Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1 Comm. Suit No.1042/2021
MHCC010024322020 Presented on : 26/02/2020
Registered on : 14/12/2020
Decided on : 01/04/2023
Duration :02Y/03M/18D
Exh.11
IN THE CITY CIVIL COURT AT MUMBAI.
COMMERCIAL SUIT No.1042 of 2021
The Board of Mumbai Port Authority
A Body Corporate, constituted under the
Provisions of the The Major Port Authorities
Act, 2021 and having their office at Vijay
Deep, Shoorji Vallabhdas Marg, Ballard
Estate, Mumbai400001.
...PLAINTIFF
VERSUS
1. M/s. Metacraft Alloys Private Limited
at 42/43, Dandekar Industrial Estate,
Palghar(W), District Thane 401404
And
A65, Varma Villa, Pradeep Chowk, off Bajaj
Road, (near Vithalbhai Road), Vile Parle(W),
Mumbai400056.
2. M/s. Hapag Lloyd India Pvt. Ltd.
Solitaire Corporate Park, Building No.11,
office No.1121 and 1122, 2nd floor, Chakala,
Andheri(E), Mumbai400093.
...DEFENDANTS
Smt. Yasmin Sarang i/b. M. V. Kini & Co., learned advocate for
the plaintiff.
Defendant exparte.
CORAM : JUDGE SHRI. N.P. TRIBHUWAN (C.R.NO.32)
E XP A R T E J U D G M E N T
(Delivered on 01/04/2023)
This is a suit for recovery of sum of Rs.10,79,424/ with
-- 1 of 7 --
2 Comm. Suit No.1042/2021
interest @ 18 % p.a. on principal sum of Rs.7,79,884/ from the date of
suit till realization of entire amount.
2. It is case of plaintiff that it is constituted under the
provisions of The Major Port Authorities Act 2021. Defendant Nos.1 and
2 are private limited companies. Defendant No.1 is importer and owner
of goods. Defendant No.2 was agent of the vessel at the material time
for loading and unloading of the consignments and bailor for sale and
custody thereof.
3. Plaintiff is owner of the docks at Mumbai Port. Under the
provisions of the aforesaid Act, the plaintiff is required to take charge of
goods landed from the ships coming to Mumbai. As per the provisions
of the said Act plaintiff is entitled to levy wharfage, demurrage and
other charges. Plaintiff is entitled to realize the charges by selling
consignment in respect of which the charges accrued.
4. In or about August 2015 the defendants imported a
consignment by vessel Rio Madeira. The said goods were in three
containers STC coils weighing 74,900 Kg. Defendant No.1 is consignee
and defendant No.2 is vessel agent/bailor. They were liable to apply for
delivery of goods and clear the said consignment within seven days
from the date of landing thereof and to pay wharfage, demurrage and
other charges to the plaintiff for the period during which the said
consignment remained with the plaintiff. However, defendants failed to
clear the said consignments and the said consignment remained in the
custody of the plaintiff at the risk and expenses of defendants.
5. Defendants have not cleared the said consignments for two
months and therefore, plaintiff by auction sale Notice dtd.08/01/2016
-- 2 of 7 --
3 Comm. Suit No.1042/2021
informed the defendants that if the said consignment was not cleared
within 10 days, it would be sold by public auction or by tender or by
private agreement under Section 61 and 62 of the said Act.
6. Thereafter final notice of sale of gods issued on
16/03/2016 to the defendants. However, defendants have not cleared
the consignment. The auction notice published in local newspaper
dtd.17/03/2016 and in the Maharashtra Government Gazette
dtd.17/03/2016. Thereafter, the said consignment sold on 11/04/2017
for Rs.26,06,500/. The sale of the said consignment had resulted in
deficit of Rs.7,79,884/. The port trust charges accrued on the said
consignment amounted to Rs.9,56,061/. Custom duty of
Rs.15,18,048/, expenses of sale Rs.9,12,275/ . The sale price adjusted
by plaintiff against expenses of sale, custom duty and port trust charges
leaving net sale deficit of Rs.7,79,884/ towards Port Trust Charges.
7. Plaintiff has sent demand notice dtd.12/01/2018 to the
defendants calling upon to pay the receipt amount of Rs.7,79,884/.
The defendant No.2 has accepted the said notice but notice of
defendant No.1 returned with remark “company closed”. The demand
notice dtd.28/08/2019 received by defendant No.1 at new address.
