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24. Issue (2):- The Plaintiff had entered into an agreement in Ex.P2, dated 1.6.1997 for the period 1.6.1997 to 30.9.1997. During that period, there was no obligation for minimum export. The Plaintiff was allotted a plot by Chennai Port Trust to be utilised for export of iron ore. For the subsequent period from 10.7.1998 to 9.7.1999, the other agreement dated 30.10.1998 in Ex.P3 was entered into between the parties. In this agreement, for the first time, the Defendant had placed an obligation on the Plaintiff to have a minimum guaranteed throughput to be shown as export of iron ore. In the said agreement, minimum guaranteed throughput was fixed at 6,00,000 MTs. Licence fee was to be paid in advance for 50,000 MTs of iron ore as a current account. There were further obligations on both the Plaintiff and the Defendant, but primarily the Plaintiff was under an obligation to have a minimum guaranteed throughput in export of iron ore. After that, the Defendant had allotted plots on the basis of letters as detailed hereunder:-

iii.On the basis of Ex.P8 letter dated 22.12.2001 of the Plaintiff, the Plaintiff was allowed to use the plot measuring 100x35 meters for the period from 30.1.2002 to 31.3.2004, during which the Plaintiff had exported 13,14,865 MTS of iron ore.

iv.On the basis of Ex.P9 letter dated 24.2.2004 of the Plaintiff, the Plaintiff was allowed to use the plot measuring 120x35 meters for the period from 1.4.2004 to 30.6.2004, during which the Plaintiff had exported 66,000 MTS of iron ore.

25. As stated earlier, by Ex.P3, the Plaintiff was required to export a quantity of not less than 6,00,000 MTs of iron ore. The Plaintiff was under the obligation to pay wharfage and cleaning charges if there was a shortfall. It is the contention of the Plaintiff that they had utilised the plots on the basis of the terms and conditions contained in the letters of allotment. In the said letters of allotment, there was no obligation to have a minimum guaranteed throughput. However, by Ex.P10 letter dated 11.4.2005, the Defendant claimed a shortfall for the period 7.8.2000 to 25.6.2001, 26.8.2001 to 7.6.2002 and 20.7.2002 to 5.6.2003, respectively to a quantity of 205697 MTs, 21975 MTs and 10060 MTs respectively, totalling 2,37,732 MTs and demanded payment of Rs.87,79,269.60/-. The Plaintiff had contended that there was no basis since in the letters of allotment, there was no minimum guaranteed throughput fixed. The Plaintiff had written Ex.P11 in this regard. However, the Defendant had raised demands on 4.7.2005 by Ex.P12, 12.9.2005 by Ex.P13, 3.11.2005 by Ex.P14, for which the Plaintiff had sent a reply dated 9.11.2005 in Ex.P15. However, the Defendant had again raised a demand dated 12.12.2005 in Ex.P16, for which the Plaintiff had replied on 9.1.2006 in Ex.P17. The Defendant had again made a demand on 31.5.2006 in Ex.P18 for which the Plaintiff sent a reply on 14.6.2006 in Ex.P19. The Defendant had further raised a demand on 2.11.2006 in Ex.P20 for which also the Plaintiff had replied on 21.11.2016 in Ex.P21. In this connection, the Plaintiff has been consistently stating that they are not liable to such a sum of Rs.87,79,269.60/- for the simple reason that there was no minimum guaranteed throughput fixed in the letters of allotment in Ex.P5 dated 13.8.1999, Ex.P7, dated 6.9.2000, Ex.P8 dated 22.12.2001 and Ex.P9 dated 24.2.2004. These letters cover the period for which the demand was made by the Defendant.

The licensee is permitted to utilize the plot either solely or jointly with another exporter or alternatively with co-exporters by jointly utilizing others plots or by availing cargo as loan from exporters who is allotted with plots at Bharathi Dock to maximize the utilization of plots more effectively subject to the condition that the Licensor is not responsible for any shortfall in the minimum guaranteed throughput in case of failure in coordinating with other Exporters or for any other reasons whatsoever. It is the responsibility of the Licensee to honour the export commitment of minimum guaranteed throughput agreed upon by them.

30. Under Ex.P38 dated 23.12.2016, the Plaintiff had written a letter to the Defendant, seeking permission to export iron ore by M/s.Zeenath Transport Company, using the plot allotted to the Plaintiff. The Defendant had granted permission by Ex.P39 dated 29.12.2006 to undertake joint shipments with the M/s.Zeenath Transport Company. However, the Defendant had contended that the exports made jointly by the Plaintiff with M/s.Zeenath Transport Company will not be considered for the purpose of minimum guaranteed throughput. This was in violation of clause 2(b) of the agreement as extracted above. It is the contention of the learned counsel for the Defendant that there can be a joint shipment with a party who had been allotted a plot in Bharathi Dock. I hold that the said condition is onerous. The primary object of the Defendant is to encourage export of iron ore. Similarly the Plaintiff is also in the business of export of iron ore. During export of iron ore which provides huge revenue to the Government thereby enriching the economy as a whole, it will be very narrow on the part of the Defendant if they were to simultaneously encourage export fixing a minimum guaranteed throughput to be exported and at the same time place restrictions on such export. This clause conveys no meaning at all. On the one hand, the Defendant had encouraged the Plaintiff by allotting plots and had also invited them to export iron ore. They in fact fixed a minimum guaranteed throughput of 7,20,000 MTs. The Plaintiff in order to achieve the said minimum guaranteed throughput had sought permission to have joint export with another construction called M/s.Zeenath Transport Company. After granting permission, it is highly unwarranted on the part of the Defendant to later claim that they were not recognized export since M/s.Zeenath Transport Company had not been allotted a plot at Bharathi Dock.