IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi SUIT NO. 3744 OF 1994. 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. ..Plaintiff. Vs. 1. Messrs.Akay Polymers, a Partnership firm, carrying on their business at Shed No.F-17, Road No.7, Kukat Pally, Next to Gandhinagar, Hyderabad- 37. 2. Punjab & Sind Bank, having their branch office at Masjid Bunder, Bombay – 400 003 ..Defendants. .... Mr. U.J. Makhija, a/w. Mr. P. Khandhar, i/b. Mulla & Mulla for Plaintiff. Mr. Santosh V. Dighe, Assistant Traffic Manager, GR, present in person. None for the Defendants. .... Coram: S. J. Kathawalla J. Date: 24th March 2011. JUDGMENT: By this Suit, the Plaintiffs pray for an order and decree against the Defendants to pay to the Plaintiff an amount of Rs. 65,732.29 paise towards the deficit in Port Trust charges as per the particulars of claim being Exhibit “C” to the Plaint and to further pay to the Plaintiff interest on the sum of Rs.65,732.29 paise at the rate of 18% per annum from the date of filing of the Suit till payment and/or realisation. Though the Defendants are served with the Writ of 2 s-3744-94 Summons and an Affidavit of service to this effect dated 29th July 2010 is filed in this Court, the Defendant has not filed its Written Statement and has also not come forward to defend the Suit. The Suit has therefore appeared under the caption “For Exparte Decree”. 2. Shri S.V. Dighe, Assistant Traffic Manager, Gr.I and the Principal Officer of the Plaintiffs has filed his Affidavit in lieu of evidence dated 11th March 2011. The said Affidavit is taken on record and marked “X” for identification. A compilation of documents is also filed on behalf of the Plaintiffs. Mr. Dighe has filed his evidence pursuant to the letter of authority dated 24th June 2009 issued by the Plaintiff in his favour. The said letter of authority is marked Exhibit “P-1”. 3. It is stated in the Plaint as well as in the Affidavit in lieu of Evidence as follows:- 4. In or about September 1989 the Defendants imported a consignment of 2 containers containing Acrylic Scrap which was discharged into the custody of the Plaintiffs from Vessel “UNI PIONEER” at the Port of Mumbai. Prior to the berthing of the said vessel, the Agents of the said vessel had furnished to the Plaintiffs an Import General Manifest (IGM) bearing No. 2298 dated 21st September 1989 of the said Vessel showing the cargoes intended to be discharged from the said vessel at the Port of Mumbai. In the said 3 s-3744-94 Import General Manifest, the said consignment was manifested at Item No. 109. In the said Import Gen[eral Manifest the 2nd Defendants were shown as importers / consignees of the said consignment and the 1st Defendants were shown as a party to be notified. Both the Defendants are therefore importers / consignees / owners within the meaning of Section 2(o) of the Major Port Trusts Act and are therefore sued in the present suit as importers / owners / consignees of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 22nd September 1989 and 27th September 1989 respectively. The original of the said Import General Manifest is tendered in Court along with a Photostat copy of the same. After comparing the two, the original is returned to the Plaintiffs and the Photostat copy of the IGM is taken on record and marked as Exhibit “P-2”. 5. The Defendants as importers / consignees / owners of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage, demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs. The said consignment however 4 s-3744-94 remained uncleared for a protracted period as Defendants failed and neglected to clear the same. The Plaintiffs therefore by two letters both dated 20th June 1990 addressed to the 1st and 2nd Defendants respectively and by a letter dated 20th June 1990 addressed to the Vessel Agents, the Plaintiffs informed them that the said consignment was lying uncleared for over two months from the date of landing thereof and called upon them to effect clearance within ten days failing which the Defendants were informed that the said consignment would be put up for sale and would be sold in the sale proposed to be held on 9th July 1990 or on any other subsequent date without further notice, and that the said consignment would be sold either by public auction or by tender or by private arrangement. The said letters were signed on behalf of the Plaintiffs by Mr. M. B. Kazi, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. M.B. Kazi and identifies the same. Mr. Dighe further submits that the contents of the said letter are true and correct. He further submits that registered packet addressed to the 1st Defendants was returned undelivered by the Postal Authorities with the remarks “Company left”. Letter addressed to the Vessel Agent was duly received by them. The office/carbon copies of the said letters together with registered packet undelivered to the 1st Defendant are produced before this Court. The same are 5 s-3744-94 taken on record and marked as Exhibits“P-3”, “P-4” and “P-5” respectively. 