1 s2773-99jud.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 2773 of 1989 The Board of Trustees of the Port of Bombay, a body Corporate constituted under the provisions of Major Port Trst Act, 1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having its principal place of business at “Vijay Deep” Shoorji Vallabhdas Marg, Ballard Estate, Bombay 400 038 .. Plaintiffs v/s. 1. Dr. Abdul Rehman Shaikh, Indian Inhabitant, residing at Plot No.128, Sethammadhava, N.E.Lay Out, Vishakhapatnam – 13 (Andhra Pradesh) 2. Seahorse Shipping and Ship Management Pvt. Limited, a company registered under the provisions of the Companies Act having its registered office at Krishna Bhavan, 21 Sir Bhalchandra Road, Bombay 400 014 and an office at Apsara Building, (Meena Bazaar) 3rd Floor, Colaba Causeway, Bombay 400 039 ..Defendants 2 s2773-99jud.sxw Mr.U.J.Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 3rd February , 2011 ORAL JUDGMENT. : 1. The plaintiffs have filed this suit for recovery of Rs.84,000/- along with interest at the rate of 15% per annum as set out in the prayer clause (a). The writ of summons was served upon the defendants. However, the defendants have not filed their written statement and therefore the suit was taken up for hearing as undefended suit. 2. Few facts necessary for the disposal of the suit are as under:- The plaintiff is a body Corporate constituted under the provisions of Major Port Trust Act and goods which are imported in India land in the docks maintained by the plaintiffs. As the goods land at docks, till such time they are taken away by the concerned person the wharfage and demurrage charges become payable by the concerned person to the plaintiffs. The present suit is filed by the plaintiffs for recovery of wharfage, demurrage and other charges (hereinafter 3 s2773-99jud.sxw referred to as Port Trust Charges) as set out in the particulars of claim. 3. It is the case of the plaintiffs that on or about 9.4.1986 defendants imported unpacked Honda Accord Motor Car manifested at item No. 5 in the Import General Manifest No.801 dated 9.4.1986 of the vessel m.v. Lanka Muditha. The General landing date was 9.4.1986 and the last free day was 15.4.1986. 4. According to the plaintiffs, the defendants did not take away the goods within the time stipulated to take away the goods and therefore the defendants were liable to pay the port trust charges. According to plaintiffs defendant no..1 were liable to pay port trust charges as consignee and defendant no.2 were liable to pay port trust charges as bailor having discharged the same into custody of plaintiffs. 5. According to the plaintiffs, by Order bearing No. S/CWH-267/1986 dated 13.10.1986, Additional Collector of Customs, Mumbai ordered confiscation of the car described above under the provisions of 4 s2773-99jud.sxw Section 111(d) of the Customs Act, 1962. The consignment was confiscated to the Government. Be that as it may, the defendants did not pay the port trust charges. Hence plaintiffs by their notice dated 3.11.1988, Exhibit P-5, called upon the defendant no.1 to pay to plaintiffs the port trust charges amounting to Rs.79,950-80p. Plaintiffs also claimed interest at the rate of 15% per annum. Plaintiffs had by letter dated 30.3.1989 Exhibit P-9 again called upon defendant no.1 to pay the aforesaid port trust charges. 6. According to plaintiffs by notice dated 3.11.1988 Exhibit P-6 defendant no.2 were asked to pay the said port trust charges along with interest @ 15% per annum. The defendant no.2 by their letter dated 30.11.1988 Exhibit P-7 denied their liability. Hence plaintiffs by their letter dated 28.3.1989 Exhibit P-8 again demanded port trust charges. Similarly, plaintiff by their letter dated 3.4.1989 Exhibit P-10 again called upon the defendant no.1 to pay said port trust charges. 7. As the Defendants did not pay the said charges, despite aforesaid letters, plaintiffs filed suit on 7.4.1989 for reliefs as stated above, 5 s2773-99jud.sxw 8. The defendants did not file written statement. Since no written statement is filed, formal issues were not framed. Following points are required to be decided by the court. i) Whether the suit is filed within the period of limitation? Ans. In the affirmative. ii) Do the plaintiffs prove that they are entitled to recover wharfage, demurrage andother charges as claimed in the plaint? Ans. In the affirmative and as per final order. iii) Do the plaintiffs prove that they are entitled to recover interest at the rate of 15% per annum as demanded in the plaint? Ans. As per final order. iv) What Decree? Ans. As per final order. 9. I have heard learned Counsel on behalf of the plaintiffs. Learned 6 s2773-99jud.sxw Counsel Mr. Makhija, appearing on behalf of the plaintiffs pointed out that the General Landing date was 9.4.1986 and the Last Free day was 15.4.1986. Learned Counsel Mr. Makhija pointed out that the suit was filed on 7.4.1989. Learned Counsel Mr. Makhija submitted that the last free day was 15.4.1986 and car was confiscated on 13.10.1986. He submitted that taking into consideration 15.4.1986 or 13.10.1986 as the date on which cause of action arose, the filing of suit on 7.4.1989 is within the period of limitation. He submitted that Article 113 of Limitation would be applicable. 