1 s1466-93.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 1466 of 1993 The Board of Trustees of the Port of Bombay, a body Corporate constituted under the provisions of Major Port Trust Act, 1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having its principal place of business at “Vijay Deep” Shoorji Vallabhdas Marg, Ballard Estate, Bombay 400 038 .. Plaintiffs v/s. M/s. Y.P.Enterprises @ Y.P.Industries, a firm having its office and plae of business at Village and P.O.Dhandra, Ludhiana , Punjab ..Defendants Mr.U.J.Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 8th March , 2011 ORAL JUDGMENT. : 1. The plaintiffs have filed this suit for recovery of Rs.173100 -91 along 2 s1466-93.sxw with interest at the rate of 18% per annum as prayed in the plaintand for costs. The writ of summons was served upon the defendants. However, the defendants have not filed their 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 July 1985 defendants imported a consignment said to contain 78 bales said to contain old woolen rags manifested at item No. 247 in the Import General Manifest No.1774 dated 17.7.1985 of the vessel s.s.Algenib. The 3 s1466-93.sxw General landing date was 20.7.1985 and the last free day was 24.7.1985. The defendants in their capacity as consignee were owners of the said goods and were liable to pay the wharfage and demurrage as per the rules framed by the port trust. The defendants did not take the delivery of the said goods within 7 days from the day when they were supposed to take the delivery. On account of this, the plaintiffs by their letter dated 13.8.1986 at Exhibit P-3 issued intimation to the defendants informing them that the consignment will be sold to recover the dues as per Section 61 and 62 of the Major Port Trust Act, 1963. Reminders dated 16.11.1987 and 27.11.1987 respectively at Exhibit P-5 and P-6 were sent. As there was no response from the defendants, the plaintiffs decided to sell the goods. Accordingly, notice was issued in newspaper Indian Express regarding intention to sell the goods. Copy of the said notice dated 5.2.1990 is at Exhibit P-8. Similar notice was published in the Government Gazette of State of Maharashtra on 8.2.1990. Copy of the same is at Exhibit P-9. Notice was sent to the defendants on 12.2.1990 at Exhibit P-10 that the consignment would be sold on 26.2.1990. 4 s1466-93.sxw 4. According to plaintiffs the consignment was sold on 26.3.1990 and sale proceeds to the tune of Rs.222990 -37 were received, At the time of sale of said consignment following charges were recoverable from the defendants: i) Port Trust Charges Rs.5,75,460/- ii) Custom Duty Rs.91,819 -56p iii) Expenses for Sale Rs. 22,299.04p The sale proceeds as above were adjusted as follows: i) Expenses for sale Rs.22,299.04p ii) Custom Duty Rs.91,819.56p iii) Port Trust Charges Rs.1,08,871.77p According to plaintiffs after adjusting the sale proceeds as above, the defendants were still liable to pay to plaintiffs Rs.4,66,588.23. Hence plaintiffs issued Demand Notice on 16.10.1992 at Exhibit P-12 and demanded Rs.4,66,588.23 along with interest at the rate of 18% per annum, more particularly mentioned in the text of the said notice. Reminder dated 14.11.1992 was sent. The said reminder is at Exhibit P-14. 5. The plaintiffs have in paragraph 11 clarified as to why the plaintiffs 5 s1466-93.sxw have scaled down their demand to Rs.160588.23 at the time of filing of the suit. According to the plaintiffs they have restricted their claim in the present suit as against the defendants in respect of the said deficit towards the port trust charges upto the period of 6 months commencing after the expiry of last 3 days in respect of the said consignment. 6. The plaintiffs have demanded Rs.1,73,100.91. The plaintiffs have claimed interest at the rate of 18% per annum on Rs.1.60,588.23 from the date of filing of the suit till realization and for costs. The working sheet at Exhibit P-18 shows as to how the port trust charges were calculated with the help of the scale of rates at Exhibit P-20. 7. 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. 6 s1466-93.sxw 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 18% per annum as demanded in the plaint? Ans. As per final order. iv) What Decree? Ans. As per final order. 