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. 161 OF 1982 NO. 161 OF 1982 NO. 161 OF 1982 The Board of Trustees of the Port of Bombay, a Statutory Corporation constituted under the Provisions of the Major Port Trusts Act, 1963, "Vijay Deep", Shoorji Vallabhdas Marg, Bombay - 400038. ... Plaintiffs. V/s. Madras Marine Private Ltd., A company registered under the Companies Act, 7, Embassy Centre, 1st Floor, Nariman Point, Bombay 400 021. ... Defendant. Mr. U. J. Makhija along with Mr. Munjee i/by M/s. Mulla & Mulla for the plaintiffs. None for the defendant. CORAM CORAM CORAM : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. : ANOOP V. MOHTA,J. DATED DATED DATED : 12th April, 2007 : 12th April, 2007 : 12th April, 2007 ORAL ORAL ORAL JUDGMENT:- JUDGMENT:- JUDGMENT:- This is a summary suit under Order XXXVII Rule 2 of the Civil Procedure Code-1908 (for short, "C.P.C.") filed by the plaintiffs who are a Statutory Corporation constituted under the Provisions of the Major Port Trusts Act, 1963, as amended by the Major ( 2 ) Port Trusts (Amendment) Act, 1974 (for short, "The Major Port Trusts Act"). 2. The defendant is a limited company incorporated under the Companies Act and has registered office at the said address. The defendant is the owner/agent of the ship s.s. "Varuna Vahini" referred to as the first vessel and as s.s. "Sheriar" referred to as the second vessel. 3. The plaintiffs are the owners of the docks at Mumbai. Under the Provisions of the Major Port Trusts Act, the plaintiffs have provided Dry Docking and other facilities and appliances at the docks. The plaintiffs have also rendered several services under the Provisions of the Major Port Trusts Act. the plaintiffs are entitled to charge and recover such sums and other charges according to the scale of rates duly described, published and brought into force. 4. The plaintiffs states that during the period from 3rd December, 1978 to 23rd December, 1978, the defendant had dry docked the said first vessel in huge dry docks for undertaking certain work. The plaintiffs rendered facilities and appliances for such ( 3 ) work and also supplied certain materials for carrying out the work. For such facilities, appliances and material supplied, the plaintiffs furnished to the defendant, as the owner/agent of the first vessel, their bill bearing No. WAO/M-772 dated 20th February, 1979 for the sum of Rs.5,787/-. 5. The defendant had dry the second vessel in the same dock during the period from 20th January, 1979 to 5th March, 1979. The plaintiffs provided all necessary facilities, appliances and supplied materials for carrying out the required work. The plaintiffs, therefore, has furnished to the defendant their bill No. WAO/M-94 dated 8th May, 1979 amounting to Rs.68,082.43 paise. The total amount due and payable by the defendant to the plaintiffs under the aforesaid two bills comes to Rs.73,869.43 paise. 6. The plaintiffs, therefore, requested to remit the said amount by letter No. CA/WA/DD-1928. As there was no response, another letter dated 19th May, 1980 was addressed to the defendant and called upon to settle the outstanding bills. Lastly, as there was no response, by a letter dated 28th July, 1980 the plaintiffs requested the defendant to settle the bills ( 4 ) within a period of two weeks. Defendant in reply to letter No.CME/A/1-D/17157 dated 29th August, 1980 admitted the said liability and amount and assured that they would arrange to make the payment very shortly by letter dated 4th September, 1980, but in vain. 7. The plaintiff, therefore, has filed a present suit on 11th March, 1981 for total amount of Rs.87,556.88 paise by claiming a sum of Rs.13,687.45 paise being interest on a sum of Rs.73,869.43 paise at the rate of 10% p.a. from the date of each of the respective bills till the date of the suit. The plaintiffs have also claimed further interest at the said rate of 10% per annum on the said sum from the date of the suit. 8. The defendant by its written statement dated 23rd December, 1982 resisted the said claim on various grounds including the ground of limitation. 9. By an order dated 11/10/1982 leave to the defendant to defend the suit has been granted on depositing a sum of Rs.40,000/-. The said amount has been deposited in the office of Prothonotory and Senior Master and has been further invested with ( 5 ) Nationalised Bank. 10. On 3rd October, 2003 this Court has framed the following issues. 1) Whether the plaintiffs prove that the defendants are owners/agents of the vessel in question and they were provided certain facilities as alleged by the plaintiffs and on that count are liable to pay to the plaintiffs the sum of Rs.73,869.43 paise? 