IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 OP.No. 8162 of 1997(V) --------------------------- PETITIONER: ---------------- M/S. GORDON WOODROFFE LTD., A PUBLIC LIMITED COMPANY HAVING REGISTERED OFFICE AT 36 RAJAJI SALAI, MADRAS 600001, AND A BRANCH OFFICE AT HANDICRAFTS BUILDING, INDIRAGANDHI ROAD, WILLINGDON ISLAND, COCHIN.3, HEREIN REPRESENTED BY ITS MANAGER (SECRETARIAL) SRI. A. RAJENDRAN. BY ADV. SRI.K.P.VIJAYAN SRI.V.B.JINNAH RESPONDENTS: ------------------ 1. THE BOARD OF TRUSTEES OF COCHIN PORT REPRESENTED BY ITS CHAIRMAN, WILLINGDON ISLAND, COCHIN-9. 2. THE TRAFFIC MANAGER, COCHIN PORT TRUST, WILLINGDON ISLAND, COCHIN.9. 3. UNION OF INDIA REPRESENTED BY THE SECRETARY TO THE MINISTRY OF SURFACE TRANSPORT, CENTRAL SECRETARIATE, NEW DELHI. (DELETED) (DELETED AS PER ORDER DATED 18.9.2008) BY ADV. SRI. A.M. SHAFFIQUE. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19 /09/2008 , THE COURT ON THE SAME DAYDELIVERED THE FOLLOWING: OP.No. 8162 of 1997 ORDER ON C.M.P.NO.14281 OF 1997 IN O.P.NO.8162 OF 1997 DISMISSED 19.9.2008. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF THE PROFORMA GIVEN BY R1 TO BE EXECUTED BY THE CLEARING AND FORWARDING AGENT, CONTAINING THE TERMS AND CONDITIONS CONTAINED IN THE APPENDIX A. EXT.P2: COPY OF THE FIRE REPORT BEARING NO.83/96 DTD 17.6.96 ISSUED BY THE KERALA FIRE FORCE TO THE PETITIONER. EXT.P3: COPY OF THE LETTER DTD. 17.6.1996 MADE BY THE PETITIONER TO R1. EXT.P4: COPY OF THE LETTER DATED 28.6.1996 ISSUED BY THE PETITIONER TO R2. EXT.P5: COPY OF THE LETTER DATED 2.7.96 ISSUED BY THE PETITIONER TO R2. EXT.P6: COPY OF THE LETTER DTD 3RD JULY 96 ISSUED BY THE PETITIONER TO R2. EXT.P7: COPY OF THE LETTER NO.A8 GWL/FILE/96T DTD 27.6.96 ISSUED BY THE R2 TO THE PETITIONER. EXT.P8: COPY OF THE LETTER NO.A2/FIRE/96 D DTD 9.7.96 ISSUED BY THE DY. CONSERVATOR OF R1 TO THE PETITIONER. EXT.P9: COPY OF THE LETTER BEARING NO.AR/CO/CPT DTD 9.7.96 ISSUED BY THE PETITIONER TO R2. EXT.P10: COPY OF THE LETTER NO.A8/FIRE/GWL/96/T DTD 13.11.96 ISSUED BY THE R2 TO THE PETITIONER. EXT.P11: COPY OF THE LETTER DTD 26TH NOVEMBER 11996 ISSUED BY THE PETITIONER TO THE RESPONDENT. EXT.P12: COPY OF THE LETTER DTD 28TH FEBRUARY 1997 ISSUED BY THE PETITIONER TO THE R2. EXT.P13: COPY OF THE LETTER DTD 7.4.97 ISSUED BY R2 TO THE PETITIONER. EXT.P14: COPY OF THE LETTER NOI.A8/FIRE GWL/96/T DTD 5.597 ISSUED BY R2 TO THE PETITIONER. OP.No. 8162 of 1997 EXT.P15: COPY OF THE FIRE REPORT NO.47/96 OF THE COCHIN PORT TRUST. EXT.P16: COPY OF THE PLAINT NO.OS.160/98. EXT.P17: COPY OF THE WRITTEN STATEMENT FILED BY R1. RESPONDENTS' EXHIBITS EXT.R2(a): COPY OF THE COMMUNICATION DATED 3.6.1996 FROM THE PETITIONER. EXT.R2(b): COPY OF THE ALLOTMENT ORDER PASSED BY THE TRAFFIC MANAGER ON 7.6.1996. EXT.R2(c): COPY OF HANDING OVER/TAKING OVER STATEMENT OF PORT BUILDING DATED 7.6.1996. EXT.R2(d): COPY OF THE REPORT OF THE DEPUTY CONSERVATOR OF THE PORT TRUST. EXT.R2(e): COPY OF THE STATEMENT FURNISHED BY THE CHIEF ENGINEER, COCHIN PORT TRUST QUANTIFYING THE DAMAGE AT RS.21,37,500/-. EXT.R2(f): COPY OF CERTIFICATE DATED 20.1.1999. EXT.R2(f)(a):COPY OF REPORT OF VALUATION SUBMITTED BY THE ENGINEER WITH ITS ANNEXURES. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 8162 OF 1997 ---------------------------------------- Dated this the 19th day of September, 2008 JUDGMENT The petitioner is a public limited company engaged in the business of clearing and forwarding agency through the Cochin Port. That business cannot be carried on without availing of the facilities and services provided by the Cochin Port Trust, a statutory authority under the Major Port Trusts Act. They have entered into Ext.P1 agreement for leasing of a warehouse belonging to the Cochin Port Trust for the purpose of their business. They have been storing goods imported on behalf of their principals in the warehouse. There occurred a fire in the warehouse as a result of which, the goods belonging to their principals and part of the warehouse belonging to the Cochin Port Trust were damaged. The Cochin Port Trust sought to recover compensation for the damages suffered on account of the fire on the ground that the fire occurred on account of the negligence of the petitioner. After some correspondence between the petitioner and the Cochin Port Trust in this regard, by Ext.P14 O.P.No.8162/97 2 demand, the Cochin Port Trust informed the petitioner that the estimated cost for rectifying the damage caused to the warehouse is Rs.21,37,500/- and if the petitioner does not pay the said amount within seven days of receipt of the said letter, the Port Trust would be constrained to suspend all services rendered by the Port Trust to the petitioner. The petitioner challenges Ext.P14 demand. 