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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 ..... ct of one consignment. The plaintiff had claimed not only the value of goods, including the Customs Duty and Interest for certain period but also damages on account of loss of reputation. The suit had impleaded AAI and the Customs authorities. The Customs authorities, impleaded as second defendant, were ex parte. The plaintiff had, while making several allegations against the second defendant, carefully chosen not to claim any relief. 3. The AAI denied its liability. It had contended that the plaintiff had misappropriated the consignment in question in collusion with its agents and some other employees in 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held to have been proved. The learned Single Judge also held that the sum of Rs. 1,69,823/- was paid towards Customs Duty, i.e. Ex.PW-1/8. It was further held that the plaintiff had by Ex.PW-1/13 dated 15-7-1998 furnished all requisite documents for clearing the consignment and followed it up with several other reminders, i.e. Ex.PW-1/14 and Ex.PW-1/20. 7. In the light of the above material, the judgment held that the plaintiff proved remittances by its banker to the foreign supplier, debited to its account and also established payment of Customs Duty. It was further held that the defendant 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 impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aterial on record to suggest that the assessed duty on the other consignments was ever paid. It was also stated that there is no material on record suggestive of the fact that the Customs authorities had unduly delayed completing the assessments in respect of two consignments. 11. On behalf of the plaintiff, it is urged that there is no infirmity in law or in the appreciation of facts and evidence by the learned Single Judge in the impugned judgment. It is submitted that apart from the ruling in AAI relied upon in the impugned judgment, the judgment of State of Andhra Pradesh v. Challa Ramkrishna 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 Cult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,823/-. However, it is an incontrovertible fact that the suppliers' invoices, payment details through certificates of bankers, duly established that the full value of these goods were paid to the foreign supplier/consignor. The appellant does not question the underlying transactions of purchase of these goods; nor can it, considering that there was no contrary material placed on record by it, or any effective cross-examination on that score. Therefore, the fact that the plaintiff did not pay duty, or approached the Customs authorities late, does not in any manner implicate or detract from 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome consumption are or warehoused or are transshipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force,- (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can claim statutory protection or is alleged to be in pursuance of a statutory command may attract Art. 2 but the act or omission must be one which can be said to be in pursuance of an enactment. Here the suit was for compensation for damage consequent on a break in the canal on August 15, 1947. The only act or omission could be the opening and closing of the channel for silting operations. That was before June 1946. The third column of Art. 2 provides the start of the limitation of 90 days "when the act or omission takes place." The period of limitation in this case would be over even before the injury if that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as follows : "It has long been decided that such a provision as that contained in this section is intended to protect persons from the consequences of committing illegal acts, which are intended to be done under the authority of the Act of Parliament, but which, by some mistake, are not justified by its terms, and cannot be defended by its provisions." Another way of looking at the matter, from the perspective of this case, would be that only if the AAI had urged that it lost the goods from its custody, as a result of some omission (or act) which it bona fide thought was part of its duties, (traceable to some provision of law) would it be entitled to successfully say that the shorter period of limitation applied. Therefore, neglect of duty, whether statutory or otherwise, does not afford the State or state agency shelter of the shorter period of limitation. 22. In view of the above discussion, it is held that the plea of the Appellant that the suit was time-barred, as it was filed beyond the period of one year, under Article 72 of the Limitation Act, is meritless. As regards the factual findings in the impugned judgment, this Court has already noticed that they do not call fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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