ORDINARY ORIGINAL CIVIL JURISDICTION v. M/s.O.E.N. India Limited

plaintiff is the owner of the Docks at Bombay. Under the provisions of Major Port Trusts Act, the plaintiff is authorised to take charge of the goods landed from the ships coming to Bombay. The plaintiffs are entitled to charge and levy wharfage, demurrage and other charges in respect of goods landed and stored by the plaintiffs in the docks at Bombay. The charges are to be levied according to the scale of rates duly prescribed, published and brought into force under the provisions of the Act. The plaintiff also has a right to realise its charges by sale of the consignment in respect of which charges accrued.

2. It is the case of the plaintiff that in September, 1983 defendant imported a consignment of three cases containing electrical switches. The 1 consignment which was manifested at item No.19 of the Import General Manifest No.1428 dated 26.9.1983 of the vessel by name S.S.Vishava Parag was discharged into the docks at Bombay and the General Landing Date and the Last Free Day of the cargo of the said vessel were 26.9.1983 and

29.9.1983 respectively.

3. According to the plaintiff, the Defendants failed to take delivery and clear the consignment within the stipulated period and thus being importer/owners/consignees, the defendants were bound and liable to pay charges. As the defendants failed to take delivery of the consignment for a period of over two months, the plaintiff issued reminders/notices to the defendants, the the consignment was liable to be put for sale under the provisions of sections 61 and 62 of the said Act and that the same would be sold in the auction. Repeatedly the plaintiff intimated the defendants about the proposed sale by auction of the consignment. The defendants did not respond to the notices served by the plaintiff proposing to put the consignment for sale. The defendants by their letter dated 25.7.1984 addressed to the Customs a copy of which was forwarded to the plaintiff, informed that they had abandoned the said consignment and denied its liability to pay the charges to the plaintiff. The consignment was put for auction on 29.12.1986 and in the auction it realized an amount of Rs.26,000/- and after giving credit for the amount received in the auction sale, the plaintiff had to further recover the balance sum and hence the present suit has been filed claiming a decree in the sum of Rs.4,59,232/80 together with future interest at the rate of 15% p.a. In the sum of 2 Rs.4,57,727/95. The said amount is inclusive of Port Trust Charges, Customs Duty and expenses of sale. The defendant did file the written statement. Having regard to the pleadings, this Court framed the issues. I have recasted issue No.1. My findings on the issues are recorded herein below: ISSUES Findings 1) Whether this Court has jurisdiction to entertain Yes. the suit? 2) Whether the suit is time barred as alleged in para No 2 of the written statement? 3) Whether the suit is liable to be dismissed for non- No joinder of necessary and proper parties as alleged in para 3 of the written statement of the defendants? 4) Whether the plaintiffs are guilty of gross negligence, No. delay and latches as alleged in para 5 of the written statement of the defendants? 5) Whether the plaintiffs prove that the defendants are the importers and/or owners and/or consignees of the suit consignment within the meaning of section 2(o) of the Major Port Trusts Act as stated in paras 2 and 3 of the plaint? Yes 6) Whether the plaintiffs prove that the defendants were bound and liable to take delivery of and clear the said consignment and that they failed to do so as stated in para 5 of the plaint? Yes 7) Whether the plaintiffs prove that the defendants are liable to pay wharfage, demurrage and other charges Yes 3 which accrued thereon as stated in para 5 of the plaint? 8) Whether the plaintiffs prove that they are entitled to the sum of Rs.4,59,232.80 with interest @ 15% per annum on the sum of Rs.5,57,727.95 from the date of the suit till payment and/or realization and cost of the suit as stated by the plaintiffs in prayer (a) of the plaint? Yes 9) To what relief, if any, the plaintiffs are entitled to as against the defendants? As per the order.

4. The plaintiff has filed documents on record and has proved the same by filing affidavit of examination in chief of its witness. When the witness was produced for being cross examined, the defendant and the advocate remained absent and hence the witness for the plaintiff has not been cross examined. Thus the case of the plaintiff goes uncontroverted.