2. The petitioner raises two contentions. First is that there is no provision anywhere in the Major Port Trusts Act enabling the Port Trust to unilaterally fix, demand and recover damages in respect of leased premises and therefore, the demand itself by Ext.P14 is without jurisdiction. They would further submit that even assuming that the Cochin Port Trust does have power to unilaterally fix and recover damages in respect of the leased premises for non-payment of such damages, they cannot suspend statutory services rendered by the Port Trust to the petitioner for non-payment of the damages demanded. According to them the same arises out of a contractual obligation which can be enforced only through a civil action in the absence of any enabling statutory provision. According to the petitioner, suspension of such services can O.P.No.8162/97 3 only be for violation of any statutory condition in respect of such services. Payment of damages to the leased premises is totally unconnected with the services to be rendered under the Act and non-payment of such demand arising purely out of a contract cannot result in suspension of the services rendered to the petitioner by virtue of the provisions of the Major Port Trusts Act, which is an entirely independent transaction. 3. With the help of a counter affidavit filed, respondents 1 and 2 would dispute the contentions of the petitioner. According to them, admittedly in Ext.P1 contract, there is a specific provision, Clause 13 thereof, whereby the storage space leased to the petitioner with all electric fittings should be returned to the 1st respondent on the termination of the lease in the same order and condition in which it was taken over, failing which the cost incurred by the Board in setting right any defects will be the liability of the lessee. In view of the said provision, according to the learned counsel for respondents 1 and 2, respondents 1 and 2 are perfectly justified in directing payment of the amounts required for restoring the damaged premises to its original condition. He would further submit that when the premises has been leased O.P.No.8162/97 4 to the petitioner for conducting business in accordance with the provisions of the Major Port Trusts Act, respondents 1 and 2 can certainly, for non-payment of amounts due as per Clause 13 of Ext.P1, suspend other services under the licence issued to the petitioner. They therefore, would support Ext.P14. 4. I have considered the rival contentions in detail. Certainly under Section 49 of the Major Port Trusts Act, the authority under the Major Port Trusts Act has the power to frame scale of rates for leasing of land or sheds by owners of goods imported or intended for export or by steamer agents and for any other use of land, building, works, vessels or appliances belonging to or provided by the Board. The fact that Section 49 provides for fixing of scale of rates may show that the Board has powers to lease land or sheds belonging to the Board to owners of goods or steamer agents. Notwithstanding the same, it cannot be said that such leasing of storage space is a statutory function. Leasing of the properties belonging to the Port Trust is purely a contract unconnected with the provisions of the Major Port Trusts Act. The Act does not provide for recovery of damages for breach of such contract for lease. That being so, without first getting the liability for and O.P.No.8162/97 5 quantum of damages by a process known to law, the Port Trust cannot enforce payment of the same by the petitioner. Further, in so far as respondents 1 and 2 have no case that the petitioner has violated any terms and conditions of the Major Port Trusts Act in respect of the clearing and forwarding agency, the non-payment of the unilateral demand for damages cannot be a reason for suspending other services being rendered by respondents 1 and 2 to the petitioner in accordance with the Major Port Trusts Act. Therefore, clearly, Ext.P14 is without jurisdiction. Accordingly, the same is quashed. However, this shall not preclude respondents 1 and 2 from recovering any damages caused to their warehouse by proceeding in accordance with law. The writ petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.8162/97 6