6. By two further letters both dated 30th June 1990 addressed to the 1st Defendants and the Vessel Agents respectively with a copy endorsed to the 2nd Defendants, the Plaintiffs informed them that the said consignment was being put up for sale and will be sold in the sale proposed to be held on 9th July 1990 and once again called upon them to effect clearance. The said letters were signed on behalf of the Plaintiffs by Mr. M. B. Kazi, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. M.B. Kazi and identifies the same. Mr. Dighe further submits that the contents of the said letters are true and correct. Mr. Dighe further deposed that the Registered packet containing the said letter addressed to the 1st Defendants was again returned undelivered by the Postal Authorities with the remark “Company Left” and the letter addressed to the vessel agents was duly received by them. The office/carbon copies of the said letters along with registered packet returned undelivered addressed to the 1st Defendants are produced before this Court. The same are taken on record and marked as Exhibits“P-6” and “P-7” respectively. 6 s-3744-94 7. By two letters both dated 21st July 1990 addressed to the 1st Defendants through the Vessel Agents and endorsed to the Clearing Agents, the Plaintiffs again informed them that the said consignment was being put up for sale and will be sold in the sale proposed to be held on 9th July 1990 and once again called upon them to effect clearance. The said letters bear the stamped signature on behalf of the Plaintiffs by Mr. M. B. Kazi, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signatures of Mr. M.B. Kazi and identifies the same. Mr. Dighe further submits that the contents of the said letter are true and correct. The office / carbon copies of the said letters together with the acknowledgments are produced before this Court. The same are taken on record and marked as Exhibits“P-8” and “P-9”. 8. As the said consignment was not cleared, the list of packages to be sold including the said consignment was published in the local newspaper “Indian Express” in its issue dated 29th January 1991 and also in the Maharashtra Government Gazette (Part II) in its issue dated 31st January 1991. Mr. Dighe deposed that original copies of the notices are misplaced and are not traceable despite diligent search. The photocopies of the said notices are produced before this Court. 7 s-3744-94 The same are taken on record and marked as Exhibits “P-10” and “P-11” respectively. 9. By letters dated 4th February 1991 addressed to the Defendants and the Vessel Agents and the Clearing Agents respectively, Plaintiffs again informed them that the said consignment was being put up for sale and will be sold in the sale proposed to be held on 18th February 1991 and called upon them to effect clearance. The said letters were signed on behalf of the Plaintiffs by Mr. N. N. Shetty, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. N. N. Shetty and identifies the same. Mr. Dighe further submits that the contents of the said letters are true and correct. The Registered packet containing the said letter addressed to the 1st Defendant was returned undelivered by the Postal Authorities. The office/carbon copies of the said letters together with the acknowledgment received from the Vessel Agents and the 2nd Defendants and also the Clearing Agents are produced before this Court. The same are taken on record and marked as Exhibits “P-12” and “P-13” respectively. 10. By a letter dated 15th February 1991 the Vessel Agents informed the 2nd Defendants that the said consignment was being up 8 s-3744-94 for sale and called upon them to effect clearance failing which they were informed that they will be liable to pay the Port Trust dues, sale deficit and all other charges. Copies of the said letter were endorsed to the 1st Defendants, the Clearing Agents and to the Plaintiffs. The copy of letter addressed to the Plaintiffs is produced before this Court. The same is taken on record and marked Exhibit "P-14". 