Appeal No. 47 of 2009,Suit No.2527 of 1989

3rd October, 2011

Petitioner Counsel: Mr. U. J. MAKHIJA i/by M/s. MOTIWALLA
Respondent Counsel: Mr. K. R.SHRIRAM

JUDGMENT

D.K. DESHMUKH, J. :- By this Appeal, the Original Plaintiffs in Suit No.2527 of 1989 challenge the judgment and decree passed by a learned Single Judge of this Court on 11 July 2008. The learned Single Judge has dismissed the Suit.

2.The Appellant is a statutory corporation constituted under the provisions of The Major Port Trusts Act, 1963. The Appellant has filed Suit No.2527 of 1989 for money decree in the amount of Rs.4,90,024.38 with further interest on the sum of Rs.4,88,618.77 at the rate 15% per annum from the date of the Suit till payment.

3. According to the plaint allegations, the first defendant Nav Bharat Trading Company imported consignment of goods. The consignment imported was carried on vessel "s.s. Dhaulagiri" of which the second defendant was the agent. According to the Plaintiffs, after the goods were unloaded on the docks of the Plaintiffs, the first defendant who was the importer of the goods did not take steps to clear the goods. Therefore, to recover the dock charges to which the Plaintiffs were entitled in relation to the goods, the Plaintiffs sold the goods and recovered the amount of Rs.4,21,966/-. After giving credit of that amount, an amount of Rs.4,88,618.77 still remained recoverable and, therefore, the Suit was filed for recovery of that amount.

4. The first defendant though served did not appear. The first defendant did not file written statement and contest the Suit. The second defendant appeared and filed the written statement. On the basis of the rival pleadings, the learned Single Judge of this Court framed the following issues:

1.Whether the suit is misconceived and not maintainable as stated in para 2 of the written statement? In the negative.

2.Whether the suit is barred by limitation as stated in para 3 of the written statement? In the negative.

3.Whether the plaintiffs prove that the original defendant No.2 were the owners/bailors of the consignment and liable to pay wharfage,demurrage and other charges accrued, thereon as stated in paras 2 and 5 of the plaint? ... In the affirmative as Bailor and not liable on merits.

4.Whether the plaintiffs prove that the defendant No.2 are liable for the property undertaking assets of the original defendant No. 2 as stated in para (2) of the plaint? ... In the affirmative.

5.Whether the plaintiffs prove that they are entitled to recover from the defendant No.2, a sum of Rs.4,90,024.38 with further interest on the sum of Rs.4,88,618.77 at the rate of 15% per annum from the date of the suit till payment and/or realisation and costs of the suit as stated by the plaintiffs in prayer (a) of the plaint ? ... In the negative.

6.To what reliefs are the plaintiffs entitled to as against the defendants? Not entitled.

5.On behalf of the Plaintiffs only one witness was examined by name Mr. Santosh Dighe, Assistant Docks Manager. On behalf of the second defendant, no oral evidence was led. The learned Single Judge of this Court decided the Suit by his judgment dated 11 July 2008. The learned Single Judge has answered Issue No.1 in the negative and held that the Suit is maintainable. In answer to issue No.2, the learned Single Judge has held that the Suit is not barred by the law of limitation. Issue No.3 is answered in favour of the Plaintiffs. Issue No.4 is also answered in favour of the Plaintiffs. The learned Single Judge has answered only Issue No.5 against the Plaintiffs. The learned Single Judge has held that the Plaintiffs in support of their claim that an amount of Rs.9,17,550.77 was recoverable from the defendants as dock charges for the consignment relied on the working sheet and allocation sheet. According to the learned Single Judge, the Plaintiffs have not proved the contents of the working sheet and allocation sheet and therefore the Plaintiffs have not proved that they were entitled to the aforesaid amount as dock charges from the defendants.

6.The learned Single Judge has also held that in conducting the sale of the goods, the Plaintiffs have not established that they have followed the provisions of the Major Port Trusts Act and therefore the auction of the goods held by the Plaintiffs is invalid.

7.In the present Appeal, therefore, the Plaintiffs are challenging the finding recorded by the learned Single Judge against Issue No.5.

