9911796707
TMI Blog1999 (2) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... he record, it appears that it is the case of the petitioner and accepted by the respondents that on account of extremely high current, at the time of beaching activity, the ship broke anchor and started drifting southward. All attempts made by the crew to restart the engine failed as a result of which, it continued to drift and went out of control. Ultimately, it drifted towards the Bay of Cambay and got grounded in the sea at Tankaria point. The vessel was badly damaged and almost broken half and started to sink. It was not possible to make the vessel again float in the water and, therefore, the members of the crew abandoned the vessel. M/s. Kathiawar Steels informed the Authorities that it was not interested any more in the vessel and requested to treat the Bill of Entry as cancelled. M/s. Kathiawar Steels also cancelled the transaction with the seller. A note known as sea protest setting out the aforesaid facts was filed by the master of the vessel on 2-6-1998, stating the vessel abandoned. 4.The ship actually belonged to M/s. Antares Naviera. Beunous Aires who had taken full insurance claim of the said vessel from the insurance company, viz. Britannia P I Club which ultimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government and, therefore, the Central Government being the owner, there is no question of resale. 11.It is further mentioned in the affidavit-in-reply that the foreign seller has got his full claim from the insurance company; in the affidavit, there is a reference in para 2.1 to MOA entered into between M/s. Kathiawar Steels and M/s. Eckhardt Marine GMBH, Germany. As per clause 18, the said vessel was to be delivered on 'as is where is' basis at safe anchorage at Alang port. Mr. Patel submitted that as per clause 37 of the said agreement, the title of the vessel has passed after delivery of the vessel. In the affidavit, the agreement is referred to but the same is not produced on record. However, Mr. Patel has read clause 37 which reads as under : "The title shall pass after delivery' of the vessel and letter of credit released to seller subject to seller fulfilling their obligation". 12.M/s. Kathiawar Steels produced before respondents bill of entry and other relevant documents. Respondent referred in the affidavit an agreement executed by and between the owner of the vessel and M/s. Kathiawar Steels. Whether that was an agreement to sell or not is the crucial question. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Alang Port and that would not necessarily mean the arrival of the vessel at the customs water but would mean safe anchorage at Alang Port. The intention clearly indicates that the act must be completed to such an extent that the vessel is anchored so as not to move from that place. If the condition of safe anchorage at Alang Port is not fulfilled, it would not mean that the vessel was delivered at safe anchorage at Alang Port. Again, delivery itself does not contemplate the passing of the title. 14.Property in goods, i.e. vessel, reading clause 37, was to vest in M/s. Kathiawar Steels not only at safe anchorage at Alang Port but title was to pass only after delivery of the vessel and also after letter of credit was released in favour of seller. From the record it is clear that there was no delivery of the ship. Before vessel could be anchored safely, it drifted and grounded in the bay of Cambay. Master of the ship did not deliver the ship under these circumstances. Merely arrival of the vessel for anchoring at the port or lodging the bill of entry would not contemplated safe anchorage or delivery. Again, delivery of the vessel alone was not sufficient after safe anchorage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 'the Act') reads as the provisions of the Act which apply "Unless otherwise expressly provided to vessels other than those referred in sub-section (1) shall so apply only while such vessel is within India, including the territorial waters thereof". Sub-section (55) of Section 3 defines "vessel" which includes any ship, boat, sailing vessel, or other description of vessel used in navigation. Part XII of the Act refers to investigation and inquiries : A shipping casualty shall be deemed to occur when on or near the coasts of India, any ship is lost, abandoned, shrounded or materially damaged. The master pilot, harbour master or other person in charge of the ship shall on arriving in India give immediate notice of the shipping casualty to the officer appointed in this behalf by the Central Government. As per Section 359 of the Act, report of casualty is to be submitted to the Government. In the instant case, no procedure seems to have been followed as laid down under the Act. We say so because the Union of India has not placed any material in this behalf. 19.In the instant case, as the vessel was abandoned by the master of the ship without hope or intention of recovery, provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thiawar Steels. 21.Mr. Joshi, appearing for the petitioner drew our attention to the judgment of the Apex Court in case of Union of India v. Sampat Raj Dugar, 1992 (58) E.L.T. 163. 22.The Apex Court pointed out that : "It is necessary to notice the language of the sub-clause. It says 'it shall be deemed to be a condition of every such licence that ..... the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through customs'. The rule making authority (Central Government), which issued the order, must be presumed to be aware of the fact that in many cases, the importer is not the owner of the goods imported at the time of their import and that he becomes their owner only at a later stage, i.e. when he pays for and obtains the relevant documents. Why did the Central Government yet declare that such goods shall be the property of the licensee from the time of import ? For appreciating this, one has to ascertain the object underlying the said provision." 23.The Apex Court, after pointing out the provisions contained in Imports (Control) Order and Imports and Exports (Control) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eels must have relinquished whatever right might have accrued in view of agreement including that of safe anchoring by the master of the ship. Had it been the owner, it would have claimed the amount from insurance company or would have taken all reasonable steps including approaching the court for protecting his rights. As pointed out earlier, on these conditions being fulfilled, title was to vest in M/s. Kathiawar Steels. First steps of safe anchorage at Alang Port being missing. M/s. Kathiawar Steels rightly withdrew the bill of entry. A person who is not an owner can import the goods and therefore, the fiction of ownership in Control Orders. If M/s. Kathiawar Steels became the owner when it produced the bill of entry, it would have produced the documents to claim the ownership as well. And, if that be so, the respondents would have relied on the same and would have produced before the Court to show that title in the goods passed from seller to the buyer. The fact remains that the owner claimed the amount from the insurance company and ultimately it was paid by the insurance company which sold the vessel to another party at Dubai and in turn the petitioner purchased the vessel or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper case, a High Court can, in exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the court may itself pass an order or give directions, which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion." 27.In view of the facts and circumstances of the present case we issue a writ of mandamus directing the respondents to accept Bill of Entry presented by the petitioner and permit clearance of the goods on payment of full customs duty in accordance with law. In the instant case, the goods are stored at Ghogha and, therefore, the authority in control of Ghogha port shall accept the Bill of Entry and other relevant documents and shall clear the goods. 28.Learned Counsel Mr. Patel for the Union of India requested that the order passed by this Court should be stayed for six weeks. In this connection, it may be noted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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