9911796707
TMI Blog2024 (6) TMI 789X X X X Extracts X X X X X X X X Extracts X X X X ..... h is an admitted fact. In that view of the matter, the Defendant sought detention charges from Plaintiff for that period. It is clearly seen that the Bill of Lading and the contract between the parties was only upto the end of free detention period i.e. 30.06.2019. In this view of the matter, the Plaintiff in order to save its goods, because they were perishable got them released and received a waiver Certificate thereafter from the Customs Authority. Thus, requiring the Defendant to deposit the entire sum of Rs. 18 lakhs is unsustainable since an arguable case of defence has been made out by the Defendant - direction to deposit the amount of Rs. 18 lakhs in the impugned order is unsustainable and is therefore quashed and set aside only to that extent - petition allowed. - MILIND N. JADHAV, J. For the Petitioner : Mr. Rafiq Mohammed a/w. Ms. Reshmithaa Ramachandran, Biju Joseph, Ashly K. Prakash and Bhoomika Markani i/by Lloyd Johnson. For the Respondent : Mr. Shrey Fatterpekar a/w. Mr. Anupam Dighe, Mr. Prathamesh Chavan, Ms. Sweeta Upaddhyay and Ms. Chandni Tanna, Advocates . JUDGMENT: 1. This Writ Petition takes exception to the order dated 05.07.2023 passed by the Trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund of the above charges paid to Defendant on the ground that Plaintiff was wrongfully charged with detention charges by Defendant in view of the detention-cum-demurrage certificate dated 05.08.2019 issued by the Custom Authorities and therefore sought refund of the same. 5. Mr. Mohammed, learned Advocate appearing for the Petitioner - Defendant would submit that by the impugned order dated 05.07.2023, Summons for Judgment filed by Plaintiff was dismissed and leave was granted to Defendant to defend the Suit, subject to payment of Rs. 18 lakhs. In doing so, a finding was returned that triable issues were raised and further that Defendant has made out a case for filing Written Statement to show whether the detention charges charged are as per Rules. He would submit that, prima facie, it is an admitted position that the goods were released on 03.08.2019 thereby leading to detention of the said goods for a period of 48 days beyond the free detention period which came to an end on 30.06.2019. He would submit that Plaintiff cleared the goods since they were perishable and therefore paid the aforesaid detention charges to the Defendant for the period of 48 days as per the twin invoices ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant beyond the free detention period from 17.06.2019 onwards, there was no reason for the learned Trial Court to direct the Defendant to deposit the amount of Rs. 18 lakhs to defend the Suit. Hence, he would urge that the impugned order is fallible and deserves to be interfered with by setting aside the condition of payment of Rs. 18 lakhs while retaining the rest of the order. 9. PER CONTRA, Mr. Fatterpekar, learned Advocate for the Plaintiff would submit that Plaintiff made the aforesaid payment under protest only because Plaintiff desired to clear the perishable imported goods lest they would be completely ruined had they continued in detention and once they were released by the Customs. He would submit that once the Custom Authority held that no offence was committed by the Plaintiff, then the detention charges and other charges charged by the Defendant were illegal and arbitrary. He would submit that Plaintiff was left with no option or alternative but to make the payment under the invoices to the Defendant since the Defendant insisted on payment of detention charges for seeking release of goods. He would submit that on 06.08.2019, Plaintiff wrote an e-mail to the Defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -demurrage Certificate dated 05.08.2019, once the imported goods were cleared and it was recommended for waiver of detention and demurrage charges, it would be wrongful for the Defendant to recover detention charges from the Plaintiff. It is clearly seen that there is a 48 days period beyond the free detention period during which the goods were held by the Customs Authority and only cleared thereafter. If the invoices raised by the Defendant are seen, they were towards detention charges only for utilisation of the containers provided by the Defendant beyond the free detention period and upto the date of their release. Thus, it is clear that charges levied by the Defendant, prima facie, are towards detention charges as per the Contract i.e. Bill of Lading between the parties for the period beyond the free detention period. 13. The dichotomy of the present case is with reference to the detention and demurrage of the Customs Department vis-a-vis the detention charges mentioned in the contract. The question that would arise for consideration in this case is whether the detention-cum-demurrage waiver Certificate dated 05.08.2019 issued by the Customs Authority will be applicable or bind ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
