1 17 s.1037.1989.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION srk SUIT NO. 1037 OF 1989 The Board of Trustees of the Port of Bombay ..Plaintiff. vs. Messrs. Daga Fibres Pvt. Ltd. ..Defendant. .... Mr. U.J. Makhija a/w Mr. Parag Khandar i/b Mulla & Mulla Craigie Blunt & Caroe for the plaintiff. None for the defendant. .... CORAM : D.G. KARNIK, J. DATE : 27TH APRIL, 2010 P. C. 1. Heard learned counsel for the plaintiff. None present for the defendant. 2. The plaintiff has filed this suit for recovery of principal amount of Rs. 3,26,537.48 ps. and interest thereon. The case of the plaintiff in short is thus: The plaintiff is a Board of Trustees of the Port of Bombay, a Body Corporate constituted under the provisions of the Major Port Trusts (Amendment) Act, 1974 and under the Act is required to take charge of the goods imported into the Port area 2 17 s.1037.1989.doc by Marine Vessels/ Steamers. The defendant is a private limited company which imported certain goods. The steamer, in which the goods were imported, discharged the goods into the port area on 7th December, 1985. The goods were required to be cleared by the defendant within four days i.e. on or before 11th December, 1985. The defendant did not clear the goods which were later confiscated by the customs authorities on 21st November, 1986. The plaintiff claimed from the defendant wharfage and demurrage charges from 11th December, 1985 to 20th November, 1986. As the defendant failed to pay the charges, the plaintiff has filed the suit for recovery. 3. The defendant filed the written statement in which it admitted that it had imported the goods. It however contended that the goods supplied by the supplier were not as per the sample and therefore the defendant renounced the ownership. The goods were confiscated by the customs authority and therefore, the defendant was not liable to pay the wharfage and demurrage charges. 3 17 s.1037.1989.doc 4. On the basis of the pleadings of the parties, the following issues were framed by my predecessor: ISSUES: 1. Whether the Plaintiff proves that the Defendant is the importer/owner/consignee of the Suit Consignment as stated in paragraph 5 of the Plaint? 2. Whether the pre-confiscation charges of suit consignment amounted to Rs.3,26,537.48 ps. as stated in paragraph 7 of the Plaint? 3. Whether the Plaintiffs are entitled to recover the amount of Rs.3,26,537.48 ps. being the pre-confiscation port trust charges in respect of Suit Consignment together with a sum of Rs.42,462.52 ps. being interest @ 15% p.a. from 6/02/1988 till 22/12/1988 aggregating to Rs.3,69,000/- as stated in paragraph 12 of the Plaint? 4. To what reliefs, if any, are the Plaintiffs entitled? 5. What Order? 5. My answer to the issues are as follows: 1. Yes. 2. Yes. 3. Yes. 4 17 s.1037.1989.doc 4. As per order below and 5. As per order below. REASONS AS TO ISSUE NO. 1 TO 3: 6. The plaintiff led evidence of Mr. S.M. Deshmukh, Assistant Docks Manager of the plaintiff by filing affidavit in lieu of examination-in-chief. The defendant and his counsel remained absent and did not cross-examine the plaintiff. The defendant also did not adduce any evidence. The evidence of Mr. S.M. Deshmukh given on affidavit has gone unchallenged. 7. Mr. Deshmukh, the witness of the plaintiff has stated that the goods arrived in the vessel and the General Landing Date of the vessel was 7th December, 1985. The defendant ought to have collected the delivery within four days i.e. 11th December, 1985 which was the free period allowed. He has further stated that the defendant did not collect the goods and the goods remained in the custody of the plaintiff till they were confiscated by the customs vide order dated 21st November, 1986. These facts are not challenged. In the written statement also the defendant had admitted that the defendant was 5 17 s.1037.1989.doc importer of the goods. It has raised the defence that the supplier of the goods did not send the goods as per the sample and therefore the defendant had not accepted the goods. In my view, the plaintiff is not concerned whether the goods supplied by the seller were as per the contract. The goods were ordered and imported by the defendant. This fact is not denied in the written statement. The plaintiff was not concerned with the dispute, if there be any, regarding the quality of the goods between the defendant purchaser and the seller. The defendant being importer of the goods was required to clear the goods within the free period of four days allowed by the plaintiff. 8. The plaintiff’s witness Mr. S.M. Deshmukh has given calculations of the wharfage and demurrage. He has stated on oath that the wharfage and demurrage were calculated as per the rates fixed by the Board and approved by the Central Government. They are the statutory charges. There is no dispute about the calculations. Hence, I answer issue nos. 1 to 3 in the affirmative. AS TO ISSUE NO.4 & 5: 10. As regards the interest, there was no contract to pay interest. The plaintiff, however is entitled to interest under the Interest Act. The plaintiff had given a notice of demand on 6th February, 1988. The 6 17 s.1037.1989.doc plaintiff is therefore entitled an interest from the date of notice demanding payment and interest. The calculations of interest has been given in Exhibit-D and calculations of interest given by the plaintiff are accepted. As regards the interest during the pendency of the suit, in my view, interest at the rate of 6% would be appropriate. Hence, I answer issue no. 4 and 5 accordingly. Accordingly, I pass the following order: ORDER 1 The Suit of the plaintiff is decreed as follows: The defendant shall pay to the plaintiff a sum of Rs. 3,69,000/- together with interest on the principal sum of Rs. 3,26,537.48 paise at the rate of 6% per annum from the date of the suit till payment and costs of the suit. [ D.G. KARNIK, J. ]