1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2204 OF 1984 The Board of Trustees of the Port of Bombay, `Vijay Deep', Shoorji Vallabhdas Marg, Mumbai 400 038. Plaintiff versus 1. Ashok Traders, 129-C, Government Industrial Estate, Kandivali, Mumbai 400 067. 2. The Shipping Corporation of India Ltd; Shipping House, 245, Madame Cama Road, Mumbai 400 021. Defendants Mr.U.J.Makhija, Sr.Counsel a/w Mr.P.Khandhari i/by Mulla & Mulla & CBC for plaintiff. Ms.N.Sumnani i/by Bhatt & Saldhana for defendant no.2. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 30th November 2009 DATE OF PRONOUNCING THE JUDGEMENT : 6th January 2010 JUDGEMENT :- 1. The plaintiff has filed the suit for recovery of sum of Rs. 1,14,057=24 Ps. with interest thereon @ 15% p.a. from the date of suit till realization. 2 2. The case of the plaintiff is that the same has been constituted under the provisions of Major Port Trusts Act, 1963 (hereinafter referred to as "the said Act"). The first defendants are a partnership firm and the second defendant is a company duly registered under the Companies Act, 1956. It is the case of the plaintiff that the first defendants were the importers/owners of the consignment of 25 cases containing motor vehicle parts. The consignment was manifested at item no.342 of the Import General Manifest No.871 dated 10th October 1974. The said Import General Manifest was of the vessel "S.S.Vishva Mamta". The general landing date and the last free day of the cargo of the said vessel were 26th October 1974 and 31st October 1974 respectively. It is alleged that the second defendant is the owner/agent of the vessel "S.S.Vishwa Mamta". It is stated that the second defendant is the bailor of the consignment having discharged the same into the custody of the plaintiff. The case of the plaintiff is that as the owners/importers, the first defendants were under an obligation to take delivery of the consignment. It is alleged that the second defendant as a bailor was under an obligation to take delivery of the consignment. It is stated that the defendants were liable to pay wharfage, demurrage, and other charges accrued on the consignment which were payable to the plaintiff. 3 3. It is the case of the plaintiff that the said consignment was not cleared for a period of more than two months from the date of landing. It is stated that by letters dated 23rd March 1976 addressed by the plaintiff to the first and second defendants, the defendants were informed that the consignment was being put up for sale by public auction between 12th to 15th and 17th April 1976 or on any other subsequent dates unless the consignment was cleared on payment of charges within a period of ten days from receipt of the letters. 4. By letters dated 7th February 1977 the first defendants informed the plaintiff that they would clear the consignment within a short period. By further letter dated 2nd May 1977 the plaintiff again informed the first defendants that the consignment will be sold in public auction which will be held from 23rd to 25th May 1977. M/s.Fairdeal Shipping Agency, Clearing Agents of the first defendants by their letter dated 23rd May 1977 requested the plaintiff to withdraw the consignment from the auction and paid a sum of Rs.500/-. However, the consignment was not cleared and, therefore, further letters were sent by the plaintiff on 11th March 1978, 18th May 1978 and 20th May 1981 addressed to the second defendants informing the second defendants that the consignment will be put up for auction sale on the dates mentioned in the said letters or on any dates subsequent thereto without further notice. Reliance is placed on 4 gazette notice dated 23rd September 1976 and notice published in local newspaper on 20th September 1976 regarding the auction of the consignment. The case of the plaintiffs is that the consignment was sold on 14th September 1981 for Rs.56,252/-. The case of the plaintiff is that the sale of the consignment resulted in deficit of Rs. 1,58,949/-. The case of the plaintiff is that the Port Trust charges accrued on the said consignment were Rs.1,15,956=56 Ps; custom duty on the said consignment amounted to Rs.27,909/-, ITC fine amounted to Rs.63,429/- and expenses of sale amounted to Rs. 7,905=68 Ps.. After adjusting the sale price of Rs.56,252/-, it is stated that the plaintiff was entitled to recover a sum of Rs.1,58,999=24 Ps. from the defendants. Reliance is placed in the plaint on letters addressed by the plaintiff to the first and second defendants calling upon them to pay the said amount. Reliance is placed on letter dated 1st September 1984 addressed by the plaintiff to the second defendant calling upon the second defendant to pay the said amount. After deducting a sum of Rs.1,000/- received from the first defendants, a claim of Rs.1,14,057=24 has been made by the plaintiff in this suit against the defendants as the defendants failed and neglected to pay any amount. 