Kerala High Court
M/S.Maersk India Pvt.Ltd vs The Chairman on 7 July, 1997
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
MONDAY, THE 7TH DAY OF JULY 2014/16TH ASHADHA, 1936
OP.No. 14862 of 2002 (T)
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PETITIONER:
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M/S.MAERSK INDIA PVT.LTD.,1ST FLOOR,
PILMEN BUILDING, 24/1406, BRISTOW ROAD,
W/ISLAND, KOCHI-3 REP.BY ITS ASSOCIATE OFFICER,
MR.DOUGLAS JOHNSON, AGED 32 YEARS, S/O. K.V.JOHNSON.
BY ADVS.SRI.V.J.MATHEW
SRI.P.P.RAJESH
SRI.SABU P.JOSEPH
RESPONDENTS:
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1. THE CHAIRMAN, COCHIN PORT TRUST,
W/ISLAND, KOCHI-9.
2. BOARD OF TRUSTEES, COCHIN PORT TRUST,
W/ISLAND, KOCHI-3, REP.BY ITS CHAIRMAN.
3. THE COMMISSIONER OF CUSTOMS (IMPORTS)
CUSTOMS HOUSE, KOCHI-9.
4. M.K.WOOLLENS,10671 OLD OCTORI POST,
SULTANWIND ROAD, AMRISTAR, PUNJAB,
INDIA.
R1,2 BY ADV. SRI.A.K.JAYASANKAR NAMBIAR
R3 BY ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC
SRI.JOHN VARGHESE, SCGSC
BY ADV. SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD
ON 07-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
pk
OP.No.14862 of 2002 (T)
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APPENDIX
PETITIONERS EXHIBITS:
EXT.P1:LETTER DTD.10.5.1999 ISSUED BY THE PETITIONER TO THE
RESPONDENT NO.4.
EXT.P2:LETTER DTD 26.21.2000 ISSUED BY THE PETITIONER TO THE
RESPONDENT NO.1 & 2.
EXT.P3:LETTER DTD 30.8.2000 ISSUED BY THE PETITIONER TO THE
RESPONDENT NO.1 & 2.
EXT.P4:LETTER DTD 6.5.2002 ISSUED BY THE PETITIONER TO THE
RESPONDENT NO.1 & 2.
EXT.P5:CIRCULAR NO.84/95 DTD 25.7.1995 ISSUED BY GOVT.OF INDIA MINISTRY
OF FINANCE (DEPT. OF REVENUE).
EXT.P6:CIRCULAR F NO.450/82/95 DATED 7.7.1997 ISSUED BY GOVT.OF INDIA
MINISTRY OF FINANCE (DEPT. OF REVENUE).
EXT.P7:CIRCULAR NO.5/2000 DTD 13.1.2000.
EXT.P8:COPY OF THE STAY ORDER DTD.29.3.2000 IN CMP NO.16143/2000 IN
O.P.NO.9711/2000 PASSED BY THE HONOURABLE HIGH COURT OF
KERALA.
EXT.P9:THE TRUE COPY OF THE ORDER DATED 3.12.2002 IN CMP NO.6743/2002
IN W.A. NO.2567/2002.
EXT.P10:THE TRUE COPY OF THE ORDER IN I.A NMO.2341/2003 IN CMP
NO.6743/2002 IN W.A.NO.2567/2003 DATED 16.12.2003.
EXT.P11:TRUE COPY OF THE ORDER IN I.A.NO.2593/2003 IN W.A.NO.2567/2003
DATED 16.12.2003.
EXT.P12:THE TRUE COPY OF THE LETTER DATED 9.6.2004 ISSUED BY THE
PETITIOINER TO THE 1ST AND 2ND RESPONDENTS.
EXT.P13:THE TRUE COPY OF THE LETTER DATED 21.6.2004 ISSUED BY THE
TRAFFIC MANAGER, COCHIN PORT TRUST TO THE PETITIONER.
RESPONDENTS EXHIBITS: NIL
//TRUE COPY//
P.D. RAJAN, J.
