1 s3439-89.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 3439 of 1988 The Board of Trustees of the Port of Bombay, a body Corporate constituted under the provisions of Major Port Trust 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. K.C.Shewaramani, res. at C/o. C.T.Shewaramani, C 496, Pritam Pura, Delhi 110 034 ..Defendant Mr.U.J.Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 21st February , 2011 ORAL JUDGMENT. : 1. The plaintiffs have filed this suit for recovery of Rs.2,43,500/- along 2 s3439-89.sxw with interest as set out in the prayer clause (a). The writ of summons was served upon the defendants. However, the defendant has 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 referred to as Port Trust Charges) as set out in the particulars of claim. 3. According to the plaintiffs, defendant imported one Vauxhall motor car on 8.7.1985 manifested at item no,109 of the Import Manifest No. 1474 dated 19.6.1985 of the vessel s.s. “Indian Explorer”. General Landing date was 08.07.1985 and last free day was 11.07.1985. The 3 s3439-89.sxw Additional Collector of Customs, Bombay, by Order dated 22.9.1986 Exhibit P-2 bearing No.S/CHW-70/86p confiscated the said car under Section 111(d) of the Customs Act. According to the plaintiffs the defendant was liable to pay to plaintiffs Rs.1,16,011-80p. According to plaintiffs by letter dated 27.1.1988 Exhibit P-7 plaintiffs called upon the defendant to pay to plaintiffs Rs.116011-80. By reminder dated 19.3.1988 at Exhibit P-8 the plaintiffs reiterated their demand. By another reminder dated 2.7.1988 at Exhibit P-9, Plaintiffs demanded the aforesaid amount along with interest at rate of 15% per annum. The defendant did not pay the aforesaid amount. Plaintiffs have therefore instituted this suit on 8.7.1988 for recovery of the aforesaid port trust charges. 4. It is also the case of the plaintiffs that the defendant had on 8.7.1985 imported another car namely Volkswagon Motor Car manifested at item No.111 in the Import General Manifest No.1474 dated 19.06.1985 of the vessel s.s. “Indian Explorer”. The General Landing date was 08.07.1985 and the last free day was 11.07.1985. The said car was confiscated by Additional Collector of Customs vide Order dated 22.09.1986 bearing No.S/CWH-241-86 as per 4 s3439-89.sxw Section 111(d) of the Customs Act, 1962. According to plaintiffs defendant was liable to pay the port trust charges to the tune of Rs. 1,16,010.40 along with interest. Hence plaintiffs by letter dated 11.02.1988 at Exhibit P-17 called upon the defendant to pay to plaintiffs Rs.1,16,010.40 along with interest at the rate of 15%. Two reminders dated 29.03.1988 at Exhibit P-18 and 27.07.1988 at Exhibit P-19 were sent. By another letter dated 2.7.1988 at Exhibit P-21 monies were demanded as aforesaid. 5. According to the plaintiffs the defendant did not pay this amount of Rs.1,16,010-40 and the interest thereon. Hence the plaintiffs filed this suit on 08.07.1988 to recover Rs.2,43,500/- as set out in the prayer clause being the amount payable by the defendant towards Port Trust Charges in respect of both the cars. 6. 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. 5 s3439-89.sxw 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. 7. I have heard learned Counsel on behalf of the plaintiffs. Learned Counsel Mr. Makhija, appearing on behalf of the plaintiffs pointed out that the General Landing date of both the cars was 8.07.1985 and the Last Free day was 11.07.1985. He further pointed out that both the cars were confiscated by order dated 22.9.1986. He submitted that taking into consideration 11.7.1985 or 22.9.1986 as the date on which cause of action arose, the filing of the suit on 8.7.1988 is within the period of limitation. He submitted that Article 113 of the 6 s3439-89.sxw Limitation Act would be applicable. 8. 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 11.07.1985 or 22.9.1986 as the day when cause of action arose, the filing of suit on 8.7.1988 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. 