The Board of Trustees of the Port of Bombay v. M/s. Harmit Woollen Mills

.......Defendants. Mr. U.J. Makhija a/w Roshan Pinto i/b Mulla & Mulla for the Plaintiffs. CORAM: A.A. SAYED, J. DATED : MARCH 9, 2012.

The suit is filed by the Board of Trustees of Port of Bombay for a recovery of sum of Rs.2,67,866.69 together with interest on the sum of Rs.2,46,362.30 @ 18% p.a. from the date of suit till payment of realization.

The Plaintiffs are the owners of Docks at Mumbai.

In or about November 1986, the Defendants imported a consignment of 125 bales of woolen rags, which were discharged into the custody of the Plaintiffs at the Port of Mumbai from the vessel m.v. ‘Celje’. Prior to the berthing of the said vessel the Agents of the said 2 suit no.1933.92.sxw vessel had furnished to the Plaintiffs an Import General Manifest bearing No. 2606 dated 13th November 1986 showing the cargo which were intended to be discharged from the said vessel at the Port. In the said Import General Manifest, the said consignment was manifested at Item No. 95 and the Defendants were shown as the importer/consignee/owners of the said consignment. The General Landing Date and the Last Free Day of the cargoes of the said vessel fell on 17th November 1986 and 20th November 1986 respectively.

The Defendants who were owners of the said consignment were required to clear the said consignment but they failed to do so. The Plaintiffs therefore called upon the Defendants to clear the said consignment and since they did not so, the Plaintiffs became entitled to sell the said consignment under Sections 61 and 62 of the Major Port Trusts Act, 1963.

By letter dated 2nd February 1989 addressed to the Chairman of the Plaintiff the Defendants requested the Plaintiff to consider favourably their request for remission of the Plaintiffs’ charges and demurrage as they intended to clear the consignment. The request of the Defendants was considered favourably by the Plaintiff and the Plaintiff decided to grant to the said Defendants on ex-gratia grounds 3 suit no.1933.92.sxw remission of demurrage fees in excess of the landed cost viz. Rs. 2,67,139/- of the goods , accruing on the said consignment from the date of clearance.

Accordingly, the Plaintiffs by a letter dated 9th March 1989 addressed to the Defendants, informed the Defendants that the demurrage fees of Rs.2,67,139/- had been sanctioned on ex-gratia grounds provided the said consignment was cleared within three weeks from the date of the said letter.

The Plaintiffs by a further letter dated 11th April 1989 addressed to the Defendants, referred to their earlier letter dated 9th March 1989 and requested the Defendants to clear the said consignment failing which, the Defendants were informed that the same was liable to be disposed off under the relevant provisions of the Major Port Trusts Act, 1963 and any deficit arising would be recoverable from the said Defendants.

The Plaintiffs by letter dated 16th May 1989 addressed to the Defendants sent through the Vessel Agents, M/s. Depe Global Shipping Agencies Pvt. Ltd., informed the Defendants that the said consignment was lying uncleared at “H” Shed Cotton Green, “A” Warehouse, Indira 4 suit no.1933.92.sxw Dock for over two months from the date of landing thereof and as such the same had become liable for sale under the provisions of Sections 61 and 62 of the said Act and if the said consignment was not cleared within 10 days from the date of receipt hereof, the same would be sold on 29th May 1989 or on any other subsequent date without any further notice.

After following due procedure, viz. publication in the Official Gazette and advertisements in newspapers, the said consignment was put up for sale and was sold on 6th July 1989 Lot No. CC/2089 for Rs. 1,22,150/-. The sale proceeds were adjusted in accordance with the provisions of Section 63 of the Major Port Trusts Act, 1963 towards expenses of sale, customs duty and Port Trust charges. After adjusting, the sale proceeds in accordance with Section 63 of the Major Port Trusts Act a sum of Rs. 2,46,362.30 paise remained in deficit towards Port Trust charges which the Plaintiffs became entitled to recover.

By letters dated 21st January 1991, 1st January 1992, and 20th January 1992 the Plaintiffs called upon the Defendants to pay the said amount but the Defendants failed to do so. The Plaintiffs have therefore filed the above suit. 5 suit no.1933.92.sxw

The Defendants have failed to file appearance and Written Statement despite service of Writ of Summons. The claim of the Plaintiffs has gone uncontroverted. The suit is listed for exparte decre.

The Plaintiffs have filed Affidavit in lieu of examination-in-chief and Compilation of original documents, on the basis whereof the claim of the Plaintiffs stands proved. The Plaintiffs have made out a case for grant of reliefs and are entitled to decree under order VIII Rule 10 of Code of Civil Procedure, 1908.

The suit shall stand decreed against the Defendants in terms of prayer clause (a), with the modification that the Plaintiffs shall be entitled to interest @ 9% p.a. on Rs.2,46,360/- from the date of suit till payment or realization. (A.A. SAYED, J.) 6 suit no.1933.92.sxw