11. By a letter dated 14th March 1991 addressed to the 1st Defendants, the Plaintiffs again informed them that the said consignment was being put up for sale and asked the 1st Defendants to effect clearance. Copy of the said letter was also endorsed to the Clearing Agents. The said letter was signed on behalf of the Plaintiffs by Mr. S.H. Jadhav, the then Deputy Docks Manager of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.H. Jadhav and identifies the same. He further submits that the contents of the said letter are true and correct. The office / carbon copy of the said letter, which is in Hindi is produced before this Court. The same is taken on record and marked Exhibit “P-15”. 12. The said consignment was thereafter sold on 29th July 1991 under Lot No. EE/0946 for Rs.5,36,507.40 paise. Mr. Dighe deposed that Port Trust charges accrued in respect of the said consignment 9 s-3744-94 amounted to Rs.1,76,352/- . Customs Duty amounted to Rs. 3,72,236.95 paise and Expenses of Sale amounted to Rs.53,650.74 paise. The Plaintiffs were able to adjust / allocate full Expenses of Sale and full Customs Duty out of the sale proceeds but were only able to adjust / allocate only Rs.1,10,619.71 paise towards Port Trust charges, leaving a deficit of Rs.65,732.29 paise towards Port Trust charges, which the Defendants are bound and liable to pay to the Plaintiffs. 13. Explaining how the total Port Trust charges are arrived at, Mr. Dighe has deposed that the said consignment weighed 21,970 kgs. Wharfage was payable in respect of the said consignment under Section I, Item No.18 (iv) of the Docks Scale of Rates then in force at the rate of Rs. 0.31% of CIF value (Ad-Valorem basis)and amounted to Rs.682/-. Demurrage was payable in respect of the said consignment under Section II(A) 4 (ii) of the Docks Scale of Rates then in force at the rate of Rs.25/- per M.T. per day for the first 30 days, thereafter at the rate of Rs.37.50 paise per M.T. per day for next 30 days and thereafter at the rate of Rs.50/- per M.T. per day for the remaining period and the same amounted to Rs.1,73,250/-. The Plaintiffs had also levied Removal Charges and the same amounted to 10 s-3744-94 Rs.2,420/-. Thus, the total Port Trust charges in respect of the said consignment amounted to Rs.1,76,352/-. 14. Mr. Dighe has deposed that for the sake of noting down the calculations, the Plaintiffs have prepared allocation sheet and working sheet in the usual course of business. Mr. Dighe deposed that he has personally verified the correctness of the calculations made in the allocation sheet and working sheet on the basis of the Docks Scale of Rates. The calculations made therein are correct. The allocation sheet and working sheet are taken on record and marked Exhibits “P- 16 ” and “P-17” respectively. The relevant Docks Scale of Rates then in force are produced before the Court. Mr. Dighe has deposed that he has taken photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges. He has compared the photocopies with the original entries in the Docks Scale of Rates. The photocopies are true and correct photocopies of the originals. The photocopies of the relevant entries of the Docks Scale of Rates for Wharfage and Demurrage charges are taken on record and marked Exhibit “P-18 ”. 15. Mr. Dighe has also produced the Sale Warehouse Register maintained by the Plaintiffs in the usual course of business. He has 11 s-3744-94 prepared a photocopy of the relevant entries relating to the said consignment as it appears in the Sale Warehouse Register. The photocopies are true and correct photocopies of the originals. The same is therefore taken on record and marked Exhibit “P-19”. 16. Mr. Dighe has produced the relevant record for the Board proposal and journal entry slip for customs duty. He has prepared photocopies of the said record. He has submitted that the said photocopies are true and correct. The same are taken on record and marked Exhibit “P-20”. 17. Mr. Dighe has also produced the Report of goods sold and cleared by the purchases which was prepared by the Plaintiffs in the usual course of business. The said Report is taken on record and marked Exhibit “P-21”. 