1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 468 OF 1985 The Board of Trustees of the Port of Bombay ..Plaintiff Vs. Basant Paper Indstries Ltd. & Anr. ..Defendants. ---- Mr. U.J. Makhija with Mr. Parag Khandar i/b M/s Mulla & Mulla & C.B. & C., for the Plaintiff. None for the Defendants. ---- CORAM: S.J. VAZIFDAR, J. DATED : 6TH AUGUST 2009. P.C.: 1. The suit is filed to recover a sum of Rs.9,76,234.54 together with interest thereon at 15% p.a. from the date of the suit till payment or realisation. 2. The Plaintiff’s case is that in or about November 1980 the vessel Vishwa Nandini discharged at the Port of Bombay 12 containers and 4 part containers containing waste paper bales which were manifested in the IGM No.1643 dated 24.11.1980 of the said vessel. The said containers were unshifted and a total quantity of 137 bales were removed from the said 2 containers. Out of the said quantity, 20 bales were cleared by the importers on part bill of entry on 18.12.1980 and the balance 117 bales were out turned as lying at ‘M’ Jetha. Out of these 117 bales, 100 bales were sold by the Plaintiff on 15.02.1982 and the present suit is for recovery of deficit in sale arising out of the sale of the said consignment. The balance 17 bales are still lying uncleared at ‘M’ Jethat warehouse. The Plaintiff, therefore, craves leave under Order II Rule 2 of the Code of Civil Procedure, 1908. 3. The General Landing date and the last free day of the cargo of the said vessel were 26.11.1980 and 29.11.1980 respectively. 4. In paragraph 5 of the Plaint, it is alleged that the first defendant is the importer. There is no written statement filed by the first defendant. There is nothing on record which militates against Plaintiff’s claim in the suit. I therefore proceed on the basis that the first defendant is the importer. 5. In paragraph 8 of the said written statement it is stated that Defendant no.2 is not the purchaser of the goods as is sought to be suggested by the Plaintiff in the Plaint but is only the consignee of the goods as is shown in the bill of Lading. It is further averred by Defendant no.2 that the suit as against these defendants is not maintainable as they are acting only as a Banker for negotiating the documents in question and not dealing in goods. It is an admitted position however that Defendant no.2 is shown as the consignee in the Bill of Lading. 3 6. On 17.10.2007, the following issues were framed between the Plaintiff and Defendant no.2:- “i) Whether the suit is bad in law for misjoinder of parties as alleged in paragraph 4 of the written statement ? ii) Whether the claim in the suit is barred by limitation as alleged in paragraph 7 of the written statement ? iii) Whether the suit is not maintainable as having been filed without permission of the High Power Committee as alleged in paragraph 7 of the written statement ? iv) Whether the 2nd Defendant as a Banker is not liable for payment of claim in the suit as alleged in paragraph 9, 10 and 11 as stated in the written statement ? v) To what reliefs, if any, are the Plaintiffs entitled to as against the 2nd Defendant ? vi) What order and Generally ?” 7. The Plaintiff examined one Sanjay S. Sawant. The affidavit in lieu of examination-in-chief was filed by the said witness. He confirmed the contents of the affidavit as well as the correctness of the Plaint. There is no cross examination. 8. As far as Defendant no.1 is concerned, there is nothing on record which militates against the Plaintiff’s claim in the suit. Being the owner, Defendant no.1 is liable. 9. Regarding issue nos.(i) and (iv) as stated above, Defendant no.2 is admittedly the consignee of the goods as is shown in the bill of Lading. In view of the provisions under Section 2(0) of the Major Port Trusts Act 1974(1974 Bombay 12), Defendant no.2 is liable for the claim in the suit. 10. Issues (i) and (iv) are therefore answered in the negative . 4 11. Regarding issue no.(ii) it is established that said 100 bales were sold on 15.02.1982. The witness has deposed the same and therefore the evidence remained unchallenged. The suit was filed on 14.02.1985 within three years from that date. The said suit is therefore within time. 12. The issue no.(ii) is therefore answered in the negative. Regarding issue no.(iii), there is nothing on record which indicates that Defendant no.2 was or is willing to refer the matter to the High Power Committee or even willing to do so. 13. The issue no.(iii) is therefore answered in the negative. Regarding issue nos.(v) and (vi), the suit is decreed as prayed.