IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.206 of 1989. SUIT NO.206 of 1989. SUIT NO.206 of 1989. The Board of Trustees of the Port of Bombay, a Body Corporate constituted under the provisions of Major Port Trust Act, 1963 as amended by the Major Port Trusts (Amended) Act, 1974 having its principal place of business at ‘Vijay Deep’ Shoorji Vallabhdas Marg, Ballard Estate, Mumbai 400 038 ..Plaintiff versus 1. M/s. Kiran Combers & Spinners, a firm carrying on business at 164 Industrial Area-‘A’ Ludhiana 141 008 and also at Dal Bazaar, Ludhiana 141 008 2. Rakesh Kumar, partner of M/s. Kiran Combers & Spinners, 164 Industrial Area ‘A’ Ludhiana 141 008 and at Dal Bazaar, Ludhiana 141 008 3. Samrat Shipping Company Pvt. Ltd. having office at 63 Jolly Makers Chambers No.2, Nariman Point, Mumbai 400 021 ..Defendants Mr.U.J.Makhija i/b.Mulla & Mulla for the Plaintiffs None for the defendant Nos.1 and 2. Ms.N.S.Sumnani i/b. M/s.Bhat & Saldhana for the -2- Defendant No.3 CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 28th July, 2008. DATED : 28th July, 2008. DATED : 28th July, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. The Board of Trustees of the Port of Bombay, namely the plaintiffs have instituted this suit to recover from the defendants a sum of Rs.9,76,000/- together with interest on the sum of Rs.46,607.78p at the rate of 15% per annum from the date of filing of the suit till realisation and for costs. The defendant No.1 is the firm and is an importer, whereas the defendant No.2 is the partner of the said firm. The defendant No.3 is a private limited company and had acted as the agent of the Vessel namely m.v.NEPTUNE JASPER. 2. According to the plaintiffs the defendant No.1, an importer, imported 48 bales of Wool Waste being item No.SMTP-3 in the Import General Manifest No.2193 of 15.9.1985 of the vessel m.v. NEPTUNE JASPER OF which defendant No.3 is agent of the vessel. The general landing date was 13.9.1985 and the last free date of the cargo was 19.9.1985 respectively. According to the plaintiffs, the -3- Collector of Customs passed an Order of consfication of goods dated 25.1.1998 at Exhibit A and orderered payment of penalty of Rs.1,00,000/-. According to the plaintiffs they became entitled to recover from the defendants amounts towards wharfage, demurrage and other charges which are commonly called as Port Trust charges (hereinafter referred to as port trust charges). According to the plaintiffs from 19.9.1985 i.e. the last free date till 25.1.1988 i.e. the date when the order of confiscation was passed, port trust charges to the tune of Rs.9,46,607.78 became due and payable. These charges are being referred to by the plaintiffs as pre confiscation port trust charges receoverable under Section 48(d) and 59 of the Major Port Trust Act, 1963 (hereinafter referred to as the said Act) as the plaintiffs activity was governed by the said Act. According to the plaintiffs correspondence between the plaintiffs on the one hand and the defendant No.1 as well as the plaintiffs on one hand ensued. Plaintiffs called upon the respective defendants to pay to plaintiffs Rs.9,46,607.78 being port trust charges. The said correspondence was from the 18.7.1988 upto 8.8.1988. The defendant No.1 at one stage in the -4- course of correspondence had contended that they are not liable to pay the port trust charges because the goods which had landed were of different description. The defendant No.3 had contested the demand contending that they were agents of the vessel and they were not liable to pay any amount, particularly when defendant No.1 had denied their liability. As a result of non compliance of the demand notice the plaintiffs have filed the suit for the aforesaid amounts as mentioned earlier. 3. The defendant Nos.1 and 2 have filed written statement. However, defendant Nos.1 and 2 have not participated in the trial at the stage of recording of evidence. The defendant Nos.1 and 2 have disputed the claim of the plaintiffs. The defendant No.3 has also filed the written statement and have participated in the trial and have cross examined the witnesses on behalf of the plaintiffs. According to the defendant No.3 the suit is barred by the period of limitation and as they were agents of the vessels they were not liable. According to the defendant No.3 they were not liable to take delivery and as they had no authority to take -5- delivery, they were not liable to pay the charges. The claim to the extent of Rs.9,00,000/- and odd amount is disputed by the defendant No.3. It is also the stand of the defendant No.3 that the plaintiffs neglected in the matter of attending to the suit goods. 