1 s2013-88.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 2013 of 1988 The Board of Trustees of the Port of Bombay, a body Corporate constituted under the provisions of Major Port Trst Act, 1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having its principal place of business at “Vijay Deep” Shoorji Vallabhdas Marg, Ballard Estate, Bombay 400 038 .. Plaintiffs v/s. M/s. Ilac Limited , a Company registered under the provisions of Companies Act having its registered office at Galico Mills Premises, O/S Jawalpur Gate Ahmedabad 380 022 ..Defendants Mr.U.J.Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 27th January , 2011 ORAL JUDGMENT. : 2 s2013-88.sxw 1. The plaintiffs have filed this suit for recovery of Rs.1,06,000/- along with interest at the rate of 15% per annum as set out in the prayer clause (a). The writ of summons was served upon the defendants. However, the defendants have not filed their written statement and therefore the suit was taken up for hearing as undefended suit. 2. Few facts necessary for the disposal of the suit are as under:- The plaintiff is a body Corporate constituted under the provisions of Major Port Trust Act and goods which are imported in India land in the docks maintained by the plaintiffs. As the goods land at docks, till such time they are taken away by the concerned person the wharfage and demurrage charges become payable by the concerned person to the plaintiffs. The present suit is filed by the plaintiffs for recovery of wharfage, demurrage and other charges (hereinafter referred to as Port Trust Charges) as set out in the particulars of claim. 3. It is the case of the plaintiffs that on or about 15.1.1985 defendants imported a consignment of 25 bales said to contain Polyester Staple 3 s2013-88.sxw Fibre manifested at item No. 267 in the Import General Manifest No. 2157 dated 11.1.1985 of the vessel m.v.VALERIA. The General landing date was 15.1.1985 and the last free date was 18.1.1985. 4. According to the plaintiffs, the defendants did not take away the goods within the time stipulated to take away the goods and therefore the defendants were liable to pay the port trust charges. 5. According to the plaintiffs, by Order bearing No. S/16DEEC-444/84 dated 7.3.1986, Deputy Collector of Customs ordered confiscation of the goods described above under the provisions of Section 111(d) of the Customs Act, 1962. The consignment was confiscated to the Government. Be that as it may, the defendants did not pay the port trust charges. Hence plaintiffs by their notice dated 31.10.1987, Exhibit P-1, called upon the defendants to pay to plaintiffs the port trust charges amounting to Rs.1,03,521. 82p. Plaintiffs also claimed interest at the rate of 15% per annum. 6. As Defendants did not pay the said charges, the plaintiffs, by their reminder dated 2.12.1987 called upon the defendants to pay the 4 s2013-88.sxw aforesaid amount. Defendants failed to do so. It is in these circumstances, the plaintiffs filed suit on 11.1.1988. 7. The defendants did not file written statement. Since no written statement is filed, formal issues were not framed. Following points are required to be decided by the court. i) Whether the suit is filed within the period of limitation? Ans. In the affirmative. ii) Do the plaintiffs prove that they are entitled to recover wharfage, demurrage andother charges as claimed in the plaint? Ans. In the affirmative and as per final order. iii) Do the plaintiffs prove that they are entitled to recover interest at the rate of 15% per annum as demanded in the plaint? Ans. As per final order. iv) What Decree? Ans. As per final order. 5 s2013-88.sxw 8. I have heard learned Counsel on behalf of the plaintiffs. Learned Counsel Mr. Makhija, appearing on behalf of the plaintiffs pointed out that the General Landing date was 15.1.1985 and the Last Free date was 18.1.1985. Learned Counsel Mr. Makhija pointed out that the suit was filed on 11.1.1988. He submitted taking the last free date 18.1.1985 as the day when cause of action accrued to plaintiffs, the filing of the suit on 11.1.1988 in within the period of limitation. According to him the provisions of Article 113 of the Limitation are attracted to the facts of this case. He reiterated his submission that the filing of suit on 11.1.1988 is within the period of limitation. 