Bombay High Court
The Board Of Trustees Of The Port vs M/S. South Iron & Steel Co on 30 April, 2012
Author: Roshan Dalvi
Bench: Roshan Dalvi
1 Suit No.1812_1982
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
jsn ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO.1812 OF 1982
The Board of Trustees of the Port
of Bombay -- Plaintiffs
V/s.
M/s. South Iron & Steel Co., & Anr. -- Defendants
Mr. U.J. Makhija a/w. Mr. Roshan Pinto i/b. Mulla & Mulla for Plaintiff
Mr. Pradeep Mandhyan a/w. Mr.Navin Vimadalal, Mr. Gauraj Shah i/b.
N.V.Vimadala for Defendant No.2.
Date of reserving the Judgment : 12th April, 2012
Date of pronouncing the Judgment : 30th April, 2012
CORAM : MRS. ROSHAN DALVI, J.
JUDGMENT
1. The Plaintiff is the Board of Trustees of Port of Bombay (BPT). Defendant Nos.1 & 2 are stated to be consignees of consignment which came to be imported into India. It is an admitted position that it was imported by defendant No.1. The consignment consisting 56 packages of Cold Rolled Sheets manifested at Item No.93 in the Import General Manifest (IGM) No.1337 dated 18 th October, 1976 of the vessel 'RONNEBURG' arrived in the port of Bombay. 40 packages out of 56 packages were removed to open bonded warehouse and 14 packages are stated to have been sold by the Plaintiff on 5th October, 1979, one package stated to have short landed and one package having been sold earlier on 28 th March, 1977.
2. The present suit relates to the demurrage and other charges claimed by the BPT giving credit for the amount of sale ::: Downloaded on - 09/06/2013 18:29:10 ::: 2 Suit No.1812_1982 proceeds of the sale of the 14 packages called "said consignment" by the Plaintiff.
3. The BPT claims that both the defendants are the owners and importers of the said consignment U/s.2(o) of the Major Port Trusts Act, 1963 (MPT) Act.
4. BPT has accordingly claimed the amount of their charges from both the defendants who would be liable as such owners of the consignment.
5. Defendant No.1 has not defended the suit despite service of the summons since 29th September, 1983 as shown in the original writ of summons submitted to the Court. The Plaintiff would be entitled to an exparte decree against defendant No.1 upon the averments in the plaint remaining uncontroverted by defendant No.1.
6. Defendant No.2 is Union Bank of India whose customer defendant No.1 was under certain credit and overdraft facilities granted by defendant No.2 to defendant No.1 and in respect of which defendant No.2 had obtained certain securities. Defendant No.2 has contested the suit. Defendant No.2 contends that the suit is barred by law of limitation and Bank is not and cannot be the owner of the consignment and hence is not bound and liable in respect of the consignment having been imported and not withdrawn by defendant No.1. Defendant No.2 has sought to contest each of the further claims of the Plaintiff. They deny that the goods short landed. They deny that the due legal process was followed for effecting the sale of the ::: Downloaded on - 09/06/2013 18:29:10 ::: 3 Suit No.1812_1982 goods as required by law under Section 61,62 & 63 of the MPT Act. They also deny that the Plaintiff sold any part of the 56 packages which came to be imported by defendant No.1 under the Item No.97 IGM 1137 on 18th October, 1976.
7. The most material aspect to consider the Plaintiff's claim is to see upon whom the liability is sought to be fixed by the Plaintiff; in other words to see who is the owner of the goods who would be liable to withdraw the goods from the docks and failing which to pay demurrage and other charges to the Plaintiff. Based upon the various disputed facts several issues came to be framed by Justice R.M.S. Khandeparkar, as he then was, on 10 th October, 2003 all of which may not be required to be answered, if the ownership of the consignment is not established against the contesting defendant, defendant No.2 bank. The issues are framed and are answered as follows:
I S S U E S 1 Whether the Plaintiffs prove that the defendant No. Not Nos.1 and 2 are the owners of the suit consignment defendant of 14 packages of cold rolled sheets forming part of No.2 th Item No.93 of the IGM No.1337 dated 18 October,1976 of the vessel S.S. Ronneburg? 2 Whether the plaintiffs prove that they are entitled to Yes from recover a sum of Rs.3,28,904.83 along with interest Defendant thereon from the defendants and as prayed in the No.1.
