IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 2308 OF 1997. The Board of Trustees of the Port of Bombay, a statutory Corporate, constituted under the provisions of the Major Port Trusts Act,1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having their principal place of business at “Vijay Deep”, Shoorjee Vallabhdas Marg, Bombay - 400 038. ..Plaintiff. Vs. 1. M/s. Global Trading Co., A firm having its office at 404, Loha Bhavan, P. D’Mello Road. Mumbai 400 009 2. M/s. Transocean Ocean Shipping Agency Pvt.Ltd., A Company incorporated under the provisions Act 1956, Kumpta Street, 1st floor, Ballard Estate, Mumbai – 400 038. ..Defendants. .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla for Plaintiff. Mr. Santosh V. Dighe, Assistant Traffic Manager, GR, present in person. None for the Defendants. .... Coram: S. J. Kathawalla J. Date: 24th March 2011. JUDGMENT: By this Suit, the Plaintiffs pray for an order and decree against the Defendants to pay to the Plaintiffs an amount of Rs. 4,36,560.88 paise towards the deficit in Port Trust charges as per the particulars of claim being Exhibit “E” to the Plaint and to further pay to the Plaintiffs interest on the sum of Rs.3,91,915.51 paise at the rate 2 s-2308-97 of 18% per annum from the date of filing of the Suit till payment and/or realisation. Though the Defendants are served with the Writ of Summons and an Affidavit of service to this effect dated 19th January 2006 is filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend the Suit. The Suit has therefore appeared under the caption “For Exparte Decree”. 2. Shri S.V. Dighe, Assistant Traffic Manager, Gr.I and the Principal Officer of the Plaintiffs has filed his Affidavit in lieu of evidence dated 4th March 2011. The said Affidavit is taken on record and marked “X” for identification. A compilation of documents is also filed on behalf of the Plaintiffs. Mr. Dighe has filed his evidence pursuant to the letter of authority dated 24th June 2009 issued by the Plaintiffs in his favour. The said letter of authority is marked Exhibit “P-1”. 3. It is stated in the Plaint as well as in the Affidavit in lieu of Evidence as follows:- 4. In or about September, 1992 a consignment of one container containing 46 P/Bundles containing Seamless Pipes Carbon Steel Boiler Tubes bearing manifested weight of One Lakh Kgs. was discharged by the second Defendants from Vessel “Y/ FUCHIK” into the custody of the Plaintiffs at the port of Mumbai. Prior to the berthing of the said vessel, the second Defendants as Agents of the said vessel had furnished to the Plaintiffs an Import General Manifest bearing No. 2061 dated 18th September 1992 in respect of the cargoes intended to be discharged from the said vessel at the Port of Mumbai. In the said Import General Manifest, the said consignment was 3 s-2308-97 manifested at Item No. 68 and the 1st Defendants were shown as importers / consignees of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 10th October 1992 and 14th October 1992 respectively. Mr. Dighe has deposed that the original Import General manifest is not traceable despite diligent search. 5. The 1st Defendants as importer / consignee / owner, and 2nd Defendants as the Bailor/Owner of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same. 6. The Plaintiffs had on 23rd December 1992 prepared a list of uncleared cargos and in the said list the said consignment was shown lying uncleared as on that day. Mr. Dighe deposed that original uncleared cargo list is not available despite diligent search. The photocopy of the said list of uncleared cargos dated 23rd December 1992 which was forwarded to the sales branch of the Plaintiffs is produced before this court. The said cargo list bears various signatures of officials namely, Assistant Manager Cotton Deport Warehouse, Assistant Manager Central Documentation Office, P.V. Docks, Shed Superintendent, Cotton Depot. The said uncleared cargo list is taken on record and marked as Exhibit “P-2”. 4 s-2308-97 7. The Plaintiffs therefore by two letters both dated 26th February 1993 addressed to the 1st and 2nd Defendants informed the Defendants that the said consignment was lying uncleared for over two months and called upon them to effect clearance within ten days failing which the Defendants were informed that the said consignments would be put up for sale and would be sold in the sale proposed to be held on 11th March 1993 or any other subsequent date without any further notice and that the said consignment would be sold either by public auction or by tender or by private arrangement. The said letters bears the stamped signature of Mr. D.P. Shinde, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Shri. D.P. Shinde and identifies the same. He further submits that the contents of the said letters are true and correct. The office/carbon copy of said letters are produced before this court. The same are taken on record and marked as Exhibit “P-3” and Exhibit “P-4” respectively. 