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. 3649 OF 1990 SUIT NO. 3649 OF 1990 SUIT NO. 3649 OF 1990 Shri Krishna Woolen Mills Private Limited, a company incorporated under the provisions of the Companies Act, 1956, having its registered office at 11, Regent Chambers, Nariman Point, Bombay- 400 021. ... Plaintiff. V/s. The Board of Trustees of the Port of Bombay, a body corporate constituted under the provisions of the Major Port Trust Act, 1963 as amended by the provisions of the Major Port Trust Amendment Act, 1974 and having their office at Vijay Deep, Shoorji Vallabhdas Marg, Ballard Estate, Bombay- 400 038. ... Defendant. N.C.Parekh i/b. Hiralal & Co. for the plaintiff. U.J.Makhija with M.Khandar i/b. Mulla & Mulla & C.B.C. for the defendant. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 21st February 2008. DATED: 21st February 2008. DATED: 21st February 2008. JUDGMENT : JUDGMENT : JUDGMENT : -------- -------- -------- The plaintiff has filed this suit against the defendant who is the authority under the provisions of the Major Port Trust Act, 1963 ("Act" for short), inter alia; entrusted with the duties of clearance of imported consignments by the importers. The activities of defendant are governed by the Act. 2. The plaintiff has been manufacturing and importing woollen synthetic rags from different countries through defendant Port at Bombay. On several occasions, the plaintiff was required to pay the demurrage charges. The plaintiff used to pay demurrage charges and thereafter used to apply for remission. 3. The plaintiff, in due course of business, made some imports and suffered demurrage charges. As per usual practice, the plaintiff applied for remission. The defendant vide their letter dated 18th January, 1988 informed them that application of the plaintiff for remission of demurrage; in addition to the remission admissible on the basis of detention certificate issued by th Customs in respect of consignment covered by bill of Entries No.266 dated 7th February, 1986, item Nos.10 to 28 (suit consignment); was sanctioned in the sum of Rs.3,74,039.29. 4. The plaintiff in the plaint contends that although the defendant had sanctioned the amount of remission to the plaintiff but refused to pay the - 3 - same and claimed to have adjusted the same towards the alleged demurrage claim of the defendant against the plaintiff in respect of certain other consignments imported by the plaintiff. The plaintiff has disputed the alleged claim of the defendant. 5. The plaintiff contends that the defendant has wrongfully adjusted the amount against their alleged demurrage claim and the same is disputed by them. The plaintiff further contends that the defendant has no right to adjust the refund against their arrears once it has already sanctioned to the plaintiff. The plaintiff, therefore, seeks decree against the defendant ordering and directing them to make payment of the refund amount of Rs.4,31,943.29 (Rs.3,74,039.29 being remission in demurrage charges plus Rs.57,904/- being the amount in lieu of the detention certificates issued by the Customs Authorities in respect of some consignments). The plaintiff is, thus, claiming recovery of Rs.4,31,943.29 together with interest thereon. The plaintiff claims to have issued notice dated 13th September, 1990 to the defendant under section 120 of the Act. - 4 - 6. On being summoned with the writ of summons, defendant appeared and filed written statement contending that the suit is not maintainable against them for want of statutory notice. That the suit is barred by limitation as described under section 120 of the Act. Without prejudice to these two contentions, the defendant claimed right to claim adjustment against the outstanding dues, due and recoverable from the plaintiff and stated that they were in sale deficit outstanding in the sum of Rs.1,41,561.86; Rs.76,666.34; Rs.30,523.88; Rs.30,644.28; and Rs.79,792.14, total amounting to Rs.3,59,088.50. 7. The factual matrix reveals that the defendant filed suit against the plaintiff being Suit No.1476/1989 in this Court for recovery of a sum of Rs.1,49,299.29 on account of alleged uncovered demurrage allegedly recoverable from th plaintiff in respect of certain consignments other than suit consignment imported by the plaintiff in the year 1988. In the said suit, the defendant contended that the plaintiff did not take delivery of the consignments imported by them as such they - 5 - were required to be auctioned. The auction proceeds were not sufficient to cover the demurrage charge, as such suit was required to be filed for the recovery of the said amount of short fall. The said suit is still pending. The defendant has also filed suits against the plaintiff which are pending in Bombay City Civil Court for recovery of their various dues. Some of them have also been decreed against the plaintiff herein. 