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TMI Blog2009 (9) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... consignment, liable for port charges for period prior to confiscation by customs. - 1467 of 1988 - - - Dated:- 1-9-2009 - Dr. D.Y. Chandrachud, J. S/Shri U.J. Makhija with Parag Khandhar i/b Mulla Mulla CBC, for the Appellant. Shri Girish Desai i/b Bookwala Co., for the Respondent. [Judgment (Oral)]. - The suit has been instituted by the Board of Trustees of the Port of Mumbai for the recovery of pre-confiscation charges. The First Defendants were sued as importers/consignees/owners of the consignment on which Port Trust charges became payable. The Second Defendant has been sued as agent of a vessel, M.S. Mckinney Maersk. 2. The case of the Plaintiff is that two consignments said to contain 60 cartons and 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of service of the writ of summons. As a matter of fact, the order of the Collector of Customs dated 1st December, 1986, notes that the First Defendant is a fictitious entity. The suit therefore proceeded against the Second Defendants. 5. The Second Defendants in their written statement expressly admitted that they were agents of the vessel M.S. Mckinney Maersk at the relevant time. The defence to the claim is that the Second Defendants were "merely the agents of the vessel" and were neither owners of the vessel nor of the suit consignments. The Second Defendants claimed that they had not delivered any cargo to the Plaintiff; that the cargo was delivered directly by the vessel and that there was a failure on the part of the Plaintiff to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in two parts. The first part defines the expression with reference to goods while the second part defines the expression in relation to a vessel or a craft. For the purposes of the present suit, it is the first part that falls for interpretation. The first part includes within the purview of the expression "owner" (i) a consignor; (ii) a consignee; (iii) a shipper and (iv) an agent for the sale, custody, loading or unloading of goods. 9. In the present case, the fact that the Second Defendants were agents of the vessel at the material time has not been disputed. The Second Defendants have so expressly admitted in paragraphs 2 and 9 of the written statement. In their letters dated 14th August, 1987 and 3rd September, 1987 - Exhibits P-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of the contract, in the sense that if the contract were to come before the Court, it would reveal the true nature of the obligations assumed by the Second Defendants towards the carriers. 10. The Supreme Court had occasion to consider the definition of the expression "owner" under Section 2(Q) of the Major Port Trust Act, 1963 in the Trustees of the Port of Madras v. M/s. K.P.V. Sheikh Mohd. Rowther Co. Pvt. Ltd. - 1996 (82) E.L.T. 174 (S.C.) = AIR 1995 SC 1922. In the appeal which arose before the Supreme Court out of the judgment of the Madras High Court, the High Court held that once the goods are handed over to the Port Trust by the steamer and the steamer agent has duly endorsed the bill of lading or issued the delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld liable once property in the goods has passed. Property in the goods passes upon the endorsement of the bill of lading or the issuance of a delivery order. In the present case, the Second Defendants did not lead any evidence in the suit and have therefore not established either the defence that the scope of their contractual obligations did not cover the custody of the goods or the loading or unloading thereof or for that matter that the property in the goods had passed to the consignee. A defence that the property has passed to the consignee obviously could not have been raised because, as noted in the order of confiscation, the consignee himself was a fictitious entity. In these circumstances, the first issue will have to be answered in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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