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TMI Blog2013 (8) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... e not pleaded or proved before the Court. This court is also unpersuaded by the appellant’s submission that the principle of res ipsa loquitur did not apply. Even if it were inapplicable, arguendo, the plaintiff proved all the foundational facts in the case, such as their entry into India, on the dates alleged, the payment made to their suppliers, evidence of due filing of Bills of Entry, assessment of two of those, and payment towards one of them. It had also alleged that the non-availability certificate in respect of the consignments was not forthcoming, due to which it could not claim any insurance amount towards the lost or stolen consignment. The judgment cannot be faulted with in holding that the goods belonging to the plaintiff (importer) went missing while they were in the care and custody of the defendant Authority. Bar of Limitation – Held that:- The plea of the Assesse that the suit was time-barred, as it was filed beyond the period of one year, under Article 72 of the Limitation Act, was meritless - As regards the factual findings in the judgment the Court had already noticed that they do not call for interference, and are unexceptionable Article 72 had limited a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n and around the airport. The written statement also pointed out that the consignment dated 25-9-1997 was takenup and a Customs Examination Order was made on 24-10-1997. Yet the plaintiff approached the authority on 20-5-1998 when the assessed amount was deposited. It was stated that the consignment could not be found or traced despite all efforts to trace it. AAI alleges that the matter was reported to the police but there was no progress due to deliberate non-cooperative attitude of the plaintiff. As regards the consignment dated 21-7-1997 covered by the Bill of Entry dated 14-8-1997 (No. 5677443), produced as Ex. PW-1/47, it was stated that the Examination Order was made on 16-8-1997 but at no stage did the plaintiff approach the defendants for requisitioning the consignment for examination and there was no activity record in the authority s computer systems supporting the claim. Similarly, it received the consignment which landed on 18-10-1997 (Ex. PW-1/70). It is submitted that the Bill of Entry was filed as late as on 24-8-1998. This consignment too could not be traced despite all best efforts and a report to the police was filed for detailed investigation. 4. The AAI submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had admitted custody of the goods in the deposition and cross-examination to the Court. It was noticed that the authority did not lead any evidence that the plaintiff or its agent stole the goods, as alleged in the written statement. In para 11 of the impugned judgment, the Court notices that the Authority s representative, deposing as a witness admitted that no letter or notice had been issued to the plaintiff informing it that since goods were not cleared or lifted, an auction of the goods would be held. The witness had further admitted in cross-examination that delay on part of the importer did not absolve the Authority and that in the event of the goods not being cleared within 120 days of the import, an auction takes place after notice to the consignee. 8. The Court held that the decision in Sprint RPG India Ltd. v. Commissioner of Customs - 1995 (2002) DLT 455 was of no relevance and that the ruling of res ipsa loquitur apply in International Airports Authority of India v. Ashok Dhawan - 1999 (106) E.L.T. 16 was applicable. In view of these findings, it was held that the defendant Authority was negligent in not keeping goods in safe custody and a decree for the amount menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shna Reddy - 2000 (5) SCC 712 supports the claim in the suit. It is submitted that Article 72 of the Limitation Act would apply where a public authority does an act under power conferred or deemed to confer by Act by which injury is caused to another person who invokes jurisdiction of the Court to claim compensation. However, where the public officer or authority could not have committed the act or passed the order, no colour of the statutory authority claimed by it operates and Article 72 would be inapplicable. 12. The plaintiff also relies upon the decision in State of Punjab v. Modern Cultivators - AIR 1965 SC 17, which had preferred the judgment of the Patna High Court in Secretary of State v. Lodna Colliery Company Limited - AIR 1936 Patna 513 in the following terms : The object of the article is the protection of public officials, who, while bona fide purporting to act in the exercise of a statutory power, have exceeded that power and have committed a tortious act; it resembles in this respect the English Public Authorities Protection Act. If the act complained of is within the terms of the statute, no protection is needed, for the plaintiff has suffered no legal wrong. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the appellant s duty of exercising diligent and proper care of the goods, till they were claimed and cleared. May be, if the plaintiff had neglected to clear the goods, after assessment, the Airport Authority would have, after issuing notice in terms of Sections 45, 46 and 48 of the Customs Act, entitled it to dispose of the goods, and apply the proceeds to realize customs duty dues (statutorily chargeable) and its detention or demurrage charges. However, those facts are not pleaded or proved before the Court. This court is also unpersuaded by the appellant s submission that the principle of res ipsa loquitur did not apply. Even if it were inapplicable, arguendo, the plaintiff proved all the foundational facts in the case, such as their entry into India, on the dates alleged, the payment made to their suppliers, evidence of due filing of Bills of Entry, assessment of two of those, and payment towards one of them. It had also alleged that the non-availability certificate in respect of the consignments was not forthcoming, due to which it could not claim any insurance amount towards the lost or stolen consignment. Therefore, the impugned judgment cannot be faulted with in holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the permission in writing of the proper officer. (3) [Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, an import report to the proper officer-under section 30 for the arrival of the conveyance in which the said goods were carried. xxxxx xxxxxxxxx xxxxxxxxxx 48. Procedure in case of goods not cleared, warehoused, or transhipped within thirty days after unloading. - If any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped thirty days from the date of the unloading thereof at a customs station or within such further time as the proper officer may allow or if the title to any imported goods is relinquished, such goods may, after notice to the importer and with the permission of the proper officer be sold by the person having the custody thereof : Provided that - (a) anim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t were the starting point. This subject was elaborately discussed in Mohamad Sadaat Ali Khan v. Administrator Corporation of City of Lahore (I.L.R. [1945] Lah. 523 F.B.) where all rulings on the subject were noticed, Mahajan J. (as he then was) pointed out that the act or omission must be those which are honestly believed to be justified by a statute . The same opinion was expressed by Courtney Terrell C.J., in Secretary of State v. Lodna Colliery Co. Ltd. (I) in these words :- The object of the article is the protection of public officials, who, while bona fide purporting to act in the exercise of a statutory power, have exceeded that power and have committed a tortious act; it resembles in this respect the English Public Authorities Protection Act. If the act complained of is within the terms of the statute, no protection is needed, for the plaintiff has suffered no legal wrong. The protection is needed when an actionable wrong has been committed and to secure the protection there must be in the first place a bona fide belief by the official that the act complained of was justified by the statute; secondly, the act must have been performed under colour of a statutory duty, an ..... 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