9911796707
TMI Blog2007 (9) TMI 610X X X X Extracts X X X X X X X X Extracts X X X X ..... d to pay all the amounts spent by the petitioner on transportation and destuffing of the said cargo and also for the demurrage already debited by the respondent authorities in respect of the said containers; (b-2) A writ of and/or in the nature of mandamus do issue commanding the respondents and each one of them not to charge any demurrage on FCL containers; (b-3) A writ of and/or in the nature of Mandamus do issue commanding the respondents and each one of them to act in accordance with the Major Port Trusts Act and only to debit the demurrage charges subject to the lien exercised by the petitioner upto the period of 2 months from the date of landing of the containers and not thereafter; (b-4) A declaration be made that the excess amount sought to be recovered by the port authorities be refunded and/or adjusted by the port authorities in the marine account of the petitioner; (b-5) A writ of and/or in the nature of mandamus do issue commanding the respondents and each one of them to discharge a lien of the petitioner on the said goods before appropriating the same on any other account. The learned Trial Judge by the Judgment and order impugned dismissed the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta. The petitioners received a copy of the letter from the said consignee whereby the appellants were informed that there were certain disputes with the suppliers of the said goods and therefore they disowned their liability either with regard to the said goods or with regard to the expenses incurred in connection with the said goods. In view of the aforesaid dead-lock situation with regard to the said cargo the appellants by their letter dated 29th April, 19S7 requested customs authority for their help and assistance to make the said containers free of cargo so that the said containers might be made available for re-export. Similar request was made to the port authorities by an Advocate's letter dated 17th May, 1997 for granting permission to destuff the said containers and to permit to sell the said cargo contained in the said containers and to suitably appropriate the sale proceeds. The customs authority by their letter dated 21th May, 1997 recorded their no objection for destuffing the said containers. The petitioners/appellants on several occasions repeatedly requested the port authority to arrange to destuff the cargo and to release the containers but no step was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of containers lies wholly with the consignee through their clearing/forwarding agents. De-stuffing of container is not the liability of a port or Port Trust authority under normal circumstances. The containers are loaded with urea which are highly corrosive and pollutant. Moreover in this case consent is required from the Government of Nepal through Royal Nepal Consulate General for putting up for sale of the cargo in the container bound for Nepal for import under Major Port Trusts Act, since cargo belongs to a foreign and third country and have been imported under the license issued by the Government of Nepal. In order to explore the feasibility of sale the port authority has also addressed a letter to the Royal Nepal Consulate General on 9 1 June, 1997 with a reminder on 16th July, 1997 so that necessary action could be initiated to put up the cargo inside the container on sale. Such 'in-container-sale' is in practice at the Port of Bombay and in the present case also the said practice should be followed since the cargo is unsuitable for de-stuffing for the reasons stated hereinabove. Such 'in-container-sale' could be initiated only if the Royal Nepal Consulate Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the consignment, particularly in terms of Section 62 of the Act, it shall be open to the Port Trust to have the goods sold in-containers but by adopting the shortest possible time schedule for this purpose which in any case will not exceed more than two months from today and the goods thus being sold, responsibility to de-stuff the containers pursuant to the sale of the goods shall be of the Calcutta Port Trust and the containers thus de-stuffed within aforesaid period, these shall be returned to the petitioner. If within two weeks from today the Calcutta Port Trust decides not to take action under the provision of the Act for disposal/sale of the goods, it shall be its responsibility immediately thereafter to start the process of de-stuffing immediately on the expiry of two weeks from today. The petitioners shall be rendered every possible assistance for de-stuffing of the containers, as being done in the normal case of the port authorities in respect of other carriers subject to payment of all charges of de-stuffing as laid down in that behalf. The de-stuffing process shall be completed without delay and thereafter the de-stuffed containers be handed over to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Senior Counsel for the appellants, submits that his client is supplier of the container and not the owner of the goods stuffed therein. His client is not responsible to clear or discharge the goods unless the consignee viz. the Nepal Government Company takes steps for clearance and for destuffing the container by off in-loading the goods. His client cannot remove the container and as such the port authority cannot realise any demurrage charges on account of arrears from the importer. He contends that time and again his client requested the port authority, customs authority as well as the Nepal Government Company but no action was taken by any of the parties. Under such circumstances, it was the port authority whose obligation was to take action under the provision of Section 62 of the Major Port Trusts Act to sell the goods and destuff the container after the goods were off-loaded. Under the treaty between Indian Government and the Nepal Government there is no embargo and/or prohibition from taking steps under the law. Such steps should have been taken within the time as mentioned in Section 62 of the said Act. According to him, the learned Trial Judge by dismissing the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n port area, port authority is legitimately entitled to impose demurrage charges as per the scale of rate fixed by it. Therefore, the demurrage charges which has accrued on account of the detention of the said container together with cargo are to be realised and/or to be paid by the appellant/writ petitioner for not having taken any steps for removal of the same. Moreover, the accounts maintained by the appellant with the port authority is highly irregular. The amount of sale proceeds in terms of the order of the Court has to be appropriated by the port authority alone, and appellant has no claim whatsoever with regard thereto. All costs and expenses and incidental charges thereto for sale obviously have to be borne by the appellant as appellant has got the container released. Port authority has rightly debitted its account on account of demurrage charges. In support of his submission he has placed reliance on the following reported and unreported decisions of this Court viz. , APO 486 of 2005 Board of Trustees for the Port of Calcutta and Anr. v. Swahom Shipping Services Pvt. Ltd. and Ors. Appeal No. 572 of 2002 Board of Trustees for the Port of Calcutta and Ors. v. China Ocean Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty. At the same time under Section 60 ship-owners are also having lien for freight and other charges. Here we are dealing with the question of clearance of the container which cannot be done unless the same are de-stuffed by removing the goods contained therein. Under Sections 61 and 62 of the said Act the Boards have been empowered to sell the goods if the same are not cleared within the time stipulated. Those two sections are set out hereunder: 61. Sale of goods after two months if rates or rent are not paid or lien for freight is discharged.