plaint and on account of the sale deficit arising from No not the sale of the aforesaid suit consignment? from Defendant No.2 ::: Downloaded on - 09/06/2013 18:29:10 ::: 4 Suit No.1812_1982 3 Whether the defendant no.2 prove that there has No been gross delay and negligence on the part of the plaintiffs in selling the entire consignment of 56 packages (which included the aforesaid suit consignment of 14 packages) manifested at Item No.93 of IGM No.1337 dated 18th October,1976 and appropriating the plaintiff's dues from the sale proceeds of the said consignment?
4 Whether the defendant no.2 prove that as Bailees of No the said consignment of 56 packages the plaintiffs are liable to account for all the said 56 packages? 5 Whether the defendant no.2 prove that the plaintiffs Yes are estopped from contending that the defendant No.2 are liable as importers/owners of the suit consignment?
6 Whether the plaintiffs prove that M/s. National No Transports were the clearing agents of defendant No.2 as contended in para 7 of the Plaint?
7. Whether the plaintiffs prove that defendant no.2 No were liable to clear the suit consignment and/or to pay charges thereof to the Plaintiffs?
8 Whether the plaintiffs are estopped from contending Yes that the defendant no.2 are liable as alleged importers/owners of the goods for reasons stated in para 10 of the Written statement?
9 Whether the plaintiffs prove that the defendant no.2 No are liable to pay to the plaintiffs any deficit of Rs.3,28,904.83 or any other amount as claimed in para 8 of the Plaint?
10 Whether the defendants prove that the plaintiffs are No guilty of contributory negligence and are not entitled to recover any charges from the defendant no.2 as contended in para 11 of the written statement?
11 Whether the plaintiffs are liable to account for the No remaining 40 packages as part of the consignment as contended in paras 15 and 16 of the written statement?
::: Downloaded on - 09/06/2013 18:29:10 ::: 5 Suit No.1812_198212 Whether the defendants prove that the auction sale No held on 5th October,1979 is bad in law, illegal and in violation of principles of natural justice and fair play and not binding on defendant No.2 as contended in para 16 of the written statement?
13 What relief and what order? As per final order.
8. Additional issue relating to bar created by Limitation Act came to be framed later which is as follows and is answered as follows:
ADDITIONAL ISSUE Whether the suit is barred by Law of Limitation as ig No contained in Paragraph 1 of the Written Statement of the Defendant No.2.
9. The Plaintiff has led evidence of one of its officers. Defendant No.2 has led evidence of one of its officers. Both witnesses have led evidence as available with them at that time. The issue of the ownership of the consignment, which is the most material issue that would determine the liability of the parties, would be determined only upon documentary evidence, no matter what the witnesses might have to say. It is only upon the determination the issue of the ownership that the main relief to the Plaintiff would be required to be considered.
10. Issue Nos.1,5,7 & 8 relate to the ownership of the consignment and the consequent rights and obligations of the owner. These issues shall be answered together. Issues relating to bailment and the liability under the Law of bailment are in issue Nos.4 & 11 which also need to be answered together.
::: Downloaded on - 09/06/2013 18:29:10 ::: 6 Suit No.1812_1982ISSUE NOS.1,5,7 & 8.
11. An owner under section 2(o) of the MPT Act is defined thus:
(o) "owner", (i) in relation to goods,includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods.
