Case: Sun Export Corpn.  Vs. Board Of Trustees Of Port Of Bombay

of the evidence of this witness and the documents on the record, submitted that Appellant 1 was the "consignee" or the "owner" or the "agent" for the goods in question and, therefore, the Port Trust was justified in fastening the liability of recovering demurrage charges from it. 11. Section 3(5) of the Bombay Port Trust Act defines an "owner" as "3. (5) Owner, when used in relation to goods, includes any consignor, consignee, shipper or agent for the sale or custody of such goods; and when used in relation to any vessel or any aircraft making use of the port includes any part-owner, chartered, consignee or mortgagee in possession thereof;" * 12. Section 2(o) of the Major Port Trusts Act defines an "owner" in the following terms "2. (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, charter, consignee, or mortgagee in possession thereof;" * 13. Bare reading of the definition of the expression "owner" under both the Acts, goes to show that the expression includes a "consignee" as also an "agent for sale or custody" of such goods. Thus, both under the Bombay Port Trust Act as well as under the Major Port Trusts Act, the expression "owner" includes an "agent for the custody of such goods". Therefore, irrespective of the question whether the expression "owner" could only imply the title holder in the goods as canvassed by Mr. Tripathi, from the definitions noticed above it follows that the expression "owner" would include within its ambit a "consignee" as well as the "agent for the custody of the goods" in question. We are in agreement with the view of the Division Bench of the High Court that on the endorsement made by the "consignee" on the Bill of Lading, Appellant 1 became the "consignee" and in view of the letters of authority issued to it, Appellant 1 was obliged to clear the goods as an "agent". Appellant 1 would therefore squarely fall within the definition of "owner" both under the Bombay Port Trust Act as also under the Major Port I Trusts Act, more particularly since it is not disputed that Appellant 1 had secured an endorsement on the Bill of Lading with a view to obtain custody of the consignment. It is, therefore, not available to Mr. Tripathi to contend that the appellants could not be considered even to be the "agents for the custody" of the consignment. This being the fact situation, the liability to pay demurrage and other charges to the Port Trust would squarely lie on the party which was obliged to remove the goods from the warehouse but failed to do so. 14. The expression "demurrage" has not been defined under the Port Trusts Act. In the context of the goods remaining in the wharfage, it implies the charges which the Port Trust can levy at a particular rate if the goods remain on the docks beyond a specified time. The Port Trust with a view to recover those dues would ordinarily have a lien on the goods and can refuse to deliver the goods till the demurrage charges are paid. This, however, presupposes that the Port Trust continues to hold the goods, but where the goods have been confiscated by the Customs authority, it cannot be said that the Port Trust had any hold over those goods after their "confiscation". The obligation to pay the charges of the Port Trust, till the confiscation of the goods as already observed, was that of the party which had the duty to remove/receive the goods and had failed to do so. In the instant case it was the appellants, who admittedly had acted as holders of the letters of authority and were the licensees agents for clearance of the consignment from the Customs and entitled to receive the goods which they failed to receive and clear. They could therefore be fastened with the liability to pay charges by way of demurrage, etc. to the Port Trust. 15. We do not find any merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to offset the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs authority vide order dated 28-2-1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of Rs. 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs authority within a fortnight to redeem the goods. That option was never exercised. Since the goods stood already confiscated, the submission that those goods could have been sold to offset the demurrage charges is fallacious. The goods confiscated by the Customs authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Insofar as Board of Trustees, Bombay Port v. Sriyansh Knitters 1983 AIR(Bom) 88) on which reliance is placed by learned counsel for the appellants is concerned, that judgment has been considered and rightly distinguished by the Division Bench of the High Court. 16. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay a the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]15. We do not find any merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to offset the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs authority vide order dated 28-2-1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of Rs. 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs authority within a fortnight to redeem the goods. That option was never exercised. Since the goods stood already confiscated, the submission that those goods could have been sold to offset the demurrage charges is fallacious. The goods confiscated by the Customs authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Insofar as Board of Trustees, Bombay Port v. Sriyansh Knitters 1983 AIR(Bom) 88) on which reliance is placed by learned counsel for the appellants is concerned, that judgment has been considered and rightly distinguished by the Division Bench of the High Court16. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay a the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High CourtMajor Port Trusts Act, 1963