IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 1672 OF 1997. 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. ASG Enterprises Pvt.Ltd., 23/1, Mandevilla Garden, Calcutta-19. 2. Transocean Ocean Shipping Agency Pvt.Ltd., 7, Kumpta Street, 1st floor, Ballard Estate, Mumbai – 400 038. ..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. JUDGMENT: By this Suit, the Plaintiffs pray for an order and decree against the Defendants to pay to the Plaintiff an amount of Rs. 1,56,301.91 paise towards the deficit in Port Trust charges as per the particulars of claim being Exhibit “E” to the Plaint and to further pay to the Plaintiff interest on the sum of Rs.1,34,197.87 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 2 s-1672-97 of Summons and an Affidavit of service to this effect dated 29th April 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 19th 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 July, 1993 the second Defendants as Agents of the Vessel “m.v. PANTELEYMON LEPESHINSKIY” discharged at the Port of Mumbai into the custody of the Plaintiffs a consignment of 39 Bundles containing Japanese origin low carbon M.S. defective rejects colour coated sheets strips from the said vessel in the Docks at Mumbai. Prior to the berthing of the said vessel, the second Defendants as Agents of the said vessel had furnished to the Plaintiffs an Import General Manifest bearing No. 1351 dated 8th July 1993 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. 36 and the 1st Defendants were shown as importers / consignees / owners of the said consignment. The General Landing Date and the Last Free Day of the 3 s-1672-97 cargo of the said vessel fell on 15th July 1993 and 20th July 1993 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 Defendants as importers / consignees / owners, and 2nd Defendants as the Bailors of the said consignment and as such owner within the meaning of term “Owner” under Section 2(o) of the Major Port Trusts Act, 1963 as amended by the Major Port Trusts (Amendment) Act, 1974 (hereinafter referred to as “the said Act”) were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof on payment of accrued Port Trust charges in accordance with the Docks Scale of Rates then in force. The Defendants however failed to clear the said consignment and 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. The Plaintiffs therefore by two letters both dated 20th October 1993 addressed to the 1st and 2nd Defendants informed the Defendants that the said consignment was lying uncleared for over two months and called upon them to effect clearance. Mr. Dighe has deposed that office / carbon copies of said letters are not traceable and cannot be found despite due and diligent search. As there was no response, by two further letters dated 24th February 1994 addressed to the Defendants, the Plaintiffs again called upon the Defendants to effect clearance, failing which, they were informed that the said consignment would be put up for sale and sold on the date as mentioned or on any other subsequent date without 4 s-1672-97 further notice and that the said consignment would be sold either by public auction or by tender or by private arrangement. Mr. Dighe has deposed that office / carbon copies of said letters are not traceable and cannot be found despite due and diligent search and Mr. Dighe has made reference to these letters on the basis of averments made in Paragraphs 6, 7, 8 and 9 of the Plaint. 6. 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 21st February 1994 and also in the Maharashtra Government Gazette (Part-II) in its issue dated 24th February 1994. The originals of the said advertisements 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 21st February 1994 is taken on record and marked as Exhibit “P-3” and the photocopy of the Government Gazette dated 24th February 1994 is taken on record and marked as Exhibit “P-4”. 7. The said consignment was thereafter sold on 18th March 1994 under lot No.HH/6753 for Rs.5,76,114/-. Mr. Dighe deposed that the Port Trust charges accrued on the said consignment amounted to Rs.3,53,398/-. Customs Duty amounted to Rs. 2,99,302.47 paise, and Expenses of Sale amounted to Rs.57,611.40 paise. The Plaintiffs were able to adjust full Expenses of Sale and Customs Duty out of sale proceeds but were only able to adjust/allocate Rs.2,19,200.13 paise towards Port Trust charges, leaving a deficit of Rs.1,34,197.87 paise, which the Defendants are bound and liable to pay to the Plaintiffs. 5 s-1672-97 8. Explaining how the total Port Trust charges are arrived at, Mr. Dighe has deposed that the said consignment weighed 44660 kgs. Wharfage was payable in respect of the said consignment under Section-I , Item No. 13 of the Docks Scale of Rates at the rate of 0.500% of C.I.F. value and amounted to Rs.1,385/-. Demurrage was payable in respect of the said consignment under Section-II, Item No. A (4) of the Docks Scale of Rates at the rate of Rs.25/- per M.T. per day for the first 30 days, thereafter at the rate of Rs.37.50 paise per M.T. per day for next 30 days and thereafter at the rate of Rs.50/- per M.T. per day for the remaining period from 61st day onwards and amounted to Rs.3,52,012.50 paise. Thus, the total Port Trust charges amounted to Rs.3,53,397.50 paise. 