12. The Plaintiff contends that the defendant No.2 is the consignee. Hence he is an owner. The Plaintiff has not shown in the plaint how defendant No.2 has become a consignee. My specific attention has been drawn by counsel of defendant No.2 to the bare averments in paragraph 2 as well as 6 of the plaint with regard to ownership of the consignment. In Paragraph 2 both the defendants are shown as owners/importers of the goods. In paragraph 6 defendant No.1 and/or defendant No.2 are shown as importers and/or owners of the consignment. The Plaintiff has not shown any documentary evidence to show or suggest that defendant No.2 is the owner of the consignment. The Plaintiff has annexed certain correspondence after the import of the goods and prior to the filing of the suit in the plaint. The Plaintiff has not annexed the document of title in respect of the consignment being the Bill of Lading (B/L).
Defendant No.2 called upon the plaintiff to produce the B/L. That has been produced in the evidence of the witness on behalf of the Plaintiff. The B/L is the document of title. There is presumption as to correctness of the B/L under Section 4 of the the Commercial Documents Evidence Act. The B/L is, therefore, to be read in evidence.
13. The suit B/L is issued on 29th August, 1976. It is cleared on 21st October, 1976. The B/L shows the defendant No.2 bank as the ::: Downloaded on - 09/06/2013 18:29:10 ::: 7 Suit No.1812_1982 consignor. The reverse of the B/L shows defendant No.2 bank having endorsed the B/L to one National Transport Company against payment of all charges. It is, thereafter received by the partner of National Transport Company, the consignee of the B/L.
14. The fact of the consignment has to be seen. Once the consignor endorses it to another and that person as the endorsee accepts the endorsement he becomes the assignee of the B/L and steps into shoes of the endorser/assigner. The endorsee is the transport agent. He is stated to be the clearing and forwarding agent not of defendant No.2 but of defendant No.1, the importer.
15. Consequently, under the definition of owner whilst the defendant No.2 Bank could have initially been the owner, being shown as consignee of the goods though not admittedly having imported goods under the B/L, upon the endorsement of the B/L, the agent for unloading all the goods would become the owner in place of the consignee. Under the aforesaid definition in all the four persons mentioned therein including consignee or the unloading agent would become the owner of the imported goods. These persons cannot become the owner at the same time.
16. Hence it would have to be seen at what material time who was the owner. At the time the vessel came into port of Bombay Defendant No.2 bank was the owner, being the consignee. Upon the defendant No.2 endorsing the B/L to National Transport Company and the partner of National Transport Company accepting B/L had become owner and defendant No.2 ceased to be the owner. This was ::: Downloaded on - 09/06/2013 18:29:10 ::: 8 Suit No.1812_1982 after the goods reached the port of destination and had to be unloaded and removed from the BPT premises.
17. It would require to be seen how and why defendant No.2 came to be shown as consignee and how and why defendant No.2 would endorse the bill to another party. Defendant No.1 is the customer of defendant No.2 bank. This fact has been shown by defendant No.2 bank by production of the carbon copy of the account of defendant No.1 with defendant No.2 being Loan Against Mercantile (LAM) (TAS) account showing an account of mercantile transactions of Defendant No.1 kept by defendant No.2 and certified as the true extract under the Bankers' Book Evidence Act issued under the seal of defendant No.2 and signature of its officer. These documents also carry a presumption of their correctness and accordingly require to be read in evidence in support of the fact that Defendant No.1 was the customer of Defendant No.2. The entry dated 20 th October, 1976, a day prior to B/L being endorsed upon delivery of the consignment, a sum of Rs.15,91,145.40 came to be withdrawn by defendant No.1 from the account maintained with defendant No.2.
18. In view of various withdrawals made by defendant No.1 in LAM account maintained by them, Defendant No.2 required security. One such security was the B/L. Upon defendant No.1 having discharged the liability to defendant No.2, Defendant No.2 would not keep the B/L as security. Defendant No.2 would then endorse the B/L in favour of defendant No.1 or its agent. The endorsement is in favour of National Transport Company, who are stated to be the clearing agents of defendant No.1 upon endorsing and assigning the ::: Downloaded on - 09/06/2013 18:29:10 ::: 9 Suit No.1812_1982 B/L, Defendant No.2 ceased to have the security and ceased to be the consignees and the consequently owners of the consignment under the B/L.