9. I have considered the submissions of learned Counsel Mr. Makhija on the question of institution of suit within the period of limitation. Taking into consideration last free date as 18.1.1985 and the date of filing the suit as 11.1.1988 and accepting the contention that the cause of action arose on 18.1.1985 the suit is filed within the period of limitation. Accordingly, point No.1 is answered in the affirmative. 6 s2013-88.sxw 10.The plaintiffs have examined Mr. Sunil M. Deshmukh, Senior Assistant Traffic Manager of the plaintiffs as their witness and plaintiffs have placed before the court various documents in support of their claim. The plaintiffs have relied upon the documents, namely (i) Demand Notice dated 31.10.1987 is at Exhibit P-1, (ii) the reminder demand notice dated 2.12.1987 is at Exhibit P-4, (iii) Working sheet is at Exhibit P-5, (iv) Scale of rates is at Exhibit P-6. 11.Learned Counsel Mr. Makhija, took me through the notices at Exhibits P-1 and P-2 and pointed out that despite repeated reminders, the defendants have not paid the port trust charges. He pointed out that plaintiffs had demanded interest at the rate of 15% per annum by notice dated 31.10.1987, Exhibit P-1. He submitted that the plaintiffs are entitled for interest at the rate of 15% per annum as set out in the plaint. He had drawn my attention to the working sheet Exhibit P-5. The working sheet shows as to how the port trust charges are calculated. I have perused the working sheet. In so far as the claim of the plaintiffs, as regards wharfage and demurrage, the plaintiffs have made out a case. The plaintiffs have claimed Rs. 169.40 towards Sale Warehousing Charges. Learned Counsel Mr. 7 s2013-88.sxw Makhija , in support of the aforesaid claim drew my attention to the item “Carting Charges” appearing in the Scale of rates at Exhibit P-6 and submitted that plaintiffs are entitled to recover the sale warehousing charges as claimed in the working sheet. After having gone through the text of the item “Carting Charges”, I am not inclined to accept the claim of the plaintiffs that they are entitled to recover from the defendants sale warehousing charges . Consequently, claim of plaintiffs to the extent of Rs.169.40 will have to be rejected. 12.Looking to the various documents relied upon by the plaintiffs and the uncontroverted evidence of P.W.1 Deshmukh, the claim of the plaintiffs to the extent of wharfage and demurrage is required to be granted. Taking into consideration the necessary figures stated in the working sheet, plaintiffs will be entitled to recover from the defendants the sum of Rs.1,03,352.42. 13.Plaintiffs have demanded interest at the rate of 15% per annum from the date of first demand notice i.e. 31.10.1987. So far as the rate of interest is concerned, the plaintiffs have not been able to show any 8 s2013-88.sxw specific provision of law by which they could recover interest at the rate of 15% per annum. They have also not been able to show any agreement between the parties by which the rate of interest could be charged at 15% per annum. In such a case, the court is required to consider the facts and circumstances of the case. It is noticed that the transaction is of the year 1985. The suit is instituted in the year 1988. Considering the relevant dates, I am inclined to observe that if the plaintiffs are granted interest at the rate of Rs.12% per annum, it would meet the ends of justice. The plaintiffs have claimed interest from 31.10.1987, being the date of first demand notice. The said claim is justified and the plaintiffs would be entitled to recover interest at the rate of 12% per annum from 31.10.1987 till realisation. 14.In view of the above discussion, point no.2 is answered in the affirmative and the plaintiffs will be entitled to recover monies as per the final order. So far as point no.3 is concerned, I hold that the plaintiffs would be able to recover interest at the rate of Rs.12% per annum as per the final order. So far as the point No.4 is concerned, plaintiffs would be entitled to decree as per the operative part. 9 s2013-88.sxw 15.For the reasons mentioned aforesaid, I pass the following decree: DECREE i) Defendants do pay to plaintiffs Rs.103352. 42p. ii) Defendants do pay to plaintiffs interest at the rate of 12% per annum on Rs. 103352. 42p from 31.10.1987 till realization. Iii) Defendants do pay to plaintiffs costs of this suit. [R.Y.GANOO, J.] 10 s2013-88.sxw