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TMI Blog2020 (8) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... o. ACL/JEA/KAT-429 dated 04.02.2020, for which the petitioner had neither paid the detention charges nor returned the two containers. 3. The Director General of Shipping had issued advisories for non charging of containers' detention charges on import and export from 22.03.2020 to 03.05.2020, owing to the COVID-19 pandemic situation. The Customs Department had also issued advisories to all CFS to consider waiver of ground rent, penalties and demurrage charges during the lock down period. 4. According to the third respondent, both the shipments in the 1x40' and 2x20' containers, had reached the Chennai Port, prior to COVID-19 lock down period and since the petitioner had executed a Container Bond to return the empty containers after payment of container's detention charges, non return of the containers and non payment of the detention charges, is a breach of the bond and unless and until the total outstanding dues under both the Bill of lading No. ACL/JEA/KAT-429 and Bill of lading ACL/JEA/MAA-766 of Rs. 27,23,893.42 is paid, the petitioner will not be entitled for the relief. 5. The petitioner is aggrieved against the non issuance of the delivery order for the Bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not a "Customs Cargo Service Provider" (hereinafter referred to as CCSP) under the Handling of Cargo and Customs Areas Regulations, 2009. In support of such a contention, the learned counsel for the third respondent drew attention of this Court to Regulations 5 & 6 which pertains to the conditions and responsibilities to be fulfilled by a CCSP and since the third respondent does not qualify to most of the conditions and responsibilities provided therein and also since they are not an approved CCSP, the provisions of the Handling of Cargo and Customs Areas Regulations, 2009 will not be applicable. 9. Per contra, the learned counsel for the petitioner placed reliance on the definition of CCSP under Regulation 2(1)(b) and stated that the third respondent squarely fall within the definition. He would place reliance on the decision of this Court in the cases of M/S. P.Perichi Gounder Memorial Vs. The Commissioner of Customs (W.P.No.29847/2018 dated 06.08.2019) and M Balaji Dekors Vs. The Commissioner of Customs, Chennai reported in 2017 (356) ELT 219 (Mad) and by referring to the facts of the present case, would submit that the issue involved is not contractual but it involves the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo Services Provider. There is also no disputation that they function under the control of the Customs Department. .... 21.A perusal of Giridhari case also reiterates the same principle i.e., that the CFS and Steamer Agent have to necessarily implement the orders of Customs Department." 12. Regulations 5(5) and 6(1)(l) of the Regulations reads as follows: Regulation 5(5): Undertake to comply with the provisions and abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder .. Regulation 6(1)(l): .. subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be; 13. Thus, a combined reading of the Regulation 2(b) and 5(5) along with Regulation 6(1)(l) would qualify the third respondent to be a CCSP. 14. In similar situations, when statutory regulations came to be violated by a CCSP and the maintainability of a Writ Petition against the CCSP was questioned before this Court in Balaji Dekors' case (supra), thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the case may be. 9. The second respondent, in no uncertain terms, has certified that the goods were detained by the SIIB from 02.12.2016 to 27.12.2016 and issued an order on 28.12.2016 that the custodian (third respondent) shall not charge rent or demurrage for goods under detention. Thus, the third respondent cannot interpret the said communication, as the Regulations clearly provide that the custodian cannot charge any rent or demurrage on the goods detained by the second respondent. However in the case of W.P.No.6452 of 2017, which concerns, M/s.Calyx Container Terminals, goods in question have been removed on 06.01.2017. Therefore, a levy is sought to be made for the period from 28.12.2016 to 06.01.2017. In my considered view this is unreasonable because after the order was passed on 28.12.2016, effective steps have been taken by the petitioner to clear the cargo and it has been done in the shortest possible time on 06.01.2017. Therefore, the third respondent should waive the rent or demurrage on the goods for the entire period i.e., from 02.12.2016 till it was cleared on 06.01.2017. 10. With regard to the Container Terminal, the third respondent in W.P.No.6453 of 2017, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain as to whether a judgment is in personam or in rem. In Booz-Allen & Hamilton Inc. Vs. SBI Home Finance Ltd. reported in (2011) 5 SCC 532, the Hon'ble Supreme Court had held, a "judgment in personam' as a judgment against a person as distinguished from a person, thing, right or status and a "judgment in rem" to be a judgment that determines the status or condition of property which operates directly on the property itself. Thus, while a "judgment in personam" would be a judgment binding between the parties claiming right in form as well as in substance, a "judgment in rem" is one that is pronounced upon the status of some particular person or thing and which binds all persons. 18. The ratio decidendi in the judgments cited by the learned counsel for the petitioner are of judgments in rem and therefore, though the facts of such precedents may differ from the facts in hand, the same would have no relevance and will not take away the 19. Having held that the present Writ Petition would be maintainable, the next issue that would arise for consideration is as to whether the third respondent is justified in withholding the delivery order for the 1x40' container, by insisting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the orders of the Commissioner of Customs, Chennai, which is also not disputed by the petitioner, which is not disputed by the petitioner. Thus, if the petitioner is granted liberty to settle the entire outstanding dues for the 1x40' container to the third respondent and thereby direct the third respondent to release the delivery order, the ends of justice could be secured. It is needless to point out that it is always open to the third respondent to ventilate their grievances in accordance with law, for any claim that may be due in connection with 2x20' containers. 24. In the light of the above observations, a Writ of Mandamus is hereby issued, directing the third respondent to release/handover the delivery order vide Bill of Lading No.ACL/JEA/MAA-766/20, dated 02.03.2020 for the 1x40' container on receiving a sum of Rs. 8,61,358.30/- from the petitioner and consequently deliver the goods pertaining to this Bill of lading to the consequently deliver the goods pertaining to this Bill of lading to the petitioner. Such an exercise shall be done atleast within a period of one week from the date of receipt of a copy of this order. 25. The Writ Petition stands thu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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