1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.2610 OF 1997 The Board of Trustees of the Port of Mumbai ..Plaintiffs. Vs. M/s. Gurunanak Paper Mills Ltd. And another ..Defendants. .... Mr. U.J. Makhija with Mr. Parag Kandhar i/b Mulla & Mulla for the Plaintiffs. None for the Defendants. .... CORAM : DR. D.Y. CHANDRACHUD, J. 10th August, 2009. P.C. : 1. The suit has been instituted by the Port Trust for the recovery of an amount due on account of a deficit on sale. 2. In October 1993 the Second Defendant as agent of a vessel discharged 73 bales of waste paper at the Docks at Mumbai. The Second Defendant had furnished to the Plaintiff an Import General Manifest dated 1st October, 1993 wherein the consignment was manifested at item 2 No.83 and the First Defendants were shown as importers / consignees / owners. The general landing and the last free dates were 1st October, 1993 and 6th October, 1993 respectively. Since the Defendants failed to clear the consignment within two months of the landing thereof, the Plaintiffs addressed letters dated 12th February, 1994 to the First and Second Defendants informing them that the consignment was liable to be sold. This was followed by letters dated 2nd June, 1994. A notice of sale was published in the newspapers on 30th May, 1994 and in the gazette on 2nd June, 1994. The consignment was sold on 13th June, 1994 in the amount of Rs.2,21,886.90. The total Port Trust charges in respect of the consignment towards wharfage and demurrage amounted to Rs. 3,86,261.50. Customs duty amounted to Rs.1,09,872.57 while the sale expenses were Rs.22,188.69. After allocating the sale price towards customs duty and the expenses of sale a deficit of Rs.2,96,436.36 remained due on account of Port Trust charges. The suit has been filed for the recovery thereof. Letters of demand were addressed to the Defendants on 17th October, 1996. The Plaintiffs have claimed interest on the amount claimed. 3 3. Both the Defendants have been served with the writ of summons. The Second Defendant has entered appearance, but has not filed a written statement. In the circumstances, the averments contained in the Plaint have not been controverted. The Plaintiffs have relied upon an affidavit in lieu of examination in chief of their Assistant Docks Manager who has verified the correctness of what is stated therein. A compilation of the original documents has also been filed. It has been stated that the original file of papers containing correspondence is not traceable and has not been traced despite diligent search. It has been averred that when the suit was filed, the Plaintiffs annexed various documents including correspondence prior to the filing of the suit and the exhibits were prepared on the basis of the documents then available in the file. It has been averred that the Plaintiffs’ attorneys have prepared two copies of the documents and annexed them as exhibits to the Plaint. The Plaintiffs have produced copies of the relevant Docks Scale of Rates then in force. Copes of the allocation sheet prepared in the usual course of business and of the sale warehouse register and the valuation sheet have been 4 produced. In the absence of any contest, the claim has been duly established on the basis of the evidence on the record. The suit shall accordingly stand decreed in terms of prayer clause (a) with the modification that the Plaintiffs will be entitled to interest at the rate of 9% p.a. on the principal sum from the date of the suit until payment or realization. *****