( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.647 OF 1992 SUIT NO.647 OF 1992 SUIT NO.647 OF 1992 The Board of Trustees of the Port of Bombay, "Vijay Deep", Shoorji Vallabhdas Marg, Bombay - 400 038 ...Plaintiffs Versus 1. M/s.Jamunadas Sushilkumar, 2017, Dehendra Road, Calcutta - 700 007 2. M/s.Worldlink Shipping (P.) Ltd., Botawala Building, 2nd Floor, 8, Horniman Circle, Bombay - 400 023 ...Defendants Mr.U.J. Makhija i/b. Mulla & Mulla for the Plaintiffs. None for the Defendants. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 12th December, 2008. DATED : 12th December, 2008. DATED : 12th December, 2008. ( 2 ) ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : . The Plaintiffs are the board of trustees of the Port of Bombay attending to port operations in Bombay and are governed by the provisions of Major Port Trusts Act, 1963 (hereinafter referred to as "the said Act"). The Plaintiffs have instituted this Suit for recovery of Rs.83,148.55. The Plaintiffs have also prayed for interest at the rate of 15% per annum on Rs.58,420.05 from the date of the filing of the Suit till realization. Plaintiffs have also prayed for costs of the Suit. 2. Few facts necessary for disposal of this Suit are as under :- 3. The Plaintiffs were to attend to the suit goods i.e. 4000 bags of Turkish Chick Peas which were to be imported by Defendant No.1. Defendant No.2 are the agents of the vessel by name "UGAR ISIK". According to Plaintiffs, the goods landed at the Port of Bombay under IGM No.2191 dated 28th October, 1985 through vessel S.S. "UGAR ISIK". The general landing date was 28th October, 1985 and the last free date was 31st October, 1985. According to the Plaintiffs, the Defendants were to clear the goods within seven days ( 3 ) from the last free date. According to the Plaintiffs, out of 4000 bags of the suit goods, Defendants cleared 3684 bags and 246 bags were not cleared. According to Plaintiffs on account of instructions from the Port Health Officer and as per the certificate issued as regards the 246 bags being unfit for human consumption, came to be destroyed on 27th April, 1988 and 28th April, 1988. Plaintiffs informed Defendant No.2 by letter dated 5th May, 1989 at Exhibit P-2 and asked them to inform Defendant No.1 to get the address of Defendant No.1. Defendant No.2 by letter dated 19th June, 1989, being letter Exhibit P-3, gave the address of Defendant No.1. Plaintiffs by letter dated 29th June, 1989, at Exhibit P-4 called upon Defendant No.1 to pay Rs.58,420.05 and copy of the said letter was forwarded to Defendant No.2. The Plaintiffs by two letters i.e. letter dated 11th August, 1999 at Exhibit P-5 and letter dated 18th December, 1989 at Exhibit P-6 called upon Defendant No.1 to make the payment of the aforesaid amount of Rs.58,000/- and odd and also requested Defendant No.2 to prevail upon Defendant No.1 to make the payment. When the Plaintiffs realized that Defendants are not paying port trust charges, the Plaintiffs instituted this Suit on 26th April, 1991. 4. Defendant No.1 did not file written statement ( 4 ) though served. Defendant No.2 filed written statement and contended that the Suit is bad for misjoinder of parties. They also contended that Suit is bad for non-joinder of necessary parties. It was also the stand of Defendant No.2 that there was negligence / delay on part of the Plaintiffs in attending to the goods and that in any case Defendant No.2 could not have cleared the goods as they were not importers / owners. It is also the stand of the Defendants that the Suit is barred by the period of limitation. The Defendants in the other part of the written statement have denied the allegations based on facts stated in the plaint and have contested the Suit. 5. On the basis of the pleadings as aforesaid, issues came to be framed by my learned predecessor on 24th June, 2008. They are as follows :- ISSUES ISSUES ISSUES (1). Whether the suit is bad for mis-joinder of parties as alleged in paragraph No.2 of the written statement of Defendant No.2 ? In the In the In the negative negative negative. (2). Whether the suit is bad for non joinder of necessary parties as alleged in paragraph no.3 of the written statement of defendant no.2 ? In the negative. In the negative. In the negative. (3). Whether the plaintiffs are ( 5 ) guilty of delay and negligence and failed to exercise due care and caution in disposal of suit consignment as alleged in paragraph no.4 of the written statement ? In the In the In the negative. negative. negative. (4). Whether the defendant has no locus standi to clear the suit consignment as alleged in paragraph no.5 of the written statement of defendant no.2 ? In the negative. In the negative. In the negative. (5). Whether the suit is barred by the law of limitation as alleged in paragraph 6 of the written statement of defendant no.2 ? In the negative. In the negative. In