4. On the basis of the pleadings as aforesaid issues came to be framed on 23.8.2007. They are as follows . Answer to each of the issue is mentioned against the respective issue: Issues Issues Issues 1. Whether the suit is barred by the law of limitation as staed in paragraph 1 of the Written Statement of Defendant No.3?..... In the negative In the negative In the negative 2. Whether the suit is bad for mis-joinder of parties as alleged in paragraph 2 of the written statement of Defendant No.3?.... In the negative In the negative In the negative 3. Whether the Defendant No.3 is not the -6- Owner/Agent of the suit consignment as alleged in paragraph No.5 of the written statement of defendant No.3? .....Defendant No.3 is the owner of the Defendant No.3 is the owner of the Defendant No.3 is the owner of the goods. goods. goods. 4. Whether the Defendant Nos.1 and 2 prove that they are not the importer/owner/consignee/Bailor of the suit consignment as alleged in paragraph No.4 of the written statement of Defendant Nos.1 & 2?..... Defendant No.3 is the bailor of Defendant No.3 is the bailor of Defendant No.3 is the bailor of the suit goods. the suit goods. the suit goods. 5. Whether the confiscation of suit consignment incurred pre-confiscation port trust charges of Rs.9,46,607.78 as stated in Paragraph 7 of the plaint?.. As per the As per the As per the operative part. operative part. operative part. 6. Whether the plaintiffs are entitled to recover the amount of Rs.9,46,607.78 being the pre-confiscation charges in respect of Suit Consignment together with a sum of Rs.29,392.22 paise being interest @ 15% -7- p.a. from 16/06/1988 till 05/09/1988 aggregating to Rs.9,76,000/- as stated in paragraph 16 of the Plaint?... As per the As per the As per the operative part. operative part. operative part. 7. To what reliefs are the plaintiffs entitled?... As per the operative part. As per the operative part. As per the operative part. 8. What Order & generally?...As per final As per final As per final order order order 5. At trial on behalf of plaintiffs Mr. E.J.Almeida, Docks Manager was examined as P.W.1. Mr. Chandrakant Patwade was examined in his capacity as Bills Supervisor as P.W.2. Certain documents have been relied upon by the plaintiffs and they have been marked as Exhibits, to which reference will be made at appropriate stage. No other witness was examined on behalf of the plaintiffs. None of the defendants examined any witnesses. 6. I have heard learned Advocate Mr. Makhija appearing on behalf of the plaintiffs and learned -8- Advocate Ms. Sumnani appearing on behalf of the defendant No.3. Nobody appeared on behalf of the defendant Nos.1 and 2. REASONS REASONS REASONS 7. Issue No.1. 7. Issue No.1. 7. Issue No.1. This issue pertains to the question of limitation. The last free date was 19.9.1985. The goods covered by the present suit came to be confiscated by Order dated 25.1.1988. Learned Advocate Mr. Makhija appearing on behalf of the plaintiffs had submitted that for the kind of suit which is filed by the plaintiffs Article 113 of the Limitation Act would be applicable and the right to sue would accrue when the confiscation Order came to be passed i.e. on 25.1.1988 and if that is so, the suit filed on 12.9.1988 is within the period of limitation. Learned Advocate Mr. Makhija in support of this proposition relied upon the judgment in case of The Board of Trustees of the The Board of Trustees of the The Board of Trustees of the Port of Bombay v. M/s. Rainbow Products & Another Port of Bombay v. M/s. Rainbow Products & Another Port of Bombay v. M/s. Rainbow Products & Another reported in 2007(3) ALL MR 561. reported in 2007(3) ALL MR 561. reported in 2007(3) ALL MR 561. By this judgment this Court has observed that the date on which the Order of confiscation is passed is the relevant -9- date and and on that day the cause of action would accrue to the plaintiffs. Learned Advocate Mr. Makhija had also relied upon the judgment of this Court in Case of Board of Trustees of the Port of Board of Trustees of the Port of Board of Trustees of the Port of Bombay v. Ramanlal Mohanlal Parikh & another Bombay v. Ramanlal Mohanlal Parikh & another Bombay v. Ramanlal Mohanlal Parikh & another reported in AIR 2004 Bombay 44 reported in AIR 2004 Bombay 44 reported in AIR 2004 Bombay 44 to strengthen the proposition as regards the question of limitation in this case. In this case the Court had even extended the proposition and had observed that the date on which the information as regards the confiscation Order is passed on to the plaintiffs would be the date on which the cause of action would accrue. Reading the judgments cited above and applying the same to the facts of this case, it is clear that if the Order of Confiscation was passed on 25.1.1988, then institution of the suit on 12.9.1988 was well within the period of limitation and hence the stand of the defendant No.3 that the suit was filed beyond the period of limitation cannot be accepted and the point no.1 is answered in the negative. 