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O.P. No. 14862 of 2002-T
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Dated this the 7th day of July, 2014
J U D G M E N T
This writ petition is filed under Article 226 of the Constitution of India by the petitioner which is a company registered under the Indian Companies Act having its registered office at Mumbai. The petitioner, who is doing business in the field of shipping and steamer agents for vessel/containers by name Mearsk now called Mearsk Sealand operating also from the Port of Cochin, has approached this Court with this petition for a direction to destuff the cargo from the container lying in the Port Trust and to auction the cargo in dispute and to refund the amount illegally debited from the petitioner.
2. Petitioner contended that the first respondent is bound to discharge their obligations and duties under the Major Port Trusts Act, 1963 (hereinafter referred to as "MPT Act") including the power to sell O.P. No. 14862 of 2002-T 2 and dispose of the cargo under their custody. The procedure for obtaining delivery of the cargo from the Port premises was not properly followed. Respondent No. 4 is the owner of the goods or consignee under the Bill of Lading who did not clear the cargo properly. In the circumstance the petitioner has incurred heavy loss. The Port Trust debited Rs.2,96,861/- and Rs.6,82,700/- on 20.12.1999 and 30.5.2000 from the account of the petitioner. In the circumstance the petitioner approached this Court for a direction to the respondents 1 to 3 to auction the cargo in dispute and to realise the ground rent and other charges payable under the Major Port Trust Act and to pay the balance sale proceeds if any, to the petitioner and further to recover all pending charges, if any, from respondent No.4 who is the owner of goods.
3. The 1st and 2nd respondents did not file any counter affidavit. In the counter affidavit filed by the 3rd respondent it is contended that the Circular O.P. No. 14862 of 2002-T 3 No. 85/95 referred is not applicable in this case since Customs Department has not detained any goods. As soon as the Bill of Entry was filed, order for examination was given under first appraisement system. But the party did not produce the goods for examination. Subsequently, on the request of Importer, Bill of Entry was assessed and duty was collected under second appraisement system and returned to the importer to produce the goods for examination under second appraisement system which was done as per declaration and examination since it was not destuffed by Port Trust.
4. Heard. Now the question that arises for consideration is whether the petitioner is entitled to get the cargo cargo destuffed from the FCL container which is lying at Cochin Ports C.Y.(Rajeev Gandhi Container Terminal) of the respective shipping lines beyond a period of two months from the date of its landing?. According to Section 42 of the Major Port Trusts O.P. No. 14862 of 2002-T 4 Act, 1963 the Board shall have power to undertake the services such as receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises. As per Section 61, the Board may after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty-four hours after the landing of the animals or goods as the Board may think fit, sell them by public auction. The petitioner's case is that the container was detained in the Port Trust for several months and Rs. 2,96,861/- and Rs.6,82,700/- were debited from his account. Even after repeated demands the first and second respondents have not taken any decision.
5. To comprehend the above aspect the rights and liabilities of the Board, owner of the goods, consignee and agents, it is necessary to refer the relevant O.P. No. 14862 of 2002-T 5 provisions prescribing the role of each parties, their lien and priority of the sale proceeds etc. Section 59 of the MPT Act deals with the lien of the Board for rates and Section 60 is that of the Ship owner for freight and other charges respectively. Sub-section (2) of Section 59 says that the lien of the Board shall have priority over all other liens and claims, except for general average and for Ship owners' lien upon the said goods for freight and other charges, where such lien exists and has been preserved in the manner provided in Sub- section (1) of Section 60 and for money payable to Central Government, under any law for the time being in force relating to Customs, other than by way of penalty or fine. According to Section 60 if the master or owner of any vessel or his agent, at or before the time of landing from such vessel any goods at any dock, wharf, quay, stage, jetty, berth, mooring or pier belonging to or in the occupation of a Board, gives to the Board a notice in writing that such goods are to remain subject to a lien O.P. No. 14862 of 2002-T 6 for freight or other charges payable to the ship-owner, to an amount to be mentioned in such notice, such goods shall continue to be liable to such lien for such amount. While sub-section (2) of Section 60 stipulates that the goods shall be retained in the custody of the Board at the risk and expense of the owners of the goods until such lien is discharged and godown or storage rent shall be payable by the party entitled to such goods for the time during which they may be retained.
