IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 2935 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. … Plaintiff. Vs. M/s. Shree Acids & Chemicals Limited, A Company registered under the Companies Act, 1956 having its Registered Office at Delhi Cold Storage Building, 15 New Sabzi Mandi Azadpur, Delhi 110 033, and its Works at A-1, Industrial Area Gajraula, District Moradabad (U.P.) and an Office in Mumbai at Gopal Bhavan, 5th Floor, 199, Princes Street, Mumbai 400 002 … Defendant .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla for Plaintiff. Mr. Santosh V. Dighe, Assistant Traffic Manager, GR, present in person. None for the Defendants. .... Coram: S. J. Kathawalla J. Date: 24th March 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. 1,55,448.58 paise towards the deficit in Port Trust charges as per the particulars of claim being Exhibit “C” to the Plaint and to further pay to the Plaintiff interest on the sum of Rs.1,48,754.63 paise at the rate 2 s-2935-96 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 29th April 2010 is filed in this Court, the Defendant has not 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 S.V. Dighe, Assistant Traffic Manager, Gr.I and the Principal Officer of the Plaintiffs has filed his Affidavit in lieu of evidence dated 14th March 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. Dighe has filed his evidence pursuant to the letter of authority dated 24th June 2009 issued by the Plaintiff 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 May 1991, the Defendant imported one loaded Container containing Waste Paper which was discharged into the custody of the Plaintiffs from the vessel s. s. “EAGLE NOVA” 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. 945 dated 16th May 1991 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.118 and the Defendant was shown as the importer/ consignee/owner of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell 3 s-2935-96 on 16th May 1991 and 20th May 1991 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 Photostat copy of the IGM is taken on record and marked as Exhibit “P-2”. 5. The Defendant as importer / consignee / owner of the said consignment was 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 Defendant failed and neglected to clear the same. 6. The Plaintiffs had prepared a list of uncleared cargos for sale of goods uncleared on 22nd June 1991. Mr. Dighe deposed that original uncleared cargo list is not available despite diligent search. The photocopy of the said list of uncleared cargos is produced before this court. The said uncleared cargo list is taken on record and marked as Exhibit “P-3”. 7. By a letter dated 6th August 1991 addressed to the Defendant, the Plaintiffs informed the Defendant that the said consignment was lying uncleared and liable to be put up for sale. In response, the Defendant by its letter dated 19th August 1991 informed the Plaintiffs that the said consignment had been held up by the Customs and that they had issued a Show Cause Notice bearing No.S/10-242/91 II(B)/S-26-645/91 II B dated 9th August 1991 to the 4 s-2935-96 Defendant. The Defendant further stated that they would clear the consignment as soon as they resolved the matter with Customs authorities. The said letter dated 19th August 1991 is produced before this Court. The same is taken on record and marked as Exhibit “P-4”. 8. By a letter dated 30th April 1992 addressed to the Defendant, the Plaintiffs informed the Defendant that in respect of the claim for remission made by the Defendant, to encourage early clearance of the goods from the Port premises, remission of demurrage fees in excess of Rs.1,00,000/- was sanctioned on ex-gratia grounds provided the clearance is effected within three weeks from the date of that letter. A copy of the said letter was forwarded to the Custom House Agent. The said letter was signed by Mr. Y.G. Kamatkar, the then Jr. Accounts Officer, Remission Cell of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. Y.G. Kamatkar 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-5”. 9. By a letter dated 14th May 1992 addressed to the Defendant, the Plaintiffs informed the Defendant that the said consignment was lying uncleared for over two months from the date of landing thereof and called upon the Defendant to effect clearance within ten days failing which the Defendant was informed that the said consignment would be put up for sale and would be sold in the sale proposed to be held on 28th May 1992 or on any other subsequent date without further notice and that the said consignment would be sold either by public auction or by tender or by private arrangement. The said letter bears the stamp signature of Mr. N.N. Shetty, the then 5 s-2935-96 Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. N.N. Shetty 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-6”. 