1 s3800-88 judg.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Suit No. 3800 of 1988 The Board of Trustees of the Port of Bombay, a body Corporate constituted under the provisions of Major Port Trst 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. M/s. Agarwal Knitwears , a firm carrying on business at 3546, Cheema Market, Imodel Gram, Ludhiana 141 008 ..Defendants Mr.U.J.Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 27th January , 2011 ORAL JUDGMENT. : 2 s3800-88 judg.sxw 1. The plaintiffs have filed this suit for recovery of Rs.5,03,500/- along with interest at the rate of 15% per annum as set out in the prayer clause (a). The writ of summons was served upon the defendants. However, the defendants have 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. It is the case of the plaintiffs that on or about 20.7.1985 defendants imported a consignment of 40 bales said to contain woollen rags manifested at item No. 246 in the Import General Manifest No.1774 3 s3800-88 judg.sxw dated 17.7.1985 of the vessel m.v.ALGENIB. The General landing date was 20.7.1985 and the last free date was 24.7.1985. 4. According to the plaintiffs, the defendants did not take away the goods within the time stipulated to take away the goods and therefore the defendants were liable to pay the port trust charges. 5. According to the plaintiffs, by Order bearing No. S/CWH-447/1986 dated 18.12.1986, Additional Collector of Customs ordered confiscation of the goods described above under the provisions of Section 111(d) of the Customs Act, 1962. The consignment was confiscated to the Government. Be that as it may, the defendants did not pay the port trust charges. Hence plaintiffs by their notice dated 17.9.1988, Exhibit P-1, called upon the defendants to pay to plaintiffs the port trust charges amounting to Rs.4,88,282. 39p. Plaintiffs also claimed interest at the rate of 15% per annum. 6. As Defendants did not pay the said charges, the plaintiffs, by their reminder dated 6.10.1988 called upon the defendants to pay the aforesaid amount. Defendants failed to do so. It is in these 4 s3800-88 judg.sxw circumstances, the plaintiffs filed suit on 6.12.1988. 7. 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. 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. 5 s3800-88 judg.sxw 8. 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 was 20.7.1985 and the Last Free date was 24.7.1985. Learned Counsel Mr. Makhija pointed out that the suit was filed on 6.12.1988. He submitted that on the first blush it may appear that the suit is filed beyond the period of limitation. Learned Counsel Mr. Makhija has relied upon the judgments of this court in the case of Board of Trustees of the Port of Bombay V/s. M/s. Rainbow Products and Anr. reported in 2007(2) Mah.L.J. 728 and in the case of Board of Trustees of the Port of Bombay V/s. Ramanlal Mohanlal Parikh and Anr. reported in AIR 2004 Bombay 44. Learned Counsel Mr. Makhija submitted that the period of limitation would commence only when the confiscation order is made known to the plaintiffs. He had taken me through both the judgments and had submitted that the plaintiffs would not be able to know as to when the confiscation order is passed unless passing of the confiscation order is communicated to the plaintiffs. He took me through paragraph 7 of the judgment in case of Board of Trustrees of the Port of Bombay V/s. M/s. Rainbow Products and Anr. and submitted that to the facts of this case Article 113 of the Limitation 6 s3800-88 judg.sxw Act, 1963 would be applicable and looking to the said article cause of action would arise only on the day when the fact of confiscation of the cargo is intimated to the plaintiffs. He pointed out that in the present case the confiscation order was passed on 18.12.1986. He, therefore, submitted that even if one takes 18.12.1986 as the relevant date, institution of the suit on 6.12.1988 for the recovery of port trust charges would be maintainable as the one which is filed within the period of limitation. He submitted that on account of the two dates stated by him, period commencing from last free date i.e. 24.7.1985 upto 18.12.1986 will have to be excluded while calculating the period of limitation. He, therefore. submitted that the court should hold in favour of the plaintiff on the question of limitation. 9. I have considered the submissions of learned Counsel Mr. Makhija on the question of institution of suit within the period of limitation. The reliance placed on the two judgments quoted above is proper. The plaintiffs have not stated in the plaint as to the day when they were informed about the order of confiscation dated 18.12.1986. Hence for the sake of calculation of the period of limitation one may have to take it that the plaintiffs came to know about the fact of 7 s3800-88 judg.sxw confiscation on 18.12.1986. In the circumstances mentioned aforesaid, the cause of action to file the present suit accrued to the plaintiffs on 18.12.1986. Applying the provisions of Article 113 of the Limitation Act, the suit ought to be filed within three years from 18.12.1986. The plaintiffs have filed the suit on 6.12.1988. Hence the suit is filed within the period of limitation. Accordingly, point No.1 is answered in the affirmative. 10.The plaintiffs have examined Mr. Sunil M. Deshmukh, Senior Assistant Traffic Manager of the plaintiffs as their witness and plaintiffs have placed before the court various documents in support of their claim. The plaintiffs have relied upon the documents, namely (i) Import General Manifest in regard to the suit goods is at Exhibit P. (ii) Demand Notice dated 17.9.1988 is at Exhibit P-1, (iii) the reminder demand notice dated 6.10.1988 is at Exhibit P-2, (iv) Working sheet is at Exhibit P-3, (v) Scale of rates is at Exhibit P-4. 11.Learned Counsel Mr. Makhija, took me through the notices at Exhibits P-1 and P-2 and pointed out that despite repeated reminders, the defendants have not paid the port trust charges. He pointed out 8 s3800-88 judg.sxw that plaintiffs had demanded interest at the rate of 15% per annum by notice dated 17.9.1988, Exhibit P-1. He submitted that the plaintiffs are entitled for interest at the rate of 15% per annum as set out in the plaint. He had drawn my attention to the working sheet Exhibit P-3. The working sheet shows as to how the port trust charges are calculated. I have perused the working sheet. In so far as the claim of the plaintiffs, as regards wharfage and demurrage, the plaintiffs have made out a case. The plaintiffs have claimed Rs.558.60 towards Sale Warehousing Charges. 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-4 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 . Consequently, claim of plaintiffs to the extent of Rs.558.60 will have to be rejected. 12.Looking to the various documents relied upon by the plaintiffs and the uncontroverted evidence of P.W.1 Deshmukh, the claim of the 9 s3800-88 judg.sxw 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.488723.79. 13.Plaintiffs have demanded interest at the rate of 15% per annum from the date of first demand notice i.e. 17.9.1988. 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 could 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 could 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 Rs.12% per annum, it would meet the ends of justice. The plaintiffs have claimed interest from 17.9.1988, being the date of first demand notice. The said claim is justified and the plaintiffs would be entitled to recover interest at the rate of 12% per annum from 17.9.1988 till realisation. 10 s3800-88 judg.sxw 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 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) Defendants do pay to plaintiffs Rs.488723 .79p. ii) Defendants do pay to plaintiffs interest at the rate of 12% per annum on Rs.488723 .79p from 17.9.1988 till realization. Iii) Defendants do pay to plaintiffs costs of this suit. [R.Y.GANOO, J.] 11 s3800-88 judg.sxw