IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.122 OF 2006 1. The State of Goa, Through its Chief Secretary, Secretariat, Panaji-Goa. 2. The Captain of Ports, Govt. of Goa, having its Office at Panaji-Goa. 3. The Deputy Captain of Ports, Govt. of Goa, having its office at Mormugao, Harbour, Mormugao, Goa. …. Appellants V/s M/s. Shivgharthi Shipping Pvt. Ltd. A Company Registered under the Companies Act, 1956 having its Registered office at Melquides Building, first floor, Fr. Joseph Vaz Road, Vasco da Gama, Goa. …. Respondent Ms. Susan Linhares, Advocate for Appellant. CORAM : F.M. REIS, J. DATE : 7th JULY, 2011 JUDGMENT : The above Appeal challenges the Judgment and Decree dated 18.03.2005, passed by the learned Addl. District Judge, Panaji, in Civil Suit no.121/2004(New), whereby the suit filed by the Respondent came to be partly decreed and the Appellants were directed to pay a sum of Rs.20,000/- to the Respondent. 1 2. The Respondents filed the suit on the ground that they are the owners of an inland vessel (barge) known as M. V. Janardhanan, which is registered with the Appellant no.2 under registration no. PNJ-126. It is further their case that the Appellant no.2 is in charge of registration, survey of such inland vessels within the provisions of law and also in charge to discharge certain functions like survey of inland vessels, barges, under the direction of Appellant no.2. The said barge was owned by M/s. Dhanalaxmi Shipping Pvt. Ltd., from whom the Respondent purchased on 03.11.1995 and the necessary entry to that effect was endorsed on the certificate of registration. According to the Respondent, the barge was due for survey on 05.06.1999 and, as such, they called upon the Appellant no.2 to allocate a surveyor for the annual survey of the said barge. It is further their case that the Respondent also paid barge tax of Rs.6,806/- for the quarter ending 30.09.1999 and that on 10.06.1999, the Appellant no.2 appointed M/s. Nippon Kaiji Koykoi for the purpose of the survey of the said barge. The annual survey was completed on 07.09.1999 and the Appellants were accordingly called upon by the said Surveyor. It is further their case that normally the requisite No Objection Certificate is issued by the Appellants nos. 2 and 3 to ply a barge on the completion of the said survey pending the issue of certificate of survey but, however, when the Appellant no.3 declined to grant such NOC stating that he wanted to have the records of the names of Board of Directors of the Respondent-Company though the certificate was already sent by the Surveyor. The annual returns of the Respondent- Company were submitted on 26.09.1998 duly certified by the Registrar of Companies. Correspondence was submitted to the Appellants to submit the said NOC. A notice was also forwarded by the Respondent to the effect that the Respondents were running a loss of Rs.31,580/- daily since 08.09.1999 on account of the failure on the part of the Appellants to issue such certificate. But, however, the request came to be rejected on 17.09.1999. Again on 20.09.1999, through their Advocate, the Appellants were 2 informed that there was nothing such as Registrar Director of the Company as claimed by the Appellants at the time of rejecting the said request. For the reasons stated in the said notice, the Appellants were called upon to reconsider their stand and/or their decision rejecting the request of the Respondents. Subsequently, the Appellant no.2 informed the Respondent that the sum of Rs.6,571/- was outstanding against the said vessel. It is further their case that without cause or justification, the NOC came to be withheld by the Appellants and ultimately they were forced to filed Writ Petition before this Court being Writ Petition no. 113/1999. Thereafter, the said NOC came to be issued on 07.10.1999 which was received by the Respondents on 09.10.1999. It is further their contention that deliberately the NOC came to be withheld by the Appellants and ultimately, a notice was served through their Lawyer dated 28.02.2000, calling upon the Appellants to pay a sum of Rs.9,78,980/- within a period of ten days together with interest. A reply was received from the Appellant no. 2 on 10.04.2000 after being served under Section 80 of the Civil Procedure Code, falsely alleging that the Respondent no.1 had delayed to make the payment in respect of port due wharfage and annual license fee amounting to Rs.6,571/-. For the reasons stated in the Plaint, it is the contention of the Respondents that the Appellants are liable to compensate the Respondent for a total sum of Rs.9,78,890/- suffered by them for not being able to ply the barge despite of completing all the formalities and, as such, sought for a Decree for the said amount together with interest at the rate of 18% per annum. 3. The Appellants filed their written statement stating, inter alia, that the Respondent has not substantiated the claim of damages and disputed the contentions raised by the Respondent. It is further their case that the survey was received by the Department only on 09.09.1999 and as such, the question of approaching Appellant no.3 on 07.09.1999 by the Respondent would not arise. They also disputed the claim of 3 the Respondents that there were no outstanding dues to be made as according to them, a letter was issued to pay the said amount on 07.10.1999. He also denied that the Respondent could have earned Rs.31,580/- per day as claimed by the Respondent. The Appellants claimed that the Respondent is not entitled for any dues and the suit deserves to be rejected. 