2) Whether the plaintiffs prove that the suit has been filed within the period of limitation? 16. Issue No.1 is answered in positive accordingly. 11. On 04/12/2003, the plaintiffs have filed compilation of documents and given the copy of the same to the defendants. On 25th January, 2007. the plaintiffs original documents and examination-in-chief in lieu of evidence of its first witness have been ( 6 ) taken on record. The matter was adjourned to give opportunity to cross-examine the witness. 12. Re-issue No.1 Re-issue No.1 Re-issue No.1:- On 22nd February, 2007 the plaintiffs’ witness was present. The defendant and his advocate were absent as noted on the previous date i.e. on 25th January 2007. In the result, there was no cross-examination by the defendant. The witness was discharged. Admittedly, the defendant has not lead any evidence to support his defence as averred in his written statement. Though the opportunity was given to the defendant, failed to cross-examine the plaintiffs’ witness. In the result, the averments made by the plaintiffs in the affidavit of P.W.1 remained uncontroverted. 13. The plaintiffs’ witness P.W. 1 Ramkrishna Narayan Mohadikar, through his affidavit in lieu of examination-in-chief categorically proved and supported the averments made in the plaint. The documents as taken on record on 12/04/2003 now marked as Exhibit P1 to P6 collectively. Out of those documents, the documents P1, P2 are the copy of the bills, P3,P4,P5 are the copy of the letters addressed by the plaintiffs to the defendant. P6 is the ( 7 ) original letter addressed by the defendant to the plaintiffs wherein he has admitted the amount and assured to make the payment of Rs.73,869.43 paise. P.W.1 has proved the documents being the documents are from the record of the plaintiff. The contents of the said documents also stand proved, in view of the affidavit in examination-in-chief remained uncontroverted. P.W. 1 has also identified the signatures of those documents. 14. The defendant has failed to support his defence either by his pleadings by his own evidence or by way of the cross-examination of plaintiffs’ witness. An adverse inference is also need to be drawn against the defendant. On the contrary, in view of the letter dated 4th September, 1980 whereby, he has promised to make payment, in my view there is nothing remained to be controverted. The letter addressed by the defendant itself supports the plaintiffs case. 15. The plaintiffs having once proved his case of recovery of the said amount the interest at the rate of 10% p. a. from the date of each of the respective bills as claimed is correct being a commercial transaction between the parties. In the facts and ( 8 ) circumstances of the case, the interest at the rate of 10% p.a. on the sum of Rs.73,869.43 paise from the date of the suit is also reasonable and fair. Considering this, the plaintiff is entitled for the decree as prayed. 16. Issue No.1 is answered positively accordingly. 17. Re-issue No. 2 Re-issue No. 2 Re-issue No. 2:- So far as the issue No.2 with regard to the limitation, in my view is need to be answered positively as the plaintiff in the facts and circumstances of the case, basically in view of the dates as referred above in para 4 and 5, there is nothing to held otherwise. The defendants contract of first vessel during the period of 3rd December, 1978 to 23rd December, 1978 and the second vessel during the period from 20th January, 1979 to 5th March, 1979. The demand was raised by bill dated 20th February, 1979 and 8th may, 1979. The last notice was issued on 28th July 1980. Apart from that the defendant themselves in fact acknowledged and assured to make the payment by its letter dated 4th September, 1980. The suit in question has been filed on 11th March, 1981. Therefore, the suit is within limitation. The issue is answered accordingly. ( 9 ) 19. Admittedly as per the order dated 11th October, 1982 of this Court, the defendant has deposited an amount of Rs. 40,000/- and which has been invested by the Prothonotary and Senior Master in Nationalised Bank. Considering the fact that the plaintiffs’ suit is allowed as prayed, the said amount needs to be paid and balance amount needs to be adjusted in accordance with law. 20. Taking all into account, the suit is decreed in the following terms:- a) Defendant to pay to the plaintiffs a sum of Rs.73,869.43 paise and Rs.13,687.45 paise being interest till the date of the suit with further interest thereon at the rate of 10% per annum from the date of the suit till the payment of realisation. b) No costs. ( 10 ) c) Decree be drawn accordingly. [ANOOP [ANOOP [ANOOP V. MOHTA, J.] V. MOHTA, J.] V. MOHTA, J.]