10. By two letters dated 26th and 27th May 1992, the Defendant stated that they were facing financial constraints and liquidity problems and requested 15 days extension from the date of grant of permission to clear the said consignment. The Plaintiffs responded vide their letter dated 5th June 1992 that Defendant’s request for 15 days extension is rejected and requested them to clear the consignment immediately on payment of full Port Trust charges or else the goods will be disposed off. A copy of the said letter was also forwarded to the Custom House Agent with a request to clear the goods on payment of full Port Trust charges. A photocopy of the said letter was also forwarded to the Sales Branch for information. Mr. Dighe has produced photocopies of the letters dated 26th May 1992 and 27th May 1992 addressed to the Plaintiffs by the Defendant and the reply dated 5th June 1992 addressed to the Defendant by the Plaintiffs and copied to the Sales Branch of the Plaintiffs before this Court. The same are taken on record and marked as Exhibits “P-7”, “P-8” and “P-9” respectively. 11. As the said consignment was not cleared, the list of packages to be sold including the said consignment was published in the local newspaper “Times of India” in its issue dated 26th June 1992 and also in the Maharashtra Government Gazette (Part II) in its issue dated 25th June 1992. Mr. Dighe deposed that original notice 6 s-2935-96 published in Maharashtra Government Gazette is not available/traceable despite diligent search. However the original of the said advertisement along with Photocopy of the same is tendered in Court. After comparing the same, the original of notice published in Times of India is returned to the Plaintiffs and photocopy of the Advertisement in the “Times of India” in its issue dated 26th June 1992 is taken on record and marked as Exhibit “P-10” and the photocopy of the Government Gazette dated 25th June 1992 is taken on record and marked as Exhibit “P-11”. 12. By a letter dated 26th June 1992 addressed to the Defendant, the Plaintiffs informed the Defendant that the said consignment was lying uncleared and called upon the Defendant to effect clearance within ten days failing which the Defendant was informed that the said consignment would be put up for sale and would be sold in the sale proposed to be held on 9th July 1992 or on any other subsequent date without further notice and that the said consignment would be sold either by public auction or by tender or by private arrangement. The said letter bears the stamp signature of Mr. N.N. Shetty, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. N.N. Shetty 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 as Exhibit “P-12”. 13. By a letter dated 16th July 1992 addressed to the Defendant, the Plaintiffs’ Chairman informed the Defendant that the said consignment was listed for sale under Lot No.GG/0502 and sold subject to confirmation on 9th July 1992 under the provisions of the 7 s-2935-96 Major Port Trusts Act, since the Defendant failed to effect clearance of the said goods. The Plaintiffs further informed the Defendant that the sale of the consignment would be confirmed to the purchaser on or after 9th July 1992 and requested the Defendant to clear or withdraw the said consignment on payment of necessary charges and to contact the Dy. Docks Manager (Co-ordination) of the Plaintiffs. The said letter was signed by the then Chairman Shri Ashok Joshi of the Plaintiffs. By the said letter the Defendant was informed that if there was any difficulty in withdrawing the consignment they should contact the Chairman on prior appointment and if they fail to clear the said consignment the sale would result in deficit. Mr. Dighe has deposed that he is familiar with the signature of Shri. Ashok Joshi 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”. 14. The Plaintiffs then received a letter dated 23rd July 1992 from the Defendant requesting for a personal hearing. Mr. Dighe produced the photocopy of the said letter dated 23rd July 1992 before this Court. The same is taken on record and marked as Exhibit “P-14”. 