8. I have heard learned Counsel Mr.Makhija on behalf of the plaintiffs. My attention was drawn by learned Counsel Mr. Makhija, to the fact that the plaintiffs were compelled to sell the goods on 26.3.1990. He therefore submitted that the liability of the defendants for payment of Port Trust Charges became crystalized on 26.3.1990 and therefore the cause of action accrued to the plaintiff on 26.3.1990 and that is how applying the provisions of Article 113 of the Indian Limitation Act, institution of the suit on 23.3.1993 is within the period of limitation. I am in agreement with this submission and I 7 s1466-93.sxw hold that suit is filed within the period of limitation. 9. The plaintiffs have examined Mr. S.V. Dighe, as their witness. Said Mr. S.V.Dighe is working as Assistant Traffic Manager, Grade I and Principal officer of the plaintiffs. The plaintiffs have relied upon the documents which are mentioned above. 10. Learned Counsel Mr. Makhija had taken me through the record including the evidence of Mr. Dighe and the various documents referred to above and has submitted that the defnedants in the first place failed to pay the port trust charges despite giving intimation. He further pointed out that the plaintiffs were compelled to sell the goods to recover the port trust charges and other dues such as the custom duty etc. Mr. Makhija pointed out to the court that after adjusting the Sale Proceeds towards expenses for sale, custom duty and port trust charges, the defendants were liable to pay Rs.4,66,588.23p. Learned Counsel Mr, Makhija had drawn my attention to paragraph 11 of the plaint wherein the plaintiffs have explained as to why they have scaled down their claim to Rs.1,60,558.23. 8 s1466-93.sxw 11. Mr. Makhija had taken me through the working sheet to show as to how the port trust charges were calculated. 12.After having seen the relevant record, I hold that the claim of the plaintiffs towards port trust charges and custom duty is made out. The evidence of Mr.Dighe has gone unchallenged and to that extent the liability towards port trust charges will have to be fastened upon the defendants. I have perused the working sheet. In so far as the claim of the plaintiffs as regards wharfage and demurrage, the plaintiffs have made out the case. The plaintiffs have claimed Rs. 952/- towards the sale warehousing charges. Leanred Counsel Mr. Makhija in support of the aforesaid claim drew my attention to item “Carting Charges” appearing in the Scale of Rates at Exhibit P-20 and submitted that the plaintiffs are entitled to recover the sale warehousing charges. After having gone through the text of item “Carting Charges” I am not inclined to accept the claim of the plaintiffs that they are entitled to recover from defendants sale warehousing charges. Consequently, claim of the plaintiffs to the extent of Rs.952/- will have to be rejected. 9 s1466-93.sxw 13.Taking into consideration the aforesaid discussion, and the necessary figures, stated in the working sheet, plaintiffs will be entitled to recover from the defendants the sum of Rs.1,59,636.23. 14.Plaintiffs have demanded interest at the rate of 18% per annum from the date of first demand notice i.e. 16.10.1992. 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 18% per annum. They have also not been able to show any agreement between the parties by which the rate of interest could be charged at 18% per annum. In such a case, the court is required to consider the facts and circumstances of the case. It is noticed that the transaction is of the year 1985. The suit is instituted in the year 1993. 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 16.10.1992, 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 16.10.1992 on Rs. 10 s1466-93.sxw 1,59,636.23 till realisation. 15.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 operative 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. 16.For the reasons mentioned aforesaid, I pass the following decree: DECREE i) Defendants do pay to plaintiffs Rs.1,59,636 -23. ii) Defendants do pay to plaintiffs interest at the rate of 12% per annum on Rs.1,59,636-23p from 16.10.1992 till realization. iii) Defendants do pay to plaintiffs costs of this suit. [R.Y.GANOO, J.]