1 s-1910-94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 1910 OF 1994. The Board of Trustees of the Port of Bombay, A body corporate, constituted under the provisions of Major Port Trusts (Amendment) Act, 1974 having its Principal place of Business at Vijay Deep, Shoorji Vallabhdas Marg, Bombay-400 038. ..Plaintiffs. vs. M/s. Trimurthi Engineers & Fabricators, A firm, having its Office and Place of Business at 195, Pimpalwadi, Tal. Pythen, Dist. Aurangabad, Maharashtra. ..Defendant. .... Mr. U.J. Makhija, a/w. Mr. P.Khandar, i/b. Mulla & Mulla, for Plaintiff. Mr. Santosh V. Dighe, Assistant Traffic Manager, GR, present in person. None for the Defendant. .... CORAM : S.J. KATHAWALLA, J. DATE : 24TH MARCH 2011. JUDGMENT : By this Suit, the Plaintiffs pray for an order and decree against the Defendant to pay to the Plaintiff an amount of Rs.1,30,371/- 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.1,16,331/- at the rate of 18% per annum from the date of filing of the Suit till 2 s-1910-94 payment and/or realisation. Though the Defendant is served with the writ of summons and an Affidavit of service to this effect dated 14th October 2010 is filed in this Court, the Defendant has not filed his written statement and has also not come forward to defend the Suit. The Suit has therefore appeared under the caption ‘For Ex- parte 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 3rd 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 May 1989, the Defendant imported one container containing 8 cases Bronz Float Glass which was discharged into the custody of the Plaintiffs from Vessel m.v. MERCUR SEA by the Agents of the said vessel. Prior to the berthing of the said vessel, the vessel Agents had furnished to the Plaintiffs an Import General Manifest (IGM) bearing no. 1207 dated 9th May 1989 of the said vessel showing the cargoes intended to be discharged from the said Vessel at the Port of Mumbai. In the said IGM, the said consignment was manifested at Item No. 181 and the Defendant was shown as the 3 s-1910-94 importer/consignee/owner of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 9th May 1989 and 12th May 1989 respectively. The original of the said IGM 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 IGM is taken on record and marked Exhibit ‘P-2’. 5. The Defendant as the importer / consignee / owner of the said consignment was 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 Defendant failed and neglected to clear the same. The Plaintiffs therefore by a letter dated 18th May 1990 addressed to the Defendant, informed the Defendant that the said consignment was lying uncleared and liable to be disposed off by sale under the relevant provisions of the Major Port Trust Act, 1963 (the said Act) unless it was cleared on paying full Port Trust charges. The said letter was signed by Shri S.H. Jadhav, the then Assistant Manager of Sales of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Shri S.H. Jadhav and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-3’. 4 s-1910-94 6. By a further letter dated 24th September 1990 addressed to the Defendants, the Plaintiffs informed the Defendants that since they have failed to clear their goods within two months from the date the same have passed into the custody of the Plaintiffs, they are liable to be sold under sections 61 and 62 of the Major Port Trust Act, 1963 of the said Act. By the said letter, the Defendant was called upon to clear the said consignment within ten days failing which the said consignment would be put up for sale at ‘C’ Warehouse, Indira Docks, on 15th October 1990 or any other subsequent date without further notice by public auction or by tender or by private arrangement. The said letter bears the stamped signature of Mr. M.B. Kazi, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. M.B. Kazi and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-4’. 7. By another letter dated 4th October 1990, the Plaintiffs once again informed the Defendant that the said consignment was liable to be put up for sale and sold on 15th October 1990 without further notice. The said letter also bears the stamped signature of Mr. M.B. Kazi, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. Kazi and identifies the same. He further submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced 5 s-1910-94 before this Court. The same is taken on record and marked 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 24th April 1991 and also in Maharashtra Government Gazette (Part-II) in its issue dated 25th April 1991. Mr. Dighe deposed that the original copies of the notices are misplaced and are not traceable despite diligent search. The photocopies of the said notices are produced before this Court. The same are taken on record and marked Exhibits ‘P-6’ and ‘P-7’ respectively. 9. The said consignment was thereafter sold on 13th May 1991 in auction sale no. 7 of 91-92 under Lot No. EE/2401 for Rs. 4,26,000/-. The reasons for delay caused in holding the auction sale are set out in paragraph 5 of the Affidavit in lieu of Evidence dated 3rd March 2011. Mr. Dighe deposed that Port Trust charges accrued on the said consignment amounted to Rs.2,93,186/-. Customs duty amounted to Rs.2,06,545/- and expenses of sale amounted to Rs.42,600/-. The Plaintiffs were able to adjust the full expenses of sale and Customs Duty out of the sale proceeds but only able to adjust Rs. 1,76,855/- towards Port Trust charges, leaving a deficit of Rs.1,16,331/- which the Defendant is bound and liable to pay to the Plaintiffs. 10. Explaining how the total Port Trust Charges are arrived at, Mr. Dighe has deposed that the said consignment weighed 18,600 kgs. Wharfage was payable in respect of the said 6 s-1910-94 consignment under Section I, Item No. 17 (i) of the Docks Scale of Rates at the rate of 0.20% of CIF value on Ad-valorem basis and amounted to Rs.236/-. 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 60th day and thereafter at the rate of Rs.100/- per M.T. per day for the period from 61st day to onwards and amounted to Rs. 2,92,950/-. Thus, the total port Trust charges amounted to Rs. 2,93,186/-. 11. 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 Dock Scale of Rates. The calculations made therein are correct. The allocation sheet and working sheet are taken on record and marked Exhibits ‘P-8’ and ‘P-9’, respectively. The relevant Docks Scale of Rates then in force are produced before the Court. Mr. Dighe has deposed that he has taken photo copies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges. He has compared the photo copies with the original entries in the Docks Scale of Rate. The photo copies are true and correct photo copies of the originals. The photo copies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges are taken on record and marked Exhibit ‘P-10’. 