Defendant No.1 given reply on 01/01/2019 mentioning that he is
unable to make payment. Final notice dtd.12/02/2018 was sent to the
defendant but they failed to pay the said amount. Hence, this suit for
sum of Rs. 7,79,884/ with interest @ 18% p.a. from the date of suit.
8. As per service affidavit Exh.8 to 10 defendants served with
suit summons but they remained absent hence, suit proceeded exparte
against them.
-- 3 of 7 --
4 Comm. Suit No.1042/2021
9. On above facts following points arise for determination of
this court and recorded findings thereon for the reasons stated as under.
POINTS FINDINGS
1. Does plaintiff prove that defendants failed
to clear the consignment within prescribed
period of seven days ?
…Yes.
2. Does plaintiff proved that defendants
failed to make the payment of wharfage,
demurrage and other charges ?
…Yes.
3. Does plaintiff prove that it has sold the
said consignment in public auction for
Rs.26,06,500/ and adjusted the sale
amount in expenses of sale, custom duty
and Port Trust charges ?
...Yes.
4. Does plaintiff prove that defendants are
liable to pay deficit sum of Rs.7,79,884/? ...Yes, only
defendant No.1.
5. Whether plaintiff is entitled for the relief
claimed ? ...Yes.
6. What order and decree? ...As per final
order.
REASONS
AS TO POINT Nos.1 TO 5:
10. Heard learned counsel of plaintiff. Plaintiff has examined
its Assistant Traffic Manager (PW1 Rajkumar K. Chandiramani) to
prove its case. He reproduced all content of plaint in his chief
examination. Plaintiff has filed documents : Letter of authority dt.
03/10/2020, Sale notice dt. 08/01/2016 and acknowledgment, Final
notices of sale of goods dt.16/03/2016 and acknowledgment, Demand
notice 12/01/2018 and 28/08/2019 and acknowledgment, Letter dt.
01.10.2019, 10.10.2019 and acknowledgment, Final notice dt.
12/02/2018, 11/09/2019 and acknowledgments (Exh.13 to 18
-- 4 of 7 --
5 Comm. Suit No.1042/2021
respectively).
11. Evidence of PW1 remained unchallenged as suit
proceeded exparte against the defendants. Therefore, considering
testimony of PW1 and documents, it becomes clear that defendants
have not cleared the consignment within seven days. Therefore, plaintiff
sold the said consignment in public auction and adjusted the sale price
of Rs.26,06,500/ in the expenses of sale, custom duty, port trust
charges. After adjusting the sale price, the amount of Rs.7,79,884/
towards port trust charges to be paid by the defendants.
12. As far as the liability of the defendant No.2 is concerned,
as per Section 230 of the Indian Contract Act; Agent cannot personally
enforce, nor be bound by, contracts on behalf of principal. In the
present case there is disclosed principal. The principal is resident of
India. Therefore, defendant No.2 being agent of defendant No.1 is not
liable to pay the said amount. Hence, defendant No.1 is liable to pay
deficit amount of Rs.7,79,884/ plus accrued interest of Rs.2,99,540/
(Total:10,79,424/).
13. Inspite of receipt of notice the defendants did not pay the
outstanding deficit charges. Thereby defendants have deprived the
plaintiff from using the said amount. Therefore, in the facts and
circumstances and prevailing market rate of interest, it is desirable to
grant interest @18% p.a. from the date of suit. Thus, I answered point
Nos. 1 to 5 as above. Hence, I pass the following order.
ORDER
1. Suit is decreed with costs as under :
2. Defendant No.1 is directed to pay to plaintiff a sum
-- 5 of 7 --
6 Comm. Suit No.1042/2021
of Rs.10,79,424/ and interest @ 18% p.a. on principal
sum of Rs.7,79,884/ from the date of suit till realization of
the said amount.
3. Suit is dismissed to the extent of defendant
No.2.
4. Decree be drawn up accordingly.
Date : 01/04/2023.
(N.P. Tribhuwan)
Judge, City Civil Court,
Mumbai. C.R.No.32
-- 6 of 7 --
7 Comm. Suit No.1042/2021
Dictated on : 01/04/2023.
Checked on : 01/04/2023.
Signed on : 01/04/2023.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
01/04/2023. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.32)
Date of pronouncement of Order 01/04/2023.
Order signed by P.O. on 01/04/2023.
Order uploaded on 01/04/2023.
-- 7 of 7 --