: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2147 of 1990 SUIT NO.2147 of 1990 SUIT NO.2147 of 1990 The Board of Trustees of the Port of Bombay, 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", Shoorji Vallabhdas Marg, Bombay - 400 038 .. Plaintiffs. Versus M/s.Kamal Traders, a firm carrying on business at 306, Khajuwala Chambers, 313/315, Narsi Natha Street, Bombay - 400 009. .. Defendants. Mr.U.J.Makhija i/b.Mulla & Mulla for plaintiffs. None for defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 30th August, 2008. DATE : 30th August, 2008. DATE : 30th August, 2008. ORAL JUDGEMENT :- ORAL JUDGEMENT :- ORAL JUDGEMENT :- 1. The Board of Trustees of the Port of Bombay are the plaintiffs governed by the provisions of the Major Port Trusts Act, 1963 (hereinafter referred to as the said "Act"). The defendants are a firm and defendants had imported 390 Drums of chemical of "Isobutanol" by way of consignment of 5 FCL containers vide Item No.151 in the Import General Manifest No.1760 of 22.6.1987. (These goods shall hereinafter referred to as the "said cargo"). : 2 : The cargo was brought to the port of plaintiffs by vessel s.s. "E.A. ENDEAVOUR". 2. The General Landing Date was 22.6.1987 and the Last Free Date of the said cargo was 25.6.1987. The plaintiffs expected the defendants to take the delivery of the said cargo within 7 days from the date of landing and to pay to plaintiffs wharfage and demurrage charges and other charges which are hereinafter referred to as the "port trust charges". According to the plaintiffs, defendants failed to take the delivery of the said cargo. It is seen from the record that by order dated 18.7.1988 bearing No.S/10-36/88 SIIB passed by the Collector of Customs, the said cargo was ordered to be confiscated absolutely in accordance with the provisions of Section 111(d) of the Customs Act, 1962 alongwith other relevant provisions of law. The plaintiffs had by Notice dated 21.3.1989, called upon the defendants to pay to the plaintiffs port trust charges as mentioned aforesaid to the tune of Rs.25,64,700.16 alongwith interest @15% per annum. The defendants did not comply with this demand. The plaintiffs by another letter dated 27.4.1989 reiterated their demand. As the defendants did not comply with the demand, the plaintiffs filed this suit on 2.2.1990 to recover from the defendants Rs.25,64,700.16 : 3 : alongwith interest @15% per annum from 21.3.1989 upto 2.2.1990 being Rs.3,35,090.36, making it together Rs.28,99,790.52. The plaintiffs have also claimed interest on the sum of Rs.25,64,700.16 @15% per annum from the date of the filing of the suit till realisation and for costs. 3. The defendants filed written statement and contested the claim of the plaintiffs. The written statement brings on record a complete denial on the part of the defendants in regard to the entire case put up by the plaintiffs inasmuch as the defendants have disputed the claim of the plaintiffs as regards import of the cargo by the defendants as also the subsequent case put up by the plaintiffs towards recovery of port trust charges. 4. On the basis of pleadings, issues came to be framed on 3.6.2008. They are as under :- I S S U E S I S S U E S I S S U E S i) Whether defendant is the importer/owner/consignee of the suit consignment as stated in paragraph 5 of the plaint? .. In the affirmative. ii) Whether the pre-confiscation charges of suit consignment amounted to Rs.25,64,700.16 as stated in paragraph 7 of the plaint? .. As per the operative order. : 4 : iii) Whether the plaintiffs are entitled to recover the amount of Rs.25,64,700.16 being the pre-confiscation port trust charges in respect of suit consignment together with a sum of Rs.3,35,090.36 being interest @15% p.a. from 21.3.1989 till 2.2.1990 aggregating to Rs.28,99,790.52 as stated in paragraph 10 of the plaint? .. As per the operative order. iv) To what reliefs, if any, are the plaintiffs entitled? .. As per the operative order. v) What order & generally? .. As per the operative order. 5. My answer to each of the Issue is mentioned against the respective Issue. 6. At trial, the defendants did not participate. On behalf of the plaintiffs, only one witness, namely, Mr.E.J.Almeida, Assistant Docks Manager was examined as P.W.No.1. No witness was examined on behalf of the defendants. 7. Following documents are relevant for the purposes of considering the case of the plaintiffs :- i) Import General Manifest at Exhibit-P-1. Exhibit-P-1. Exhibit-P-1. ii) Confiscation Order dated 18.7.1988 at Exhibit-P-2. Exhibit-P-2. Exhibit-P-2. iii) Bill of Lading in favour of the defendants at Exhibit-P-3. Exhibit-P-3. Exhibit-P-3. iv) The demand notices dated 21.3.1989 and : 5 : 27.4.1989 respectively at Exhibits P-4 and P-5. Exhibits P-4 and P-5. Exhibits P-4 and P-5. v) Exhibit-P-6 : Exhibit-P-6 : Exhibit-P-6 : Working Sheet on the basis of which plaintiffs could come to the actual figure of the port trust charges based on the Docks Scale of Rates. 