1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.121 OF 2003 The Board of Trustees of the Port of Mumbai ..PlaintiffS vs. 1 Samrat Bicycles Ltd. 2 World Wide Cargo Care P.Ltd. ...Defendants Ms Preeti Shah i/b M/s.Motiwalla & Co. for the plaintiffS None for the defendants CORAM :A.S.OKA,J. DATE : NOVEMBER 3, 2009 JUDGMENT : 1 The suit is shown under the caption of undefended suits for exparte decree . The suit already stands withdrawn as against the first defendant. The plaintiffs are seeking decree only as against the second defendant. 2 The plaintiffs have been constituted under the Major Port Trusts Act,1963 (hereinafter referred to as the said Act). The first defendant-company is the consignee/bailor/owner of the consignment subject matter of the suit. The second defendant is impleaded on the basis of the allegation that the said defendant is a clearing agent of the first defendant. In the capacity of the clearing agent, the bill of lading in question was endorsed to the second defendant. It is contended that the second defendant being an agent is also the owner of the consignment within the meaning of the said Act. 3 In May 1986, the first defendant imported the consignment of three containers and three cases equal to 6 packages of equipment for BMK frame which were manifested at item no.29 of the Import General Manifest 2 No.1060 dated 22 nd may 1986 of the vessel Gulf Stream. The General Landing date and the Last Free date of the cargo of the said vessel were 22 nd May 1986 and 25 th May 1986 respectively. According to the case of the plaintiffs, out of the manifested quantity of 3 containers and 3 cases, two containers and two cases were confiscated by the Department of Customs. One case was sold in December 1998. However, the equipment of BMK frame which was stuffed in a container for a long period was sold on 14 th December 1999. The empty container was sold on 4 th July 2000. 4 The case of the plaintiffs is that as the consignment was not cleared for a long period of 2 months from the date of landing , the same was put up for public auction. A gazette notice was published accordingly. A notice was also published in the local newspaper. Accordingly, the consignment was sold on 14 th December 1999 for a sum of Rs.21,788/-. The case of the plaintiffs is that the port trust charges accrued on the consignment amounted to Rs.65,733/-, the customs duty amounted to Rs.8888/- and expenses of sale amounted to Rs.2178.80. After adjustment of sale price of Rs.21,788/-, a deficit of Rs.55,721.20/- remained which was not paid by the defendants. Reliance has been placed on notice of demand as well as the final notice. As far as container is concerned, reliance has been placed on the procedure followed for sale by public auction by publishing a notice in the local newspaper and in the official gazette. According to the plaintiffs after adjustment sale proceeds of Rs.5787/- a deficit amount of Rs.6828/- remained payable by the defendant. Even for the said claim, a notice was issued. As per the claim made in the suit a sum of Rs.55,011.80 is the balance amount recoverable in respect of the consignment. A sum of Rs. 3 6828/- has been claimed as an amount recoverable on account of the container. Interest at the rate of 18% per annum on the said amounts has been claimed upto the date of institution of the suit. There is a prayer for grant of further interest on the principal amount at the rate of 18% per annum from the date of institution of the suit. 5 The plaintiffs have filed an affidavit of documents of Mr.I.S.Swami, Assistant Docks Manager and its authorised signatory. An affidavit in lieu of oral evidence of the said officer has been tendered along with the documents. 6 The said documents and the assertions made in the affidavit prove the case of the plaintiffs of non-payment of deficit amounts by the second defendant. In the plaint as well as in the aforesaid affidavit, it is asserted that the second defendant is an endorsee of the bill of lading and is the agent of the vessel. It is contended that the second defendant is the owner of the consignment within the meaning of the said Act. The said case is established by the documents on record read along with the affidavit. In the circumstances, a case is made out for passing a decree against the second defendant. 7 The plaintiffs have claimed interest from the date of institution of the at the rate of 18% p.a. Considering the nature of the suit transaction and the facts of the case, interest deserves to be granted at the rate of 9% p.a. 8 Hence, I pass the following order : i) The suit stands decreed as against the second 4 defendant in terms of prayer clause (a) with a modification that further interest will be payable at the rate of 9% per annum from the date of the suit till the payment or realisation as prayed therein. ii) The plaintiffs will be entitled to refund of court fees as per the rules. JUDGE