15. The said consignment was thereafter sold on 10th June 1993 under Lot No. GG-502 for Rs.43,752.70 paise. Mr. Dighe deposed that the Port Trust charges accrued in respect of the said consignment amounted to Rs.1,66,477/-, Customs Duty amounted to Rs.21,655.06 paise and Expenses of Sale amounted to Rs.4,375.27 paise. Out of the sale proceeds, the Plaintiffs were able to adjust / allocate full Expenses of Sale and full Customs Duty but were only able to adjust / allocate Rs.17,722.37 paise towards Port Trust 8 s-2935-96 charges leaving a deficit of Rs.1,48,754.63 paise towards Port Trust charges, which the Defendant is bound and liable to pay to the Plaintiffs. 16. Explaining how the total Port Trust charges are arrived at, Mr. Dighe has deposed that said consignment weighed 22,389 kgs. Wharfage was payable in respect of the said consignment under Section I-A, Item No. 3 (v) of the Docks Scale of Rates at the rate of Rs. 22/- per M.T. and amounted to Rs.493/-. Demurrage was payable in respect of the said consignment under Section II, Item No. 4 (iii) of the Docks Scale of Rates of 1990 at the rate of Rs.15/- per M.T. per day for the first 30 days, thereafter at the rate of Rs.22.50 paise per M.T. per day for next 11 days and thereafter under Section II-A (4) of the Docks Scale of Rates of 1991 at the rate of Rs.37.50/- per M.T. per day for the next 19 days and thereafter at the rate of Rs. 50/- per M.T. per day for the remaining period and the same amounted to Rs. 1,65,984/-. Thus, the total Port Trust charges in respect of the said consignment amounted to Rs.1,66,477/-. 17. Mr. Dighe has deposed that for the sake of noting down the calculations, the Plaintiffs have prepared allocation sheet and working sheet in the usual course of business. Mr. Dighe deposed that he has personally verified the correctness of the calculations made in the allocation sheet and working sheet on the basis of the Docks Scale of Rates. The calculations made therein are correct. The allocation sheet and working sheet are taken on record and marked as Exhibits “P-15” and “P-16” respectively. The relevant Docks Scale of Rates then in force are produced before the Court. Mr. Dighe has deposed that he has taken photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges. He has compared the 9 s-2935-96 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-17”. 18. Mr. Dighe has also produced the Sale Warehouse Register maintained by the Plaintiffs in the usual course of business. He has prepared a photocopy of the relevant entries relating to the said consignment as it appears in the Sale Warehouse Register. The photocopy is a true and correct photocopy of the original. The same is therefore taken on record and marked Exhibit “P-18”. 19. Mr. Dighe has also produced the assessment sheet of the said lot available in office records, which was prepared by the valuers. The same is taken on record and marked as Exhibit “P-19”. 20. Mr. Dighe has produced the relevant record of the Board proposal and journal entry slip for customs duty. He has prepared photocopies of the said record. He has submitted that the said photocopies are true and correct. The same are taken on record and marked Exhibit “P-20”. 21. Mr. Dighe has also produced the Two Reports of goods sold and cleared by the purchasers, which was prepared by the then shed superintendents of the Plaintiffs. The said Reports are taken on record and marked as Exhibit “P-21” and “P-22”. 22. By a letter dated 6th November 1993 addressed to the Defendant, the Plaintiffs informed the Defendants about the sale of 10 s-2935-96 the said consignment sold in the auction held on 10th June 1993 and called upon the Defendant to furnish the Biull of Lading, Bill of Entry and other documents to enable the Plaintiffs to ascertain the correct Port Trust charges due. Mr. Dighe deposed that contents of the said letter are true and correct. The office/carbon copy of said letter is produced before this court. The same is taken on record and marked as Exhibit “P-23”. 23. By two letters both dated 23rd March 1996 addressed to the Defendant at their known addresses, the Plaintiffs once again informed the Defendant about the sale of the consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of the sale and called upon them to pay to the Plaintiffs the deficit sum of Rs.1,48,754.63 paise immediately. The Plaintiffs further informed the Defendant that if the said amount was not paid immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. The said letters were signed by Mr. S.G. Londhe, the then Assistant Manager Sales of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. S.G. Londhe and identifies the same. He further submits that the contents of the said letters are true and correct. The office/carbon copies of the said letters are produced before this Court. The same are taken on record and marked as Exhibits “P-24” and “P-25” respectively. 