8. The defendant also went on to contend that the defendant has adjusted the amount of ex-gratia remission sanctioned against the outstanding recoverable by the defendant from the plaintiff. The defendant has stated that adjustment is legal, valid and proper. The defendant also raised contention that the plaintiff is not entitled to claim the amount of remission since remission was conditional i.e. subject to withdrawal of suit, and, that too, subject to adjustment against outstanding dues due and recoverable from the plaintiff. Both parties tried to settle their disputes but they could not. Hence the plaintiff proceeded with the present suit. - 6 - 9. On considering the rival contentions, several issues were framed vide order dated 11th January, 2005. Issue Nos.1 to 3 relates to maintainability of suit. I, therefore, first consider the issue of maintainability of the suit. 10. The plaintiff has examined one witness, namely, Ram Kishan Malik, whereas defendant did not lead any oral evidence. Both parties closed their respective evidence. 11. During the course of cross-examination of witness of the plaintiff- Ram Kishan Malik, most of the documents available on record except three documents (Exh.‘X-1’ to ‘X-3’) were proved by the defendant through plaintiff’s witness. Some of the documents, on which defendant was relying, were also proved by the defendant through the witness examined by the plaintiff and were marked as Exh.D-1, D-2 and D-3. 12. With the aforesaid evidence on record, the parties were heard. 13. Issue Nos.1 to 3 revolve around - 7 - interpretation of section 120 of the Act which is no more res integra in view of the judgment of the Apex Court in the case of V.M.Salgaocar & Bros. v. V.M.Salgaocar & Bros. v. V.M.Salgaocar & Bros. v. Board of Trustees of Port of Mormugao, Board of Trustees of Port of Mormugao, Board of Trustees of Port of Mormugao, (2005) 4 SCC 613; wherein the Apex Court has held that the Major Port Trusts Act, is a special Act and section 120 of the said Act provides limitation of proceedings in respect of the things done under the Act. As per the Apex Court ruling, the suit has to be filed within six months of the accrual of the cause of action and it has to be preceded by one month notice. It is held that these two requirements of section 120 have to be read conjunctively and not alternatively. It is, thus, clear that the suit against the Port Trust has to be filed within a period of six months of the accrual of cause of action and it has to be preceded by notice of one month. 14. With the aforesaid settled legal position, the factual matrix reveals that on 18th January, 1988 the plaintiff was held to be entitled for remission of 50% of retainable demurrage in the sum of Rs.3,74,039.29 by way of ex-gratia. However, remission was sanctioned subject to right of - 8 - adjustment against Port Trusts’ outstanding dues recoverable from the plaintiff. It is, thus, clear that alleged cause of action for this amount arose on 18th January, 1988 as per the contention of the plaintiff itself. The notice of demand was sent on 13th September, 1990. The suit has been filed in the month of November, 1990. Thus, the suit is clearly barred by limitation. 15. One more event needs to be noticed. The plaint allegations clearly show that prior to the filing of the suit, Writ Petition No.298/1989 was filed by the plaintiff against the defendant for recovery of the same amount, which came to be dismissed by an order dated 15th March, 1989. The appeal preferred came to be rejected vide order dated 9th February, 1990. Even if one takes cause of action for the purpose of calculating limitation on 15th March, 1989 or 9th February, 1990 i.e. on the date of filing of the writ petition or appeal, even then the suit filed by the plaintiff in the month of November, 1990 is barred by limitation since it was filed after expiry of six months from the date of cause of action. The notice dated 13th March, 1990 itself was served after expiry of the - 9 - period of six months even if cause of action is taken to be on and from 9th February, 1990. The suit is, thus, clearly barred by limitation and is liable to be dismissed on this count alone. Hence issue Nos.1, 2 and 3 are answered in affirmative i.e. in favour of the defendant and against the plaintiff. 16. In view of the findings recorded in favour of the defendant and against the plaintiff that the suit is hopelessly barred by limitation, it is not necessary to dwell on the other issues since any finding recorded thereon will be of no consequence. 17. In the result, suit is dismissed with no order as to costs. (V.C.DAGA, J.) (V.C.DAGA, J.) (V.C.DAGA, J.)