IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 2491 OF 1994. The Board of Trustees of the Port of Bombay, a statutory Corporate, constituted under the provisions of the Major Port Trusts Act,1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having their principal place of business at “Vijay Deep”, Shoorjee Vallabhdas Marg, Bombay - 400 038. ..Plaintiff. Vs. 1. M/s. Alpha Trade Agency, A firm having its office and place of Business at 124, Kazi Sayed Street, Khand Bazar, Bombay 400003 2. M/s. Nishant Overseas A firm having its office and place of Business at 615, Raheja Chambers, 213, Nariman Point, Bombay 400021 3. M/s. Maritime Services Private Limited A Private Limited incorporated under the Indian Companies Act, having their office at 301/303, Emca House, 289, Shahid Bhagat Singh Road, Bombay 400038. ..Defendants. .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla for Plaintiff. Mr. Santosh V. Dighe, Assistant Traffic Manager, GR, present in person. None for the Defendants. .... Coram: S. J. Kathawalla J. Date: 24th March 2011 2 s-2491-94 JUDGMENT: By this Suit, the Plaintiffs pray for an order and decree against the Defendants to pay to the Plaintiff an amount of Rs. 2,55,472.64 paise towards the deficit in Port Trust charges as per the particulars of claim being Exhibit “C” to the Plaint and to further pay to the Plaintiff interest on the sum of Rs.2,28,738.44 paise at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation. Though the Defendants are served with the Writ of Summons and an Affidavit of service to this effect dated 29th July 2010 is filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend the Suit. The Suit has therefore appeared under the caption “For Exparte Decree”. 2. Shri S.V. Dighe, Assistant Traffic Manager, Gr.I and the Principal Officer of the Plaintiffs has filed his Affidavit in lieu of evidence dated 11th March 2011. The said Affidavit is taken on record and marked “X” for identification. A compilation of documents is also filed on behalf of the Plaintiffs. Mr. Dighe has filed his evidence pursuant to the letter of authority dated 24th June 2009 issued by the Plaintiff in his favour. The said letter of authority is marked Exhibit “P-1”. 3. It is stated in the Plaint as well as in the Affidavit in lieu of Evidence as follows:- 4. In or about November, 1989 a consignment of 80 drums containing Diethylene Glycol was discharged by the Third Defendants as agents of the Vessel m.v. “VEGA” into the custody of the Plaintiffs 3 s-2491-94 at the port of Mumbai. Prior to the berthing of the said vessel, the Third Defendants as Agents of the said vessel had furnished to the Plaintiffs an Import General Manifest bearing No. 2796 dated 20th November 1989 in respect of the cargoes intended to be discharged from the said vessel at the Port of Mumbai. In the said Import General Manifest, the said consignment was manifested at Item No. 166 and the 1st and the 2nd Defendants were shown as importers / consignees / Notify Parties of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 20th November 1989 and 23rd November 1989 respectively. The original of the said Import General Manifest is tendered in Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the Photostat copy of the IGM is taken on record and marked as Exhibit “P-2”. 5. The 1st and 2nd Defendants as importers / consignees / owners, and 3rd Defendants as the Bailors/Owner of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same. 6. The Plaintiffs therefore by two letters both dated 20th March 1991 one addressed to the 1st Defendants and copy endorsed to the 2nd Defendant and other letter addressed to the 3rd Defendant, informed the Defendants that the said consignment was lying 4 s-2491-94 uncleared for over two months and called upon them to effect clearance within ten days failing which the Defendants were informed that the said consignments would be put up for sale and would be sold in the sale proposed to be held on 8th April 1991 or any other subsequent date without any further notice and that the said consignment would be sold either by public auction or by tender or by private arrangement. The said letters bear the stamped signature of Mr. N.N. Shetty, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Shri N.N. Shetty and identifies the same. He further submits that the contents of the said letters are true and correct. Mr. Dighe deposed that the letter addressed to the 1st Defendant was returned undelivered by the postal authorities with the remark “addressee not known” The office/carbon copies of said letters along with the registered packet returned undelivered by the postal authorities and acknowledgment received from the 3rd Defendant are produced before this court. The same are taken on record and marked as Exhibit “P-3” and Exhibit “P-4” respectively. 