corporate constituted under the provisions of Major Port Trust Act and goods which are imported in India land in the docks maintained by the plaintiffs. As the goods land at docks, till such time they are taken away by the concerned person the wharfage and demurrage charges become payable by the concerned person to the plaintiffs. The present suit is filed by the plaintiffs for recovery of wharfage, demurrage and other charges (hereinafter referred to as Port Trust Charges) as set out in the particulars of claim. 3. It is the case of the plaintiffs that on or about 3.2.1977 defendants imported a consignment of 26 cases said to contain RHP Bearings manifested at item No. 116 in the Import General Manifest No.2228 dated 1.2.1977 of the vessel s.s.Banglor Swapna. The General 3 s3524-1986jud.sxw landing date was 3.2.1977 and the last free date was 9.2.1977. 4. According to the plaintiffs, the defendants did not take away the goods within the time stipulated to take away the goods and therefore the defendants were liable to pay the port trust charges. 5. In paragraph 6 and 7 of the plaint, plaintiffs have given indications as to how the plaintiffs attended to the said goods. The defendants did not take away the goods on payment of port trust charges. The plaintiffs by letter dated 30.9.1987 informed the defendants that the consignments are liable to be sold. Thereafter, the second reminder was given to the defendant by letter dated 12.12.1997. As the defendant did not come forward, to pay off the port trust charges and get back the goods, the consignment was sold on 11.4.1983. The consignment was sold for sum of Rs.80,000/-. 6. The plaintiffs were entitled to recover from the defendants Port Trust charges Rs.66936-31, Custom Duty Rs.39795-55, ITC Fine Rs. 34391- 00 and Expenses for Sale Rs.8900. 27, making it together Rs. 1,50,023-13p. The plaintiffs have stated that while calculating 4 s3524-1986jud.sxw liability of the defendants they have given credit to the defendants to the extent of Rs.80,000/-. According to plaintiffs they were entitled to recover Rs.70023. 13. 7. The plaintiffs had by their demand notice dated 7.1.1986, Exhibit P-1 intimated to the defendants as to how sale proceeds were appropriated towards various dues and also intimated the defendants that they are liable to pay to plaintiffs Rs.700223-13. Accordingly, demand for Rs.70023-13 was made alongwith interest at the rate of 15% per annum. 8. As the defendants did not comply with the demand as aforesaid, the plaintiffs again sent demand notice dated 21.1.1986 Exhibit P-2. The defendants did not comply with the second demand notice. Consequently, the plaintiffs filed this suit on 8.4.1986. It is noticed that while filing the suit the plaintiffs did not claim Rs.3803-71 towards I.T.C. and treated Rs.66219-42 as the principal amount. The plaintiffs have claimed Rs.1780.58 towards interest at the rate of 15% per annum on 66,219-42 from date of demand till filing of suit making it together Rs.68,000- 00. 5 s3524-1986jud.sxw 9. The defendants did not file written statement. Since no written statement is filed, formal issues were not framed. Following points are required to be decided by the court. i) Whether the suit is filed within the period of limitation? Ans. In the affirmative. ii) Do the plaintiffs prove that they are entitled to recover wharfage, demurrage andother charges as claimed in the plaint? Ans. In the affirmative and as per final order. iii) Do the plaintiffs prove that they are entitled to recover interest at the rate of 15% per annum as demanded in the plaint? Ans. As per final order. iv) What Decree? Ans. As per final order. 10. I have heard learned Counsel Mr. Makhija, appearing on behalf of the plaintiffs. On the question of institution of suit within the period 6 s3524-1986jud.sxw of limitation, he submitted that the last free day of the said cargo was 9.2.1977 and the plaintiffs waited for the defendants to collect the cargo on payment of port trust charges. He further submitted that despite giving reminders to defendants to collect the cargo, the cargo was not collected. Consequently, the plaintiffs were required to put the said cargo for sale as per the provisions of the Major Port Trust Act, 1974, to recover the port trust charges. Mr. Makhija pointed out that the cargo was sold in auction on 11.4.1983 for Rs.80,000/-. Mr. Makhija pointed out that in the peculiar facts and circumstances, the plaintiffs came to know as to what amount is recoverable from the defendants by instituting the suit for recovery of money only on 11.4.1983 when the cargo was sold. Learned Counsel Mr. Makhija submitted that, the liability of the defendants to pay plaintiffs port trust charges got crystalised when the cargo was sold on 11.4.1983. He submitted that the period of limitation will have to be calculated as having commenced from 11.4.1983. He submitted that, that is the day on which cause of action accrued to the plaintiffs. He submitted that applying the provisions of Section 113 of the Limitation Act and noting the fact that the period of limitation is three years, institution of the suit on 8.4.1986 is within the period of limitation. 