8. Issue No.2. 8. Issue No.2. 8. Issue No.2. . By this the defendant No.3 wanted to -10- contend that the suit is bad for misjoinder of the parties. So far as this aspect is concerned, the defendant No.3 admits that they were the agents of the vessel. In such a case in order to contend that the suit was bad for misjoinder of parties it was necessary for them to disclose the name of the principal. In the absence of disclosure of the name of principal, institution of the suit by the plaintiffs against the defendant in their capacity as agents of the Vessel would be maintainable. This also has got some connection with reference to liability of defendant No.3 as the owner of the goods and that is how the stand of the defendant No.3 that the suit is bad for misjoinder of parties can not stand and the issue is answered in the negative. 9. Issue No.3. . Issue No.3. . Issue No.3. . The defendant No.3 have admitted that they are the agents of the vessel. Learned Advocate Mr. Makhija appearing on behalf of the plaintiffs submitted that if the defendant No.3 have admitted that they are the agents of the vessel they are liable to pay. He submitted that in view of -11- provisions of Section 2(o) of the said Act Defendant No.3 will be treated as owner of the goods and if they have not taken the delivery of the goods and if they have not issued the delivery order to the consignee then they would be liable to pay. Learned Advocate Mr. Makhija, in support of his contention that the defendant No.3 will have to be styled as Owner has relied upon the judgment in case of Trustees of the Port of Madras through its Trustees of the Port of Madras through its Trustees of the Port of Madras through its Chairman vs. M/s.K.V.P.Sheikh Mohd. Rowther and Chairman vs. M/s.K.V.P.Sheikh Mohd. Rowther and Chairman vs. M/s.K.V.P.Sheikh Mohd. Rowther and Co. Pvt. Ltd. & Anr. reported in AIR 1995 Co. Pvt. Ltd. & Anr. reported in AIR 1995 Co. Pvt. Ltd. & Anr. reported in AIR 1995 S.C.1922. S.C.1922. S.C.1922. 10. Learned Advocate Ms. Sumnani appearing on behalf of the defendant No.3 contended that the stand of the plaintiffs that defendant No.3 will have to be styled as the owners of the goods cannot be accepted on true interpretation of Section 2(o) of the said Act. 11. I have considered the rival submissions and also the judgment in case of Trustree of the Port of Madras through its Chairman vs. M/s. K.V.P. Sheikh Mohd. Rowther & Co. Pvt. Ltd. & Anr. (Supra) relied upon by the learned Advocate Mr. -12- Makhija for the plaintiffs. In view of the clear observations of the Supreme Court and as per the defination of Section 2(o) of the said Act, the agent of the vessel is to be treated as owner, and hence the defendant No.3 will have to be styled as owner of the goods. Once they are styled as owners of the goods they will be liable to pay the port trust charges because in the present case nothing is shown by the defendant No.3 to show that prior to 25.1.1988 they had issued the delivery order to the consignee. Accordingly, Issue No.3 is answered to hold "Defendant No.3 is the owner of the goods" 12. Issue No.4. 12. Issue No.4. 12. Issue No.4. . The defendant No.3 are held to be the owners of the goods and if that is so, they will have to be termed as the bailors of the goods. Accordingly issue No.4 is answererd to hold that "Defendant No.3 are bailors of the suit goods". 13. Issue Nos.5, 6 and 7. 13. Issue Nos.5, 6 and 7. 