IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 2446 OF 1997. The Board of Trustees of the Port of Mumbai, a body Corporate, constituted under the provisions of the Major Port Trusts Act,1963, as amended by the Major Port Trusts (Amendment) Act, 1974, having its principal place of business at “Vijay Deep”, Shoorjee Vallabhdas Marg, Bombay - 400 038. ..Plaintiffs. Vs. M/s. Pali Trading Private Limited, A private limited company registered under the Companies Act, 1956 carrying on business at E-17, Parvati Co-operative Industrial Estate, Yadrav, Kohlapur and also 408/409, Marol Bhavan, Marol Co-op. Industrial Estate, Sir M.V. Road, Andheri East, Mumbai – 400 059. ..Defendants. .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla for Plaintiffs. 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 Plaintiffs an amount of Rs. 4,32,918.92 paise 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 Plaintiffs interest on the sum of Rs.4,04,773.91 paise at the rate of 18% per annum from the date of filing of the Suit till payment 2 s-2446-97 and/or realsiation. Though the Defendants are served with the Writ of Summons and an Affidavit of service to this effect dated 17th February 2006 is filed in this Court, the Defendants have not filed its Written Statement and has 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 4th 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 Plaintiffs 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 Defendants imported a consignment of Five Loaded Containers said to contain Mixed Plastic Scrap which was discharged into the custody of the Plaintiffs from vessel “S. S. EAGLE PRESTIGE” 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. 1560 dated 26th July 1993 of the 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.145 and the Defendants were shown as the importer/ consignee/owner of the said consignment. The General Landing Date and the Last Free Day of the 3 s-2446-97 cargo of the said vessel fell on 26th July 1993 and 29th 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 Defendants as 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 Defendants failed and neglected to clear the same. The Plaintiffs therefore by a letter dated 10th November 1993 addressed to the Defendants, the Plaintiffs informed the Defendants that the said consignment was lying uncleared for over two months from the date of landing thereof and called upon the Defendants to effect clearance within ten days failing which the Defendants was informed that the said consignment would be put up for sale and would be sold in the sale proposed to be held on 13th January 1994 or on any other subsequent date without further notice and that the said consignment would be sold either by public auction or by tender or by private arrangement. The said letter was signed by Mr. S.S. Waigankar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.S. Waigankar and identifies the same. He further submits that the contents of the said letter are true and correct. The 4 s-2446-97 office/carbon copy of the said letter is produced before this court. The same is taken on record and marked Exhibit “P-3”. 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 16th April 1994 and also in the Maharashtra Government Gazette in its issue dated 14th April 1994. The originals of the said advertisement 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 16th April 1994 is taken on record and marked as Exhibit “P-4” and the photocopy of the Government Gazette dated 14th April 1994 is taken on record and marked as Exhibit “P-5”. 7. The said consignment was thereafter sold on 9th May 1994 under Lot No. HH-7244 for Rs.4,94,235/-. Mr. Dighe deposed that the Port Trust charges accrued in respect of the said consignment amounted to Rs.5,85,763/- in accordance with the Docks Scale of Rates then in force. Customs Duty amounted to Rs.2,63,822.41 paise and Expenses of Sale amounted to Rs.49,423/-. Out of the sale proceeds, the Plaintiffs were able to adjust / allocate full Expenses of Sale and full Customs Duty but were only able to adjust / allocate only Rs.1,80,989.09 paise towards Port Trust charges. leaving a deficit of Rs.4,04,773.91 paise towards Port Trust charges, which the Defendants are bound and liable to pay to the Plaintiffs. 8. Explaining how the total Port Trust charges are arrived at, Mr. Dighe has deposed that said consignment weighed 73,220 kgs. Wharfage was payable in respect of the said consignment under 5 s-2446-97 Section I, Item No. 14 of the Docks Scale of Rates then in force at the rate of Rs. 0.200 percentage of C.I.F. value (on Ad-valorem Basis) and amounted to Rs.462/-. Demurrage was payable in respect of the said consignment under Section II, Item No. A (4) of the Docks Scale of Rates then in force 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 and the same amounted to Rs.5,77,237.50 paise. The Plaintiffs had also levied Removal Charges at the rate of Rs.110/- per M.T. and the same amounted to Rs.8,063/-. Thus, the total Port Trust charges in respect of the said consignment amounted to Rs. 5,85,762.50 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-6” and “P-7” 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-8”. 6 s-2446-97 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-9”. 11. 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 are mentioned as G.B. Shah and R.N. Deshpande. The same is taken on record and marked as Exhibit “P-10”. 12. 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 submitted that the said photocopies are true and correct. The same are taken on record and marked Exhibit “P-11”. 13. Mr. Dighe has also produced the Report of goods sold and cleared by the purchasers, which was prepared by the Plaintiffs in the usual course of business. The said Report was signed by the Shed Superintendent. The said Report is taken on record and marked Exhibit “P-12”. 14. Mr. Dighe has also produced Shed Delivery Order along with the Bill of Lading. The said documents are taken on record and marked Exhibits “P-13” and “P-14”. 7 s-2446-97 15. Mr. Dighe has further deposed that the Import General Manifest showed that the consignment weighed 81900 kgs. but at the time of sale on actual weight basis it was noticed that the said consignment weighed 73220 kgs., and therefore the price realised was on the actual weight of the consignment. 