8. Mr. Dighe further deposed that by a letter dated 9th March 1993, the 2nd Defendant informed the 1st Defendant that the said consignment was being put up for sale and called upon the 1st Defendant to effect clearance. The copy of said letter was also endorsed to the Plaintiffs. The copy of said letter is produced before this court. The same is taken on record and marked as Exhibit “P-5”. 9. As the said consignment was not cleared, the list of packages to be sold including the said consignment was published in the local newspaper “Indian Express” in its issue dated 25th March 1993 and also in the Maharashtra Government Gazette (Part-II) in its issue dated 1st April 1993. The originals of the said advertisement and the Government Gazette along with Photocopies of the same are 5 s-2308-97 tendered in Court. After comparing the two, the originals are returned to the Plaintiffs and photocopy of the Advertisement in the “Indian Express” in its issue dated 25th March 1993 is taken on record and marked as Exhibit “P-6” and the photocopy of the Government Gazette dated 1st April 1993 is taken on record and marked as Exhibit “P-7”. 10. The said consignment was thereafter sold on 26th April 1994 under lot No.GG/11437 for Rs.8,28,005.20 paise. Mr. Dighe deposed that the Port Trust charges accrued on the said consignment amounted to Rs.7,89,118/-. Customs Duty amounted to Rs. 3,48,002.19 paise, and Expenses of Sale amounted to Rs.82,800.52 paise. The Plaintiffs were able to adjust/allocate full Expenses of Sale and full Customs Duty out of sale proceeds but were only able to adjust Rs.3,97,202.49 paise towards Port Trust charges, leaving a deficit of Rs.3,91,915.51 paise, which the Defendants are bound and liable to pay to the Plaintiffs. 11. Explaining how the total Port Trust charges are arrived at, Mr. Dighe has deposed that the said consignment when sold weighed 99,880 kgs. Wharfage was payable in respect of the said consignment under Section-I , Item No. 13 of the Docks Scale of Rates at the rate of 0.50% of C.I.F. value on ad-valorem basis and amounted to Rs.2,405/-. Demurrage was payable in respect of the said consignment under Section-II, Item No. 4 of the Docks Scale of Rates at the rate of Rs.25/- per M.T. per day for the first 30 days, thereafter at the rate of Rs.37.50 paise per M.T. per day from 31st day to the 60th day and thereafter at the rate of Rs.50/- per M.T. per day from 61st day onwards and amounted to Rs.7,86,712.50 paise. Thus, the total Port Trust charges amounted to Rs.7,89,118 paise. 6 s-2308-97 12. Mr. Dighe has deposed that for the sake of noting down the calculations, the Plaintiffs have prepared allocation sheet and working sheet in the usual course of business. Mr. Dighe deposed that he has personally verified the correctness of the calculations made in the allocation sheet and working sheet on the basis of the Docks Scale of Rates. The calculations made therein are correct. The allocation sheet and working sheet are taken on record and marked Exhibits “P-8” and “P-9” respectively. The relevant Docks Scale of Rates then in force are produced before the Court. Mr. Dighe has deposed that he has taken photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges. He has compared the photocopies with the original entries in the Docks Scale of Rates. The photocopies are true and correct photocopies of the originals. The photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges are taken on record and marked Exhibit “P-10”. 13. Mr. Dighe has also produced the Sale Warehouse Register maintained by the Plaintiffs in the usual course of business. He has prepared a photocopy of the relevant entries relating to the said consignment as it appears in the Sale Warehouse Register. The photocopies are true and correct photocopies of the originals. The same is therefore taken on record and marked Exhibit “P-11”. 14. Mr. Dighe has produced the relevant record for the Board proposal and journal entry slip for customs duty. He has prepared photocopies of the said record. He has deposed that the said photocopies are true and correct. The are taken on record and marked Exhibit “P-12”. 