1 S.2814.88.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 2814 OF 1988 The Board of Trustees of the Port of } Bombay, a Body Corporate Constitutes } 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’, Shoorji Vallabhdas Marg, } Bombay – 400 038. } ... Plaintiff. V/s. Messrs. Giri Woolen Mills, a firm } carrying on business at Deep Nagar } Civil Lines, Ludhyana. } ... Defendant. Mr. U.J. Makhija i/b. M/s. Mulla & Mulla for the Plaintiff. None for the Defendant. CORAM : R.Y. GANOO, J. DATED : 14th DECEMBER 2010. ORAL JUDGMENT :- The Plaintiff has filed this Suit for recovery of Rs. 12,80,000/- alongwith the interest at the rate of 15% per annum as set out in the prayer clause (a). 2 S.2814.88.sxw 2. Few facts necessary for the disposal of this Suit are as under :- The Plaintiff is a body corporate constituted under the provisions of Major Port Trust Act and goods which are imported at Mumbai in India land in the docks maintained by the Plaintiff. As the goods land at the docks till such time they are taken away by the concerned persons, the wharfage and demurrage charges become payable by the concerned persons to the Plaintiff. The present Suit is filed by the Plaintiff for recovery of wharfage, demurrage and other charges as set out in the particulars of claim. 3. It is the case of the Plaintiff that in December 1983, the Defendants imported two consignment of 73 Bales each containing Acrylic Thread Waste which were manifested at Items Nos.369 and 370 of the Import General Manifest No. 1982 dated 5th December 1983 of the Vessel S.S. “State of Andhra Pradesh”. The general landing date was 16th December 1983 and the last free day was 20th December 1983. 3 S.2814.88.sxw 4. According to the Plaintiff the Defendant did not pay the wharfage, demurrage and other charges. According to the Plaintiff, by order dated 9th October 1986 bearing No.S/10-60/86 LSLLB/DRI/BZU/101/Apprg/601/85, the Collector of Customs passed an order of confiscation of the goods so imported by the Defendant under the provisions of the Customs Act. The Defendant did not pay the wharfage and demurrage charges that is why the plaintiffs demanded the charges at Rs.12,49,613.97 ps. by notice dated 9th March 1988 at Exhibit ‘F’ to the plaint alongwith the interest from the date of notice. The Defendant did not comply with this notice and that is why the Plaintiff issued another notice of demand dated 1st April 1988 at Exhibit ‘G’. As the Defendant did not comply with the notice, the Plaintiff instituted this Suit on 19th May 1988. The Writ of Summons was served upon the Defendant. They did not file any written statement, hence, Suit was taken up for hearing as undefended Suit. 4. The Defendant did not file written statement. Since no written statement is filed, formal issues are not framed. However, following points are required to be decided by the Court :- 4 S.2814.88.sxw (i) Whether the Suit is filed within the period of limitation ? Ans. : In the affirmative. (ii) Whether the Plaintiff is entitled to recover wharfage, demurrage and other charges as claimed in the plaint ? Ans. : In the affirmative and as per final order. (iii) Whether the Plaintiff is entitled to claim interest at the rate of 15% per annum as per their demand ? Ans. : So far as rate of interest is concerned, it is being fixed at 12% per annum. (iii) What decree ? Ans. : As per final order. 5. The Plaintiff has, in support of its claim examined Officer Mr. Sunil M. Deshmukh by filing evidence affidavit. Said Mr. Deshmukh is working as Senior Assistant Traffic Manager in the Traffic Manager’s Department of the Plaintiff. The Plaintiff has relied upon the documents in support of their case. Particulars of the same are as under :- 5 S.2814.88.sxw 1. The confiscation order dated 9th October 1986 is at Exhibit ‘A’ 2. The first notice of demand dated 9th March 1988 is at Exhibit ‘F’. 3. The second notice of demand dated 1st April 1988 is at Exhibit ‘G’. 4. The Plaintiff had carried out the working sheet for the purposes of calculating the dues payable by the Defendant. This working sheet has been prepared by the employees of the Plaintiff in due course of their office requirement and the same is at Exhibit ‘h’. 5. The rates at which the wharfage and demurrage charges, etc. are payable are set out in the Scale of Rates charged at docks. The same is at Exhibit ‘J’. 