1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1819 OF 1989 The Board of Trustees of the port of Bombay ...Plaintiffs versus Rider Bevel Gears Pvt.Ltd. .....Defendant Mr. U. J. Makhija i/b Motiwala & Co. for the Plaintiff. None for the defendant. CORAM: A.P. DESHPANDE, J. DATED: 24TH APRIL, 2008. P.C.: 1. The suit has been filed by the plaintiff seeking a decree against the defendant in the sum of Rs.4,20,731.50/- together with interest at the rate of 15% per annum from the date of filing of the suit till realisation of the amount. 2. The Plaintiff is a statutory corporation constituted under the provisions of Major Port Trusts Act 1963 as amended by the Major Port Trusts Amendment Act 1974. The Defendant is a private limited company, which carries on business. The Defendant imported a consignment for the purpose of its business. On landing of the consignment, the consignee/defendant did not take the delivery of the consignment and had not paid the wharfage 2 and demurrage charges in respect of the goods landed and stored by the plaintiff in the dock at Mumbai. The plaintiff is entitled to claim wharfage and demurrage and other charges under the act, and it is the corresponding liability of the consignee to pay the same. As the consignment was not taken delivery of by the defendant, within the period of seven days from the date of landing thereof by making payment of wharfage and demurrage and other charges, the plaintiff was constrained to issue a notice to the defendant calling upon the defendant to take delivery of goods on payment of charges to the plaintiff. Despite such notice, the Defendant failed to do the needful. Acting in pursuance of the power vested with the Plaintiff under sections 61 and 62 of the Act, the Plaintiff sold the goods after notice to the Defendant. The amount realised by the sale of consignment was adjusted towards the amount due and payable by the defendant to the plaintiff towards its charges. The consignment fetched a sum of Rs. 1,04,000/-. After the sale of the consignment on 16th June 1986, the Plaintiff could ascertain the amount outstanding against the defendant and the said amount was Rs.4,83,352.81/-. The bill towards charges against the said consignment were in the sum of Rs.4,51.456/-, besides the custom duty being in the sum of Rs.47,722.94/-. After adding the fine amount and the expenses of sale, the final amount recoverable from the defendant is arrived at, and for recovery of which the present suit has been filed. The defendant did file a written statement but has not contested the suit by cross examining the Plaintiff' s witnesses or by leading evidence. The main objection raised in the written statement is one of limitation. The question posed is as to when the cause of 3 action arose for filing of the suit. Having regard to the pleadings, this court did frame issues including the issue of limitation. The issue read thus: 1)Whether the suit is not maintainable as stated in para 1 of the Written Statement ? 2)Whether the suit is barred by limitation as stated in para 2 of the Written Statement ? 3)Whether the Plaintiffs prove that they are entitled for the sum of Rs. 4,20,731.50 with further interest on the sum of Rs. 4,19,352.81 at the rate of 15% per annum from the date of the suit till payment and/or realization and cost of the suit as stated by the plaintiff in prayer (a) of the Plaint ? 4)To what reliefs are the Plaintiffs entitled as against the Defendant ? 3. According to the learned counsel for the Plaintiff, the cause of action for instituting the suit would arise on the date of sale of consignment in as much as on sale of the consignment, the Plaintiff would know the amount that would be recovered and after deducting the amount which is recovered by sale of the consignment from the amount recoverable by the Plaintiff, then the net figure could be arrived at. As mentioned hereinabove, the consignment was sole on 16-6-1986, whereas the suit has been filed on 15th June 1989, i.e. within a period of three years. To substantiate the contention that the cause of action would arise on the date of sale of the consignment, the learned counsel for the Plaintiff has placed reliance on a Division Bench 4 judgment of this court, in The Trustees of the Port of Bombay Vs. M/s. Jayantilal L. Gandhi reported in AIR 1979 Bombay, 12. The Division Bench has categorically held that the suit to recover the balance of wharfage and demurrage charges could be filed only after giving credit for the sale proceeds. Such amount of deficit could only be ascertained when the auction sale takes place. Once a remedy permitted by section 67-A of the Act is resorted to, the cause of action for such suit arises. The said judgment goes to interpret section 67-A of the Act and it clearly concludes that the cause of action arise when the deficit balance amount could be ascertained i.e. on sale of the consignment. 4. Section 67-A of the Bombay Port Trusts Act is para- materia with section 131 of the Major Port Trusts Act 1963. Section 131 permits the Port Trust to recover the amount, if the sale proceeds are insufficient. Thus the line of reasoning adopted by the Division Bench in the above referred judgment would also apply while interpreting section 131 of the Major Port Trusts Act. Thus the objection to bar of limitation raised by the Defendant is ill-founded and needs to be rejected. 5. The Plaintiff has placed reliance on record and has also examined the Assistant Docks Manager of the Plaintiff, who has filed an affidavit in lieu of oral evidence. The Plaintiff has also filed the original documents to substantiate the claim made in the suit. The Plaintiff also served a notice to admit the documents, but the Defendant has not responded to the said notice. Hence the 5 documentscame to be exhibited. The bill of landing dated 5-2- 1984 is filed at Exh.P-1. The notices served by the Plaintiff on the Defendants are also filed on record and exhibited. The advertisement published in Times of India, pursuant to which the consignment was sold is at Exh.A, whereas the demand notice dated 7-6-1989 addressed by the Plaintiff to the Defendant is at Exh.9. From the documents proved on record, and the affidavit evidence filed by the Assistant Dock Manager cleary establishes the claim of the Plaintiff made in the suit. The Defendants has not led any evidence and barring filing of written statement, has not contested the suit. In the result, the Plaintiff is entitled to a decree. Hence I pass the following order. 6. The suit of the Plaintiff is decreed. The Defendant shall pay to the Plaintiff an amount of Rs. 4,20,731.50/- together with interest at the rate of 15% per annum from the date of filing of the suit till reaslisation of the amount with costs. A decree be drawn up accordingly. (A.P. DESHPANDE J.)