7 s-2308-97 15. Mr. Dighe has also produced the Report of goods sold and cleared by the purchasers which was prepared by the Plaintiffs in the usual course of business. The said Report is taken on record and marked Exhibit “P-13”. 16. Mr. Dighe further deposed that the Import General manifest showed the consignment weighed 1,00,000 kgs, but at the time of sale, it was noticed that the actual weight of the said consignment is 99,880 Kgs. and therefore the price paid and realised was on the actual weight of the said consignment. 17. By a Letter dated 26th December 1994 addressed to the Plaintiffs M/s. Kunal Metal Industries who had purchased the said goods/ item pointed out the discrepancy in weight and made a claim for short delivery and asked for refund of the excess payment made by them. The said letter dated 26th December 1994 is produced before this Court. The same is taken on record and marked Exhibit “P-14”. 18. The Working Sheet for calculating shortage in weight was prepared showing the weight of the consignment in the usual course of business. The said working sheet is produced before this Court. The same is taken on record and marked Exhibit “P-15“. 19. On the basis of the short weight, balance price was refunded and therefore the price shown is Rs.8,28,005.20 paise. The working sheet on claim for short delivery is produced before the Court at Exhibit “P-15” above and the receipt from Kunal Metal Industries showing the refund of sum of Rs. 1060.40 paise is also produced 8 s-2308-97 before this Court. The said Receipt of Refund is taken on record and marked Exhibit “P-16”. Mr. Dighe further deposed that this is the reason why the price shown as mentioned hereinabove is Rs. 8,28,005.20 paise. 20. By a letter dated 3rd February 1995 addressed to the 1st Defendant the Plaintiffs informed the 1st Defendant about the sale of the said consignment and called upon them to forward Bill of Entry/Shipping Bill and other relevant documents to ascertain the correct charges due. The copy of the said letter was also endorsed to the 2nd Defendant with a request to furnish information as to whether the delivery order was issued by the 2nd Defendant to any one and if so to indicate to whom it was issued and the date of issue thereof. Mr. Dighe deposed that the contents of the said letters are true and correct. The office/carbon copy of said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-17”. 21. By two letters both dated 7th September 1996 addressed to the 1st and 2nd Defendants, the Plaintiffs informed the Defendants of the sale of the said consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of the sale and called upon them to pay to the Plaintiffs the deficit sum of Rs. 3,91,915.51 paise. The Plaintiffs further informed the Defendants that if the said amount was not immediately paid, the Plaintiffs would charge interest at the rate of 18% per annum till payment. The said letter was signed on behalf of the Plaintiffs by Mr. S.G. Londhe, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.G. Londhe and identifies the same. He further submits that the contents of the said letter are true and correct. Mr. Dighe further deposed that the 9 s-2308-97 registered packet addressed to the 1st Defendant was returned undelivered by the postal authorities. The office/carbon copy of the said letter together with the registered packet addressed to the 1st Defendant which was returned undelivered are produced before this court. The same is taken on record and marked as Exhibit “P-18”. The office/carbon copy of the said letter addressed to the 2nd Defendant is taken on record and marked as Exhibit “P-19”. 22. As there was no response from the Defendants, the Plaintiffs by their two further letters dated 1st October 1996, addressed to the 1st and 2nd Defendants referred to the earlier letter and once again called upon them to pay to the Plaintiffs the deficit sum of Rs.3,91,915.51 paise and pointed out that legal proceedings would be taken to enforce recovery of the said amount. The postal authorities have returned the said letter addressed to the 1st Defendant as undelivered. The said letter was signed on behalf of the Plaintiffs by Mr. S.G. Londhe, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.G. Londhe and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letters together with the registered packet addressed to the 1st Defendant which was returned undelivered are produced before this court. The same are taken on record and marked as Exhibit “P-20” and Exhibit “P-21” respectively. 