The Board of Trustees of the Port of Bombay v. Krishnakant L. Dalal & Anr.

Judgment

1. The suit is filed to recover a sum of Rs.2,45,508.32 with interest thereon at 12 per cent per annum from the date of the suit till realisation.

The defendants are carrying on business. The first defendant is the proprietor of the firm name and style "Rainbow Products" i.e. defendant No. 2.

3. In or about April 1976, the defendants imported a consignment of 170 Drums containing plastic moulding powder, Manifested at Item No.115 2 of the IGM No.181 dated 27.04.1976 of the S.S. Exports AIDE. The general landing date and the last free day of the cargo of the said vessel were

28.04.1996 and 4/5/1976 respectively. The consignment was landed by the said ship onto the Docks at Bombay. The outturn of the consignment was drawn on or about 17.11.1976 and 113 drums out of 170 drums of the said consignment were shown as lying at 21 Indira Docks Warehouse, 54 drums were shown as lying at the Warehouse at another Dock. The defendants were the importers / owners of the said consignment within the meaning of Section 2(O) of The Major Port Trusts Act, 1963. The defendants were bound and liable to take delivery of and clear the consignment within seven clear days from the date of landing thereof and to pay wharfage, demurrage and other charges which accrued thereon and were payable to the plaintiffs for the period during which the goods remained with the plaintiffs, according to the Scale of Rates duly applicable under the Act.

4. The defendants failed and neglected to clear the consignment. By an order dated

25.10.1978 passed by the Collector of Customs, the consignment was ordered to be confiscated under 3 Section 111 (d) and 111(m) of the Customs Act, 1962 read with Section 3 of the Imports & Exports (Control) Act, 1947 with an option to clear the goods on payment of fine. It is agreed by the Plaintiffs that from the date of the order of confiscation, the goods remained confiscated to the Government.

5. The Plaintiffs’ contention is that the said charges in respect of the consignment are payable from the date of landing of the consignment till the date of the order of confiscation exclusive of the free days. The same is claimed in the suit. Despite requests in writing, the defendants failed and neglected to pay the amount. Ultimately the above Suit was filed.

6. The defendants filed a written statement. The above facts have not been denied. It is, however, contended that the suit is barred by limitation. It is further contended that the Plaintiff could have put up the consignment for auction, but failed to do so in breach of their obligation under the said Act. It is alleged that therefore the plaintiffs are guilty of negligence. 4 It is also contended that the plaintiffs failed to render any account and as to whether there has been any adjustment. The defendants have also denied the claim in the suit.

7. By an order dated 20.09.2007, the following issues were framed and settled. "(1) Whether the suit is barred by Law of Limitation as alleged in paragraphs 2(a), (b) and (c) of the Written Statement? (2) Whether the suit is bad for non- joinder of necessary parties as alleged in paragraph 4 of the Written Statement? (3) Whether the defendants are the importers/owner/ consignee of the suit consignment as stated in paragraph 6 of the plaint ? (4) Whether the confiscation of suit consignment incurred pre-confiscation Port Trust charges of Rs.2,45,508.32 as stated in paragraph 8 of the plaint? Whether the (5) plaintiffs are entitled to recover the amount of Rs.2,45,508.32 being the pre- confiscation Port Trust charges in respect of suit consignment together with interest as claimed ? (6) plaintiffs entitled ? To what reliefs, if any, are the (7) What order and generally?

8. The Plaintiffs examined their Assistant 5 Docks Manager, Elias John Almeda. An affidavit in lieu of examination-in-chief dated 17th October, 2007 was filed which reiterated the contents of the plaint and what is stated above. . In his cross-examination, he stated that if the importer does not claim the goods for 1.1/2 to 2 years, the plaintiffs dispose of the same under Section 61 and 62 of the Major Port Trusts Act, 1963. He further stated that in the present case, the plaintiffs did not invoke the said powers within two years since they were completing the formalities for listing the goods for sale. He stated that he cannot state as to how long the plaintiffs take to complete the formalities. Nothing further has been put to the witness.

