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TMI Blog1993 (1) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... 76, respondent No. 1 informed the Port Trust that the bill of entry is being completed and the goods would be cleared and at that time charges will be paid. On October 6, 1976, Port Trust addressed letter to respondent No. 1 pointing out that the Port Trust charges amounting to Rs. 1,58,545.10 are due upto the date of confiscation and respondent No. 1 should remit the same at an early date. The demand was reiterated on November 10, 1976 and in reply on December 3, 1976, the respondents stated that respondent No. 1 had merely opened letter of credit and the licence holder was liable to pay all the advances, costs and charges but had failed to do so. The respondent No. 1 sought 45 days' time to arrange necessary finance for payment of duty and fine. The respondent No. 1 failed to clear the charges and ultimately Port Trust instituted Suit No. 394 of 1979 on the Original Side of this Court on November 26, 1979 for recovery of Rs. 1,58,345.10 with interest thereon at the rate of 12% per annum from the date of suit till realisation. 2. The suit was resisted by the respondents, inter alia, claiming that suit was barred by law of limitation. The principal contention raised by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the defendants fall within the definition of 'owner', it is necessary to set out few more facts. The respondents claim that M/s. Laxmi Engineering Company of Haryana held two licences authorised to import stainless steel tubes and Laxmi Engineering Company had imported the consignment. The respondents claimed that as the goods were to be imported at Bombay, M/s. Laxmi Engineering Company obtained from Joint Chief Controller of Imports and Ex- ports two letters of authority dated February 26, 1974 in respect of the said licences and the letters of authority were issued in favour of defendant No. 1. The defendants claimed that under the letters of authority, the defendant No. 1 became an agent of M/s. Laxmi Engineering Company for the limited purpose of import policy and the goods imported always remained the property of Laxmi Engineering Company till the date of clearance and subsequent thereto. The defendants, therefore, claimed that they were never owners of the goods and are not liable for the charges demanded by the Port Trust. That clearly brings into consideration the question as to whether the defendants fall within the definition of expression 'owner'. Section 3(5) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 cannot be considered as consignee because the consignee was the Indian Overseas Bank and the endorsement merely transfers the bill in favour of the defendants and the transferee can never be treated as consignee. In support of the submission, reference was made to Paragraph 490 of Halsbury's Laws of England, Fourth Edition. The relevant portion reads as follows :- "A bill of lading is a document signed by the shipowner, or by the master or other agent of the shipowner, which states that certain specified goods have been shipped in a particular ship, and which purports to set out the terms on which the goods have been delivered to and received by the ship. After signature, it is handed to the shipper, who may either retain it or transfer it to a third person. This person may be named in the bill of lading as the person to whom delivery of the goods is to be made on arrival at their destination, in which case he is known as the consignee." It was contended that the above quotation clearly makes out that an endorsement cannot make transferee a consignee. We are unable to find any merit in the submission. The learned counsel could not dispute that on transfer by endorsement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant No. 1 but could not remember whether the charges of the clearing agents were paid. It was accepted that defendant No. 1 had filed bill of entry for clearance of the goods and were also served with show cause notice by the Customs authorities. The order of confiscation was also addressed to defendant No. 1. These admissions on the part of the defendants leave no manner of doubt that defendant No. 1 was the consignee or the owner of the goods, even though defendant No. 1 was holding letter of authority from Laxmi Engineering Company. The manner in which defendant No. 1 spent amount and in absence of any evidence to indicate that defendant No. 1 was reimbursed by M/s. Laxmi Engineering Company, an impression is left that the transaction was that of defendant No. 1 and, in any event, defendant No. 1 was the owner of the consignment as contemplated by Section 2(o) of the Major Port Trusts Act. It is, therefore, obvious that the defendants are liable for the charges payable to Port Trust in respect of storage of the consignments. 5. Shri Makhija submitted that even assuming that the defendants are not treated as consignee of the shipment under Section 2(o) of the Act, still the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signee and consequently the Board can recover the charges from the ship-owner and not from the consignee. It was also contended by Shri Patel that in respect of service performed to the vessel, the charges can be realised only from the steamer-agent and not from the consignee. The entire submission proceeds on a mis-conception. The Port Trust authorities hold the goods before clearance and renders service to the goods as well as to the owner of the goods. In respect of the service rendered, the Port Trust authority is entitled to levy charges in accordance with provisions of Chapter VI of the Major Port Trusts Act. Section 42 of the Act sets out the services to be performed by the Board and Section 48 onwards enables the Board to charge rates for any of the services specified in Section 48 or for any of the services with any user or permission to use any property belonging to or in occupation of the Board. The claim of Shri Patel that the steamer-agents are the bailors and the Board being the bailee can recover the rates only from the steamer-agents and not from the consignee cannot be accepted. The steamer- agent ultimately hands over the consignment to the Board as bailee for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also demands service of notice upon the owner before the sale takes place. Section 63 of the Act provides for application and sale proceeds and sub-section (2) provides that the surplus, if any, shall be paid to the owner or the consignee. The scheme of the Act leaves no manner of doubt that the liability is of the owner of the consignment to pay the charges and, therefore, in case Port Trust authorities are required to sell the goods, then prior notice is required to be served on the owner. The sale proceeds also, if, in excess of the dues of the Port Trust authorities are to be refunded to the owner. It is, therefore, obvious that the contention of Shri Patel that the Act does not provide for liability of the owner to pay the charges is without any substance. In our judgment, the trial Judge was in error in concluding that the defendants are not liable to pay the charges demanded by the Port Trust. As the defendants did not dispute about the quantum of amount demanded by the Port Trust, the appellants are entitled to the decree as sought. 8. Accordingly, appeal is allowed and the impugned judgment and decree dated December 12, 1989 passed by learned Single Judge in Short Cause ..... X X X X Extracts X X X X X X X X Extracts X X X X
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