18. Mr. Dighe further deposed that the sale proceeds amount was recovered on declared weighed of 24,227 kgs. but at the time of sale, it was noticed that the actual weight of the said consignment is 21,970 Kgs. Hence an amount of Rs. 61906.24 was refunded to the bidder for excess recovery for 2257 Kgs. and therefore the price realised was on the actual weight of the said consignment. 12 s-3744-94 19. By a letter dated 1st October 1991 addressed to the Plaintiffs M/s. Mahaveer Trading Company who had purchased the said goods/ item pointed out a discrepancy in weight and made a claim for short delivery of 2,257 kgs. and asked for refund of the excess payment made by them. The photo copy of the said letter dated 1st October 1991 is produced before this Court. The same is taken on record and marked Exhibit “P-22”. 20. Report on goods sold and cleared by the purchasers was prepared by the Shed Superintendent showing the weight of the consignment in the usual course of business. A copy of the working sheet is produced before this Hon’ble Court. The same is taken on record and marked Exhibit “P-23“. 21. On the basis of the short weight, balance price was refunded and therefore the price shown is Rs.5,36,507.40 paise. The working sheet on claim for short delivery and the photocopy from Mahaveer Trading Company showing the refund of sum of Rs.61,906.24 paise for short delivery is produced before this Hon’ble Court. The same is taken on record and marked Exhibit “P-24“. Mr. Dighe further 13 s-3744-94 deposed that this is the reason why the price shown as mentioned hereinabove is Rs.5,36,507.40 paise. 22. By two letters both dated 5th October 1993 addressed to the 1st Defendants and to the Vessel Agents, the Plaintiffs informed the 1st Defendants and the Vessel Agents of the sale of the said consignment and furnished a Statement of Sale in respect of the sale of the said consignment and called upon them to pay the deficit sum of Rs. 65,732.29 paise immediately failing which they were informed that they would be liable to pay interest at the rate of 18% per annum till payment. The said letters were signed on behalf of the Plaintiffs by Mr. S.S.Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.S.Shiralkar, and identifies the same. He further submits that the contents of the said letters are true and correct. Registered packet addressed to the 1st Defendants was returned undelivered by the postal authorities. The office / carbon copies of the said letters together with the registered packets returned undelivered by the postal authorities are produced before this Court. The same are taken on record and marked Exhibit “P-24” and “P-25” respectively. 14 s-3744-94 23. As there was no response, by two further letters dated 18th October 1993 addressed to the 1st Defendants and Vessel Agents, the Plaintiffs referred to the earlier letters and called upon them to pay the deficit sum of Rs.65,732.29 paise immediately failing which they were informed that legal proceedings would be initiated by the Plaintiffs to enforce recovery of the same. The said letters were signed on behalf of the Plaintiffs by Mr. S.S.Shiralkar, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. S.S.Shiralkar and identifies the same. He further submits that the contents of the said letters are true and correct. The office / carbon copies of the said letters are produced before this Court. The same are taken on record and marked as Exhibits “P-26” and “P-27” respectively. 24. The Plaintiffs received a letter dated 25th October 1993 from the Vessel Agents stating that they were not the owners of the said consignment and that the 1st Defendants were the owners of the said consignment and Delivery Order was obtained by their Clearing Agents, Premier Clearing Agency. The said letter is produced before this Court. The same is taken on record and marked Exhibit “P-28“. 15 s-3744-94 25. The Plaintiffs received a further letter dated 16th November 1993 from the Vessel Agents stating that they were not the owners of the said consignment and that the 1st Defendants were the owners of the said consignment and Delivery Order was obtained by their Clearing Agents M/s. Premier Clearing Agency. The said letter is produced before this Court. The same is taken on record and marked Exhibit “P-29”. 