9. The defendants did not examine any witness. RE-ISSUE NO. 1 NO. 1 : RE-ISSUE RE-ISSUE NO. 1

10. It was contended on behalf of the defendants that the suit having been filed more than three years after the date on which the goods were landed in the Docks at Bombay, the suit is 6 barred by limitation. This point it was virtually conceded is covered by two judgments of learned Board Single Judges of this Court. In the case of Board Board Trustees of the Port of Bombay vs. Ramanlal ofofof Trustees of the Port of Bombay vs. Ramanlal Trustees of the Port of Bombay vs. Ramanlal AIR 2004 Parikh and another, reported in AIR 2004 Mohanlal Parikh and another Mohanlal AIR 2004 Parikh and another Mohanlal BOMBAY 44 44 44. It is inter-alia held that the amounts BOMBAY BOMBAY "become payable" before the goods are removed or shipped or transhipped and that the right to sue to recover the amounts would accrue to the Port Trust on the date on which the goods are to be removed from its premises even if the liability of payment of rates would commence and accrue on a day to day basis from the landing of the goods. In that case also, the goods had been confiscated by the Customs. It was held that limitation would ordinarily start running when the order of confiscation is passed. . This judgment was followed by another learned Single Judge in the case of Board of Board of Board of Trustees of the Port of Bombay Vs. M/s Rainbow of the Port of Bombay Vs. M/s Rainbow Trustees Trustees of the Port of Bombay Vs. M/s Rainbow & Anr. reported in 2007(3) ALL MR 561. Products & Anr. reported in 2007(3) ALL MR 561 Products & Anr. reported in 2007(3) ALL MR 561 Products . Issue No. 1 is therefore, answered in the negative and in favour of the Plaintiff. 7 NO. 2 : RE-ISSUE NO. 2 RE-ISSUE NO. 2 RE-ISSUE

11. It is contended that the Union of India is a necessary party. I do not agree. The Union of India has nothing to do with the disputes between the parties herein. That the Union of India has confiscated the goods makes no difference either. Issue No. 2, is therefore answered in the negative and in favour of the Plaintiff. NO. 3 : RE-ISSUE NO. 3 RE-ISSUE NO. 3 RE-ISSUE

12. There was no dispute that subject to the above contention, the defendants are liable to pay the said amounts. They were importers and are therefore clearly liable under Section 2(O) of the Major Port Trusts Act, 1963. . Issue No.3 is therefore, answered in the negative and in favour of the Plaintiff. NOS. 4 AND 5 : RE-ISSUE NOS. 4 AND 5 RE-ISSUE NOS. 4 AND 5 RE-ISSUE

13. The third and fourth words in issue No. 4 viz. "confiscation of" ought to be deleted and are deleted. 8

14. Although no specific issue was raised, it was contended before me that the plaintiff ought to have exercised its rights under Section 61 and 62 of the Major Port Trusts Act, 1963 and sold the goods within a reasonable time. In the present case, the order of confiscation was passed 2 years, 5 months and 20 days after, the last free date. It was contended that the plaintiffs were guilty of inordinate delay in exercising their rights.

15. Firstly, as noted above, there was no specific issue in this regard. Secondly, the defendants did not lead any evidence as to what constitutes reasonable time in the present case. What is reasonable time would necessarily depend upon the facts of each case. Thirdly, the plaintiffs witness was not even cross- examined in this regard to establish that considering the facts of this case, there was unreasonable delay. In the circumstances, issue Nos. 4 and 5 are answered in the Affirmative and in favour of the Plaintiff. NOS. 6 AND 7 : RE-ISSUE NOS. 6 AND 7 RE-ISSUE NOS. 6 AND 7 RE-ISSUE 9

16. The suit is decreed as prayed. Costs to be quantified as per rules.