7 s3524-1986jud.sxw 11.I have considered the submissions advanced by learned Counsel Mr. Makhija. I have noted the relevant dates. The plaintiffs did call upon the defendants to pay the port trust dues and despite reminders the defendants did not pay the port trust dues. In such a case, the plaintiffs were justified in selling the cargo and recovering the dues in the first instance. Certainly, when the cargo is in the custody of the plaintiffs, before sale the plaintiffs would not be able to know the amount which it would have fetched and therefore till such time the cargo is actually put to sale the plaintiffs would not be able to know the exact amount which could be recovered by the plaintiffs towards non payment of port trust charges. Once this principle is adopted the arguments advanced on behalf of the plaintiffs that the exact amount of port trust charges could be calculated by the plaintiffs only, the cargo was sold on 11.4.1983. I am inclined to accept the stand of the plaintiffs that the cause of action arose on 11.4.1983. Once this stand is accepted, institution of the suit on 8.4.1986 is within the period of limitation and hence I hold that the suit is filed within the period of limitation. 12.The plaintiffs have examined Mr. I.S.Swami, Assistant Traffic 8 s3524-1986jud.sxw Manager of the plaintiffs as their witness and plaintiffs have placed before the court various documents in support of their claim. The important documents on which plaintiffs have relied upon are as follows: i) Exhibit P-1 : Demand Notice dated 7.1.1986 ii) Exhibit P-2 : Reminder Notice dated 21.1.1986 iii) Exhibit P-3 : Working Sheet iv) Exhibit P-4 : Scale of rates. v) Exhibit P-5 : Report regarding sale of goods vi) Exhibit P-7 : Statement regarding customs duty and I.T.C. fine to be recover from defendants. vii) Exhibit P-8 :Statement showing lot-wise expenses for sale 13.Learned Counsel Mr. Makhija, took me through the notices at Exhibits P-1 and P-2 and pointed out that despite repeated reminders the defendants have not paid the port trust charges then recoverable i.e. after giving credit to the amount received on account of sale of goods. He pointed out that plaintiffs had demanded interest at the rate of 15% per annum by notice dated 7.1.1986, Exhibit P-1. He submitted that the plaintiffs are entitled for interest at the rate of 15% 9 s3524-1986jud.sxw per annum as set out in the plaint. He had drawn my attention to the working sheet Exhibit P-3. The working sheet shows as to how the port trust charges are calculated. I have perused the working sheet. In so far as the claim of the plaintiffs, as regards wharfage, carting charges and demurrage, the plaintiffs have made out a case. 14.Looking to the various documents relied upon by the plaintiffs and the uncontroverted evidence of P.W.1 Deshmukh, the claim of the plaintiffs to the extent of wharfage, carting charges, demurrage is required to be granted. Taking into consideration the necessary figures as per the working sheet and giving up a claim of Rs.3803.71 towards I.T.C. fine, plaintiffs will be entitled to recover from the defendants the sum of Rs.66,219-42. 15.Plaintiffs have demanded interest at the rate of 15% per annum from the date of first demand notice i.e. 7.1.1986. So far as the rate of interest is concerned, the plaintiffs have not been able to show any specific provision of law by which they could recover interest at the rate of 15% per annum. They have also not been able to show any agreement between the parties by which the rate of interest could be 10 s3524-1986jud.sxw charged at 15% per annum. In such a case, the court is required to consider the facts and circumstances of the case. It is noticed that goods were sold in the year 1983, the suit is instituted in the year 1986. Considering the relevant dates, I am inclined to observe that if the plaintiffs are granted interest at the rate of Rs.12% per annum, it would meet the ends of justice. The plaintiffs have claimed interest from 7.1.1986, being the date of first demand notice. The said claim is justified and the plaintiffs would be entitled to recover interest at the rate of 12% per annum from 7.1.1986 till realisation on Rs.66219. 42. 16.In view of the above discussion, point no.2 is answered in the affirmative and the plaintiffs will be entitled to recover monies as per the final order. So far as point no.3 is concerned, I hold that the plaintiffs would be able to recover interest at the rate of Rs.12% per annum as per the final order. So far as the point No.4 is concerned, plaintiffs would be entitled to decree as per the operative part. 17.For the reasons mentioned aforesaid, I pass the following decree: 11 s3524-1986jud.sxw DECREE i) Defendants do pay to plaintiffs Rs.66219 -42. ii) Defendants do pay to plaintiffs interest at the rate of 12% per annum on Rs.66,219-42 from 7.1.1986 till realization. Iii) Defendants do pay to plaintiffs costs of this suit. [R.Y.GANOO, J.]