7. By a letter dated 6th April 1991 addressed to the 3rd Defendant, the Plaintiffs called upon the 3rd Defendant to furnish particulars as mentioned therein namely, full name and address of the importer/consignee, the name and address of the party to be notified, whether delivery order in respect of said consignment was collected by anybody, and if so by whom and the date of issue of the delivery order. Mr. Dighe deposed that on the copy of said letter an endorsement was made by the 3rd Defendant that the said Bill of Lading was made to the order of the original Consignor and that importers/notify party shown in the Bill of Lading were 1st and 2nd Defendants. The said letter bears the stamped signature of Mr. N.N. 5 s-2491-94 Shetty, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri N.N. Shetty and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of said letter together with the endorsement made by the 3rd Defendant on a copy of said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-5”. 8. As the said consignment was not cleared, the list of packages to be sold including the said consignment was published in the local newspaper “Indian Express” in its issue dated 10th May 1991 and also in the Maharashtra Government Gazette (Part-II) in its issue dated 9th May 1991. The originals of the said advertisement and the Government Gazette along with Photocopies of the same are tendered in Court. After comparing the two, the originals are returned to the Plaintiffs and photocopy of the Advertisement in the “Indian Express” in its issue dated 10th May 1991 is taken on record and marked as Exhibit “P-6” and the photocopy of the Government Gazette dated 9th May 1991 is taken on record and marked as Exhibit “P-7”. 9. By a letter dated 17th May 1991 addressed to the 1st Defendant the Plaintiffs again informed the 1st Defendant that the said consignment would be listed for sale on 30th May 1991 and called upon them to effect clearance. The said letter bears the stamped signature of Mr. N.N. Shetty, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri N.N. Shetty and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-8”. 6 s-2491-94 10. The said consignment was thereafter sold on 30th May 1991 under Lot No. FF/0100 for Rs.6,48,100/-. The reasons for delay caused in holding the auction sale are set out in Paragraph 4 of the Affidavit in Lieu of Evidence dated 11th March 2011. Mr. Dighe deposed that the Port Trust charges accrued on the said consignment amounted to Rs.2,84,086/-. Customs Duty amounted to Rs.5,27,942. 44 paise, and Expenses of Sale amounted to Rs.64,810/- The Plaintiffs were able to adjust/allocate full Expenses of Sale and full Customs Duty out of sale proceeds but were only able to adjust Rs.55,347.56 paise towards Port Trust charges, leaving a deficit of Rs.2,28,738.44 paise, which the Defendants are bound and liable to pay to the Plaintiffs. 11. Explaining how the total Port Trust charges are arrived at, Mr. Dighe has deposed that the said consignment weighed 18,000 kgs. Wharfage was payable in respect of the said consignment under Section-I , Item No. 18 (iii) of the Docks Scale of Rates at the rate of 0.31% of C.I.F. value on ad-valorem basis and amounted to Rs.585.90 paise. Demurrage was payable in respect of the said consignment under Section-II A (4) (i) of the Docks Scale of Rates at the rate of Rs. 50/- per M.T. per day for the first 30 days, thereafter at the rate of Rs. 75/- per M.T. per day from 31st day to the 60th day and thereafter at the rate of Rs.100/- per M.T. per day from 61st day onwards and amounted to Rs.2,83,500/-. Thus, the total Port Trust charges amounted to Rs.2,84,085.90 paise. 12. Mr. Dighe has deposed that for the sake of noting down the calculations, the Plaintiffs have prepared allocation sheet and working sheet in the usual course of business. Mr. Dighe deposed that 7 s-2491-94 he has personally verified the correctness of the calculations made in the allocation sheet and working sheet on the basis of the Docks Scale of Rates. The calculations made therein are correct. The allocation sheet and working sheet are taken on record and marked as Exhibits “P-9” and “P-10” respectively. The relevant Docks Scale of Rates then in force are produced before the Court. Mr. Dighe has deposed that he has taken photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges. He has compared the photocopies with the original entries in the Docks Scale of Rates. The photocopies are true and correct photocopies of the originals. The photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges are taken on record and marked Exhibit “P-11”. 13. Mr. Dighe has also produced the Sale Warehouse Register maintained by the Plaintiffs in the usual course of business. He has prepared a photocopy of the relevant entries relating to the said consignment as it appears in the Sale Warehouse Register. The photocopies are true and correct photocopies of the originals. The same is therefore taken on record and marked Exhibit “P-12”. 