the negative. (6). Whether the defendant no.2 is the importer / consignee / owner / bailor of the suit consignment as stated in paragraph nos.2 and 5 of the plaint ? In the affirmative In the affirmative In the affirmative i.e. to say Defendant No.2 i.e. to say Defendant No.2 i.e. to say Defendant No.2 are the owners of the suit are the owners of the suit are the owners of the suit goods. goods. goods. (7). Whether the port trust charges alongwith destruction charges on the suit consignment which was destroyed by the plaintiffs as unfit for human consumption amounted to Rs.58,420.05 as stated in paragraph 7 of the plaint ? As per the final order. As per the final order. As per the final order. (8). Whether the defendant no.2 is liable to pay to the plaintiff a sum of Rs.58,420.05 being the port trust charges together with a sum of Rs.24,728.50 being interest thereon at 15% p.a. from 29-6-1989 till 26-4-1991 aggregating to Rs.83,148.55 as stated in paragraph 10 of the plaint ? As per the final As per the final As per the final order. order. order. ( 6 ) (9). To what reliefs, if any, are the plaintiffs entitled to ? The Plaintiffs will be The Plaintiffs will be The Plaintiffs will be entitled to recover from the entitled to recover from the entitled to recover from the Defendants monies as set out Defendants monies as set out Defendants monies as set out in the final order. in the final order. in the final order. (10). What order & generally ? As As As per the final order. per the final order. per the final order. 6. My answer to each of the issues is mentioned against respective issue. 7. At trial, on behalf of the Plaintiffs Mr.Praful V. Kamble, Assistant Docks Manager, gave evidence. Nobody appeared on behalf of the Defendants at the stage of recording of evidence. Hence, there was no cross-examination on part of the Defendants. No other witness was examined on behalf of the Plaintiffs. No witness was examined on behalf of the Defendants. REASONS : ISSUE NOS.1 to 10 REASONS : ISSUE NOS.1 to 10 REASONS : ISSUE NOS.1 to 10 8. After having gone through the entire record and after having heard learned Counsel Mr.Makhija for the Plaintiffs, I am of the view that these issues can be discussed together and appropriate answers can be given at the end of the reasons. 9. The Plaintiffs have come out with the case ( 7 ) that because the suit goods namely 246 bags were not cleared within seven days from the last free date i.e. 31st October, 1985, the Plaintiffs were entitled to recover from Defendants wharfage as well as demurrage in accordance with the provisions of Docks Scale of Rates as specified at Exhibit P-8. Plaintiffs have calculated the wharfage and the demurrage charges (for short "port trust charges") from 31st October, 1985 upto 27th April, 1986, though the suit goods were destroyed on 27th / 28th April, 1988. 10. I have heard learned Counsel Mr.Makhija appearing on behalf of the Plaintiffs. He submitted that the evidence of Praful PW-1 led on behalf of the Plaintiffs has gone unchallenged in as much as there is no cross-examination. He had taken me through the documents which are relied upon and which are mentioned as aforesaid and had pointed out that though the Defendants were called upon to make the payment in regard to the port trust charges, the Defendants have failed to do so and no proper explanation is given by the Defendants as to why they should not be saddled with the port trust charges. Learned Counsel Mr.Makhija had submitted that wharfage to the tune of Rs.43.05 was claimed as set out in working sheet at Exhibit P-7 and demurrage from 31st October, 1985 upto 27th April, 1986 to the tune of Rs.57,379.50 is ( 8 ) claimed as set out in the Docks Scale of Rates at Exhibit P-8. According to learned Counsel Mr.Makhija in the absence of cross-examination, the case of the Plaintiffs that they are entitled to recover from the Defendants wharfage and demurrage as set out in the working sheet is required to be accepted. 11. Learned Counsel Mr.Makhija had drawn my attention to the working sheet at Exhibit P-7 and had pointed out that the Plaintiffs were required to spend as many as Rs.997.50 towards what may be referred to as destruction charges and that the Plaintiffs are entitled to recover from them. He had drawn my attention to the details set out in the working sheet so as to explain the total amount of destruction charges inclusive of cost of material for destruction such as carbolic powder. He had submitted that since the goods had landed on the property of the Plaintiffs and since they were ordered to be destroyed by the Port Health Officer, the Plaintiffs were duty bound to destroy them and for that they were required to spend money to the tune of Rs.997.50 as set out in the working sheet and as stated in the evidence of Plaintiffs, PW-1, and therefore the destruction charges should be added to the port