1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.340 OF 1984 The Board of Trustees of the Port of Bombay .. Plaintiffs Versus Punjab and Sindh Bank & Anr. .. Defendants Mr.U.J.Makhija i/b. Mulla & Mulla for plaintiffs None for defendants. CORAM : S.C.DHARMADHIKARI, J. DATE : 12th January 2009. P.C. . Mr.Makhija has tendered affidavit of evidence of the Assistant Docks Manager of the plaintiff, Mr.Swamy and a compilation of documents relied upon by the plaintiffs in support of their claim. Mr.Swamy is present in court and confirms his signature on the affidavit and all statements therein. He states that the affidavit is filed after perusing all records available in the office of the plaintiffs 2 pertaining to suit claim. He states that he has himself perused the record and he is conversant with the facts of the case. 2. On the last occasion it was pointed out that the first defendant has not contested the suit despite being served with writ of summons whereas defendant No.2 has filed written statement and, therefore, issues were framed by this Court. 3. It is stated that the consignment was discharged by the second defendant as Agent of the vessel into the custody of plaintiffs. The second defendant furnished Import General Manifest (IGM) showing the cargo which was intended to be discharged by the vessel at the Docks at Bombay. First defendant’s name is mentioned as Importer/ consignee in the said IGM. 4. After setting out the details of the 3 landing date and last free date, the witness has stated that the defendants were bound and liable to clear the consignment which they failed to do and that is how the consignment was put up for sale. Due compliance was made with the procedures stipulated at the relevant time and the consignment was put up for sale after prior notice thereof to the defendants. The first defendant has informed the plaintiffs that the documents in respect of this consignment have been returned by them to the party based in Italy as per their instructions but the plaintiffs received a letter dated 4th June 1980 from the second defendants addressed to the first defendant asking them to effect clearance. It is in such circumstances that the attempts were made by the second defendants to clear the dues by requesting for postponement of the sale which was also adhered to. Finally the consignment came to be sold on 16th February 1981 but the port charges in respect of the said consignment 4 amounting to Rs.1,45,225.19 have remained unpaid. The sale proceeds were adjusted towards the total port charges and other dues but still there was deficit which has been computed and that is how the suit is filed for recovering the same. 5. By referring to each of the documents in the compilation, the witness has deposed to their contents and stated that they are true and correct. The second defendant had filed written statement and on the basis of the pleas therein, this Court framed issues on 25th July 2008. Issue No.I is with regard to the claim of the plaintiff against defendant No.2 and whether the plaintiffs prove that defendant No.2 was consignee/ owner of the suit consignment. In this behalf, from the plaint averments and the contents of the affidavit, which has been marked as Exh.X for identification, it is clear that the plaintiffs have proceeded against the second defendants on the basis of the definition of the 5 term "Owner" as appearing in section 2(O) of the Major Port Trusts Act and further on the basis of the request in writing by the second defendants. The controversy has already been settled as far as this Court is concerned and these decisions are binding upon me. 6. In the plaint itself, it is categorically stated that both defendants are liable. The second defendant has been sued and proceeded against in the light of the averments made in paras 1 to 5 of the plaint. 7. Although, there is denial of the averments contained in the aforesaid paras so also in para 7, the second defendant has failed to lead any evidence insofar as issue No.II framed in that behalf. The second defendant has not come forward to cross examine the plaintiffs’ witness either, although the name of plaintiffs as also defendants’ Advocate duly appears on 6 board all through out. 8. In the above circumstances, in my view, the plaintiffs have proved their claim and Issue No.I needs to be answered in their favour. As far as Issue No.II is concerned, burden was upon second defendant and in the light of the fact that second defendant has failed to lead any evidence or even cross examine plaintiffs’ witness, it is clear that there is no dispute raised to the contents of the documents. The documents are, thus, duly proved. 9. Apart from this, I have satisfied myself that the suit claim is not barred by limitation. The consignment was put up for sale but the sale was postponed and finally the sale was conducted on 16th February 1981 and the claim of the plaintiffs stood crystalised thereafter. Plaintiffs called upon the defendants to pay the sums by their letters dated 16th January 1984 7 addressed to first defendant and on 24th November 1983 addressed to the second defendants. The second defendant was also called upon to pay by further letter dated 16th February 1984. The suit has been filed by the plaintiffs in this Court on 14th February 1984. In these circumstances the suit claim is within time and is not barred by limitation. This Court also has the jurisdiction to entertain and try the suit. 10. In the result, plaintiffs are entitled to a decree as prayed. The suit is, therefore, decreed as prayed. Advocate’s cost as per rules. Office to draw up the decree accordingly. (S.C.Dharmadhikari, J)