26. By a letter dated 21st April 1994 addressed to the 2nd Defendants, the Plaintiffs informed the 2nd Defendants of the sale of the said consignment and furnished a Statement of Sale in respect of the sale of the said consignment and called upon them to pay the deficit sum of Rs.65,732.29 paise immediately failing which they were informed that they would be liable to pay interest at the rate of 18% per annum till payment. The said letter was signed on behalf of the Plaintiffs by Mr. J.A.Sampath, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. J.A.Sampath and identifies the same. He further submits that the contents of the said letter are true and correct. The office / carbon copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit “P-30”. 16 s-3744-94 27. By a further letter dated 25th April, 1994 addressed to the 2nd Defendants, the Plaintiffs referred to the earlier letter dated 21st April 1994 and called upon the 2nd Defendants pay the deficit sum of Rs. 65,732.29 paise immediately failing which they were informed that legal proceedings would be initiated by the Plaintiffs to enforce recovery of the same. The said letters were signed on behalf of the Plaintiffs by Mr. J.A.Sampath, the then Assistant Manager (Sales) of the Plaintiffs. Mr. Dighe has deposed that he is familiar with the signature of Mr. J.A.Sampath and identifies the same. He further submits that the contents of the said letter are true and correct. The office / carbon copy of the said letter is produced before this Court. The same is taken on record and marked Exhibit “P-31”. 28. Since the Defendants failed to pay the said amount or any part thereof, the Plaintiffs filed the present Suit to recover from the Defendants the sum of Rs.65,732.29 paise. The 1st Defendants are also liable to pay a sum of Rs.9,530.28 paise being interest thereon at the rate of 18% per annum from 5th October 1993 till filing of the suit aggregating in all to Rs.75,262.57 paise. The Plaintiffs have however claimed Rs.65,732.29 paise plus Rs.3,144.36 paise as interest from the second Defendants. The Plaintiffs have also claimed further interest from both Defendants at the rate of 18% per annum on the sum of Rs. 65,732.29 paise from the date of the suit till payment or realization 17 s-3744-94 and costs of the suit as per particulars of claim annexed as Exhibit “C” to the Plaint. 29. I have gone through the averments made in the Plaint and also the contents of the Affidavit of Evidence along with the compilation of documents filed by the Plaintiffs. From Exhibit “P- 2”, it is established that the consignment of the Defendants (Acrylic Scrap) was discharged from Vessel “ UNI PIONEER” at the Port of Mumbai. The Defendants are the importers/consignees/owners of the said consignment. The General Landing Date and the Last Free Day of the cargo of the said vessel fell on 22nd September 1989 and 27th September 1989 respectively. The Defendants as the importers/ consignee/ owners of the said consignment were bound and liable to take delivery of and clear the said consignment within seven clear days from the date of landing thereof and to pay to the Plaintiffs wharfage , demurrage and other charges which accrued thereon and which were payable to the Plaintiffs for the period during which the said consignment remained on the premises of the Plaintiffs. The said consignment however remained uncleared for a protracted period as the Defendants failed and neglected to clear the same. From Exhibits “P-3” to P-9”, it is established that though the Defendants were called upon to clear the consignment by paying the Port Trust 18 s-3744-94 charges, the Defendants failed and neglected to do so. From Exhibits “P-10” and P-11”, it can be seen that since the Defendants failed to clear the said consignment the list of packages to be sold by the Plaintiffs including the said consignment was published in the local newspaper and the Gazette. The said consignment was thereafter sold on 29th July 1991 for Rs.5,36,507.40 paise. From what is recorded in paragraphs 12 and 13 above and Exhibits “P- 18” to “P-20”, it is established that the consignment was sold for Rs. 5,36,507.40 paise, the Port Trust charges accrued on the said consignment amounted to Rs.1,76,352/-, the Customs duty amounted to Rs.3,72,236.95 paise and expenses of sale amounted to Rs. 53,650.74. Though the Plaintiffs were able to adjust the full expenses on sales and customs duty out of the said sale proceeds, the Plaintiffs were only able to adjust Rs.1,10,619.71 paise towards the Port Trust charges leaving a deficit of Rs.65,732.29 paise which the Defendants are liable to pay to the Plaintiffs. From Exhibits “P-24” to “P-27” and “P-30” it is established that the Plaintiffs have written letters to