14. Mr. Dighe has produced report of goods sold and cleared by the Purchasers, which was prepared by the Plaintiffs in the usual course of business. The said Report is taken on record and marked Exhibit “P-13”. 15. Mr. Dighe also produced photocopy of Inventory of goods showing lot wise allocation of customs duty, which was prepared by the Plaintiffs in the usual course of business. The same is taken on record and marked Exhibit “P-14”. 8 s-2491-94 16. Mr. Dighe has produced the relevant record of the Board proposal and journal entry slip for customs duty. He has prepared photocopies of the said record. He has deposed that the said photocopies are true and correct. The same is taken on record and marked Exhibit “P-15”. 17. By a letter dated 2nd September 1993 addressed to the 1st Defendant the Plaintiffs informed the 1st Defendant about the sale of the said consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of the sale and called upon 1st Defendant to pay the deficit sum of Rs. 2,28,738.44 paise. The Plaintiffs further informed the 1st Defendants that if the said amount was not paid immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. The said letter bears the signature of Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri S.S. Shiralkar and identifies the same. He further submits that the contents of the said letter are true and correct. Mr. Dighe deposed that the Registered Packet containing the said letter was returned undelivered by the postal authorities with the remark “Not Known”. The office/carbon copy of said letter along with the registered packet returned undelivered by the postal authorities is produced before this Court. The same is taken on record and marked as Exhibit “P-16”. 18. By a letter dated 11th October 1993 addressed to the 3rd Defendant the Plaintiffs informed the 3rd Defendant about the sale of the said consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of the sale and called 9 s-2491-94 upon 3rd Defendant to pay the deficit sum of Rs. 2,28,738.44 paise. The Plaintiffs further informed the 3rd Defendants that if the said amount was not immediately paid, the Plaintiffs would charge interest at the rate of 18% per annum till payment. The said letter bears the signature of Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri S.S. Shiralkar and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-17”. 19. By a further letter dated 20th October 1993 addressed to the 3rd Defendant, the Plaintiffs referred to the earlier letter dated 11th October 1993 and once again called upon the 3rd Defendant to pay the deficit sum of Rs. 2,28,738.44 paise. and pointed out that if the said amount was not paid legal proceedings would be taken to enforce recovery of the said amount. The said letter bears the signature of Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri S.S. Shiralkar and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-18”. 20. By a letter dated 22nd February 1994 addressed to the 2nd Defendant the Plaintiffs informed the 2nd Defendant about the sale of the said consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of the sale and called upon 2nd Defendant to pay the deficit sum of Rs. 2,28,738.44 paise. The Plaintiffs further informed the 2nd Defendant 10 s-2491-94 that if the said amount was not immediately paid, the Plaintiffs would charge interest at the rate of 18% per annum till payment. The said letter bears the signature of Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri S.S. Shiralkar and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of said letter is produced before this Court. The same is taken on record and marked as Exhibit “P-19”. 21. By a letter dated 24th February 1994 addressed to the 2nd Defendant the Plaintiffs once again called upon the 2nd Defendant to pay the deficit sum of Rs. 2,28,738.44 paise immediately and pointed out that if the said amount was not paid legal proceedings would be taken to enforce recovery of the said amount. The said letter bears the signature of Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Shri S.S. Shiralkar and identifies the same. He further submits that the contents of the said letter is true and correct. The office/carbon copy of said letter is produced before this court. The same is taken on record and marked as Exhibit “P-20”. 22. By a letter dated 9th March 1994 addressed to the 3rd Defendant, the Plaintiffs again called upon them to furnish information regarding the 1st and 2nd Defendants and whether delivery order, if any was issued. By a letter dated 15th /16th March 1994 the 3rd Defendants furnished information regarding 1st and 2nd Defendants and stated that their letters addressed to the said Defendants had been returned undelivered. They further informed that another consignment discharged under item NO. 165 in the said Import General Manifest had been cleared through Clearing Agent M/s. 11 s-2491-94 Durga International and furnished copy of the Bill of Lading. Mr. Dighe has produced the aforesaid correspondence before this Court. The same are taken on record and marked as Exhibit “P-21 Colly.”