IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 WP(C).No. 40989 of 2003(D) -------------------------- PETITIONER(S): --------------- CHOICE INTERMODAL SERVICES, A DIVISION OF CHOICE TRADING CO.LTD., HAVING ITS OFFICE AT NILHAT HOUSE, BRISTOW ROAD, W/ISLAND, KOCHI-3, WHO IS THE STEAMER AGENT OF HYUNDAI MERCHANT MARINE CORPORATION, S. KOREA,REP.BY ITS DIVISIONAL MANAGER, JIBUJACOB, S/O LATE M.JACOB, AGED 35. BY ADV. SRI.V.J.MATHEW SRI.BIJISH B.TOM RESPONDENT(S): --------------- 1. THE CHAIRMAN, COCHIN PORT TRUST, W/ISLAND, COCHIN-9. 2. THE BOARD OF TRUSTEES, COCHIN PORT TRUST, W/ISLAND, COCHIN-9, REP. BY ITS CHAIRMAN. 3. THE WHARF SUPERINTENDENT, ERNAKULAM WHARF, COCHIN PORT TRUST, W/ISLAND, COCHIN-9. SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1 SMT.PRIYA MAHESH FOR R1 SMT.PRIYA MANJOORAN FOR R1 SRI.. GOPINATHA MENON THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/07/2010, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 40989 of 2003 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 21st day of July, 2010. J U D G M E N T Petitioner is the shipping agent for the ship “MV Hansa Bergen”, which berthed at the Port of Cochin on 30-9-2003. On allegation that while berthing, due to negligence of the Captain and Crew of the vessel, a rubber fender of the Cochin Port Trust had been damaged, the petitioner was directed to pay an amount of Rs. 2,36,000/- towards cost of repair of the damaged rubber fender. That demand for damages is under challenge in this writ petition. 2. At the outset, the learned counsel for the Cochin Port Trust raises a preliminary issue regarding the maintainability of this writ petition. According to the learned counsel, as per the rules applicable, the Board of Trustees of the Cochin Port Trust have the power to quantify damages for loss caused to the Post Trust without hearing the other party and in such cases, the remedy of the other party is to approach the civil court. Counsel relies on the decision of a Division Bench of this Court W.H.D'Cruz & Sons v. Board of Trustees of the Port of Cochin, 2009(1) KLT 494. Therefore, I shall consider the preliminary issue before going into the contentions on merits. 3. The question as to whether the petitioner's vessel caused damages to the rubber fender of the Cochin Port Trust and if they did, what is the quantum of damages recoverable therefor are questions of fact, for ascertaining which evidence is necessary. It is trite law that ordinarily this Court will not take evidence in writ petitions. Ordinarily, writ petitions would be entertained only in respect of matters which can be decided on the basis of affidavits of parties. Of course, counsel for the petitioners raises a contention that damages were fixed without hearing the petitioners, and that no joint inspection was held before arriving at the decision, which was a W.P.C. No. 40989/2003 -: 2 :- mandatory requirement. In W.H.D'Cruz & Sons's case (supra), the Division Bench has upheld the power of the Board of Trustees of the Cochin Port Trust for quantifying damages without hearing the other party in respect of loss caused to the Port Trust on account of negligence of vessels berthing in the Port. It was further held that in such cases, the remedy of the aggrieved party is to approach the civil court. In view of the above binding decision, I do not think that I can consider the writ petition on merits. Accordingly, without prejudice to the right of the petitioner to approach the civil court for appropriate reliefs, this writ petition is dismissed. However, I direct that if the petitioner files a civil suit in respect of the same, the period during which this writ petition was pending before this Court shall be excluded for calculating limitation for the purpose of filing the suit. Sd/- S. Siri Jagan, Judge. Tds/