5. The only issue which needs to be carefully examined before passing of decree against of the defendant is in regard to limitation. According to the defendant, the suit deserves to be dismissed being barred by limitation. The question therefore that arises for consideration is as to when does the period of limitation commence when the suit is filed u/s.131 of the Major Port Trusts Act? It is obvious that the limitation is of three years. According to the learned counsel for the plaintiff, having regard to the provisions of section 131 read in the light of sections 61 and 62 of the Major Port Trusts Act, the limitation would commence from the date of sale of the consignment and the remedy by way of a suit u/s.131 is an alternative remedy. The learned counsel for the plaintiff places reliance on 4 a division bench judgment of this Court reported in the case of The Trustees of the Port of Bombay v/s M/s.Jayantilal L. Gandhi, AIR 1979 Bom. 12. The issues that feel for consideration of the division bench was in relation to interpretation of section 67-A of the Bombay Port Trusts Act which is para materia with section 131 of the Major Port Trusts Act and hence the analogy applied while interpreting section 67-A of the Bombay Port Trust Act would be applicable while construing section 131 of the Major Port Trusts Act read with article 113 of the Limitation Act. The division bench held in paras 10 and 13 thus: “10. This is a suit to recover the balance of the wharfage and demurrage charges, after giving credit for the sale proceeds. Such amount of deficit could only be ascertained when the auction sale took place on February 6, 1964 and since the appellants have adopted the remedy permitted to them under section 67-A of the Act, the cause of action for such a suit arose when such deficit was determined upon an auction sale having effectively taken place. Thus, under section 67-A of the act the cause of action to recover the balance of the amount, after giving credit for the sale proceeds, accrues, for the first time, when the sale took place, and the deficit of the balance of the amount recoverable is ascertained. Thus, clearly under section 67-A of the Act to recover the amount, the cause of action accrues when such deficit or balance of the amount to be recovered is ascertained. That, event took place in the present case on February 6,

1964. 5

13. This is not a suit to claim wharfage and demurrage simpliciter. This is a suit to claim the balance of the amount which can be claimed by the appellants in respect of wharfage and demurrage charges after credit is given for the sale proceeds realised upon the auction of the goods and for such a suit a clear provision is made in section 67-A of the Act. It should not be overlooked that section 67-A of the Act starts with a non obstante clause and its provisions are applicable `notwithstanding anything contained in the seven sections last preceding and in section 85' . As we have earlier stated, the deficit or the balance of the amount claimable can only be ascertained after the auction sale is held therefore, it is not possible for us to accept the contention that the amount claimed in the present suit in respect of wharfage and demurrage charges should be regarded as one for which the cause of action accrues from day to day. Since the cause of action, in our opinion, for the first time, arose when the auction sale took place and that event took place after the Limitation Act, 1963, came into force there is no question of the provisions of section 30 of the that act being attracted at all. In that view of the matter, since the present suit has been filed after the expiry of the period of three years from the date of accrual of the cause of action, it is clearly barred by limitation under Article 113 of the Limitation Act, 1963. As a finding on the point of limitation is sufficient to dispose of the appeal, it is unnecessary for us to go into other questions which were agitated before the learned Judge in respect of which findings have been given 6 against the appellants.”

6. The division bench has held that this is not a suit filed for recovery of wharfage and demurrage charges simpliciter, but the suit is filed for the purposes of recovery of the amount of balance in respect of wharfage and demurrage charges after giving credit for the sale proceeds. The present suit as well is for recovery of the balance amount. In view of the said judgment I have no hesitation in concluding that the suit is filed within the period of limitation in as much as the consignment was put to sale and was sold on 29.12.1986 and the suit came to be filed on 28.12.1989, i.e. Within a period of three years. All the documents including the notices sent by the plaintiff to the defendants on the basis of which the plaintiff relies for obtaining a decree against the defendants are proved on record and marked as Exhibits P-1 to P-18. Even otherwise the said documents shall be deemed to have been admitted by the defendants in view of the fact that the plaintiff did send the notices under Order XII Rule 2A of Civil Procedure Code, calling upon defendants to admit the documents. But despite such notice, the defendants failed either to deny or admit the documents as a consequences of which the defendants shall be deemed to have admitted the documents. In this view of the matter, it is crystal clear that the plaintiffs have established its claim in the suit and hence decree together with interest ought to follow. Hence the following order.

7. The suit of the plaintiff is decreed. The defendants shall pay to the plaintiff a sum of Rs.4,59,232.80 together with interest at the rate of 15% per annum on the sum of Rs.4,57,7127.95 from the date of filing of the suit 7 till realisation of the amount. The suit is decreed with costs. Decree be drawn accordingly. 8