. 23. By a letter dated 16th March 1994 the 2nd Defendant admitted receipt of letter dated 24th February 1994, and stated that they are mere importers of bearings and never imported items like Diethelyne Glycol and denied their Liability. Mr. Dighe has produced the said letter before this Court. The same is taken on record and marked as Exhibit “P-22”. 24. Since the Defendants failed to pay the said amount or any part thereof, the Plaintiffs filed the present Suit to recover from the Defendants the sum of Rs.2,28,738.44 paise together with the sum of Rs.26,734.20 paise being interest thereon at the rate of 18% per annum from 2nd September 1993 till date of filing of suit aggregating in all to Rs.2,55,472.64 paise. The Plaintiffs have also claimed further interest at the rate of 18% on the principal sum of Rs.2,28,738.44 paise from the date of the suit till payment or realisation and costs of the Suit as per particulars of claim annexed as Exhibit “C” to the Plaint. The Plaintiffs have however claimed towards interest a sum of Rs. 7,219.36 paise only from 2nd Defendant, a sum of Rs. 22,234.90 paise from 3rd Defendant and Rs. 26,734 paise as interest from the 1st Defendant. 25. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of documents filed by the Plaintiffs. From what is recorded in paragraphs 4 and 5 above and Exhibit "P-2", it is established that the consignment of the Defendants (Consignment of 12 s-2491-94 80 drums containing Diethylene Glycol)) was discharged from Vessel m.v. “VEGA” at the Port of Mumbai. The Defendants are the importers/consignees/notify party/owners of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 20th November 1989 and 23rd November 1989 respectively. The Defendants as the importers/consignee/owners of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same. From Exhibits “P-3”, “P-4” and “P-8” it is established that though the Defendants were called upon to clear the consignment by paying the Port Trust charges, the Defendants failed and neglected to do so. From Exhibits “P-6” and “P-7”, it can be seen that since the Defendants failed to clear the said consignment the list of packages to be sold by the Plaintiffs including the said consignment was published in the local newspaper and the Gazette. The said consignment was thereafter sold on 30th May 1991 for Rs. 6,48,100/-. The reasons for delay caused in holding the auction sale are set out in Paragraph 4 of the Affidavit in Lieu of Evidence dated 11th March 2011. From what is recorded in paragraphs 10 and 11 above and Exhibits “P-9”, “P-10” , “P-11” and “P-15”, it is established that though the consignment was sold for Rs.6,48,100/-, the Port Trust charges accrued on the said consignment amounted to Rs. 2,84,086/-, Customs duty amounted to Rs.5,27,942.44 paise and expenses of sale amounted to Rs.64,810/-. The Plaintiffs were able to adjust the full expenses on sales and full customs duty out of the said 13 s-2491-94 sale proceeds, but the Plaintiffs were only able to adjust Rs.55,347.56 paise towards the Port Trust charges leaving the deficit of Rs. 2,28,738.44 paise which the Defendants are bound and liable to pay to the Plaintiffs. From Exhibits, “P-16”, to “P-20”, it is established that though the Plaintiffs have written letters to the Defendants calling upon them to pay to the Plaintiffs a deficit sum of Rs. 2,28,738.44 paise and have also clarified in their letters that if the Defendants failed to pay the said amount immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. However, the Defendants have not paid the said deficit amount to the Plaintiffs as called upon by the Plaintiffs. 26. As set out hereinabove, though the Defendants are served with the Writ of Summons, and an affidavit of service to this effect dated 29th July 2010 is filed in this Court, the Defendants have not filed their Written Statements and have also not come forward to defend the Suit. In view thereof, what is stated by the Plaintiffs has gone unchallenged. There is no reason why what the Plaintiffs have stated in the Plaint as well as in the Affidavit in lieu of Evidence should not be accepted. 27. In the above circumstances, in my view, the relief’s sought by the Plaintiffs are required to be granted. In view thereof, I pass the following order:- (i) The Defendants are ordered and decreed jointly and severally to pay to the Plaintiffs as per the Particulars of Claim being Exhibit “C” to the Plaint an amount of Rs. 2,55,472.64 paise towards the deficit in Port Trust charges and further interest on the sum of Rs.2,28,738.44 paise at 14 s-2491-94 the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation; (ii) The Defendants to pay costs to the Plaintiffs for this Suit; (iii) The Suit is accordingly disposed of in favour of the Plaintiffs and against the Defendants. [S. J. KATHAWALLA J.]