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TMI Blog2010 (10) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 - CORAM: JUSTICE S. MURALIDHAR Mr. R.S. Sharma, Advocate Mr. Jatan Singh, CGSC for UOI. Mr. Buddy A. Rangnathan with Mr. Gautam Talukdar, Advocates for R-3. Mr. Mukesh Anand, Advocate for R-5 JUDGMENT 1. The Petitioner which is a private limited company having its registered office at Chandigarh seeks a writ of mandamus directing the Director General of Foreign Trade ("DGFT") to pay the Mumbai Port Trust ("MPT") (Respondent No.3 herein) the demurrage charges claimed by MPT in respect of Lot No. 6747 belonging to the Petitioner. An alternate prayer is for a direction to the DGFT to reimburse the Petitioner the demurrage charges. The Petitioner also seeks the quashing of the auction held by the MPT on 7th November 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said the writ petition was disposed of as having become infructuous. As regards the demurrage charges that had accumulated, the High Court of Punjab Haryana gave liberty to the Petitioner to challenge the same after it was communicated to the Petitioner. 5. According to the Petitioner, without any prior notice to it, MPT advertised the Petitioner‟s imported machinery for auction on 7th November 2002. The machinery was purchased by Pushp Holdings Ltd. (Respondent No.4 herein). The Petitioner states that MPT finally quantified the demurrage as Rs. 1,99,73,633/- and communicated it to the Petitioner on 29th November 2002. The Petitioner was given the time till 2nd December 2002 to pay the entire amount. 6. The case of the Petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if Respondent No.3 so desires. However, it s hall not be confirmed till the next date of hearing to ensure that no third party rights are created. 2. Without prejudice to the rights and contentions of the parties, Petitioner shall deposit a sum of Rs. 1 crore within two weeks from today with Respondent No.3. 3. Petitioner's application seeking remission of demurrage charges is pending with Respondent No.3. According to Respondent No. 3, Petitioner has not supplied certain documents because of which the same could not be considered although it is the case of the Petitioner that these documents were supplied. Without going into this dispute learned counsel for the Petitioner states that the documents as demanded by Respondent No.3 shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clear the goods lying with the MPT. A reply was received from the Customs Department only on 30th May 2003 requiring the Petitioner to provide the lying position of the goods in order to note the bill of entry. The Petitioner's clearing agent wrote to the MPT on 3rd July 2003 to ascertain the lying position of goods and this was confirmed by the MPT on 10th October 2003 which was then forwarded to the Customs Department. It was submitted that the Customs Department failed to note the bill of entry earlier and therefore the Petitioner was unable to clear the goods. 10. Appearing for the MPT, Mr. Gautam Talukdar, learned counsel submitted that in terms of Section 58 of the MPT Act demurrage became payable immediately on the landing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt which took place in 1999. In terms of Section 46 read with Section 48 of the Customs Act, 1962 no importer could be permitted to clear the goods for import without filing a bill of entry. As an importer the Petitioner ought to have known this position as well as the requirement of obtaining an NOC. It is submitted that there was no delay on the part of the Customs Department and in that in any event no direction could be issued to it to pay demurrage charges. 12. The above submissions have been considered. In Grand Slam International which was decided by a majority of 2:1 it was clarified by the Supreme Court as follows: "41. The purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside a direction issued by the High Court for the Customs Department to pay the demurrage, container charges and ground rent and held the decision to be contrary to the settled position as explained in Grand Slam International. 14. In Om Shankar Biyani, the Supreme Court reiterated the position with reference to the MPT Act. In para 18 it was observed as under: "18. In our view the proposition that the bailee, who exercises a lien, is not entitled to charge rent for storage of goods can never apply to a case where the lien is exercised for non-payment of rent or storage charges. If such a proposition were to be accepted it would lead to catastrophic results. It is well known that in most cities, particularly port cities like Calcut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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