9911796707
TMI Blog1993 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs formalities were duly completed, the said consignment was abandoned. (b) On August 30, 1982, the Bombay Port Trust sold the goods by way of auction. This resulted in a deficit of Rs. 1,41,123.18. (c) By letter dated 17th May, 1985, addressed by the Bombay Port Trust, the Bombay Port Trust claimed the said amount of Rs. 1,41,123.18. (d) By their letter dated 6th August, 1985, the petitioners denied their liability to pay the said amount as they had relinquished the goods. (e) Sometime in October, 1985, the petitioners imported another consignment of a different item viz. choline chloride. In respect of the said item, the Customs initiated adjudication proceedings against the petitioners. Ultimately, the petitioners succeeded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Counsel appearing on behalf of the petitioners submitted that the Bombay Port Trust s rights of recovery are governed exhaustively by the Major Port Trusts Act, 1963 and in the absence of any provision under the Act which empowered the B.P.T. to make the above impugned adjustment, the B.P.T. had no authority to make such an adjustment. Mr. Patel invited my attention to Sections 59,61,63 and 131 of the said Act, 1963 and submitted that separate modes of recovery of the dues have been laid down and none of the Sections empowered the B.P.T. to make the adjustment as is sought to be done in the present case. He submitted that Section 59 indicates power of the B.P.T. to detain and seize specific goods whereas Section 61 gives power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation and, therefore, the adjustment was bad in law. 4. Mr. Makhija, the learned Counsel appearing for the B.P.T. submitted that under Section 63(e) of the Act, the B.P.T. had the power to make the adjustments as is sought to be done in the present case. He further submitted that under Section 59 of the Act, the B.P.T. has a statutory lien in respect of the refund sanctioned in favour of the petitioner by the Chairman s Order dated 2nd February, 1989. Mr. Makhija vehemently submitted that apart from the statutory lien under the Act, the B.P.T. has a general lien under Section 171 of the Contract Act as a wharfinger and in the circumstances, it was submitted that the impugned adjustment had been made by the B.P.T. pursuant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vied. In the present case, the order of remission/refund sanctioned by the Chairman on 7th September, 1989, granting refund of Rs. 48,016.82 has been passed under Section 53 of the Major Port Trusts Act, 1963. Sections 55 and 56, inter alia, provide for refund of over-charges. Section 58 deals with rates in respect of goods to be landed which rates shall be payable immediately on landing of the goods. This is also one of the modes of recovery. Section 59 deals with the Board s lien for rates. Section 59 lays down that for the amount of all rates leviable by the B.P.T. under the Act in respect of any goods and for the rent due to the Board for any buildings, plinths stacking areas etc. the Board shall have a lien on such goods, and the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stment under Section 63(1)(e). The B.P.T. also makes the claim on the basis of general lien under Section 171 of the Contract Act. 6. Having noticed the above Sections, it is clear that different modes of recovery are contemplated under the said Act. However, there is no express power given to the B.P.T. to make unilateral adjustments, as is sought to be done in the present case. No such power is given under the Major Port Trusts Act, 1963. The catena of Sections referred to above, inter alia, indicate the Board s power to detain the goods, to sell the goods by public auction, to apply the proceeds and in that regard to make adjustments under Section 63(1)(e) of the Act or to recover the said amount under Section 58 or by filing a Suit un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sedly to file a Suit to recover the balance when me proceeds of the sale are insufficient. The B.P.T. has not been given the power to make unilateral adjustments, but they have been empowered only to file a Suit which is clearly indicative of the fact that there is no power under the Act to make such unilateral adjustments. However, the question still remains whether in the present case a general lien vested in the Port Trust to make the above unilateral adjustments. In this connection it may be noted that heavy reliance is placed on Section 171 of the Contract Act. It was submitted that in the present case there was an implied contract under Section 42 between the B.P.T. and the consignee in respect of service rendered by the B.P.T. to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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