1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION SUIT SUIT SUIT NO.1472 NO.1472 NO.1472 OF 1998 OF 1998 OF 1998 The The The Board of Trustees of the Board of Trustees of the Board of Trustees of the Port Port Port of Mumbai, a body corporate of Mumbai, a body corporate of Mumbai, a body corporate constituted constituted constituted under the provisions of the under the provisions of the under the provisions of the Major Major Major Port Trusts Act,1963 as amended Port Trusts Act,1963 as amended Port Trusts Act,1963 as amended by by by the the the Major Port Trusts Amendment Major Port Trusts Amendment Major Port Trusts Amendment Act, Act, Act, 1974 having its principal place 1974 having its principal place 1974 having its principal place of of of business at Vijay Deep, Shoorji business at Vijay Deep, Shoorji business at Vijay Deep, Shoorji Vallabhdas Vallabhdas Vallabhdas Marg, Ballard Estate, Marg, Ballard Estate, Marg, Ballard Estate, Mumbai-400038 Mumbai-400038 Mumbai-400038 ...... Plaintiffs Plaintiffs Plaintiffs M/s M/s M/s Sunrays Offshore Services Pvt Ltd Sunrays Offshore Services Pvt Ltd Sunrays Offshore Services Pvt Ltd a company registered under the company registered under the company registered under the Companies Companies Companies Act, having its registered Act, having its registered Act, having its registered registered registered registered office at Fountain, office at Fountain, office at Fountain, Nanabhai Nanabhai Nanabhai Lane, Fort, Mumbai-400001. Lane, Fort, Mumbai-400001. Lane, Fort, Mumbai-400001. ..Defendants ..Defendants ..Defendants Mr.V.J.Makhija Mr.V.J.Makhija Mr.V.J.Makhija for Plaintiff for Plaintiff for Plaintiffs CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J DATED DATED DATED : 30th July, 2007 : 30th July, 2007 : 30th July, 2007 JUDGMENT JUDGMENT JUDGMENT 1.1.1. Heard learned counsel appearing for the Heard learned counsel appearing for the Heard learned counsel appearing for the plaintiff. plaintiff. plaintiff. He has tendered on record affidavit in He has tendered on record affidavit in He has tendered on record affidavit in lieu lieu lieu of examination-in-chief of one Satish Kumar, of examination-in-chief of one Satish Kumar, of examination-in-chief of one Satish Kumar, Assistant Assistant Assistant Docks Manager of the plaintiff. The Docks Manager of the plaintiff. The Docks Manager of the plaintiff. The said said said affidavit is marked X for identification and affidavit is marked X for identification and affidavit is marked X for identification and isisis taken on record. He has also tendered taken on record. He has also tendered taken on record. He has also tendered compilation compilation compilation of of of true copies of various documents on true copies of various documents on true copies of various documents on record. record. record. The said compilation is marked Y (colly) The said compilation is marked Y (colly) The said compilation is marked Y (colly) for for for identification and is taken on record. identification and is taken on record. identification and is taken on record. 2.2.2. According to the case of the plaintiff, they According to the case of the plaintiff, they According to the case of the plaintiff, they 2 are are are owners of the docks at Mumbai and are owners of the docks at Mumbai and are owners of the docks at Mumbai and are rendering rendering rendering services and performing duties which are services and performing duties which are services and performing duties which are prescribed prescribed prescribed under sections 42 and 43 of the Major under sections 42 and 43 of the Major under sections 42 and 43 of the Major Port Port Port Trusts Act. The plaintifs are entitled to Trusts Act. The plaintifs are entitled to Trusts Act. The plaintifs are entitled to levy levy levy and recover charges for services rendered. and recover charges for services rendered. and recover charges for services rendered. 