1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.668 OF 1989 The Board of Trustees of the Port of Bombay, a Body Corporate constituted under the provisions of the Major Port Trusts (Amendment) Act, 1974 having its principal place of business at `Vijay Deep', Shoorji Vallabhdas Marg, Bombay-400 038. .... Plaintiffs - Versus - 1. Paras Plastic Products, a firm carrying on business at GIDC Area, Vapi, Gujarat and at Paras Building, R.B. Mehta Road, Bombay-400 077. 2. Avin Exports Inc. , a firm carrying on business at 4 High View Drive, Wood Bridge, N.J. 07095, U.S.A.. 3. United States Lines Agency, carrying on business at 301/303 Emea House, Shahid Bhagat Singh Road, Bombay-400 023. .... Defendants Shri U.J. Makhija i/b M/s. Mulla & Mulla & C. B. & Caroe for the Plaintiffs. Shri I.A. Bootwala i/b M/s. Bootwala & Co. for the Defendant No.2. 2 CORAM: SHRI A.V. NIRGUDE, J. DATED: MARCH 16, 2009 ORAL JUDGMENT: 1. The plaintiffs are a body corporate constituted under the provisions of the Major Port Trusts Act, 1963 (hereinafter called as “the said Act”) as amended by the Major Port Trusts (Amendment) Act, 1974. 2. The first defendant are a firm carrying on business of import, etc., and were the importers/owners/consignees of the suit consignment. The second defendant are the exporters of the suit consignment and the third defendant are the agents of the vessel which carried the suit consignment to the Port. In or November, 1985 the first defendant imported from the second defendant four consignments of 4174 bags containing high density polythelene (HDPE) moulding powder. The vessel, Jamuna Pioneer, unloaded the consignment at the Bombay Port. It is the case of the plaintiffs that 84 bags were short-landed by the vessel. Only 4090 bags comprised the consignment. But, the Collector of Customs vide his order dated 10-8-1987 confiscated the entire consignment. On the other hand, the consignment incurred the Port Trust charges from the Last Free Day till the date prior to the date of the order of 3 confiscation which amounted to Rs.31,79,106/- under the provisions of Section 48(d) r/w Section 59 of the said Act. The plaintiffs demanded this amount from the first and the third defendants but in vain. 3. The third defendant filed their written statement and took up a defence that being the agents of the vessel, they were not liable to pay the Port Trust charges. They said they were neither the owners nor the importers or consignees of the suit consignment. In view of all these, the following issues were framed: “1. Whether the Defendant No.3 prove that the Plaintiffs are guilty of gross delay and negligence in disposing the suit consignment under the provisions of The Major Port Trust Act, 1963 as alleged in Paragraph No.9 of the Written Statement of Defendant NO.3? 2. Whether Plaintiffs prove that Defendant NO.3 is the Bailor/Owner of the Suit Consignment as stated in Paragraph 5 of the Plaint? 3. Whether the pre-confiscation charges of suit consignment amounted to Rs.31,79,106/- as stated in Paragraph 7 of the Plaint? 4. Whether the Plaintiffs are entitled to recover the amount of Rs.31,79,106/- being the pre-confiscation port trust charges in respect of Suit Consignment together with a sum of Rs.31,894/- being interest @ 15% p.a. From 17/10/1988 till 13/11/1988 aggregating to Rs.32,11,000/- as stated in Paragraph 12 of the Plaint? 5. To what reliefs, if any, are the Plaintiffs entitled? 4 6. What Order?” 4. Issue No.1: The plaintiffs recorded their oral evidence through the deposition of one S.M. Deshmukh, who works as the Assistant Docks Manager and Principal Officer of the plaintiff- Port Trust. He also produced the original documents on record. But as said earlier, the third defendant abruptly withdrew opposition neither cross-examined the plaintiffs' witness nor adduce their evidence. They are unable to prove that the plaintiffs were guilty of gross delay and negligence in disposal of the suit consignment. Yet, the plaintiff-Port Trust has to prove first that the third defendant was earlier the bailor or the owner of the suit consignment and that their demand of the Port Trust charges was in accordance with law. 5. Issue No.2: The learned counsel appearing for the plaintiff- Port Trust relied on the provisions of Section 2(o) of the said Act. It reads as under: “(o) “owner”, (i) in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods; and (ii) in relation to any vessel or any aircraft making use of any port, includes any part-owner, charterer, consignee, or mortgagee in possession thereof,” The learned counsel appearing for the plaintiffs asserted that the third defendant would fall within the ambit of the words 5 “agent” for loading or unloading of the goods as mentioned in the first portion of the definition of “owner”. This explanation is quite plausible and so the third defendant , who was the agent of the vessel, would fall within the meaning of the definition. 6. Issue No.3: The plaintiffs have to prove that the suit charges had amounted to Rs.31,79,106/-. In order to support this, the plaintiffs filed documents. The documents clearly establish that 4090 bags were unloaded by the ship Jamuna Pioneer in November, 1985. It is also clear from the documents as well as from the deposition in support that the weight of the consignment was 104131 kg. The wharfage was payable in respect of the said consignment under Item No.58 of the Docks Scale of Rates, then in force, at the rate of Rs.2,218.40 per M.T. The plaintiffs also claimed demurrage on the basis of Section III(C)(A)(ii) of the Docks Scale of Rates, then in force, at the rate of Rs.25/- per M.T. per day for the first thirty days and thereafter at a little higher rate. A copy of the Docks Scale of Rates for the relevant period of annexed and it is found that the claim is not incorrect. It is thus clear that the total Port Trust charges in respect of the consignment amounted to Rs.31,79,106/-. 7. Issue No.4: The plaintiffs claim 15% interest p.a. on the sum due from 17-10-1988 till 13-11-1988 which amounted to 6 Rs.31,894/-. The rate of the interest claimed by the plaintiffs is also recorded in the notices of demand. There is no cross- examination on the plaintiffs' demand of interest at the rate of 15% p.a. and so this claim also stands proved against the defendants. The plaintiffs thus are entitled to the suit claim. The suit stands decreed in terms of the prayer clause (a). However, the rate of interest payable on the amount due from the date of the suit amount till the amount is recovered shall be 6% simple interest. (A.V. NIRGUDE, J.) ss/M9sj668.89