The Board of Trustees of the Port of Bombay v. M/s D.S.International

..Defendant Ms.Preeti Shah i/b Mulla & Mulla, Advocate for the Plaintiff. None for the Defendant. ............... ............... CORAM: A.P.DESHPANDE, J. 17th June, 2009. PC:- 1 The Board of Trustees of the Port of Bombay has instituted the present suit for recovery of an amount of Rs.3,54,000/- together with future interest at the rate of 15% per annum from the date of filing of the suit till realisation of the amount on a sum of Rs.3,51,600.80. The Defendant though filed the written statement and participated in the proceedings initially, however, has chosen not to cross-examine the witness of the Plaintiff and has also not led any evidence whatsoever. It appears that after filing of the written statement the Defendant has not contested the suit and has remained absent. 2 According to the Plaintiff, on or about November, 1984 the Defendant imported one container which contained 264 cartons of Nylon Filament yarn which was manifested at Item No.276 in Import General Manifest No.1799 dated 26.11.1984 of the vessel M.V. MC-KINNEYMAERSK. The General Landing date and the last free date of the cargo of the said vessel fell on

26.11.1984 and 29.11.1984 respectively. According to the Plaintiff, the 2 Defendant being importer/owner/consignee was bound and liable to take delivery of the said consignment within seven days from the date of landing thereof and to pay to the Plaintiff wharfage, demurrage and other charges which accrued thereon for a period during which the said consignment remained at the premises of the Plaintiff according to the scale of rates which has been duly prescribed, published and brought into force under the provisions of the Major Port Trusts Act, 1963. However, the Defendant did not take delivery and by an order dated 18.12.1986 passed by the Additional Collector of Customs the consignment was ordered to be confiscated under the provisions of the Customs Act, 1962. Thus, the Plaintiff has instituted the suit for recovery of charges in respect of the suit consignment for a period from last free day till the date preceding of the passing of the order of confiscation by the Additional Collector of Customs and thus, the claim for Rs.3,51,600.80 is made, besides claiming a sum of Rs.2399.20 being interest at the rate of 15% per annum from

23.12.1988 to 08.01.1989 aggregating to Rs.3,54,000/-. 3 The Plaintiff has examined one S.N.Deshmukh. He had filed an affidavit in lieu of oral examination-in-chief and has also filed the compilation of documents. In view of deposition of the witness, all the documents are exhibited. The said witness has not been cross-examined by the Defendant though the same was offered. On account of absence of the Defendant, a further opportunity was granted to the Defendant to lead the evidence by an order dated 02.02.2009, however, the Defendant has chosen to remain absent and did not lead any evidence. Hence, the suit was closed and listed today for arguments. 4 The witness examined by the Plaintiff by name S.N.Deshmukh is Assistant Docks Manager. He has deposed that the consignment containing 264 cartons of Nylon Filament yarn was imported by the Defendant, however, the Defendant did not take delivery of the same till the Additional Collector of Customs passed the order of confiscation. He has further placed on record the confiscation order, so also the docks scale of rates then in force on the basis of which the claim is made in the suit. All relevant documents which substantiate 3 the claim of the Plaintiff are placed on record and are duly exhibited. 5 In view of the affidavit in lieu of examination-in-chief of the Assistant Docks Manager of the Plaintiff and having regard to the documents placed on record, the Plaintiff is entitled to a decree. In the result, the suit filed by the Plaintiff is decreed. The Defendant is ordered to pay the Plaintiff a sum of Rs.3,54,000/- together with future interest on a sum of Rs.3,51,600.80 at the rate of 15% per annum from the date of filing of the suit till realisation of the amount. The Defendant is also directed to pay costs of the suit to the Plaintiff. A decree be drawn accordingly. JUDGE