13. Issue Nos.5, 6 and 7. . These three issues can be considered together. Learned Advocate Mr. Makhija, appearing -13- on behalf of the plaintiffs had taken me through the compilation of documents and had submitted that the Order of confiscation of goods was passed on 25.1.1988 and therefore the plaintiffs were entitled to recover from the defendants the port trust charges for the period 19.9.1985 to 25.1.1988 at the Docks Scale of Rates. Learned Advocate Mr. Makhija relied upon the judgment in case of The Board of Trustees of the Port of Bombay vs. Indian Goods Supplying Co. (Supra) to point out that the Docks Scale of Rates is having a statutory force and the plaintiffs are entitled to use the said Docks Scale of Rates. Learned Advocate Mr. Makhija had drawn my attention to evidence of Mr.Almeida-P.W.1 as also the evidence of Mr. Patwade -P.W.2 and the Working Sheet at Exhibit P-10 and had submitted that the plaintiffs had calculated the Port Trust Charges in accordance with the provisions of Docks Scale of Rates, and that is how the Port Trust Charges are recovered. 14. Learned Advocate Mr. Makhija also submitted that the plaintiffs are entitled to recover what may be referred to as Sale Warehousing Charges to the tune of Rs.624/- and transportation -14- charges to the tune of Rs.2453/- as set out in the evidence of P.W.2. Patwade. Learned Advocate Mr. Makhija submitted that though the notices were issued to Defendant Nos.1, 2 and 3 asking them to make the payment towards the Port Trust Charges, the defendants failed and neglected to pay the same and therefore the plaintiffs had no option but to file the suit for recovery of the same. learned Advocate Mr. Makhija has drawn my attention to the evidence of the two witnesses and submitted that in the entire cross examination no challenge is put up to the calculation arrived at by the plaintiffs and therefore the Port Trust charges are to be recovered as set out by the plaintiffs. 15. Learned Advocate Mr. Makhija submitted that the working sheet at Exhibit P-10 is the document which has been prepared by the staff of the Port Trust for the purpose of calculation and the claim of the plaintiffs rests on the Docks Scale Rate. Learned Advocate Mr. Makhija therefore submitted that the plaintiffs are entitled to the Port Trust Charges as set out in the particulars of claim. -15- 16. Learned Advocate Ms. Sumnani appearing on behalf of the defendant in the first place pointed out that the plaintiffs have calculated the Port Trust Charges by calculating the weight of the goods as 22.600 metric tons though the Order of Confiscation at Exhibit P-1 would go to show that the goods weighed 22.300 metric tons. Learned Advocate Ms. Sumnani therefore submitted tht even if the Court comes to the conclusion that the plaintiffs are entitled to recover the Port Trust Charges, they can recover it for the weight of 22.300 metric tons and not 22.600 metric tons. She submitted that the plaintiffs have inflated their claim and they have placed before the Court the wrong figures. Learned Advocate Ms. Sumnani had further taken me through the cross examination of evidence of Almeida-P.W.1 and tried to point out that the Import General Manifest is not placed before the Court and to that extent the plaintiffs have not discharged the burden. After having gone through the record, I am inclined to observe that the fact that the goods were imported by the defendant No.1 is not disputed by the defendant Nos.1 and 2 as well as the defendant No.3. What is disputed by the defendant No.3 is the description -16- of the goods. The case of the plaintiffs that 48 bales of Wool Wastes came to be imported will have to be accepted on the basis of the material placed before the Court. After having gone through the evidence of P.W.1 Almeida and P.W.2 Patwade I am inclined to observe that though the Plaintiffs have not produced the Import General Manifest, the plaintiffs have been able to discharge the burden to the extent of the landing of the goods on the property of the plaintiffs. To that extent the arguments of learned Advocate Ms. Sumnani are rejected. 17. Learned Advocate Ms. Sumnani had taken me through the evidence of Almeida-P.W.1 and had made efforts to suggest that the last free landing date is not 19.9.1985 as alleged by the plaintiffs. I have gone through the evidence of Almeida-P.W.1 and also P.W.2-Patwade and I am inclined to observe that the plaintiffs have made out a case that the Last Free Date was 19.9.1985. Once the plaintiffs are successful in showing that the last free date was 19.9.1985 then the case of the plaintiffs that the calculation will have to be commenced from 19.9.1985 will have to be accepted. -17- 18. Learned Advocate Ms. Sumnani had taken me through the evidence of Mr. Pawade-P.W.2 and submitted that this witness has not been able to discharge the burden as regards the proof of workingsheet and this witness has not been able to give satisfactory explanation as to who has prepared the workingsheet and as regards putting of rubber stamp. She therefore submitted that if the workingsheet is not proved in accordance with the provisions of law, the plaintiffs will not be able to recover the Port Trust Charges. 