9. 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 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 Exhibits “P-5” and “P-6” 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-7”. 6 s-1672-97 10. 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-8”. 11. Mr. Dighe has produced the relevant record for 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 are taken on record and marked Exhibit “P-9”. 12. By two letters both dated 18th April 1996 addressed to the 1st and 2nd Defendants, the Plaintiffs informed the Defendants 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 them to pay to the Plaintiffs the deficit sum of Rs. 1,34,197.87 paise. The Plaintiffs further informed the Defendants that if the said amount was not immediately paid, the Plaintiffs would charge interest at the rate of 18% per annum till payment. As there was no response from the Defendants, the Plaintiffs by their two further letters dated 9th May 1996, addressed to the Defendants referred to the earlier letter dated 18th April, 1996 and once again called upon them to pay to the Plaintiffs the deficit sum of Rs. 1,34,197.87 paise and pointed out that legal proceedings would be taken to enforce recovery of the said amount. Mr. Dighe has further deposed that the office / carbon copies of the said letters are misplaced and cannot be found despite due and diligent search both in the office of the Plaintiffs and in the Office of the Solicitors of the 7 s-1672-97 Plaintiffs. Mr. Dighe has further deposed that the Solicitors of the Plaintiffs had however annexed true copies of the said letters which were prepared from the office / carbon copies which were then furnished to the Plaintiffs’ Attorneys at the time of filing of the Plaint. The said letters have been annexed as Exhibits ‘A’ and ‘C’ to the Plaint. Mr. Dighe has therefore produced the said Exhibits, but for the sake of convenience prepared photocopies of the said letters in the compilation. The said photocopies are taken on record. After comparing them with the Exhibits annexed to the Plaint the same are marked as Exhibits “P-10” and “P-11”, respectively. 13. 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.1,34,197.87 paise together with the sum of Rs.22,104.04 paise being interest thereon at the rate of 18% per annum from the date of demand i.e. 18th April 1996 till 17th March 1997 aggregating to Rs.1,56,301.97. The Plaintiffs have also claimed further interest on the principal sum of Rs.1,34,197.87 paise at the rate of 18% per annum from the date of the suit till payment or realisation and costs of the Suit as per particulars of claim annexed as Exhibit “E” to the Plaint. 14. 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 Exhibit “P-2”, it is established that the consignment of the Defendants (Japanese origin low carbon M.S. defective rejects colour coated sheets strips) was discharged from Vessel “m.v. PANTELEYMON LEPESHINSKIY” at the Port of Mumbai. The Defendants are the importer/consignee/owner of the said consignment. The General 8 s-1672-97 Landing Date and the Last Free Day of the cargo of the said vessel fell on 15th July 1993 and 20th July 1993 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. It is further 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-3” and “P-4”, 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 Government Gazette. The said consignment was thereafter sold on 18th March 1994 for Rs.5,76,114/-. From what is recorded in paragraphs 7 and 8 above and Exhibits “P-5”, “P-6” , “P-7” and “P-9”, it is established that though the consignment was sold for Rs. 5,76,114/-, the Port Trust charges accrued on the said consignment amounted to Rs.3,53,398/-. The Customs duty amounted to Rs. 2,99,302.47 paise and expenses of sale amounted to Rs.57,611.40 paise. Though the Plaintiffs were able to adjust the full expenses on sales and customs duty out of the said sale proceeds, the Plaintiffs were only able to adjust Rs.2,19,200.13 paise towards the Port Trust charges leaving a deficit of Rs.1,34,197.87 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 neither 9 s-1672-97 responded to the said letters nor have they paid the said deficit amount to the Plaintiffs as called upon by the Plaintiffs. 15. As set out hereinabove, though the Defendants are served with the Writ of Summons and an affidavit of service to this effect dated 29th April 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. 16. In the above circumstances, in my view, the reliefs 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 “E” to the Plaint an amount of Rs. 1,56,301.91 paise towards the deficit in Port Trust charges and further interest on the sum of Rs.1,34,197.87 paise at 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.]