5. The first defendants did not file any written statement. The second defendant filed written statement denying its liability. It is 5 stated that the auction was conducted much beyond the expiry of period of two months. The second defendants denied that the alleged sale was held on 14th September 1981 and that the consignment was sold only for the price of Rs.56,252/- In the written statement it was denied that the said defendant was responsible for clearing the consignment. A contention was raised that the suit was barred by limitation inasmuch as the period of limitation commenced on expiry of period of two months from the date of landing. The second defendants submitted that in any case the said defendant is not liable. The second defendant prayed for dismissal of the suit. 6. Issues were framed on 2nd February 2009 which read thus:- (1) Whether Defendant no.2 proves that the Suit is bad for mis-joinder of parties as alleged in paragraph 2 of the written statement? (2) Whether the Suit is barred by the Law of Limitation as alleged in Paragraph 3 of the 2nd Defendant Written statement? (3) Whether the 2nd defendant proves that part of suit claim i.e. beyond period of 2 months is not maintainable under the provisions of the Major Port Trust Act, 1963 as alleged in paragraph 6 of the written statement? (4) Whether the 2nd defendant proves that the plaintiffs are guilty of gross delay and negligence in deposing the suit consignment under the provisions of the Major Port Trust Act, 1963 as alleged in paragraph 15 of the written statement? 6 (5) Whether the plaintiffs prove that defendant no.2 is the owner/ bailor of the suit consignment as stated in paragraph 4 of the plaint? (6) Whether the plaintiffs prove that after complying the provisions of the Major Port Trust Act, 1963 they sold the suit consignment on 14th September 1981 for Rs.56,252/- and after adjustments/allocation sale resulted in the deficit in port trust charges of Rs. 1,15,057/- as stated in paragraph 8 of the plaint? (7) Whether the plaintiffs prove that defendant no.2 is liable to pay to the plaintiff a sum of Rs.1,14,957/- being the deficit in port trust charges together with further interest thereon at 15% p.a. from date of suit till payment and/or realization as stated in paragraph 13 of the plaint. (8) Whether the plaintiffs could have mitigated the loss had the suit cargo been sol on the expiry of the statutory period of 2 months? (9) To what reliefs, if any, are the plaintiffs entitled to? (10) What order? 7. The plaintiff examined one Mr.I.S.Swami, Assistant Docks Manager as a witness by filing an affidavit in lieu of examination-in- chief. The said witness was cross examined by the learned counsel for the second defendant. None appeared for the first defendant and no evidence was adduced by the second defendant. The learned counsel for the plaintiffs submitted that the first defendants have not contested the suit. He submitted that the first defendants as importers and owners of the consignment are liable to pay. He submitted that a decree must follow against the first defendants. He submitted that there is no requirement of law that before every date 7 fixed for auction of the uncleared consignment, a notice must be issued. He stated that all notices issued of auction clearly state that the auction will be held on the dates specified or on any other subsequent date without notice to the defendants. He invited my attention to various documents produced by the plaintiff. He pointed out that earlier the auction was not conducted in view of letters of the first defendant dated 7th February 1977 (Exhibits P-6 and P-7 respectively). He pointed out that by the said letters, the first defendant assured to clear the consignment. He pointed out that vide receipt dated 8th February 1977 (Exhibit P-8) the first defendants paid necessary charges for withdrawal of the goods from the auction sale. He pointed out that as the first defendants did not clear the goods, a fresh notice dated 2nd May 1977 (Exhibit-9) was issued informing the first defendants that the auction would be held on 23rd/28th May 1977. He pointed out that the notice of the earlier sale which was fixed in the year 1976 was published in public news paper as well as in official gazette. He submitted that even on the basis of the notice dated 2nd May 1977 at Exhibit P-9, the sale could not be effected in view of request made by the agents of the first defendants by their letter dated 23rd May 1977 (Exhibit P-10). He pointed out that on the same day the agents of the first defendants paid a sum of Rs.500/- to the plaintiff on account of withdrawal of the goods from auction sale. He pointed out that the consignment was not cleared by the first 8 defendants. He stated that a fresh notices dated 11th March 1978 (Exhibit P-12), 18th May 1978 (Exhibit P-13) and 20th May 1981 (Exhibit P-14) were issued by the plaintiffs to the defendants informing them that the auction sale of the consignment was proposed to be held on the dates mentioned therein. He submitted that though the said notices were duly received by the second defendants, the said defendants did not take any action for clearing the consignment. He stated that though in letter dated 17th November 1981 at Exhibit P-15, the date of auction is mentioned as 9th September 1981, in notice dated 31st August 1984 (Exhibit P-13) the date of auction has been correctly mentioned as 14th September 1981. He submitted that though notice dated 31st August 1984 was duly served to the second defendants, they did not respond to the said notice. He submitted that the second defendants did not dispute that the sale was effected on 14th September 1981. He, therefore, submitted that the plaintiff is entitled to a decree. 8. The learned counsel for the second defendants submitted that there is no evidence of auction being held by the plaintiffs. She submitted that even assuming that auction was held, there is no evidence to show that the same was held on 14th September 1981. She submitted that letter dated 17th November 1981 (Exhibit P-15) itself records that the sale was effected on 9th September 1981. She 9 submitted that the suit has been lodged on 10th September 1984 which is clearly barred by limitation. She relied upon a decision of this Court dated 11th July 2008 in a similar suit filed by the plaintiffs. She submitted that the claim for recovery is of balance port trust charges after deducting sale price. She submitted that the cause of action for recovery of the port trust charges arose when the consignment was not cleared by the end of December 1974 and therefore the said claim is barred by limitation. She submitted that in any case there is no evidence to show that the sale was conducted on or before 9th September 1981 and, therefore, the suit based on cause of action arising on the basis of sale is barred by limitation. In the circumstances, she prayed that the suit be dismissed. 