trust charges and a decree as prayed for should be passed in regard to Rs.58,420.05. He had further submitted that the ( 9 ) Plaintiffs have claimed interest at the rate of 15% per annum from 29th June, 1989 upto 26th April, 1991 i.e. upto the date of the filing of the Suit to the tune of Rs.24,728.50 making the total claim as Rs.83,148.55. He submitted that the plaintiffs are entitled to the interest as claimed by the Plaintiffs particularly because the Praful, PW-1, in paragraph 9 of the evidence affidavit has stated as to why interest @ 15% is being required to be paid to the Plaintiffs. He submitted that Plaintiffs are entitled to the costs of the Suit. 12. Learned Counsel Mr.Makhija has submitted that because Defendant No.2 were the agents of the vessel in accordance with the provisions of Section 2(o) of the said Act and in view of judgment in the case of Owner / Trustees of the Port of Madras through its Owner / Trustees of the Port of Madras through its Owner / Trustees of the Port of Madras through its Chairman V/s. K.V.P. Sheikh Mohad. Rowther & Co. Chairman V/s. K.V.P. Sheikh Mohad. Rowther & Co. Chairman V/s. K.V.P. Sheikh Mohad. Rowther & Co. Pvt. Ltd. [AIR 1995 SC 1922] Pvt. Ltd. [AIR 1995 SC 1922] Pvt. Ltd. [AIR 1995 SC 1922], Defendant No.2 will have to be termed as the owner of the goods and therefore Defendant No.2 was liable to pay the port trust charges and therefore a decree against Defendant No.2 is required to be passed. Learned Counsel Mr.Makhija has submitted that till such time, the goods were not physically destroyed, the Plaintiffs were not in a position to calculate the port trust charges and that the cause of action arose to the ( 10 ) Plaintiffs only after the goods were destroyed on 27th/ 28th April, 1988 in accordance with the provisions of Article 113 of the Indian Limitation Act. Therefore the Suit instituted on 26th April, 1991 is within the period of limitation. He had submitted that in the case of Trustees of the Port of Trustees of the Port of Trustees of the Port of Bombay V/s. M/s.Jayantilal L. Gandhi [AIR 1979 Bom. Bombay V/s. M/s.Jayantilal L. Gandhi [AIR 1979 Bom. Bombay V/s. M/s.Jayantilal L. Gandhi [AIR 1979 Bom. 12] 12] 12] decided by this Court, it was observed that the date of the sale shall be the starting print of limitation. He had submitted that it is true that in the present case the goods were not sold but the goods were destroyed and therefore according to him the observation of this Court in the case of Trustees of Trustees of Trustees of the Port of Bombay V/s. M/s.Jayantilal L. Gandhi the Port of Bombay V/s. M/s.Jayantilal L. Gandhi the Port of Bombay V/s. M/s.Jayantilal L. Gandhi [AIR 1979 Bom. 12] [AIR 1979 Bom. 12] [AIR 1979 Bom. 12] should be used to support the stand of the Plaintiffs that the Suit was filed within the period of limitation. 13. Learned Counsel Mr.Makhija for the Plaintiffs has submitted that the Defendants have remained absent before the Court at the time of trial and have not led any evidence and therefore the case of the Plaintiffs as a whole has gone unchallenged and hence the Plaintiffs are entitled to a decree as prayed for. 14. After having gone through the judgment in the case of Owner / Trustees of the Port of Madras through Owner / Trustees of the Port of Madras through Owner / Trustees of the Port of Madras through ( 11 ) its Chairman V/s. K.V.P. Sheikh Mohad. Rowther & its Chairman V/s. K.V.P. Sheikh Mohad. Rowther & its Chairman V/s. K.V.P. Sheikh Mohad. Rowther & Co. Pvt. Ltd. [AIR 1995 SC 1922] Co. Pvt. Ltd. [AIR 1995 SC 1922] Co. Pvt. Ltd. [AIR 1995 SC 1922], I am inclined to observe that Defendant No.2 will have to be termed as owner of the suit goods in accordance with the provisions of Section 2(o) of the said Act and as such the Defendant No.2 will be liable to pay the port trust charges alongwith Defendant No.1 who are the importers. The IGM at Exhibit P-1 goes to show that Defendant No.1 were the importers and therefore a liability is required to be fasten upon Defendant No.1. 15. In so far as the question as to whether the Suit is within the period of limitation, I am inclined to observe that the arguments advanced by the learned Counsel Mr.Makhija that the date of destruction of the goods would be the starting point of the period of limitation based on the provisions of Article 113 of the Limitation Act is required to be accepted in view of the observation of this Court in the case of Trustees of the Port of Bombay V/s. M/s.Jayantilal L. Trustees of the Port of Bombay V/s. M/s.Jayantilal L. Trustees of the Port of Bombay V/s. M/s.Jayantilal L. Gandhi [AIR 1979 Bom. 12] Gandhi [AIR 1979 Bom. 12] Gandhi [AIR 1979 Bom. 12] Since the goods were destroyed on 27th and 28th April, 1988, the institution of the Suit on 26th April, 1991 will have to be treated as one within the period of limitation. The Defendants have come out with the stand that the Suit is bad for mis-joinder of parties / non-joinder ( 12 ) of necessary parties. Except stating so in the written statement by Defendant No.2, no material is placed before the Court. Hence that stand point by Defendant No.2 will have to be dismissed. 