7 s-1910-94 12. Mr. Dighe has also produced the Sale Warehousing Register maintained by the Plaintiffs in the usual course of business. He has prepared a photo copy of the relevant entries relating to the said consignment as it appears in the Sale Warehousing Register. The photo copies are true and correct photo copies of the originals. The same is therefore taken on record and marked Exhibit ‘P-11’. 13. Mr. Dighe has also produced a photocopy of the assessment sheet of the said lot available in office records, which was prepared by the Valuers, whose names were mentioned as L.R. Sauba and M.I. Mirza. He further submits that the original assessment sheet is not available despite diligent search. The same is taken on record and marked Exhibit ‘P-12’. 14. Mr. Dighe has produced the relevant record for the Board proposal and journal entry slip for customs duty. He has prepared photo copies of the said record. He has submitted that the said photocopies are true and correct. The same are taken on record and marked Exhibit ‘P-13’. 15. By a letter dated 27th August 1993 addressed to the Defendant, the Plaintiffs informed the Defendant about the sale of the said consignment and furnished a statement showing therein the Port Trust charges, customs duty and expenses of sale and called upon the Defendant to pay to the Plaintiffs the deficit sum of Rs.1,16,331/-. The Plaintiffs further informed the Defendant that if the said amount was not paid immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. 8 s-1910-94 The said letter was signed on behalf of the Plaintiffs by Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. 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 the said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-14’. 16. As there was no response from the Defendant, the Plaintiffs by their further letter dated 14th September 1993 referred to their earlier letter dated 27th August 1993 and once again called upon the Defendant to pay to the Plaintiffs the deficit sum of Rs.1,16,331/- and pointed out that legal proceedings would be taken to enforce recovery of the said amount. The postal authorities have returned the said letter undelivered with the remark “No such Company”. The said letter was signed on behalf of the Plaintiffs by Mr. S.S. Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe identifies the signature of Mr. S.S. Shiralkar and submits that the contents of the said letter are true and correct. The office/carbon copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit ‘P-15’. 17. Since the Defendant failed to pay the said amount or any part thereof, the Plaintiffs filed the present Suit to recover from the Defendant the sum of Rs.1,16,331/- together with a sum of Rs.13,940.60 paise being interest thereon at the rate of 18% per annum from the date of demand, i.e. 27th August 1993 till date of filing of the Suit aggregating to Rs.1,30,271.60 paise. The 9 s-1910-94 Plaintiffs have also claimed further interest on the principal sum of Rs.1,16,331/- 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-C to the Plaint. 18. 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 Defendant (8 cases Bronz Float Glass) was discharged from Vessel m.v. MERCUR SEA at the Port of Mumbai. The Defendant are the importer / consignee/ owner of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said Vessel fell on 9th May 1989 and 12th May 1989 respectively. The Defendant as the importer /consignee / owner of the said consignment was 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 Defendant failed and neglected to clear the same. From Exhibits ‘P-3’, ‘P-4’ and ‘P-5, it is established that though the Defendant was called upon to clear the consignment by paying the Port Trust Charges, the Defendant failed and neglected to do so. From Exhibits ‘P-6’ and ‘P-7’ it can be seen that since the Defendant failed to clear the said consignment the list of packages to be sold by the Plaintiffs including the said consignment was published in 10 s-1910-94 the local newspaper. The said consignment was thereafter sold on 13th May 1991 for Rs.4,26,000/-. The reasons for delay caused in holding the auction sale are set out in paragraph 5 of the Affidavit in lieu of Evidence dated 3rd March 2011. From what is recorded in paragraphs 9 and 10 above and Exhibits ‘P-8’ to ‘P-10’ and ‘P-13’, it is established that though the consignment was sold for Rs. 4,26,000/-, the Port Trust Charges accrued on the said consignment amounted to Rs.2,93,186/-. The Customs Duty amounted to Rs.2,06,545/- and expenses of sale amounted to Rs. 42,600/-. 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. 1,66,855/- towards the Port Trust Charges leaving a deficit of Rs.1,66,331/- which the Defendant is liable to pay to the Plaintiffs. From Exhibits ‘P-14’ and ‘P-15’, it is established that though the Plaintiffs have written letters to the Defendant calling upon them to pay to the Plaintiffs a deficit sum of Rs.1,16,331/- and have also clarified in their letters that if the Defendant fails to pay the said amount immediately, the Plaintiffs would charge interest at the rate of 18% per annum till payment. However, the Defendant has neither responded to the said letters nor have they paid the said deficit amount to the Plaintiffs as called upon by the Plaintiffs. 19. As set out hereinabove, though the Defendant is served with the Writ of Summons, and an Affidavit of Service to this effect dated 14th October 2010 is filed in this Court, the Defendant has not filed his written statement and has 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 11 s-1910-94 what the Plaintiffs have stated in the Plaint as well as in the Affidavit in lieu of Evidence should not be accepted. 20. 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 Defendant is ordered and decreed to pay to the Plaintiffs as per the particulars of the claim being Exhibit ‘C’ to the Plaint an amount of Rs.1,30,271.60 paise towards the deficit in Port Trust Charges and further interest on the sum of Rs. 1,16,331/- at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation. (ii) The Defendant 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. ]