6. I have heard learned Counsel Mr. Makhija appearing on behalf of the Plaintiff. Last free date was 20th December 1983. Learned Counsel Mr. Makhija pointed out that the Suit was filed on 19th May 1988. He submitted that on the first blush it may appear that the Suit is filed beyond the period of limitation. Learned Counsel Mr. Makhija has relied upon the 6 S.2814.88.sxw Judgments of this Court in the case of Board of Trustees of the Port of Bombay V/s. M/s. Rainbow Products and Anr. Reported in 2007 (2) Mah. L.J. 728 and in the case of Board of Trustees of the Port of Bombay V/s. Ramanlal Mohanlal Parikh and Anr. Reported in AIR 2004 Bombay 44. Learned Counsel Mr. Makhija submitted that the period of limitation would commence only when the confiscation order is made known to the Plaintiff. He had taken me through both the Judgments and had submitted that the Plaintiff would not be able to know as to when the confiscation order is passed unless passing of the confiscation order is communicated to the Plaintiff. He took me through paragraph 7 of the Judgment in the case of Board of Trustees of the Port of Bombay V/s. M/s. Rainbow Products and Anr. and submitted that to the facts of this case Article 113 of the Limitation Act, 1963 would be applicable and looking to the said article cause of action would arise only on the day when the fact of confiscation of the cargo is intimated to the Plaintiff. He pointed out that in the present case the confiscation order was passed on 9th October 1986. He, therefore, submitted that even if one takes 7 S.2814.88.sxw 9th October 1986 as the relevant date, institution of the Suit on 19th May 1988 for the recovery of Port Trust Charges would be maintainable as the one which is filed within the period of limitation. He submitted that on account of the two dates stated by him, period commencing from last free date i.e. 20th December 1983 upto 9th October 1986 will have to be excluded while calculating the period of limitation. He, therefore, submitted that the Court should hold in favour of the Plaintiff on the question of limitation. 7. I have perused the relevant dates as well as the two Judgments stated above. I respectfully agree with the view taken by the Court in the aforesaid two cases. Applying the law as set out in these two cases, it can be observed that the Suit is filed within the period of limitation. The relevant date for the purposes of commencement of the period of limitation would be 9th October 1986 and the present Suit is filed on 19th May 1988. Here I am inclined to treat that the Port Trust came to know about confiscation on 9th October 1986. Here the date on which the Port Trust was informed about the confiscation is not taken into consideration, that is to say even 8 S.2814.88.sxw if one treats 9th October 1986 as the date on which the Port Trust came to know about the order of confiscation, the Suit will be within the period of limitation. In view of the above, Point No.1 is answered to hold that the Suit is filed within the period of limitation. 8. The Plaintiff has claimed wharfage and demurrage charges as per the calculations mentioned in working sheet at Exhibit ‘H’ based on Scale of Rates charged which is at Exhibit ‘J’. The Plaintiff’s claim as regards recovery of wharfage and demurrage charges can be accepted. 9. The Plaintiff has claimed Rs.697.20 as sale warehousing charges. The Plaintiff has also claimed Rs.2,739/- as removal charges. Learned Counsel Mr. Makhija by taking me through the Scale of Rates charged at the docks at Exhibit ‘J’ submitted that the item ‘carting charges’ would permit the Plaintiff to charge towards sale warehousing charges and removal charges. After having perused the said item ‘carting charges’, I am not inclined to accept the submission of learned Counsel Mr. Makhija. To that extent, I hold that the Plaintiff is 9 S.2814.88.sxw not entitled to recover from the Defendant sale warehousing charges as well as removal charges. This will mean that from the total claim put up by the Plaintiff, the amounts covered by these two items will have to be substracted and to that extent the Plaintiff’s claim will have to be rejected. 10. Having accepted the case of the Plaintiff that they are entitled to recover wharfage and demurrage charges and having observed that the Plaintiff is not entitled to recover sale warehousing charges and removal charges, the Plaintiff would be entitled to recover Rs.12,46,177.77 by way of wharfage and demurrage charges. The decree to that extent will have to be passed. 11. So far as interest is concerned, the Plaintiff has claimed interest from 9th March 1988 i.e. the day on which the demand notice was sent. The Plaintiff has not produced agreement between the Plaintiff and Defendant by which the Plaintiff is entitled to recover interest at the rate of 15% per annum. No other material is produced to accept the claim of the Plaintiff at the rate of 15% per annum. The question of interest can be 10 S.2814.88.sxw answered by looking to facts and circumstances. The goods were imported on or about 16.12.1983. The Plaintiff instituted this Suit on 19th May 1988. Looking to these dates, I hold that the Plaintiff would be entitled to interest at the rate of 12% per annum on Rs.12,46,177.77 ps. from 9th March 1988 till realization. The Plaintiff of course would be entitled to recover costs of the Suit. 12. In view of above, I pass the following decree :- (i) The Defendant do pay to the Plaintiff Rs. 12,46,177.77 ps. (ii) The Defendant do pay to the Plaintiff interest at the rate of 12% per annum on Rs.12,46,177.77 ps. from 9th March 1988 till realization. (iii) The Defendant do pay to the Plaintiff costs of the Suit. (R.Y. GANOO, J.)