19. Learned Advocate Ms. Sumnani had also submitted that the plaintiffs have not shown any basis as to how sale warehousing charges to the tune of Rs.632.80 and the removal charges to the tune of Rs.2,486/- calculated at the rate of Rs.110/- per metric ton have been claimed and calculated. She submitted that these charges are sought to be recovered by the plaintiffs in an arbitrary manner and there is no basis on which the said charges could be recovered and therefore she claims that the plaintiffs cannot claim the sale warehousing charges and the goods removal charges. -18- 20. I have considered the submissions advanced by the respective advocates. At the outset, I wish to observe that the plaintiffs will be entitled to recover what may be referred to as the Port Trust Charges in accordance with the provisions of Section 48(d) as well as 59 of the said Act from last free date till date of Order of confiscation. The argument advanced by the learned Advocate Ms.Sumnani that the weight of Cargo was 22.300 metric tons and not 22.600 metric tons is required to be accepted on the strength of the Confiscation Order at Exhibit P-1. If this be so the plaintiffs would be entitled to recover the Port Trust Charges with regards to the goods weighing 22.300 metric tons. After having gone through the evidence of P.W.1 Almeida and P.W.2 Patwade, I am inclined to accept the case of the plaintiffs that they are entitled to recover from the defendants the Port Trust Charges. The argument of Ms. Sumnani that the Workingsheet is not proved cannot be accepted. P.W.2 Patwade was cross examined and his evidence as a whole if considered would clearly go to show that the plaintiffs have calculated the Port Trust Charges on the basis of the Docks Scale Rates is -19- not challenged. P.W.2 Patwade has answered following with regard to the Working Sheet. "While preparing the Working Sheet I used to examine the correctness thereof. I used to sign the working sheets. When the working sheet was prepared the same was signed by Prabhakar Govind Padey after verifying the correctness of the working sheet. There is no possibility of rubber stamp of Mr. Padey being affixed on the working sheet by someone else for the reason that the working sheets are duly audited." Reading this evidence it would be clear that Mr. Patwade was associated with the preparation of the Working Sheet and as Supervisor Mr. Padey was concerned with the job of verifying the correctness of the workingsheet. Some grievance was made by learned Advocate Ms. Sumnani as regards putting up of rubber stamp. However, I am not satisfied with the same. Since the use of Docks Scale of Rates is not challenged the challenge to the workingsheet cannot be sustain except to the challenge to the weight of cargo. In view of the aforesaid discussion, the plaintiffs would be entitled to recover from the defendants the wharfage and demurrage charges for the period 19.9.1985 to 25.1.1988 for cargo weighing 22.300 -20- metric tons and the said amount turns out to be Rs.9,30,467/-. The claim of the plaintiffs to that extent will be granted. 21. The plaintiffs have claimed what may be referred to as Sale Warehousing charges and removal charges. No supporting material was placed before the Court as to under what provisions of law these charges can be recovered by the plaintiffs. In the absence of appropriate material before the Court, the plaintiffs would not be entitled to recover from the defendants the Sale Warehousing charges to the tune of Rs.632.80 and the removal charges to the tune of Rs.2486/-. To that extent the claim of the plaintiffs will have to be rejected. 22. The plaintiffs have claimed interest at the rate of 15% per annum on Rs.9,46,607.78 as set out in the particulars of claim from the date of demand i.e. 16.6.1988 till filing of the suit. The plaintiffs have also claimed interest on the total amount of Rs.9,46,607.78 from the date of filing of the suit till realisation. 23. In so far as this claim of interest is -21- concerned, except the bare word of the plaintiffs witness as regards the quantum of interest which is claimed, there is no supporting material to show that the plaintiffs can charge the interest at 15% per annum. In my view mere demand of interest at the rate of 15% per annum in the absence of appropriate material cannot be justified. In the peculiar facts and circumstances and in the absence of