24. By another letter dated 29th March 1996 addressed to the Defendant at its Moradabad address, the Plaintiffs once again informed the Defendant about the sale of the consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of the sale and called upon them to pay to the Plaintiffs the deficit sum of Rs.1,48,754.63 paise immediately. The 11 s-2935-96 Plaintiffs further informed the Defendant that if the said amount was not paid immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. The said letters was signed by Mr. S.G. Londhe, the then Assistant Manager Sales of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. S.G. Londhe 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 as Exhibit “P-26”. 25. As there was no response from the Defendants, the Plaintiffs by their three further letters all dated 8th April 1996, addressed to the Defendants referred to the earlier letters and once again called upon them to pay to the Plaintiffs the deficit sum of Rs. 1,48,754.63 paise and pointed out that if they failed to pay the said amount, legal proceedings would be taken to enforce recovery of the said amount. The said letters were signed on behalf of the Plaintiffs by Mr. S.G. Londhe, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. S.G. Londhe and identifies the same. He further submits that the contents of the said letters are true and correct. The office/carbon copies of the said letters are produced before this Court. The same are taken on record and marked as Exhibits “P-27”, “P-28” and “P-29” respectively. 26. 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.1,48,754.63 paise together with the sum of Rs.6,693.95 paise being interest thereon at the rate of 18% per annum from the date of demand i.e. 23rd March 1996 till 5th June 12 s-2935-96 1996 aggregating to Rs.1,55,448.58 paise. The Plaintiffs have also claimed further interest on the principal sum of Rs.1,48,754.63 paise 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 “C” to the Plaint. 27. 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 Defendant (Waste Paper) was discharged from Vessel s. s. “EAGLE NOVA” at the Port of Mumbai. The Defendant is the importer/consignee/owner of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 16th May 1991 and 20th May 1991 respectively. The Defendant as the importer/ consignee/ owner of the said consignment was 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. From Exhibit “P-4”, “P-6” and “P-9”it is established that though the Defendant was called upon to clear the consignment by paying the Port Trust charges, the Defendant failed and neglected to do so. From Exhibits “P-10” and “P-11”, it can be seen that since the Defendants failed to clear the said consignment the list of packages to be sold by the Plaintiffs including the said consignment was published the local newspaper and the Gazette. The said consignment was thereafter sold on 10th June 1993 for Rs. 13 s-2935-96 43,752.70/-. From what is recorded in paragraphs 16 and 17 above and Exhibits “P-15” to “P-17” and “P-20”, it is established that the consignment was sold for Rs. 43,752.70 paise, the Port Trust charges accrued on the said consignment amounted to Rs.1,66,477/-. The Customs duty amounted to Rs.21,655.06 paise and expenses of sale amounted to Rs.4,375.27 paise. From Exhibits, “P-23” to “P-29” it is established that though the Plaintiffs have written letters to the Defendant calling upon them to pay to the Plaintiffs the deficit sum of Rs. 1,48,754.63 paise and have also clarified in their letters that if the Defendants fail to pay the said amount immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. However, the Defendants have neither responded to the said letters nor have they paid the said deficit amount to the Plaintiffs as called upon by the Plaintiffs. 28. As set out hereinabove, though the Defendants are served with the Writ of Summons, and an affidavit of service to this effect dated 29th April 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. 29. 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 jointly and severally to pay to the Plaintiffs as per the Particulars of 14 s-2935-96 Claim being Exhibit “C” to the Plaint an amount of Rs. 1,55,448.58 paise towards the deficit in Port Trust charges and further interest on the sum of Rs.1,48,754.63 paise 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.]