19. The fact that National Transport Company were clearing agents of defendant No.1 is reflected in the delivery order issued by the agents of vessel through which their goods were imported showing them as the persons to whom the consignment was to be delivered. It is based upon the order that the said clearing agents would be entitled to take delivery upon the presentation of the B/L. Hence the endorsement made in favour of National Transport Company and accepted by the National Transport Company would transfer the actual delivery of the B/L from defendant No.2 to the clearing agents to enable them to take delivery. The Delivery Order relied upon by the Plaintiff dated 21 st October, 1976 when the goods were discharged at the port of destination is reflected in the B/L. The Delivery Order shows 56 Cold Rolled Sheets. The endorsement on the delivery order marked Exh. P.1 in evidence and the shed delivery order dated 8th October, 1976 showing IGM No.1137 and Bill of Entry No.93 produced by the plaintiff and marked Exh. P.2 in evidence show that 40 packages were sent to bonded warehouse and 16 packages remained. The said delivery order carries similar description as in the B/L and shows National Transport Company as consignee. The aforesaid two documents show that not defendant No.2 but National Transport Company were consignee and consequently the owners of the suit consignment. Consequently, National Transport Company came to be shown as consignees in the place and stead of defendant No.2 upon B/L being endorsed to them.
::: Downloaded on - 09/06/2013 18:29:10 ::: 10 Suit No.1812_198220. Since the Plaintiff has sought to sell 14 packages out of 56 packages received under the B/L and has sought to publish the desired sale in the official gazette, my attention is drawn by counsel on behalf of Defendant No.2 to the copy of the government gazette dated 17th March, 1977 under which the said 14 packages were sought to be sold by public auction between 28 th to 31st March and 1st and 2nd April, 1977 relied upon by BPT itself. The list of the various items including the suit consignment are described in the publication. Each of the consignments show the place where the consignment was lying, alongwith the articles and the name of the consignee. Only the suit consignment shows the description of the articles and the place where it was lying but without the name of the consignee. Defendant No.2 is specifically not shown as consignee therein.
21. Defendant No.2 has produced correspondence entered into by it with the BPT being letters dated 5 th March, 1980 and their reply dated 22nd July, 1980 forming a chain of correspondence which is marked Exh.B.3 & B4 in evidence and is accordingly required to be read in evidence. The initial letter of defendant No.2 bank shows the general lien claimed by the defendant No.2 upon the certain goods which came to be imported under aforesaid B/L. It refers to 40 bundles stored in BPT bonded warehouse under bond No.1658 dated 21st January, 1976. It must be remembered that 56 packages came to be imported under one B/L. 40 of them came to be sent to the bonded warehouse of the BPT as endorsed on delivery order Exh.P.1. The letter is in respect of these 40 bundles. Defendant No.2 claims a general lien over those goods. Defendant No.2 has shown the account of defendant No.1 in the subject matter of the letter. BPT has in its ::: Downloaded on - 09/06/2013 18:29:10 ::: 11 Suit No.1812_1982 reply stated that it would have to enquire whether the consignee has paid the charges and that once they were paid by the consignee. BPT would deliver the goods to them or their clearing agents. Hence BPT has sought to ignore general lien claimed by the Plaintiff over those goods. The fact of the claim of the general lien itself shows that the Plaintiffs are not owners themselves, but claim a right of an unpaid seller. The letter written by the BPT in reply to the letter of Defendant No.2 bank which is dated 22nd July, 1980 shows that the consignees are other than defendant No2. Consequently, until 22 nd June, 1980 the BPT had not sought to make any claim upon the defendant No.2 bank as the owner of the suit consignment.