16. By a letter dated 18th June 1994 addressed to the Plaintiffs by M/s. Qureshi Agency who had purchased the said goods/ item pointed out a discrepancy in weight and made a claim for short delivery of 8680 kgs and asked for refund of the excess payment made by them. The photo copy of the said letter dated 18th June 1994 is produced before the Court. The same is taken on record and marked as Exhibit “P-15". 16. Mr. Dighe further deposed that the working sheet of claim for Short Delivery was prepared by the Audit Inspector showing the weight of the consignment in the usual course of business. The copy of the said working sheet is produced before the Court. The same is taken on record and marked as Exhibit “P-16". 17. On the basis of the short weight balance price was refunded and therefore the price shown is Rs.4,94,235/-. The working sheet on claim for short delivery is produced before the Court at Exhibit “P-16”. The photocopy of receipt from M/s. Qureshi Agency showing the refund of sum of Rs. 67,026.95 for short delivery is also produced before the Court. The same is taken on record and marked Exhibit “P-17". Mr. Dighe deposed that this is the reason the price shown as mentioned herein above is Rs.4,94,235/-. 8 s-2446-97 18. By a letter dated 19th December 1996 addressed to the 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.4,04,773.91 paise immediately. 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. The said letter was signed by Mr. S.S. Shiralkar, the then Assistant Manager Sales of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. S.S. Shiralkar and identifies the same. He further submits that the contents of the said letter are true and correct. He further submits that Registered packet addressed to the Defendant was returned undelivered by the Postal Authorities with the remarks “Company closed” The office/carbon copy of the said letter along with registered packed returned undelivered are produced before this Court. The same are taken on record and marked Exhibit “P-18”. 19. As there was no response from the Defendants, the Plaintiffs by their further letter dated 3rd January 1997, addressed to the Defendants referred to the earlier letter dated 19th December, 1996 and once again called upon them to pay to the Plaintiffs the deficit sum of Rs.4,04,773.91 paise and pointed out that legal proceedings would be taken to enforce recovery of the said amount. The said letter was signed on behalf of the Plaintiffs by Mr. S.G. Londhe, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. S.G. Londhe and identifies the same. He further submits that the contents of the said letter are true and correct. He further submits that the registered packet addressed to the Defendant was also returned 9 s-2446-97 undelivered by the Postal Authorities. The office/carbon copy of the said letter is produced before this court. The same is taken on record and marked Exhibit “P-19”. 20. By a further letter dated 10th March 1997 the Plaintiffs again furnished to the Defendant at the address at Andheri, Mumbai, Statement of Sale in respect of the sale of the said consignment and called upon the Defendant to pay the deficit sum of Rs.4,04,773.91 paise immediately failing which the Defendant was informed that they would be liable to pay interest at the rate of 18% per annum till payment. The said letter was signed on behalf of the Plaintiffs by Mr. S.G. Londhe, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe identifies the signature of Mr. S.G. Londhe 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 Exhibits “P-20”. 21. 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.4,04,773.91 paise together with the sum of Rs.28,145.01 paise being interest thereon at the rate of 18% per annum from the date of demand i.e. 19th December 1996 till 8th May 1997 aggregating to Rs.4,32,918.92 paise. The Plaintiffs have also claimed further interest on the principal sum of Rs.4,04,773.91 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 “C” to the Plaint. 22. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the 10 s-2446-97 compilation of documents filed by the Plaintiffs. From Exhibit “P- 2”, it is established that the consignment of the Defendant (Mixed Plastic Scrap) was discharged from Vessel “S. S. EAGLE PRESTIGE” at the Port of Mumbai. The Defendant is 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 26th July 1993 and 29th July 1993 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 Defendants failed and neglected to clear the same. From Exhibit “P-3”, 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-4” and “P-5”, 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 the local newspaper and the Government Gazette. The said consignment was thereafter sold on 9th May 1994 for Rs.4,94,235/-. From what is recorded in paragraphs 7 and 8 above and Exhibits “P-6” to “P-10” and “P-11”, it is established that the consignment was sold for Rs. 4,94,235/-, the Port Trust charges accrued on the said consignment amounted to Rs.5,85,763/-. The Customs duty amounted to Rs.2,63,822.41 paise and expenses of sale amounted to Rs.49,423/-. From Exhibits, “P-18” to “P-20” it is established that though the Plaintiffs have written letters to the Defendant calling upon them to pay to the Plaintiffs the deficit sum of Rs. 4,04,773.91 11 s-2446-97 and have also clarified in their letters that if the Defendants fail 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 responded to the said letters nor have they paid the said deficit amount to the Plaintiffs as called upon by the Plaintiffs. 23. As set out hereinabove, though the Defendants are served with the Writ of Summons, and an affidavit of service to this effect dated 17th February 2006 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. 24. 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 to pay to the Plaintiffs as per the Particulars of Claim being Exhibit “C” to the Plaint an amount of Rs.4,04,773.91 paise towards the deficit in Port Trust charges and further interest on the sum of Rs.4,04,773.91 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.]