6. The failure to pay the rates of rent payable to the Port or the freight and its consequence is stipulated under Section 61, while Section 62 deals with the disposal of goods not removed from the premises of the Port Trust within the time limit. Both Sections are relevant. Sub-section (1) of Section 61 reads as under:
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 O.P. No. 14862 of 2002-T 7 goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty four hours after the landing of the animals or goods as the Board may think fit, sell by public auction or in such cases 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) if any lien of any ship-owner for freight or other chargers of which notice has been given has not been discharged and if the person claiming such lien for freight or other charge has made to the Board an application for such sale.
2. xxx
3. xxx
4. xxx O.P. No. 14862 of 2002-T 8 Section 62 reads as follows:
62. disposal of goods not removed from premises of within time limit-(1) Not withstanding 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 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 O.P. No. 14862 of 2002-T 9 compliance therewith the goods are liable to be sold by public auction 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.
7. The notice referred in sub-section (1) may also be served on the agents of the vessel under Sub- section 62(2). According to Section 62(3), if such owner or person does not comply with the requisition in the notice served 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 or the Board after recording the reasons in writing sell by O.P. No. 14862 of 2002-T 10 tender, private agreement or in any other manner. Before the procedure specified in sub-sections (2) and (3) of Section 61 shall be complied with.
8. The dispute involved in the instant case is that the 4th respondent failed to take delivery of the cargo and the Port authorities failed to destuff the cargo from the container and to release the container. The Ground Rent charge was demanded by the Port authorities for retaining the goods kept in the container at the Port premises for a long time which is clear from the records itself. The Port Trust Authority has not destuffed the goods. Moreover, they have not filed any counter affidavit with regard to any difficulty to comply with the request. When the writ petitioners/Shipping Agents approached the customs to take the containers they contended that they have not detained any containers. In short, because of the lapse on the part of the 4th respondent on one side and the lapses from the side of Port authorities on the other O.P. No. 14862 of 2002-T 11 side, the writ petitioners were forced to pay huge amount towards 'Ground Rent', for keeping the containers without being destuffed in the premises of the Port.
9. This Court in APL (India) Pvt. Ltd. v. Chairman, Cochin Port Trust and others [ 2011 (4) KHC 236] held as follows:
41. As mentioned already, the authority and power to prescribe the scale of rates and conditions as given under Sections 48 and 49 of Major Port Trusts Act stands exclusively vested with the TAMP constituted under Section 47A of MPT Act w.e.f. 9.1.1997. As per the relevant TAMP Orders issued, the Tariff Authority stipulated that, no 'Ground Rent' shall be payable, if the goods are not destuffed by the Port within 60 days (in view of the mandate under Sections 61 and 62 of the MPT Act), which period was subsequently extended to '75 days', taking note of the request made by the some Ports in this O.P. No. 14862 of 2002-T 12 regard. Since the power and authority vested with the TAMP is not under challenge, there cannot be any liability beyond the stipulation under the relevant TAMP Orders and the Cochin Port Trust is bound by the same, who hence cannot demand anything more than the extent clearly specified therein.
xx xx xx
44. In the above facts and
circumstances, this Court finds that, there is no rationale on the part of Port Trust in contending that they are entitled to collect the 'Ground Rent' charges in respect of containers indefinitely. The course pursued by them without causing the goods to be destuffed, despite the specific request, on the failure of the Consignee/Importer to have it cleared and by proceeding against such goods for causing the same to be sold in public auction, realizing the funds, to be apportioned in the manner as specified O.P. No. 14862 of 2002-T 13 under Section 63, cannot but be deprecated. This Court holds that the respondent Port Trust can demand 'Ground Rent' only to a maximum period of '75 days', as specified by the Tariff Authority for Major Ports as per the relevant TAMP Orders discussed above.
