1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURSIDICTION APPEAL NO.560 OF 2006 IN SUIT NO.1533 OF 1985 The Board of Trustees of the Port of Bombay .... Appellant vs. Shipping Corporation of India ..... Respondents Limited & Ors. Mr. V.J. Mulla i/by Motiwala & Co. for appellant. Mr. Chirag Balsara i/by Bhatt & Saldhana for respondent no.1. Coram : D.K. Deshmukh & Smt.R.P. SondurBaldota, JJ. Date : 14th June 2010. P.C.: : 1. This appeal is preferred against the judgment and decree dated 4th August 2005 passed by the learned Single Judge of this Court in Suit No.1533 of 1985 filed by the appellant Bombay Port Trust for recovery – of it's various charges from the respondents. 2. Respondent no.2 as a purchaser and respondent no.3 as canalising agent had imported steel strips by the vessel belonging to respondent no.1. On arrival of the consignment at Bombay, respondents no. 2 and 3 failed to clear the same. Therefore, the appellant in exercise of the power conferred under Section 61 and 62 of Major Port Trust Act sold 2 the goods by public auction and filed the suit herein for various charges like wharfage, demurrage, custom duty, T.C. fine etc. Respondent no.1 was sued in its capacity as a bailor because the consignment was discharged by it's vessel at the port into the custody of the appellant. All the three respondents contested the suit challenging their liability to pay the amount claimed by the appellant. At the trial, appellant alone led evidence. On appreciation of the evidence produced by the appellant, the learned Single Judge decreed the suit against respondents no. 2 and 3 and dismissed the same against respondent no.1. Hence, this appeal by the appellant to challenge the impugned judgment and decree to the extent of dismissal of suit against respondent no.1. 3. The reason given in the impugned judgment for dismissing the suit against respondent no.1 reads as follows : The defendant no.3 is neither the consignee nor the “ importer of the said goods. The defendant no.3 though can be termed as `owner within the definition under S. 2(o) of ’ the Act but once he has discharged the cargo from the ship and handed over the bill of lading to importer duly endorsed his liability ceased to exist. However, the defendant no.3 in my opinion has been able to establish that the said goods are landed in the port and thus they have handed over the Bill of Lading to the defendant no.1 for clearance of the said goods. Thus they are not liable for any claims of demurrage or other charges to the plaintiff.” 3 4. The appellant does not dispute the legal position that on endorsement of the bill of lading or the issue of delivery order by the steamer agent, the property in the goods vests in the consignee or the endorsee, and thereafter the steamer or its agent are not responsible for the custody of the goods. Mr. Makhija, learned senior counsel for the appellant, however, submits that there was no material whatsoever before the Court to establish that the respondent no.1 had in fact endorsed the bill of lading in favour of respondent no.2. 5. Perusal of the written statement filed by respondent no.1 shows that the only stand taken by it to contest the suit was that once the goods are handed over to the Port Trust by the steamer and or the steamer agent, the responsibility of the steamer is determined. As such, respondent no.1 was absolved of its responsibility for the custody of ’ goods, the moment transit came to an end and suit consignment discharged into the custody of the appellant. There was no contention raised in the written statement that the respondent no.1 was absolved of its liability because it had endorsed the bill of lading either in favour of respondent no.2 or in favour of respondent no.3. In any case since respondent no.1 had not led any evidence in the suit, there was no material before the court to arrive at the finding of fact that the bill of lading had been endorsed by respondent no.1. Mr.Balsara, the learned 4 counsel for respondent no.1 submits that the fact can be inferred from the cross-examination of P.W.-2, the Assistant Dock Manager. Paragraph 3 of the cross- examination of this witness referred to by Mr.Balsara sets out only the general procedure to be followed in case of import. The witness has stated that after the Import, General Manifest is filed the vessel is allowed to berth in the dock and the cargo on the vessel is discharged in the port trust premises. After the cargo is discharged, it is kept in transit and in the event of congestion the same is shifted to warehouse. Thereafter the import clearing agent files necessary bill of entry with Customs authority along with all necessary documents including bill of lading and invoices. The Customs clearing agent files two sets of bill of entry, one of custom purpose and another to be given to Port Trust authority. The Port Trust authority receives the copy of bill of entry along with bill of lading and other necessary document, after which examination of goods takes place. Mr. Balsara submits that there is no dispute that this procedure had been followed in case of the import by respondents no.2 and 3. If that is so, it must be presumed that respondent no.1 had endorsed bill of lading in favour of either respondent no.2 or respondent no.3. The inference as desired by Mr.Balsara cannot be drawn on the basis of the evidence of the general procedure of import. It was necessary for respondent no.1 to 5 specifically to establish either through the cross-examination of the appellant s witnesses or by it s own positive evidence that respondent ’ ’ no.1 had in fact endorsed the bill of lading in favour of respondent no.2 or respondent no.3. 6. In the circumstances, the appeal is hereby allowed. The impugned judgment and decree to the extent of dismissing the suit against respondent no.1 is set aside. The suit is decreed against respondent no.1, in the same terms as against respondents no. 2 and 3. However, considering the fact that respondent no.1 was only the owner of the ship, through which the goods were imported and is liable only in view of Section 2(o) of Major Port Trust Act, it is directed that the appellant shall first try to execute the decree against respondents no.2 and 3 and only in case of failure, proceed against respondent no.1 for recovery of the decretal amount. (SMT. R.P. SONDURBALDOTA, J.) (D.K. DESHMUKH, J.)