8. We have heard the learned counsel for both the sides.

9.To prove Issue No.5, the learned Single Judge himself has observed that the Plaintiffs had to prove the contents of the documents which have been styled as working sheet and allocation sheet. In so far as that document is concerned, the sole witness examined on behalf of the Plaintiffs in para 7 of his affidavit in examination in chief stated thus:

"7. I say that the Port Trust Charges were calculated in accordance with the Docks Scale of Rates applicable at that time and amounted to Rs.8,47,083.40 as per the Working Sheet and Allocation Sheet produced by the Plaintiffs. The said Working Sheet and Allocation Sheet were prepared by the Plaintiffs in the regular course and shows the calculation of wharfage and demurrage charges which are calculated in accordance with the Docks Scale of Rates applicable at that time. I say that the charges shown in the said Working Sheet and Allocation Sheet are correctly worked out and I have personally verified the correctness of the same. I produce duly verified working sheet and allocation sheet in respect of the said consignment." (emphasis supplied)

10.The witness of the Plaintiffs thus stated the working sheet and allocation sheet was prepared by the Plaintiffs in the regular course of business. He stated that he has personally verified the correctness of the two sheets and on verification, he found that they have been correctly worked out. So far as the cross-examination on this aspect of the matter is concerned, it is only paragraph 16 of the cross-examination which is relevant. It reads as under :

"16. C.F. Charges means compromise formula charges. This is a part of our internal calculations. The working sheet was verified by the staff of the B.P.T. I do not remember who has verified the working sheet. I cannot identify signature of the person who has verified it. Normally, we charge charges for six months. First 4 months charges are shown under the caption C.F. Charges; whereas for the balance 2 months period, the charges are shown under the caption "Balance P.T. Charges".

11. Perusal of the above quoted paragraph 16 shows that this witness has not at all been cross-examined on the aspect of verification by him of this working sheet and allocation sheet and in relation to his statement that the figures in those sheets have been correctly mentioned. Perusal of the order of the learned Single Judge shows that in paragraph 29 the learned Single Judge has recorded a finding that the contents of the working sheet and allocation sheet have not been proved only because the witness is not in a position to state the name of the Officers who have filled in those sheets. In our opinion, the approach of the learned Single Judge is not correct. Once the witness himself states that I have myself examined the correctness of the figures and I found them to be the correct. Unless that witness is cross-examined on that aspect of the matter, it cannot be said that the contents of the working sheet and allocation sheet have not been proved, in our opinion, therefore, the finding recorded by the learned Singe Judge on that aspect of the matter is liable to be set aside. It is clear from the oral evidence on record that the Plaintiffs had clearly proved the contents of the working sheet and allocation sheet and, therefore, the Plaintiffs had established that an amount of Rs. 9,17,550.77 was recoverable by the Plaintiffs from the two defendants.

12. So far as the regularity or irregularity of the auction sale conducted by the Plaintiffs is concerned, it was the case of the Plaintiffs that the Plaintiffs on failure of the defendants to pay the dock charges, took steps to auction the goods, auction was held and on that auction, the goods fetched price of Rs.4,88,618.77. Perusal of the written statement shows that it was not the case of any of the defendants that the figure of Rs.4,88,618.77 is not the market price of the goods on the date of the auction. The auction was held by the Plaintiffs to show that the Plaintiffs have taken steps to mitigate the damages. Unless and until, it was the case of the defendants that the steps were taken for mitigating the damage were not proper as a result of which the goods have not fetched the market value, there was no occasion for the learned Single Judge to go into the validity or otherwise of the auction sale. Perusal of the written statement of second defendant shows that the second defendant nowhere claims that an amount of Rs.4,88,618.77 does not represent the market price of the goods on the date on which the auction was held. In our opinion, therefore, enquiry into the aspect whether the goods were sold without publishing notice in the official Gazettee or not was totally uncalled for. In our opinion, therefore, there was no reason in the face of the defences raised by the second defendant to doubt the version of the Plaintiffs on the auction, the goods fetched Rs.4,88,618.77 and therefore the Plaintiffs were entitled to recover the deficit amount. The first defendant had not appeared though served and had not filed written statement. Really speaking therefore, under Order VIII, Rule 5 of Code of Civil Procedure, the Plaintiffs were entitled to a decree in the absence of written statement against first defendant. The leaned Single Judge, however, even refused to pass that decree in favour of the Plaintiffs. In our opinion, in the absence of any written statement filed, the learned Single Judge ought to have been passed a decree in favour of the Plaintiffs and against the defendant No.1.

13. In the result, therefore, the Appeal succeeds and is allowed. The order of the learned Single Judge impugned in the Appeal is set aside. The Suit of the Plaintiffs is decreed in terms of prayer (a). However, the Plaintiffs shall be entitled to interest at the rate of 10% per annum instead of 15% per annum as claimed in the plaint.

14. There shall be no order as to costs.

Appeal allowed.