3.3.3. On 17th March, 1993, the defendants informed On 17th March, 1993, the defendants informed On 17th March, 1993, the defendants informed the the the plaintiffs that they have been appointed as plaintiffs that they have been appointed as plaintiffs that they have been appointed as the the the agents for M/s Magna Charter Line Inc based in agents for M/s Magna Charter Line Inc based in agents for M/s Magna Charter Line Inc based in Dubai Dubai Dubai and requested the plaintiffs to allot to and requested the plaintiffs to allot to and requested the plaintiffs to allot to them them them line/agency line/agency line/agency code and a suitable area to carry code and a suitable area to carry code and a suitable area to carry out out out stuffing and destuffing operations in respect stuffing and destuffing operations in respect stuffing and destuffing operations in respect of of of the Containers of their line. By the said the Containers of their line. By the said the Containers of their line. By the said letter letter letter the defendants had agreed to pay all the the defendants had agreed to pay all the the defendants had agreed to pay all the related related related charges incurred on account of M/s Magna charges incurred on account of M/s Magna charges incurred on account of M/s Magna Charter Charter Charter Line Inc. It is the further case of the Line Inc. It is the further case of the Line Inc. It is the further case of the plaintiffs plaintiffs plaintiffs that the defendants informed the that the defendants informed the that the defendants informed the plaintiffs plaintiffs plaintiffs that M/s D.B.Co & Sons were to carry that M/s D.B.Co & Sons were to carry that M/s D.B.Co & Sons were to carry out out out stevedoring operations. By letter dated 22nd stevedoring operations. By letter dated 22nd stevedoring operations. By letter dated 22nd March, March, March, 1993 the plaintiffs allotted to the 1993 the plaintiffs allotted to the 1993 the plaintiffs allotted to the defendants defendants defendants the agency code and line code and the agency code and line code and the agency code and line code and nominated nominated nominated the areas for Containers. As per the the areas for Containers. As per the the areas for Containers. As per the case case case of the plaintiffs, the defendants incurred of the plaintiffs, the defendants incurred of the plaintiffs, the defendants incurred liability liability liability for port trust charges. The defendants for port trust charges. The defendants for port trust charges. The defendants failed failed failed to make payment of charges to the to make payment of charges to the to make payment of charges to the plaintiffs. plaintiffs. plaintiffs. Therefore, vide letter dated 18th Therefore, vide letter dated 18th Therefore, vide letter dated 18th November, November, November, 1996 the plaintiffs called upon the 1996 the plaintiffs called upon the 1996 the plaintiffs called upon the defendants defendants defendants to pay a sum of Rs.3,07,430/- as port to pay a sum of Rs.3,07,430/- as port to pay a sum of Rs.3,07,430/- as port charges charges charges and a sum of Rs.2,77,747/- as sundries. and a sum of Rs.2,77,747/- as sundries. and a sum of Rs.2,77,747/- as sundries. There There There is another letter of demand dated 18th is another letter of demand dated 18th is another letter of demand dated 18th 3 January, January, January, 1997 making 1997 making 1997 making a demand of the amount demand of the amount demand of the amount payable payable payable by the defendants as on 31st December, by the defendants as on 31st December, by the defendants as on 31st December, 1996. 1996. 1996. 4.4.4. By another letter dated 3rd March 1997 the By another letter dated 3rd March 1997 the By another letter dated 3rd March 1997 the plaintiffs plaintiffs plaintiffs called upon the defendants to pay called upon the defendants to pay called upon the defendants to pay outstanding outstanding outstanding dues of Rs.5,24,684/-. There are two dues of Rs.5,24,684/-. There are two dues of Rs.5,24,684/-. There are two more more more letters dated 20th September, 1997 and 31st letters dated 20th September, 1997 and 31st letters dated 20th September, 1997 and 31st October, October, October, 1997 sent by the plaintiffs to the 1997 sent by the plaintiffs to the 1997 sent by the plaintiffs to the defendants defendants defendants calling upon them to pay the calling upon them to pay the calling upon them to pay the outstanding outstanding outstanding amount. In the last letter, interest amount. In the last letter, interest amount. In the last letter, interest atatat the rate of 18 % p.a. has been claimed on the the rate of 18 % p.a. has been claimed on the the rate of 18 % p.a. has been claimed on the outstanding outstanding outstanding amount. As compliance was not made amount. As compliance was not made amount. As compliance was not made present present present suit was filed. suit was filed. suit was filed. 