1 S.3952.88.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 3952 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. M/s. Coronation Spinning India, } a firm carrying onbusiness at } B-44, Greater Kailash-I, Gaziabad, } New Delhi – 100 048. } ... 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. 4,17,000/- alongwith the interest at the rate of 15% per annum as set out in the prayer clause (a). The writ of summons was served upon the Defendant. However, the 2 S.3952.88.sxw Defendant has not filed written statement and therefore, the Suit was taken up for hearing as undefended Suit. 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 August 1985, the Defendant imported a consignment of 58 Bales said to contained Scoured Wool and the said consignment was manifested at Item No.1609 dated 26th June 1985 of the Vessel m.v. “Sea Falcon-I”. The general landing date was 17th August 1985 and the last free day was 21st August 1985. According 3 S.3952.88.sxw to the Plaintiff the Defendant did not take away the goods and therefore, wharfage and demurrage and other charges were payable. According to the Plaintiff, by order dated 28th August 1986 bearing No.S/10M Cell Collr.-35/86L S/10-50/86 L SIIB , DRI/BZU/101/Apprg./540/85, 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 plaintiff demanded the said charges by notice dated 22nd March 1988 at Exhibit ‘F’ to the plaint alongwith the interest from the date of notice. One more demand was made by notice dated 29th April 1988 at Exhibit ‘G’. The Defendant did not respond to these notices and that is how the Plaintiff instituted this Suit for recovery of the amount as per the particulars of claim by filing the Suit on 16th August 1988. 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.3952.88.sxw (i) Does the Plaintiff prove that they were entitled to recover wharfage, demurrage and other charges as claimed in the plaint ? Ans. : In the affirmative and as per final order. (ii) Does the Plaintiff prove that they are entitled to recover interest at the rate of 15% per annum from the date of filing of the Suit till payment ? Ans. : As per final order. (iii) What decree ? Ans. : As per final order. 5. The Plaintiff examined their 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 :- 1. The confiscation order dated 28th August 1986 is at Exhibit ‘B’ 2. The first notice of demand dated 22nd March 1988 is at Exhibit ‘F’. 5 S.3952.88.sxw 3. The second notice of demand dated 29th 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 ‘M’. 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 ‘N’. 6. Learned Counsel Mr. Makhija appearing on behalf of the Plaintiff took me through the evidence affidavit as well as the documents relied upon by the Plaintiff. He submitted that the goods were imported by the Defendant as indicated in the manifest and there is no dispute about it. He also submitted that the fact that the Plaintiff is entitled to wharfage and demurrage is made out on the strength of the working sheet. He further pointed out that though monies were demanded from the Defendant, they have not paid same. He pointed out that in the demand notice dated 29th April 1988, the Plaintiff has claimed interest at the rate of 15% per annum and that is 6 S.3952.88.sxw how the Plaintiff has prayed for interest at the rate of 15% per annum. He submitted that looking to the relevant years in which the transaction had taken place and the interest rates prevailing the market rate of interest at the rate of 15% per annum is properly claimed. 7. Learned Counsel Mr. Makhija therefore submitted that the Plaintiff’s Suit is required to be decreed on account of the unchallenged evidence of PW-1 Mr. Sunil Deshmukh and the document on which reliance has been placed. 8. I have considered the submissions advanced by learned Counsel Mr. Makhija. The Plaintiff has been able to make out the case that the goods were imported and the same have been confiscated. This is on the basis of text of Exhibit ‘B’ the confiscation order. The last free date was 21st August 1985. The Suit has been filed by the Plaintiff on 16th August 1988. This will go to show that the Suit is filed within the period of limitation. 9. The evidence of Mr. Deshmukh - PW-1 has gone unchallenged as regards the right of the Plaintiff to recover 7 S.3952.88.sxw wharfage and demurrage charges. So far as the sale warehousing charges which are demanded at Rs.642.60 ps., I am inclined to observe that the said demand cannot be granted as in the Scale of Rates charged at the docks at Exhibit ‘N’ there is no specific provision allowing the Plaintiff to charge what is being called as sale warehousing charges. Learned Counsel Mr. Makhija appearing on behalf of the Plaintiff submitted that item ‘carting charges’ will take care of the demand made by the Plaintiff by calling them as sale warehousing charges. After having perused the relevant provision set out in the scale of rates charges at the Docks the Plaintiff has not been able to make out the case that the word carting charges will include sale warehousing charges. Accordingly, claim to recover Rs.642.60 ps. is required to be rejected. 10. The claim of the Plaintiff on the basis of working sheet for the wharfage and demurrage charges for Rs.4,00,415.69 ps. will have to be accepted. 11. So far as the rate of interest is concerned, the Plaintiff has demanded interest at the rate of 15% per annum and the 8 S.3952.88.sxw said interest is demanded from the date of the demand notice which was issued at the first instance i.e. 29th April 1988. The Plaintiff has not been able to show any specific provision of law by which they could recover interest at the rate of 15% per annum. It has also not been able to show any agreement between parties by which rate of interest could be charged at 15% per annum. In such a case, the Court is required to consider the facts and the circumstances of the case. It is noticed that the Suit transaction is of the year 1985. The Plaintiff instituted the Suit in the year 1988. Considering the relevant dates, I am inclined to observe that if the Plaintiff is granted interest at the rate of 12% per annum that would meet the ends of justice. The Plaintiff has claimed interest from 29th April 1988. The said claim is justified and the Plaintiff would be entitled to recover interest at the rate of 12% per annum from 29th April 1988 till realization. To that extent, the claim of the Plaintiff is required to be granted. 12. In view of the above, the answer to Point No.1 is answered in the affirmative and the Plaintiff will be entitled to recover monies as per final order. So far as Point No.2 is concerned, I hold that the Plaintiff would be entitled to recover 9 S.3952.88.sxw interest at the rate of 12% per annum. So far as Point No.3 is concerned, the Plaintiff would be entitled to decree as per the operative part. 13. For the reasons mentioned aforesaid, I pass the following decree :- (i) The Defendant do pay to the Plaintiff Rs. 4,00,415.69 ps. (ii) The Defendant do pay to the Plaintiff interest at the rate of 12% per annum on Rs.4,00,415.69 ps. from 29th April 1988 till realization. (iii) The Defendant do pay to the Plaintiff costs of the Suit. (R.Y. GANOO, J.)