The Board of Truestees of the Port of Bombay, a body corporate v. M/s.Cham Ice & Cold Storage, a firm having its place of business

.... Defendants Mr.U.J.Makhija with Ms.Bhalekar i/by Mulla & Mulla & Craigie Blunt & Caroe, for the plaintiff. None for the defendant. CORAM: R.Y.GANOO, J. DATED: 19th JANUARY, 2009. ORAL JUDGMENT :

The writ of summons was served upon the defendants. The defendants have not filed the written statement. Hence, the suit was set down for ex-parte decree. Plaintiffs have filed affidavit of evidence and 2 compilation of documents. Since the written statement was not filed, formal issues are not framed.

The plaintiffs have filed this suit for recovery of Rs.1,77,088.52 and for interest @ 18% p.a., on Rs.1,69,642.83 as set out in the plaint and for costs.

The plaintiffs manage the Port at Bombay in accordance with the provisions of Major Port Trust Act, 1974 (hereinafter referred to as the said Act). The defendants were the importer of cargo in the nature of 41 cartoons said to contain Graphic Art Film manifested at item Nos.168 & 169 in the Import General Manifest No.1147 dated 10-09-1984 of the vessel M.V.Isar Express. The general landing date was 11-09-1984 and and last free day of the cargo was 14-09-1984.

The plaint narrates the plaintiffs' claim as to how they are entitled to recover demurrage charges commonly known as Port Trust Charges. The plaint also narrates as to how the agents of the defendants were informed about the proposed sale. The plaintiffs have also referred to the compliance of the requirements, such as giving notice in the Government Gazette and newspaper as regards intention to sale the cargo for non payment of port trust charges.

According to the plaintiffs, the cargo was sold on 18-12- 1989 for a sum of Rs.2,14,500/-. According to the plaintiffs, port trust 3 charges amounted to Rs.2,21,152/-, Customs duty of Rs.1,41,540.83 and the expenses for sale to be recovered from the defendant were Rs.21,450/-. From and out of sale proceeds, plaintiffs appropriated Rs.21,450/- towards expenses for sale, Rs.1,41,540.83 towards customs duty and Rs.51,509.17 towards port trust charges, leaving a sum of Rs.1,69,642.83 as deficit in the port trust charges. The plaint also narrates as to how the intimation was given as regards the recovery of the balance of port trust charges. The plaintiffs have claimed interest @ 18% p.a. from 28-08-1992 being the date of demand till realization and for costs.

The averments in the plaint have gone unchallenged. The claim of the plaintiffs that the defendants were the owner of the suit goods as consignee under Section 2(O) of the said Act, is made out. The case of the plaintiffs that the defendants were liable to pay the port trust charges is also made out. The plaintiffs have claimed port trust charges from 14-09- 1984 upto 12-01-1985. The suit is instituted on 29-11-1992. Since the cargo was sold on 18-12-1989, the institution of the suit on 29-11-1992 is within the period of limitation as the cause of action accrued on 18-12- 1989, as per Article 113 of the Limitation Act, being the date of sale when the plaintiffs could calculate the actual demurrage charges.

In the absence of any written statement, the averments in the plaint as regards the manner in which the sale was conducted and the 4 appropriation of the sale proceeds towards port trust charges and other dues and the amount unpaid, have gone unchallenged. Accordingly, the plaintiffs are entitled to a decree to the tune of Rs.1,69,642.83.

The plaintiffs have demanded interest @ 18% p.a. So far as this claim of interest is concerned, except a general averment in para No.13 as regards the demand made in the notice dated 28-08-1992, no specific evidence has been placed before the Court as to how the interest @ 18% could be charged. Keeping in view the relevant dates i.e. the date on which the goods were sold and the date on which the suit came to be filed, I am inclined to observe that if interest @ 12% is granted from 28-08- 1992 upto the date of filing of the suit, it would meet the ends of justice. Appropriate decree shall be passed hereunder.

In so far as the interest after the filing of the suit, keeping in view the provisions of Section 34 of CPC, I am inclined to grant interest @ 6% p.m. on the principal amount namely 169,642.83. Plaintiff would of course be entitled to recover the costs of the suit. Keeping in view the aforesaid discussion, I pass the following order. :

O R D E R :

1. The defendants do pay to the plaintiffs a sum of Rs.1,69,642/83.

2. The defendants do pay to the plaintiffs interest @ 12% p.a. 5 from 28-08-1992 upto the date of the filing of the suit on Rs.169,642/83.

3. The defendants do pay to the plaintiffs interest @ 6% p.m., from the date of the filing of the suit till realization on Rs.1,69,642/83.

4. The defendants do pay to the plaintiffs costs of the suit.

( R. Y.GANOO, J. )