--(1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty-four hours after the landing of the animals or goods as the Board may think fit, sell by public auction of in such case the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner, such goods or so much thereof as, in the opinion of the Board, may be necessary- (a) if any rates payable to the Board in respect of such goods h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be sold by public auction or by tender, private agreement or in any other manner: Provided that where all the rates and charges payable under this Act in respect of any such goods have been paid, no notice of removal shall be so served or published under this sub-section unless two months have expired from the date on which the goods were placed in the custody of the Board. (2) The notice referred to in Sub-section (1) may also be served on the agents of the vessel by which such goods were landed. (3) If such owner or person does not comply with the requisition in the notice served upon him or published under Sub-section (1), the Board may, at any time after the expiration of two months from the date on which such goods were placed in its custody, sell the goods by public auction or in such cases as the Board considers it necessary so to do, for reasons to be recorded in writing sell by tender, private agreement or in any other manner after giving notice of the sale in the manner specified in Sub-sections (2) and (3) of Section 61. (4) Notwithstanding anything contained in Sub-section (1) or Sub-Section (3)- (a) the Board may, in the case of animals and peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-law 55C is read isolated from the aforesaid section then the port authority cannot claim or realize any rent for keeping container within the port area. On careful reading of bye-law 55C it will be clear that the Board is not accepting custody nor is responsible in any manner in respect of the goods or cargo brought under container unless the same are un-stuffed meaning thereby the Board cannot become liable for any loss of goods as a bailee until the same are unstuffed. But this should not be understood to say that Board can not take step for sale of goods. In our view the aforesaid bye-law 55C is applicable only to wriggle out from responsibility as bailee of the goods. 17. What Board will do in case of the goods remaining in container is not removed within the maximum period of two months under the provision of Section 62 of the said Act, has been explained by the Supreme Court in case of 2002(3) SCC 168 Om Shankar Biyani v. Board of Trustees, Port of Calcutta and Ors. In paragraph 22 while considering Section 62 together with Section 59 of the Supreme Court it is observed as follows: In our view, the 1st respondent should have sold off the goods at that stage. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on port authority exercises discretion not to sell the goods even under any circumstances then result would be absolutely chaotic for the simple reason that the person concerned will utilize the godown space and/or wharf of the port authority for indefinite period and further if the importer, consignee or shipping agent is incapable of paying the godown charges so to be accrued because of not the same being cleared then the port authority will never be able to realize not only the godown charges or any other rates but also will lose the value of the goods itself. 21. As observed by the Supreme Court that port premises is the valuable public premises and Section 62 has been provided for taking measure for clearance of the goods as the extreme measure. The aforesaid bye-law 55C cannot be made applicable to frustrate the very purpose and object of the aforesaid statutory provision of Section 62 of the Major Port Trusts Act. In view of the said Supreme Court decision we feel that the Star Iron case is no longer a good law to the extent of contradiction and conflicting with the-above Supreme Court judgment. 22. For this simple reason an unreported decision of this Court in Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without container or with container for definition of the goods in Section 2(h) of the said Act says amongst other every kind of movable property. Moreover, the said bye-law nowhere prevented the port authority from taking steps for unstuffing the goods. 25. In the case of Swahom Shipping Services Pvt. Ltd. v. Commissioner of Customs (Port), reported in 2005(190) ELT 436 (Cal.), a learned Single Judge has observed that irrespective of act and conduct of the importer of the goods and container owners the port authority is not only empowered but is duty-bound to take steps under Sections 61 and 62 and 63 for sale and appropriation of sale proceeds within the time mentioned therein. It is also observed that port authority as being the statutory bailee of the goods brought within its premises is bound to take such steps mentioned in the aforesaid Acts and Regulations framed contrary to the aforesaid provisions preventing it from taking action are not an excuse for not taking any action. In paragraph 14 it is also observed by learned Single Judge that the port authority is not the custodian of the goods until the same are unstuffed for taking steps under the law. It is further obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has observed upon reading of the Indo-Nepal Treaty that no such restriction would be found. The Division Bench of this Court while admitting the present appeal at the earlier stage has taken the same view. Then the aforesaid views were recorded as being tentative and prima facie and not the final pronouncement, but we think upon reading as many times as required that there is no cause for taking a different view. We have read the Indo-Nepal Treaty. We find not only there is no restriction nor prohibition rather the aforesaid treaty is very clear in Article VII that the provision mentioned therein are subject to Indian Laws and Regulations. The protocol to the treaty of transit between Nepal and India where under Clause 6 it is made clear that the transit cargo shall be subjected to the levy of all charges by the trustees in accordance with the schedules of charge in force from time to time. According to Sub-clause (3) under Clause 11 that all goods intended for removal in transit to Nepal while in the process of removal to or from warehouses or other storage places that may be leased out in Calcutta Port for the storage of such goods and also while in storage or under the process o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