9. The plaintiffs have examined Mr. Sunil M. Deshmukh, Senior Assistant Traffic Manager and authorised signatory of the plaintiffs as their witness and plaintiffs have placed before the court various documents in support of their claim. It is to be noted that two claims arising out of two cars which came to be imported and subsequently confiscated by the customs department and non payment of the port trust charges resulted in plaintiffs instituting this suit by combining two causes of action in relation to two cars. The plaintiffs have relied upon the documents, concerning the car Vauxha1l namely (i) Confiscation Order passed by Deputy Collector of Customs, Mumbai 7 s3439-89.sxw dated 22.9.1986 Exhibit -P-2. (ii) Notice dated 27.1.1988 addressed to defendants calling upon the defendants to pay Rs.1,16,010-80 Exhibit P-7, (iii) letter dated 19.3.1988 and 2.7.1988 are the two reminders at Exhibit P- and Exhibit P-9 (iv) working sheet is Exhibit P-10, (v) Scale of rates being common to both cars is at Exhibit P-23. The documents in regard to second car, namely Volkswagon are as under: (i) Confiscation Order passed by the Customs Department is at Exhibit P-11 (ii) Demand Notice dated 11.2.1988 for Rs.1,16,010.40 along with interest is at Exhibit P-17 (iii) Three reminders dated 29.3.1988, 27.6.1988 and 2.7.1988 are at Exhibit P-18, Exhibit P-19 and Exhibit P-21. (iv) Working Sheet is at Exhibit P-22 10.Learned Counsel Mr. Makhija, took me through the demand notices as mentioned aforesaid 5 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 pursuant to the notices. He submitted that the plaintiffs are entitled to interest at the rate of 15% per annum as set out in the 8 s3439-89.sxw plaint. He had drawn my attention to the working sheet Exhibit P-10 and Exhibit P-22 respectively to show how the Port Trust charges have been calculated. I have perused the working sheet at Exhibit P-10 concerning Vauxhall car. The plaintiffs have claimed sum of Rs.29.40 towards sale warehousing charges in addition to the wharfage and demurrage. It is noticed that in so far as the working sheet at Exhibit P-22 for Volkswagon car, the plaintiffs have claimed Rs.28/- towards Sale Warehousing Charges in addition to wharfage and demurrage. 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-23 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 in both the cases. Consequently, claim of plaintiffs to the extent of Rs.29.40 and Rs.28/- respectively will have to be rejected. 11.Looking to the various documents relied upon by the plaintiffs and 9 s3439-89.sxw the uncontroverted evidence of P.W.1 Deshmukh, the claim of the plaintiffs to the extent of wharfage and demurrage is required to be 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.1,15,982-40p towards Port Trust Charges in respect of Vauxhall Car. The plaintiffs will be able to recover from the defendants Rs.1,15,982-40p towards Port Trust Charges in respect of Volks Wagon. 12.The plaintiffs have demanded interest at the rate of 15% per annum from 27.1.1988 as set out in paragraph 14 of the plaint. 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 can 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 can 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 1985. The suit is instituted in the year 1988. Considering the relevant dates, I am inclined to observe that if the plaintiffs are granted interest at the rate of 12% per annum, it would 10 s3439-89.sxw meet the ends of justice. 13. So far as the grant of interest from a particular date is concerned, it is noticed that the plaintiffs have demanded interest in regard to the unpaid Port Trust Charges in respect of both the cars from 27.1.1988 i.e. the first notice issued by the plaintiffs for recovery of the dues in regard to Vauxhall car. It is to be noted that the plaintiffs gave notice to recover the Port Trust Charges in respect of the Vauxhall car on 27.1.1988. The plaintiffs issued notice to recover dues in regard to the Volkswagon car on 11.2.1988. If this is the position, certainly the plaintiffs would not be able to recover interest on the Port Trust Charges due and payable in respect of Volkswagon Car from 27.1.1988, but they would be able to claim interest w.e.f. 11.2.1988. Hence claim of the plaintiffs to recover interest on Rs.1,15,982.40 can be granted w.e.f. 27.1.1988 till realization. So far as the claim of interest on Rs.1,15,982-40 it can be granted w.e.f. 11.2.1988 till realization. 14.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 11 s3439-89.sxw 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. 15.For the reasons mentioned aforesaid, I pass the following decree: DECREE i) Defendant do pay to plaintiffs Rs.1,15,982- 40 towards Port Trust Charges in regard to the Car Vauxhall . ii) Consequently, Defendant do pay to plaintiffs interest at the rate of 12% per annum on Rs.1,15,982-40 from 27.1.1988 till realization. iii) Defendant do pay to plaintiffs Rs.1,15,982 -40 towards Port Trust Charges in respect of Car Volkswagon. iv) Consequently, Defendant do pay to plaintiffs interest at the rate of Rs.1,15,982-40 at the rate of 12% per annum from 11.2.1988 till realization. v) Defendant do pay to plaintiffs costs of this suit. [R.Y.GANOO, J.]