10.I have considered the submission of Mr. Makhija learned Counsel for plaintiffs. The provisions of Article 113 of Limitation Act would be applicable. Taking into consideration 15.4.1986 or 13.10.1986 as the day when cause of action arose, the filing of suit on 7.4.1989 is within the period of three years. Hence I hold that the suit is filed within the period of limitation. Hence point No.1 is answered in the affirmative. 11.The plaintiffs have examined Mr. Sunil M. Deshmukh, Senior Assistant Traffic Manager and authorised signatory of the plaintiffs 7 s2773-99jud.sxw as their witness and plaintiffs have placed before the court various documents in support of their claim. The plaintiffs have relied upon the documents, namely (i) Confiscation Order passed by Additional Collector of Customs, Mumbai dated 13.10.1986 Exhibit -1P. (ii) Notice dated 3.11.1988 addressed to defendant no.1 calling upon the defendant no.1 to pay Rs.79,950-80 along with interest at the rate of 15% per annum Exhibit P-5, (iii) letter dated 30.3.1989 is at Exhibit P-9 is reminder sent to defendant no.1, (iv) letter dated 3.11.1988 Exhibit P-6 is notice asking defendant no.2 to pay port trust charges with interest @ 15% per annum, (v) letter dated 28.3.1989 Exhibit P-7 is sent by defendant no.2 denying to pay port trust charges, (vi) letter dated 28.3.1989 Exhibit P-8 is reminder to defendant no.2, (vii) letter dated 3.4.1989 Exhibit P-10 is reminder to defendant no.1 (viii) working sheet is Exhibit P-11 (ix) Scale of rates is at Exhibit P-12 12.Learned Counsel Mr. Makhija, took me through the notices at Exhibits P-5 to P-10 and pointed out that despite repeated reminders, the defendants have not paid the port trust charges. He pointed out that plaintiffs had demanded interest at the rate of 15% per annum by notice dated 3.11.1988, Exhibit P-5 and Exhibit P-6 from defendant 8 s2773-99jud.sxw nos.1 and 2 respectively. He submitted that the plaintiffs are entitled for interest at the rate of 15% per annum as set out in the plaint. He had drawn my attention to the working sheet Exhibit P-11. The working sheet shows as to how the port trust charges are calculated. I have perused the working sheet. In so far as the claim of the plaintiffs, as regards wharfage and demurrage, the plaintiffs have made out a case. The plaintiffs have claimed Rs.57.40 towards Sale Warehousing Charges. Learned Counsel Mr. Makhija , in support of the aforesaid claim drew my attention to the item “Carting Charges” appearing in the Scale of rates at Exhibit P-12 and submitted that plaintiffs are entitled to recover the sale warehousing charges as claimed in the working sheet. After having gone through the text of the item “Carting Charges”, I am not inclined to accept the claim of the plaintiffs that they are entitled to recover from the defendants sale warehousing charges . Consequently, claim of plaintiffs to the extent of Rs.57.40 will have to be rejected. 13.Looking to the various documents relied upon by the plaintiffs and the uncontroverted evidence of P.W.1 Deshmukh, the claim of the plaintiffs to the extent of wharfage and demurrage is required to be 9 s2773-99jud.sxw granted. Taking into consideration the necessary figures stated in the working sheet, plaintiffs will be entitled to recover from the defendants the sum of Rs.79,893-40. 14.Plaintiffs have demanded interest at the rate of 15% per annum from the date of first demand notice i.e. 3.11.1988. So far as the rate of interest is concerned, the plaintiffs have not been able to show any specific provision of law by which they could recover interest at the rate of 15% per annum. They have also not been able to show any agreement between the parties by which the rate of interest could be charged at 15% per annum. In such a case, the court is required to consider the facts and circumstances of the case. It is noticed that the transaction is of the year 1986. The suit is instituted in the year 1989. Considering the relevant dates, I am inclined to observe that if the plaintiffs are granted interest at the rate of Rs.12% per annum, it would meet the ends of justice. The plaintiffs have claimed interest from 3.11.1988, being the date of first demand notice. The said claim is justified and the plaintiffs would be entitled to recover interest at the rate of 12% per annum from 3.11.1988 till realisation. 10 s2773-99jud.sxw 15.In view of the above discussion, point no.2 is answered in the affirmative and the plaintiffs will be entitled to recover monies as per the final order. So far as point no.3 is concerned, I hold that the plaintiffs would be able to recover interest at the rate of Rs.12% per annum as per the final order. So far as the point No.4 is concerned, plaintiffs would be entitled to decree as per the operative part. 16.For the reasons mentioned aforesaid, I pass the following decree: DECREE i) Both the Defendants do pay to plaintiffs Rs.79,893-40p. ii) Both the Defendants do pay to plaintiffs interest at the rate of 12% per annum on Rs.79,893-40p from 3.11.1988 till realization. iii) Both the Defendants do pay to plaintiffs costs of this suit. [R.Y.GANOO, J.] 11 s2773-99jud.sxw