22. These letters have to be read further along with other notices issued by BPT about 6 months after the goods landed in the port of Bombay and were not cleared BPT issued its notice dated 11 th March, 1977 upon the agent of the vessel, Marine Transport Company (P). Ltd. and the clearing agents of the importer, National Transport Company. These letters have been received by the aforesaid two agents under their stamp and signature and are marked Exh.P.3 in evidence. No such notice has been issued upon defendant No.2 in March, 1977.
23. The Plaintiff is shown to have issued various notices dated 28th November, 1977, 8th February, 1978, 23rd June, 1978, 4th July, 1979, 10th September,1981, 4th December, 1981, 6th May, 1982 and 11th June, 1982 all upon the defendant No.1 as the importer of the suit consignment and the goods under the B/L marked Exh.P.4 to P.11 in evidence. Until then no notice has been issued upon ::: Downloaded on - 09/06/2013 18:29:10 ::: 12 Suit No.1812_1982 defendant No.2. This would not have been the case after defendant No.2, as the official consignee, was taken to be the owner of the suit consignment after the endorsement of the B/L.
24. The aforesaid documentary evidence conclusively shows that though defendant No.2 was the initial consignee, it ceased to be so upon the endorsement of the B/L and consequently though deemed to be owner initially ceased to be owner upon the endorsement of the B/L when the unloading agent, who was clearing agent of the importer, defendant No.1, accepted the B/L and took delivery of the consignment including all the goods imported under the B/L as per the shed delivery order issued by BPT itself showing it as the consignee.
25. In paragraph 4 of the cross examination P.W.1 on behalf of the BPT has admitted that defendant No.1 importer and that an importer and consignee are the one and the same. Paragraph 5 of the cross examination he has further admitted that National Transport Company was the clearing agent of the defendant No.1.
26. Consequently, the defendant No.2 are not and cannot taken to be an owners of suit consignment of 14 packages of Cold Rolled Sheets forming part of item No.93 of IGM 1137 dated 18 th October,1076. Hence Issue No.1 is answered in the negative, Issue No.5 in the affirmative, Issue No.7 in the negative and Issue No.8 in the affirmative.
ISSUES NO.6
27. It has been wrongly contended that National Transport Company was the clearing agent of the defendant No.2. Defendant ::: Downloaded on - 09/06/2013 18:29:10 ::: 13 Suit No.1812_1982 No.2 is the Nationalised Bank. Defendant No.2 could not have and has not imported Cold Rolled Sheets, if National Transport Company, was the agents of the defendant No.2. Defendant No.2 could not have endorsed the B/L as an agent. They cannot become principal by virtue of having transferred the ownership of the goods under the B/L. The fact of the endorsement itself shows that they are not agents of the endorser. They would be the agents of the another party. The bank account show that defendant No.1 is the customer of the defendant No.2. Defendant No.1 has admittedly the importer as shown in the correspondence of the Plaintiff and admitted by witness on behalf of the Plaintiff. The clearing agents would be agents of the importer and not of the bank who has taken the document of title of the consignment as security. The endorsement would be upon the bank charges being paid when the endorsee would get title. No agent of any endorser can derive title. Hence even aside from the specific admission of the witness on behalf of the Plaintiff, the Plaintiff has not shown that National Transport Company was the clearing agent of defendant No.2. Hence Issue No.6 is answered in the negative.
ISSUE NOS.2,9 & 1328. BPT has claimed recovery of the amount of the sale as shown in the letters address by them to defendant No.1 dated 10 th September,1981, 4th December, 1981, 6th May, 1982, 11th June, 1982 and 23rd August, 1982. None of such letters are addressed to defendant No.2 (and rightly so because defendant No.2 were not owners of the consignments by then). The Plaintiff, therefore, cannot not be entitled to recover the amount under those notices from defendant No.2. Defendant No.2 is not liable to pay the Plaintiff the ::: Downloaded on - 09/06/2013 18:29:10 ::: 14 Suit No.1812_1982 amount claimed or any part thereof.