9. I have considered the submissions. The issue of bar of limitation goes to the root of the matter and, therefore, I am dealing with the said issue at the outset. According to the plaintiffs, the liability of the defendants to pay the port trust charges is crystalised when the consignment was sold on 14th September 1981. The plaint has been affirmed and lodged on 10th September 1984. Therefore, there is no dispute that the suit filed by the plaintiffs will be within limitation, provided, it is established that the auction sale of the consignment was conducted on 14th September 1981. 10 10. In the written statement filed by the second defendant a contention regarding bar of limitation has been specifically raised in paragraph 3 thereof by contending that the starting point of limitation is 31st October 1977. In paragraph 8 of the plaint, the plaintiff has come out with the case that the sale was made on 14th September 1981. In paragraph 13 of the written statement the said contention has been specifically denied by the second defendants. That is how the issue of limitation has been framed by this Court. 11. As far as documentary evidence is concerned, the plaintiff has not produced any notice informing the defendants that the auction sale will be held on 9th September 1981. The last notice of sale is of 20th May 1981 at Exhibit P-14 informing the second defendants that the auction will be held on 8th June 1981 or on any subsequent date. In fact, by letter dated 17th November 1981 (Exhibit P-15) addressed by the plaintiff to the first defendants, it was stated that the goods were sold by public auction for a sum of Rs.56,252/- under lot no.A/2125 held on 9th September 1981. A copy of the said letter has been forwarded to the second defendants. Even in the document at Exhibit P-16 which is the working sheet produced by the plaintiff, the date of auction has been mentioned in blue ink as 9th September 1981. The said date has been encircled by pencil and the date 14th September 1981 has been written in pencil. Though the document is 11 signed on the left hand side by someone on behalf of the plaintiff, the correction made by pencil has not been countersigned. The said correction is the only portion written in coloured pencil. All other portions of the document are written in ink by a pen. For the first time in communication dated 31st August 1984 issued by the plaintiff to the defendants (Exhibits P-17 and P-18 respectively), the plaintiff has come out with the case that the auction was held on 14th September 1981. 12. In the affidavit in lieu of examination-in-chief of Mr.I.S.Swami (Exhibit P-24) though there is a reference to letter dated 17th November 1981 (Exhibit P-15), there is no explanation whatsoever as to why the said letter records the date of auction as 9th September 1981. The witness examined by the plaintiff was cross examined on this aspect. In response to a question recorded in paragraph 10 of the cross examination, the witness came out with the case that 9th September 1981 is the date on which sale started and the goods were actually sold on 14th September 1981. Thereafter the attention of witness was invited to letter dated 17th November 1981 (Exhibit P-15). In the first paragraph of the said letter it is stated that the sale was effected on 9th September 1981. The witness stated that the statement made in the 1st paragraph of the letter was correct. He admitted that he has not stated in the plaint or in the affidavit that the 12 sale started on 9th September 1981. In paragraph 11 of the cross examination, the witness stated that "I am not aware as to whether the sale was effected on 14th September 1981". 13. Thus, there is no explanation as to how the date of auction mentioned in letter dated 17th November 1981 (Exhibit P-15) and in working sheet (Exhibit P-16) is 9th September 1981. In fact, when the attention of the witness was invited to the aforesaid letter and in particular first paragraph thereof where the said date is recorded, he specifically stated that the statement is true and correct. The witness came out with an altogether a new case in the cross-examination that on 9th September 1981, the sale started and that the goods were actually sold on 14th September 1981. There is no foundation for the said case made out either in the plaint or in the examination-in-chief. There is no independent documentary evidence adduced by the plaintiff to show that the sale was in fact effected on 14th September 1981. The plaintiff could have easily produced documents to show that the sale was made on 14th September 1981. The burden was on the plaintiff to prove that the sale was effected on 14th September 1981. The plaintiff has miserably failed to discharge the said burden. In the circumstances, going by the case made out by the plaintiff, the cause of action arose on or before 9th September 1981. Thus, the suit filed on 10th September 1984 is clearly barred by limitation and, 13 therefore, the suit deserves to be dismissed only on the ground of bar of limitation. Hence, it is not necessary to record any finding on other issues. 14. Hence, I pass following order :- (A) The suit is dismissed with no order as to costs. (A.S.OKA, J.)