4. The learned Judge after framing the issues and recording of evidence passed the impugned Judgment partly decreeing the suit and directed the payment of a sum of Rs.20,000/- as compensation to the Respondent. 5. Being aggrieved by the said Judgment, the Appellants have preferred the present Appeal. 6. Ms. Susan Linhares, the learned Addl. Government Advocate, appearing for the Appellants has assailed the impugned Judgment and pointed out that the learned Judge has awarded a sum of Rs.20,000/- on account of causing mental tension, undue hardship and harassment to the Respondent when there was no claim to that effect put up by the Respondent in the suit. It is further her case that there was justification on the part of the Appellants not to grant the NOC as the amounts payable by the Respondent were not effected within the stipulated period. The learned Counsel took me through the evidence on record and pointed out that it was the case of the Respondent that they had suffered loss to the tune of Rs.31,580/- per day for a period of 31 days from 08.09.1999 to 09.10.1999 and that in the Writ Petition which was filed, no grievance on account of any such loss was raised by the Respondent. The learned Counsel further submitted that as there is no material on record to substantiate the claim for damages, the learned Judge was not justified in passing the impugned Judgment. 4 7. The Respondent though served failed to remain present at the time of hearing of the above Appeal. 8. On hearing the learned Addl. Government Advocate and on perusal of the evidence on record, the following point arises for my determination in the present Appeal: POINT FOR DETERMINATION 1. Whether the learned Judge was justified to decree the suit for a sum of Rs.20,000/- on account of mental tension ? 9. On perusal of the pleadings of the Respondent in the plaint, I find that the claim put forward by the Respondent was for a sum of Rs.9,78,980/- on account of damages sustained by them for the delay in granting of the NOC to the Respondent in respect of the said Barge. The amount has been claimed on the assumption that the Respondent suffered a loss to the extent of Rs.31,580/- per day for a period of 31 days which was the delay in obtaining the requisite NOC from the Appellants. The learned Judge whilst passing the impugned Judgment while deciding issue no.2, has come to the conclusion that the Respondent has failed to adduce any evidence in support of their contention that they were suffering a loss of Rs.31,580/- per day as claimed by them in the suit. The said findings of the learned Judge have not been assailed in the present Appeal nor has the Respondent filed any Cross Objection disputing the correctness of the said findings of the learned Judge. Once the learned Judge has come to the conclusion that the losses claimed by the Respondent have not been established, the consequences thereof would follow. As such, the question of granting any decree for any sum on account of damages would not arise at all. But, however, the learned Judge 5 whilst passing the impugned Judgment has awarded a sum of Rs. 20,000/- on account of mental tension, undue hardship and harassment by the Appellants. 10. On perusal of the plaint filed by the Respondent, the only claim put forward by the Respondent was on account of the losses suffered by them of a sum of Rs.31,580/- per day for a period of 31 days which has been rejected by the learned Judge in the impugned Judgment. There is nothing to suggest in the plaint that the Respondent had put up any claim for damages on account of harassment, mental tension and undue hardship. Once no such pleadings are found in the plaint, there is no foundation for such claim in the pleadings and the question of awarding any such amount as damages in favour of the Respondent would not arise. The learned Judge has failed to consider that there is no foundation in the pleadings for putting up such claim on account of such factors and, as such, the Appellants did not have an opportunity to dispute and/or rebut any such contention by the Respondent. On perusal of the evidence on record, I find there is absolutely no evidence to substantiate the direction to pay the said amount by the Appellants. Apart from that, even at the time of the disposal of the Writ Petition nor in the said pleadings, any such grievance was raised by the Respondent to the effect that the Respondent had suffered any such damages on account of the harassment on the part of the Appellants. 11. On the basis of the material on record and the evidence of the Respondent, I find that the learned Judge was not justified to direct the Appellants to pay the compensation of a sum of Rs.20,000/- by the impugned Judgment. The direction to pay such amount as such cannot be sustained and deserves to be quashed and set aside. The point for determination is answered accordingly. 6 12. In view of the above, I pass the following: ORDER (I) The Appeal is allowed. (II) The impugned Judgment and Decree dated 18.03.2005 is quashed and set aside. (III) The Civil Suit filed by the Respondent stands dismissed. (IV) The Appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. arp/* 7