10. Therefore, the respondents 1 and 2 are entitled to collect Ground Rent only for 75 days. Disposal of goods shall be only in accordance with Section 61 and 62 of MPT Act. According to Section 63 the proceeds of every sale under Section 61 shall be applied according to Section 63 of the MPT Act which is as follows:
a) in payment of the expenses of the sale;
(b) in payment, according to their respective priorities, of the liens and claims excepted in sub-section (2) of section 59 from the priority of the lien of the Board;
) in payment of the rates and expenses of landing, removing, storing or warehousing the same, and of all other charges due to the Board in respect thereof including demurrage (other O.P. No. 14862 of 2002-T 14 than penal demurrage payable in respect of such goods for a period of four months from the date of landing.
(d) in payment of any penalty or find due to the Central Government under any law for the time being in force relating to customs;
(e) in payment of any other sum due to the Board.
(2) The surplus, if any, shall be paid to the importer, owner or consignee of the goods or to his agent, on an application made by him in this behalf within six months from the date of the sale of the goods alonw.
The ship owner has a lien for freight and other charges under Section 60 of MPT Act. When the owner of the goods did not respond to the intimation issued by the Board, the Port authorities can dispose the goods as provided under Sections 61 and 62 of the Act. It is contended that the respondents or its agents are levying ground rent and demurrage in respect of the F.C.L containers which are stacked in the nominated sites in violation of MPT Act and petitioners demanded O.P. No. 14862 of 2002-T 15 that the charges debited from their account in respect of the container are to be refunded and they also demanded the amounts illegally debited from their deposit bank account through E.D.I.
11. According to Section 55 of the Act refund of overcharge shall be claimed in writing to the Board within six months from the date of such payment. For claiming the refund, petitioner shall submit all relevant documents with regard to the refund of over charges. Section 55 of the Act reads as follows:
"Refund of overcharges - No person shall be entitled to a refund of an overcharge made by a Board unless his claim to the refund has been preferred in writing by him or on his behalf to the Board within six months from the date of payment duly supported by all relevant documents".
In this case, no documents were furnished by the petitioner in support of his claim for overcharges. Even though such a contention was taken by the petitioner, no such request was made by the petitioner or the O.P. No. 14862 of 2002-T 16 consignee to the Board.
12. The petitioner also contended that the 3rd respondent is not permitting the consignees to release the goods from the containers as reported by the clearing agents of the consignees. The "Owner" is defined under Section 2(o) as follows:
"owner", (i) in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods; and (ii) in relation to any vessel or any aircraft making use of any port, includes any part-owner, charterer, consignee, or mortgagee in possession thereof;"
13. Therefore, the Board, after the expiry of two months from the time when such goods have passed into its custody may think it fit to sell the goods by public auction. In such a case, the Board shall follow the procedure under Section 61 of the MPT Act. But, the petitioner has not made any application. Therefore, his contention regarding release of goods is O.P. No. 14862 of 2002-T 17 unsustainable. In the circumstance petitioner is at liberty to file an application before the Port Trust authorities within 15 days from the production of this judgment, and, if such an application is filed, the Port Trust authorities shall proceed against the responsible person of the container and cargo therein and appropriate the dues according to the priority mentioned under the provisions of law. It is clear that no claim was made by the petitioner to refund the ground rent and other charges debited from the account within the period of limitation from the date of realization of such charges. Therefore, this is not a fit case to invoke the jurisdiction under Article 226 of the Constitution of India.
The writ petition is dismissed accordingly.
Sd/-
P.D. RAJAN, JUDGE
rka /true copy/
O.P. No. 14862 of 2002-T
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P.D. RAJAN, J.
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O.P. No. 14862 of 2002-T
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Dated this the 7th day of
July, 2014
J U D G M E N T
P.D. RAJAN, JUDGE
rka
O.P. No. 14862 of 2002-T
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Dated this the 7th day of
July, 2014
J U D G M E N T