16. In so far as the question as regards the delay in the matter of destruction of the suit goods, I am inclined to observe that evidence of Plaintiffs PW-1 goes to show that the goods were destroyed after the Port Health Officer passed order on 24th February, 1988. If the said order was passed on 24th February, 1988, naturally some time would be taken to execute that order and therefore there was no delay on part of the Plaintiffs in attending to the goods because the order was passed on 24th February, 1988 and the goods were destroyed within the span of two months i.e. 27th / 28th April, 1988. 17. In so far as the calculation of the port trust charges, the Plaintiffs have produced working sheet at Exhibit P-7 as well as Docks Scale of Rates and the evidence in so far as these two documents led by Plaintiffs PW-1 has gone unchallenged and hence I accept the case of the Plaintiffs that they are entitled to recover from the Defendants Rs.57,422.55 towards port trust charges. ( 13 ) 18. In so far as the charges under the head "destruction charges", Plaintiffs have claimed Rs.997.50. Though in the evidence of Plaintiffs PW-1 certain particulars have been given as to the details of these destruction charges, no material is placed before the Court by the Plaintiffs to justify as to under what provisions of law the destruction charges are sought to be recovered particularly when no material is placed before the Court to show as to who was supposed to destroy the goods. If the Plaintiffs would have produced appropriate document to show that they were required to destroy the goods physically, the case of the Plaintiffs for recovery of destruction charges could have been accepted. Even otherwise there is no other supporting material to justify each and every item which is mentioned in the working sheet towards destruction charges such as Rs.100/- for one motor lorry, Rs.450/- for one tin of phenyl etc. In my view, in the absence of appropriate material, the claim of the Plaintiffs to the tune of Rs.997.50 under the head "destruction charges" cannot be granted. 19. Plaintiffs have claimed interest at the rate of 15% per annum. The Plaintiffs have claimed the interest from 29th June, 1989 upto 26th April, 1991 and thereafter from the date of the filing of the Suit till realization. The rate of interest stated in the ( 14 ) plaint as well as in the evidence of Plaintiffs PW-1 is 15% per annum. However, there is no justification set out by placing proper material before the Court in support of that. It is required to be mentioned that in the demand notice issued by the Plaintiffs, no interest is claimed by the Plaintiffs. If this is the position, it would be difficult to accept the case of the Plaintiffs that they would be entitled to receive the interest upto the date of filing of Suit. To that extent, the claim of the Plaintiffs will have to be rejected. In so far as the claim of the Plaintiffs for interest after the filing of the Suit, no specific explanation is coming forth from the Plaintiffs. In my view, looking to the provisions of Section 34 of the Code of Civil Procedure and considering the fact that the transaction relates to recovery of port trust charges etc., if interest at the rate of 6% per annum is granted on Rs.57,422.55 from the date of the filing of the Suit till realization, it would meet the ends of justice. Plaintiffs would be, of course, entitled to recover the costs of the Suit. In view of the aforesaid observations and findings recorded, I am answering the issues as under :- (1). Issue No.1 is answered in the negative. (2). Issue No.2 is answered in the negative. ( 15 ) (3). Issue No.3 is answered in the negative. (4). Issue No.4 is answered in the negative. (5). Issue No.5 is answered in the negative. (6). Issue No.6 is answered in the affirmative i.e. to say Defendant No.2 are the owners of the suit goods. (7). Issue No.7 is answered as per the final order. (8). Issue No.8 is answered as per the final order. (9). Issue No.9 is answered as the Plaintiffs will be entitled to recover from the Defendants monies as set out in the final order. (10). Issue No.10 is answered as per the final order. 20. For the reasons mentioned, as aforesaid, I pass the following decree:- "D E C R E E" "D E C R E E" "D E C R E E" (1). Defendants do pay to the Plaintiffs Rs.57,422.55 (2). Defendants do pay to the Plaintiffs interest at the rate of 6% per annum on Rs.57,422.55 from the date of ( 16 ) the filing of the Suit till realization. (3). Defendants do pay to the Plaintiffs costs of the Suit. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)