8. I have heard learned Advocate Mr.U.J.Makhija appearing on behalf of the plaintiffs. Learned Advocate Mr.Makhija pointed out that defendants being the importers were liable to take the delivery of the said cargo within 7 days from the general landing date. He further added that the defendants did not take the delivery and in the meantime, Confiscation Order dated 18.7.1988 came to be passed by the Customs Authorities. Learned Advocate Mr.Makhija by relying upon the judgement of this court in the case of The Board of Trustees of the Port of Bombay The Board of Trustees of the Port of Bombay The Board of Trustees of the Port of Bombay v/s. M/s.Rainbow Products and Ors. reported in 2007(3) v/s. M/s.Rainbow Products and Ors. reported in 2007(3) v/s. M/s.Rainbow Products and Ors. reported in 2007(3) ALL MR 561 ALL MR 561 ALL MR 561 contended that the port trust charges got crystalised on the date of the Confiscation Order and, therefore, the plaintiffs have filed this suit for recovery of port trust charges from 25.6.1987 till 21.3.1989 and for interest on the port trust charges. Mr.Makhija had submitted that despite demand notices at Exhibits P-4 and P-5, Exhibits P-4 and P-5, Exhibits P-4 and P-5, the defendants failed and neglected to pay the port trust charges and hence the defendants in their capacity as importers are liable to pay the port trust charges. : 6 : 9. Learned Advocate Mr.Makhija submitted that the demand notices refer to the rate of interest @15% per annum and that is how plaintiffs are entitled to interest @15% per annum. He further submitted that in the absence of any cross-examination of the plaintiffs’ witness P.W.No.1 Mr.Almeida, the evidence led on behalf of plaintiffs has gone unchallenged and hence the plaintiffs are entitled to a decree as prayed for. 10. I have considered the submissions advanced by the learned Advocate Mr.Makhija. The goods came to be discharged in the port of the plaintiffs and the last free date was 25.6.1987. There is nothing on record to show as to why plaintiffs did not dispose off the goods in accordance with the provisions of the said Act nor did they take steps to dispose off the same and recover their port trust charges. In the instant case, the defendants question the laxity on the part of the plaintiffs in attending to the matter. In the absence of any cross-examination as to why the plaintiffs could not dispose off the goods prior to the Confiscation Order, one will have to take it that the plaintiffs were prohibited from disposing off the goods and that is how the port trust charges became payable upto the date of the : 7 : Confiscation Order. 11. In view of the aforesaid discussion, the plaintiffs’ claim for port trust charges from 25.6.1987 upto 17.7.1988 as claimed by the plaintiffs is required to be accepted, except the claim of the plaintiffs in regard to Items, namely, sale warehousing charges and transportation charges. 12. The plaintiffs have claimed wharfage to the tune of Rs.2,984.96. The plaintiffs have claimed demurrage as set out in the working sheet at Exhibit-P-6 Exhibit-P-6 Exhibit-P-6 to the tune of Rs.25,52,000/- based on the Docks Scale of Rates. Since there is no challenge to these calculations, the claim of the plaintiffs in regard to the aforesaid amounts will have to be granted. The sum total of these 2 figures comes to Rs.25,54,984.96. The plaintiffs have claimed Rs.1,971.20 by way of sale warehousing charges. They have also claimed Rs.7744/- by way of transportation charges. Except putting up a case that the plaintiffs are entitled to recover these charges, no provisions under which these charges are sought to be recovered are quoted in the evidence affidavit. As such, the claim of the plaintiffs to the extent of these 2 items is required to be rejected. As such, the plaintiffs would be entitled to recover from : 8 : the defendants Rs.25,54,984.96 by way of port trust charges. 13. The plaintiffs have claimed interest @15% per annum from 21.3.1989 up to the date of filing of the suit as the demand notice refers to the rate of interest as 15%. The evidence of Mr.Almeida does not throw light as to how the interest is being claimed @15% per annum. In my view, the rate of interest would depend upon the three dates, namely, last free date i.e. 25.6.1987, date of Confiscation Order i.e. 18.7.1988 and the date when the suit came to be filed i.e. 2.2.1990. Considering these three dates and noting the demand of the plaintiffs for interest, I am inclined to observe that if interest @12% is awarded to the plaintiffs upto the date of the filing of the suit, it would meet the ends of justice. As such, the plaintiffs would be entitled to recover interest @12% per annum from 21.3.1989 upto 2.2.1990 on Rs.25,54,984.96. Insofar as the interest after the date of the filing of the suit in concerned, in accordance with the provisions of Section 34 of the Code of Civil Procedure, I am inclined to grant interest @6% per annum on the principal amount as mentioned aforesaid and to that extent, the claim of the plaintiffs can be granted. As indicated earlier, the claim of the plaintiffs insofar as the 2 : 9 : items, namely, sale warehousing charges and transport charges is required to be rejected. 14. In view of the aforesaid discussion, Issues are answered as follows. i) Issue No.1 : - In the affirmative. ii) Issue Nos.2, 3 and 4 : - As per the operative part. iii) Issue No.5 :- As per the operative part. 15. For the reasons mentioned aforesaid, I pass the following decree :- D E C R E E D E C R E E D E C R E E i) Defendants do pay to plaintiffs Rs.25,54,984.96. ii) Defendants do pay to plaintiffs interest @12% per annum on Rs.25,54,984.96 from 21.3.1989 till 2.2.1990. iii) Defendants do pay to plaintiffs interest @6% per annum on Rs.25,54,984.96 from the date of the filing of the suit till realisation. : 10 : iv) Defendants do pay to plaintiffs costs of the suit. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)