5.5.5. By the affidavit of Mr.Satish Kumar, the By the affidavit of Mr.Satish Kumar, the By the affidavit of Mr.Satish Kumar, the plaintiffs plaintiffs plaintiffs have proved the claim in the suit. It have proved the claim in the suit. It have proved the claim in the suit. It isisis stated in the affidavit that the original stated in the affidavit that the original stated in the affidavit that the original documents documents documents which are referred to in the said which are referred to in the said which are referred to in the said affidavit affidavit affidavit have been misplaced and the true have been misplaced and the true have been misplaced and the true photostat photostat photostat copies of the original documents have copies of the original documents have copies of the original documents have been been been placed on record. The plaintiffs have made placed on record. The plaintiffs have made placed on record. The plaintiffs have made out out out a case for leading secondary evidence of the a case for leading secondary evidence of the a case for leading secondary evidence of the original original original documents, the photo copies of which are documents, the photo copies of which are documents, the photo copies of which are produced produced produced along with a compilation marked Y. The along with a compilation marked Y. The along with a compilation marked Y. The said said said documents have also been duly proved. documents have also been duly proved. documents have also been duly proved. 6.6.6. In the affidavit of evidence, the plaintiffs In the affidavit of evidence, the plaintiffs In the affidavit of evidence, the plaintiffs have have have stated that they have recovered a sum of stated that they have recovered a sum of stated that they have recovered a sum of Rs.6,06,106/- Rs.6,06,106/- Rs.6,06,106/- by by by realisation of bank guarantee and realisation of bank guarantee and realisation of bank guarantee and 4 now now now i.e.upto 26th July, 2007 outstanding amount as i.e.upto 26th July, 2007 outstanding amount as i.e.upto 26th July, 2007 outstanding amount as against against against the defendants is Rs.1,62,627/-. the defendants is Rs.1,62,627/-. the defendants is Rs.1,62,627/-. 7.7.7. There is no written statement filed by the There is no written statement filed by the There is no written statement filed by the defendants. defendants. defendants. The plaintiffs have proved that as on The plaintiffs have proved that as on The plaintiffs have proved that as on 26th 26th 26th July, 2007, the defendants are liable to pay July, 2007, the defendants are liable to pay July, 2007, the defendants are liable to pay a sum sum sum of Rs.1,62,627/-. Prayer for interest is at of Rs.1,62,627/-. Prayer for interest is at of Rs.1,62,627/-. Prayer for interest is at the the the rate of 18 % p.a. Considering the fact that rate of 18 % p.a. Considering the fact that rate of 18 % p.a. Considering the fact that there there there is no stipulation between the parties as is no stipulation between the parties as is no stipulation between the parties as regards regards regards payment of interest and considering payment of interest and considering payment of interest and considering realisation realisation realisation of a substantial amount, I am allowing of a substantial amount, I am allowing of a substantial amount, I am allowing interest interest interest at 6 % p.a. at 6 % p.a. at 6 % p.a. 8.8.8. Hence, there will be a decree against the Hence, there will be a decree against the Hence, there will be a decree against the defendants defendants defendants in terms of prayer clauses (a) and (b) in terms of prayer clauses (a) and (b) in terms of prayer clauses (a) and (b) with with with a modification that the decretal amount will a modification that the decretal amount will a modification that the decretal amount will be be be Rs.1,62,627/- Rs.1,62,627/- Rs.1,62,627/- together with interest thereon at together with interest thereon at together with interest thereon at the the the rate of 6 % p.a. from the date of the rate of 6 % p.a. from the date of the rate of 6 % p.a. from the date of the institution institution institution of the suit till realisation/payment. of the suit till realisation/payment. of the suit till realisation/payment. 9.9.9. The plaintiffs will be entitled to refund of The plaintiffs will be entitled to refund of The plaintiffs will be entitled to refund of Court Court Court fees,if any,as per rules. fees,if any,as per rules. fees,if any,as per rules. Certified Certified Certified copy is expedited. copy is expedited. copy is expedited. (A.S.Oka, (A.S.Oka, (A.S.Oka, J)J)J)