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TMI Blog2016 (8) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... y thereafter the goods were released on 24.11.2014. Whether the delay is attributable on the part of the petitioner or respondents 1 to 3 cannot be gone into by this Court in this writ petition. They are disputed questions of fact. In fact, the petitioner also paid the demurrage claimed by the respondents 1 to 3 under protest. The petitioners would mainly contend that the goods imported by the importers, to whom the petitioner and fourth respondent are working as customs agent, are easily identifiable and having distinct feature with each other and therefore the question of mixing up of the cargo does not arise. This averment has been denied by the respondents 1 to 3 in the counter by contending that the consignment handled by the petitioner itself are of different dimensions as that of the fourth respondent and the fact of mixing up of the cargo had also been admitted by the petitioner in the letter dated 09.09.2014. In any event, such disputed questions of fact cannot be gone into by this Court by conducting a roving enquiry in exercise of jurisdiction conferred under Article 226 of The Constitution of India. However, the petitioner is given liberty to agitate their claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner commenced taking delivery of the cargo from 13.08.2014 onwards. The petitioner took delivery of 434 pieces of steel plates out of 458 pieces of steel plates as early as on 19.08.2014. However, all of a sudden, after taking delivery of 95% of the goods, the third respondent orally informed the petitioner not to take any further delivery of the cargo as the goods meant for the petitioner and the fourth respondent have got mixed up. On such oral instructions, the petitioner stopped taking delivery of the remaining quantity of 24 pieces on 18.08.2014. On 19.08.2014, the petitioner written a letter to the Area Traffic Manager attached to the Chennai Port Trust and requested them to release the balance cargo so as to avoid payment of any demurrage by them. On receipt of the letter, the third respondent made an endorsement in the letter of the petitioner stating that Suzlon and Shah Brother Plates were landed in mixed condition. Even though we have given delivery of 95% to Shah Brothers, 5% cargo was detained for checking other consignments, after checking, we will give delivery very soon . In view of the same, the petitioner could not take delivery of the goods. Subsequently, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 to 3 for which the third respondent made an endorsement clearly stating that the goods have landed in a mixed condition and therefore the cargo was detained for checking other consignments. It was further stated in the endorsement made by the third respondent that after thorough verification of the goods, delivery will be effected to the petitioner very soon. When such being the position, the respondents 1 to 3 are not justified in slapping demurrage as though the goods were unlawfully stored in the ware house of the Port Trust due to the negligence or any other reasons attributable on the part of the petitioner. In fact, the petitioner has cleared 95% of the cargo and while attempting to clear the remaining 5% of the goods, they were restrained by the respondents 1 to 3 from taking delivery purportedly on the ground that the cargo meant for the importer of the petitioner and the fourth respondent got mixed up. According to the counsel for the petitioner, the goods meant for the importers of the petitioner and the fourth respondent are easily distinguishable and identifiable and therefore the reasons for detaining the goods and the consequential collection of demurrage from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 3 being the custodian of cargo are liable for any loss or damage caused to the goods between the period of landing and delivery or admittance and loading. According to the learned counsel for the respondents 1 to 3, as per the Scale of Rates, seven free days are allowed in case of imported cargo from the date of completion of landing and it is for the parties concerned to take delivery of the cargo within the time stipulated above. If the cargo is not taken delivery within the time or taken delivery beyond the time, demurrage is leviable as per the scales of rates. The port is a transit area where quick evacuation of landed cargo is essential so as to facilitate stocking and delivery of the arrival of subsequent cargo to be handled. 7. According to the learned counsel for the respondents 1 to 3, there are circumstances when similar different consignees are landed from the same vessel and they are stacked in the same area/shed. In such a situation, the ownership of the cargo is identified/verified with it's marks, numbers, specification, dimension etc., In the absence of the same, the responsibility of identifying and taking delivery of the cargo lies with the consignees o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. The non-delivery of the consignment is attributable to the petitioner's inefficiency in understanding the complications involved in taking delivery of the goods and the negligence on their part to take steps to resolve the issue at the earliest point of time. As far as the respondents 1 to 3 are concerned, they did not wantonly stop the delivery of the consignment and it is attributable due to non-completion of formalities by the petitioner. The respondents 1 to 3 have issued an advance notice dated 11.09.2014 indicating that they are liable to pay demurrage, however, the petitioner remained silent till the date of taking delivery of goods on 24.11.2014. The demurrage claimed by the respondents 1 to 3 is not towards the charges incurred for segregation of the cargo handled due to mixing up of the cargo but towards non-taking of delivery of the cargo within the seven free days. Therefore, the learned counsel appearing for the respondents 1 to 3 would justify the slapping of demurrage by the respondents 1 to 3 and prayed for dismissal of the writ petition. 9. I heard the learned counsel for the petitioner as well as the learned counsel for the respondents 1 to 3 and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice dated 11.09.2014 regarding their obligation to pay demurrage inasmuch as the goods were detained in the cargo area of the Port Trust beyond the period of seven days. Further, on 12.11.2014, the respondents 1 to 3 convened a meeting with the petitioner, fourth respondent and their respective importers and attempted to resolve the issue. In such circumstances, there was a delay in clearing the cargo and therefore the respondents 1 to 3 have collected the demurrage. Whether the delay is attributable on the part of the petitioner or respondents 1 to 3 cannot be gone into by this Court in this writ petition. They are disputed questions of fact. In fact, the petitioner also paid the demurrage claimed by the respondents 1 to 3 under protest. 12. As far as the decisions relied on by the counsel for the petitioner are concerned, it was held by the Bombay High Court as well as the Honourable Supreme Court that the importer is not liable to pay demurrage charges unless it is shown that the delay is attributable on the part of the Port Trust. Therefore, first it has to be established that the delay in clearing the consignment is attributable on the part of the respondents 1 to 3. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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