29. Defendant No.1 has not refuted the claim of the Plaintiff, defendant No.1 has received the aforesaid notices but had not replied to them. The averments and statements of the Plaintiff with regard to the sale including the statements with regard to the expenses of the sale, custom duty, ITC fine BPT charges etc. remain uncontroverted by defendant No.1. The Plaintiff is, therefore, entitled to recover Rs.3,28,904.83 along with interest thereon as prayed for in the plaint from defendant No.1 and not from defendant No.2.
ISSUE NOS.3,10 & 12.
30. The goods were imported by defendant No.1 in to the port of Bombay were not removed by defendants. The Plaintiff became entitled to sell the goods under the provisions of Section Nos.61 & 62 of the MPT Act. The relevant parts of these sections runs thus:
(61) Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged. (1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, ..... sell by public auction 1[ or in such case as the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner], such goods or so much thereof as, in the opinion of the Board, may be necessary--
(a) if any rates payable to the Board in respect of such goods have not been paid, or
(b) .....
(c) .....
(2) Before making such sale, the Board shall give ten days' notice of the same by publication thereof in 1[ the Port Gazette, or where there is no Port Gazette, in the Official Gazette] and also in at ::: Downloaded on - 09/06/2013 18:29:10 ::: 15 Suit No.1812_1982 least one of the principal local daily newspapers: Provided that in the case of animals and perishable or hazardous goods, the Board may give such shorter notice and in such manner as, in the opinion of the Board, the urgency of the case admits of.
(3) If the address of the owner of the goods has been stated on the manifest of the goods or in any of the documents which have come into the hands of the Board, or is otherwise known, notice shall also be given to him by letter delivered at such address, or sent by post, but the title of a bona fide purchaser of such goods shall not be invalidated by reason of the omission to send such notice, nor shall any such purchaser be bound to inquire whether such notice has been sent.
(4) .....
62. Disposal of goods not removed from premises of Board within time limit.
(1) Notwithstanding anything contained in this Act, where any goods placed in the custody of the Board upon the landing thereof are not removed by the owner or other person entitled thereto from the premises of the Board within one month from the date on which such goods were placed in their custody, the Board may, if the address of such owner or person is known, cause a notice to be served upon him by letter delivered at such address or sent by post, or if the notice cannot be so served upon him or his address is not known, cause a notice to be published in 1[ the Port Gazette or where there is no Port Gazette, in the Official Gazette] and also in at least one of the principal local daily newspapers, requiring him to remove the goods forthwith and stating that in default of compliance therewith the goods are liable to be sold by public auction 2[ or by tender, private agreement or in any other manner]:
Provided that where all the rates and charges payable under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board.
(2) The notice referred to in sub- section (1) may also be served on the agents of the vessel by which such goods were landed. (3) If such owner or person does not comply with the requisition in the notice served upon him or published under sub- section (1), the Board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction 2[ or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing sell by tender, private ::: Downloaded on - 09/06/2013 18:29:10 ::: 16 Suit No.1812_1982 agreement or in any other manner] after giving notice of the sale in the manner specified in sub- sections (2) and (3) of section 61.
31. It may be mentioned that there is no statutory obligation upon the BPT to sell the goods. The first part of Section 61(1) itself makes the position very clear by the word 'may'. However, the BPT is entitled to its demurrage as well as other charges. Those are the rates payable to the BPT which have not been paid. The only property from which the BPT would recover rates is the goods lying in its warehouse or otherwise in the port premises.
32. To sell the goods there is no statutory period of limitation also prescribed in the aforesaid petition. The only prescription is that goods cannot be sold for two months whilst they are in the custody of the BPT. This is to give a reasonable time to the importer to remove the goods upon paying demurrage since the importer, or to anyone to whom goods are endorsed, as owners of the goods, would be entitled to the proprietary rights in the goods. Since goods cannot be kept endlessly claiming such proprietary rights, the BPT has been given statutory power of sale after expiry of two months.
