1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.1752 OF 1988 The Board of Trustees of the Port of Bombay. ...Plaintiff. Versus Venus Paper Mills Ltd. ...Defendants. ....... Ms.Varsha Jain i/b. Motiwala & Co. for the Plaintiff. None for the Defendants. ...... CORAM : DR. D.Y. CHANDRACHUD, J. July 6, 2009. P.C.: The suit has been instituted by the Port Trust for the recovery of an amount of Rs.1,30,357.77 on account of a deficit following a statutory sale. 2. In May 1984, the Defendants imported a consignment containing 1490 Paper Reels. The consignment was manifested at Item No.158 of the Import General Manifest dated 5th May 1984. The General Landing Date and the Last Free Day of the Cargo were 10th May 1984 and 16th May 1984 2 respectively. 213 Paper Reels out of the consignment were found to be short landed, while the balance of 1277 Paper Reels were listed for sale and sold. The auction purchaser took delivery and cleared 11,850 kgs. out of a quantity of 14,330 kgs. The balance of 2480 kgs. was listed for sale and was sold on 14th March 1987. This resulted in a deficit of Rs. 29,118.29. A suit was filed in the City Civil Court for the recovery of an amount of Rs.29,118/-. The present suit pertains to a deficit of the sale arising out of sale of 11,850 kgs. 3. Since the Defendants failed to clear 1277 Paper Reels of the consignment, the Plaintiff addressed a letter dated 9th May 1985 calling upon them to do so. A notice was issued in the Maharashtra Government Gazette dated 16th May 1985 and in the newspaper on 14th May 1985. 1277 Paper Reels were sold on 4th June 1985. After adjusting for Customs duty and expenses of sale, there remained a deficit of Rs. 3 1,29,032.10 towards Port Trust Charges. The Plaintiff has stated that they have calculated the Port Trust charges in accordance with Docks Scale of Rates. 4. The Defendants were served with the writ of summons and had filed a Written Statement. The following issues were framed: 1. Whether the suit is barred by law of limitation; 2. Whether the suit is bad for non-joinder of necessary parties; 3. Whether the Defendants are the owners/importers/ consignees of the consignment as stated in paragraph 2 and 5 of the plaint; 4. Whether the consignment was sold on 4th June 1985 under Lot No.T-802 for Rs.20,204.25, resulting in deficit of Rs.1,54,110.10 as stated in paragraph 7 of the plaint; 5. Whether the Port Trust Charges accrued on 1277 reels amounted to Rs.1,34,315.16 customs duty amounted Rs. 12,687.78, expenses of sale amounted to rs.2,233.41 & I.T.C. fine amounted to Rs.25,078.00 as stated in paragraphy 7 of the plaint; 6. Whether the Plaintiffs are entitled to recover the sum of Rs.1,30,357.77 with further interest on the sum of Rs. 29,032.10 at the rate of 15% p.a. from the date of suit 4 till payment or realization as claimed; 7. Whether the delay in disposal of the goods resulted in deterioration of the goods which were perishable in nature as alleged in paragraph 2 of the Written Statement; 8. Whether the Defendants prove that they have not imported 1490 paper reels as alleged in paragraph 9 of the written statement; 9. To what reliefs are the Plaintiffs entitled; 10.What order? What decree 5. The Plaintiff has filed an affidavit in lieu of Examination-in-Chief of the Assistant Dock Manager and a compilation of the original documents. The Defendants and their Advocate have remained absent at the trial and the evidence of the Plaintiff has not been challenged. The Plaintiff's witness is present before the Court and verified to the correctness of what is stated in the affidavit of evidence. 6. Issue No.1 : The suit is not barred by limitation. The sale took place on 4th June 1985. The suit has been 5 instituted within a period of three years on 3rd June 1988. 7. Issue No.2 : The Defendants have in paragraph 3 of the Written Statement contended that the owners of the ship who had delivered the goods to the Plaintiff were the necessary parties to the proceedings. There is no merit in the defence. The Defendants were the importers of the consignment and their name was duly reflected in the Import General Manifest. The Defendants are primarily liable. 8. Issue No.3 : This issue would have to be answered in the affirmative in view of the evidence of Shri I.S. Swami, Assistant Dock Manager. 9. Issue Nos.4 and 5 : The Plaintiff has duly established its case on the basis of the averments in paragraphs 5, 7 and 8 of the affidavit in lieu of Examination-in-Chief. The relevant pages of the Dock Scale of Rates of the 6 prevailing time and Sale register have been duly proved. The claim has been duly proved. 10. Issue Nos.7 and 8 : The Defendants have not led any evidence in support of the defence. Issue Nos.7 and 8 will have to be answered in the negative. 11. Issue No.6 : The issue is answered in the affirmative with the modification that the Plaintiff will be entitled to interest on the principal sum at 9% per annum from the date of the suit, until payment or realization. 12. For the reasons aforesaid, the suit is decreed in terms of prayer clause (a) subject to the modification that the Plaintiff will be entitled to interest at the rate of 9% per annum on the principal sum from the date of the suit, until payment or realization. ......