23. By a letter dated 17th December 1996 addressed to the 2nd Defendant, the Plaintiffs requested the 2nd Defendant to furnish information sought for therein. The said letter was signed on behalf of the Plaintiffs by Mr. S.G. Londhe, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.G. Londhe and identifies the same. He further 10 s-2308-97 submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-22”. 24. Since the Defendants failed to pay the said amount or any part thereof, the Plaintiffs filed the present Suit to recover from the Defendants the sum of Rs.3,91,915.51 paise together with the sum of Rs.44,645.37 paise being interest thereon at the rate of 18% per annum from the date of demand i.e. 7th September 1996 till 25th April 1997 aggregating in all to Rs.4,36,560.88 paise. The Plaintiffs have also claimed further interest at the rate of 18% on the principal sum of Rs.3,91,915.51 paise at the rate of 18% per annum from the date of theSuit till payment or realisation and costs of the Suit as per particulars of claim annexed as Exhibit “E” to the Plaint. 25. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of documents filed by the Plaintiffs. It is established that the consignment of the Defendants (One container containing 46 P/Bundles containing Seamless Pipes Carbon Steel Boiler Tubes) was discharged from Vessel “Y/FUCHIK” at the Port of Mumbai. The Defendants are the importers/consignees/owners of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 10th October 1992 and 14th October 1992 respectively. The Defendants as the importers / consignee /owners of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the 11 s-2308-97 said consignment remained on the premises of the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same. From Exhibits “P-3” to Exhibit “P-5” it is established that though the Defendants were called upon to clear the consignment by paying the Port Trust charges, the Defendants failed and neglected to do so. From Exhibits “P-6” and “P-7”, it can be seen that since the Defendants failed to clear the said consignment the list of packages to be sold by the Plaintiffs including the said consignment was published in the local newspaper and the Government Gazette. The said consignment was thereafter sold on 26th April 1994 for Rs.8,28,005.20 paise/-. From what is recorded in paragraphs 10 and 11 above and Exhibits “P-8”, “P-9” , “P-10” and “P-12”, it is established that the consignment was sold for Rs.8,28,005.20 paise/-, the Port Trust charges accrued on the said consignment amounted to Rs.7,89,118/- The Customs duty amounted to Rs.3,48,002.19 paise and expenses of sale amounted to Rs.82,800.52 paise. Though the Plaintiffs were able to adjust the full expenses of sale and full customs duty out of the said sale proceeds, the Plaintiffs were only able to adjust Rs.3,97,202.49 paise towards the Port Trust charges leaving a deficit of Rs. 3,91,915.51 paise which the Defendants are bound and liable to pay to the Plaintiffs. From Exhibits, “P-17”, “P-18”, “P-19” and “P-20” & “P-21” it is established that though the Plaintiffs have written letters to the Defendants calling upon them to pay to the Plaintiffs a deficit sum of Rs. 3,91,915.51 paise and have also clarified in their letters that if the Defendants failed to pay the said amount immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. However, the Defendants have neither responded to the said letters nor have they paid the said deficit amount to the Plaintiffs as called upon by the Plaintiffs. 12 s-2308-97 26. As set out hereinabove, though the Defendants are served with the Writ of Summons, and an affidavit of service to this effect dated 19th January 2006 is filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend the Suit. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason why what the Plaintiffs have stated in the Plaint as well as in the Affidavit in lieu of Evidence should not be accepted. 27. In the above circumstances, in my view, the reliefs sought by the Plaintiffs are required to be granted. In view thereof, I pass the following order:- (i) The Defendants are ordered and decreed jointly and severally to pay to the Plaintiffs as per the Particulars of Claim being Exhibit “E” to the Plaint an amount of Rs. 4,36,560.88 paise towards the deficit in Port Trust charges and further interest on the sum of Rs.3,91,915.51 paise at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation; (ii) The Defendants to pay costs to the Plaintiffs for this Suit; (iii) The Suit is accordingly disposed of in favour of the Plaintiffs and against the Defendants. [S. J. KATHAWALLA J.]