33. There is, however, no limitation period beyond which the goods cannot be sold. In the absence of that, the BPT would require to sell the goods within reasonable period after two months from the time the goods come into the custody of the BPT. Mr. Makhija rightly argued that the provisions of the aforesaid section are with a view to removing congestion in the port premises, so that the port premises cannot not be used as private warehouse by the any importer. There should be free flow of goods, so that further consignments received ::: Downloaded on - 09/06/2013 18:29:10 ::: 17 Suit No.1812_1982 into the port authority premises could be stacked therein. Hence whenever the BPT considers that space consumed by the goods needs to be cleared for fresh cargo, it would be entitled to to create space by selling and then disposing off the goods lying uncleared. Until then, the BPT would be entitled to keep the goods stacked and claim demurrage.
34. The documents produced by the BPT shows that the initial notice of sale of cleared or uncleared cargo was given to National Transport Company P. Ltd. on 11 th March, 1977. In fact the Defendant No.2 have relied upon that notice to show that the BPT accepted National Transport Company as the owner being the endorsee under the B/L.
35. The BPT would have to follow the provisions of Section 61 & 62 for the same. Having known the address of the owner of the goods, National Transport Company, the BPT has sent the notice to them which is received under that rubber stamp on 18 th March, 1977. The date of the sale shown in the notice 28 th March,1977 and 1st / 2nd April, 1977 alongwith other goods lying with BPT. The ten days notice required U/s.61(2) is complied. The delivery of the Notice and its acknowledgment shows that Section 61 (3) and Section 62(1) has been complied. This notice could not have been given before two months period of time having expired from the time the goods were received in the port under Section 61(1) as well as the proviso to Section 62 of the MPT Act.
36. Despite receipt of the notice National Transport Company ::: Downloaded on - 09/06/2013 18:29:10 ::: 18 Suit No.1812_1982 did not remove the goods. The BPT became entitled to sell the goods 10 days thereafter. They were notified to be sold on 28 th March, 1977 and 1st /2nd April,1977.
37. The BPT thereafter informed defendant No.1 who are the importers on 28th November, 1977, 8th February,1978, 23rd June, 1978 and 4th July, 1979. This was because they accepted defendant No.1 to be the owners and National Transport Company to be the endorsees of the owners to collect the goods.
38. The BPT claims to have sold the goods by public auction on 5th October, 1979. This has been mentioned by BPT in their letters dated 10th September, 1981, 4th December, 1981, 6th May, 1982, 11th June,1982 and 23rd August, 1982 to defendant No.1.
39. The BPT, therefore, has notified the sale of the goods in its custody two months after it came in its custody to the owners as also their unloading agents and thereafter exercised the power of sale by public auction U/s.62(3) of the BPT Act.
40. The aforesaid chronology does not show any such gross delay and negligence on the part of BPT as to disentitle it from exercising the power of sale. This would also not tantamount to contributory negligence on the part of BPT to recover their charges from any person. Similarly, it is seen that the sale is held upon following the procedure prescribed under 61 & 62 of the MPT Act. Consequently the issue Nos.3,10 & 12 are answered in the negative.
::: Downloaded on - 09/06/2013 18:29:10 ::: 19 Suit No.1812_1982ISSUE NO.4 & 11.
41. It is contended on behalf of the Defendant No.2 by Mr. Mandhyan that 56 parcels were imported into Bombay port under Item No.93 Import General Manifest (IGM) No.1337 dated 18 th October, 1976. The BPT must account for each of those 56 parcels. The BPT has sought to sell only 14 parcels and the BPT claims recovery of amounts only under those 14 parcels. Since the BPT did not claim any amount from either of the defendants in respect of the remaining parcels, there is no reason for BPT for account further.
Hence Issue No.4 & 11 are answered in the negative.
Hence the following order.
1. The suit is decreed as prayed against defendant No.1.
2. The suit is dismissed against defendant No.2.
3. No orders as to costs.
( ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 18:29:10 :::