The Board of Trustee of the Port of Bombay Vs M/S.Margh International and Anr.

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 O.O.C.J.

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 Suit No. 329 of 1987

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 The Board of Trustees of the
 Port of Bombay ..Plaintiff

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vs.

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 M/s Mangla International and
 another ..Defendants

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 Mr.U.J.Makhija i/b Mulla and Mulla for plaintiff.

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CORAM: S.C.DHARMADHIKARI J
5th September,2007
P.C.

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 1. It is erroneously mentioned in the order dated
 6th August, 2007 that the suit has been decreed in
 so far as defendant no.1. The suit has not been
 decreed against defendant no.1 despite defendant
 no.1 not filing any written statement.

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 2. Defendant no.2 has not been appearing although
 written statement is filed and issues have been
 framed.

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 3. In such circumstances, Mr.Makhija states that
 the affidavit of documents and affidavit in lieu of
 the examination in chief being filed, this Court
 should pass appropriate order decreeing the suit
 against both the defendants.

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 4. He submits that the learned Advocate appearing
 for defendant no.2 has appeared before this Court

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 and sought time to obtain discharge from the
 proceedings. This request has been specifically
 noted in both the orders referred to above.
 However, there is no one appearing for the
 defendants. Mr.Bootwala has not remained present
 to inform this Court as to whether he has obtained
 the discharge from the proceedings after duly
 intimating his clients.

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 5. In such circumstances, I proceed to hear the
 suit and dispose of it finally. The plaint
 averments and contents as well as existence of the
 annexures thereto are sought to be proved by the
 oral and documentary evidence. The copy of the
 affidavit in lieu of examination in chief of
 plaintiff’s witness has already been furnished to
 defendant no.2. The defendant no.1 has not filed
 written statement. The affidavit of plaintiff’s
 witness is tendered by Shri Makhija. The witness
 is present. The witness confirms the statements
 therein and states that he has affirmed and signed
 the affidavit. He confirms his signature. the
 affidavit is taken on record.

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 6. The claim in the present suit as is clear from
 the affidavit in lieu of examination in chief of
 the Assistant Docks Manager on behalf of the

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 plaintiffs, is arising out of the consignment of 15
 containers more particularly referred to in para 2
 of his deposition. In or about August, 1982 the
 consignment has been discharged by the vessel is a
 fact which is sought to be proved by relying upon
 the Import General Manifest. The Import General
 Manifest was furnished to the plaintiffs by
 defendant no.2 as owners/agents of the vessel.
 They discharged the cargo in the custody of the
 plaintiffs. The first defendant was shown as
 importer of the consignment. The Import General
 Manifest No.1310 dated 31st August, 1982 pertaining
 to the said consignment is produced in original.
 The same is taken on record and marked as Exhibit
 P-1. The witness is present in Court. He has

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 confirmed not only the statements in the affidavit
 but his signature below the same. He has produced

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 the Import General Manifest in original and has
 invited my attention to item no.10 of the same. It
 refers to the consignment landed by the subject
 vessel and the details of the importer. Registry
 to take certified true copy of the original Import
 General Manifest on record and return the original
 on the plaintiffs’ furnishing usual undertaking.

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 7. Further deposition of the witness is that the
 defendants failed to clear these consignments. 14

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 containers were lying at Chembur yard and one was
 lying at other warehouse, the details of which are
 also set out in para 3 of the deposition.

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 8. Upon failure of the defendants to clear the
 goods within 7 clear days from the date of their
 landing, the consignments were put up for sale.
 Due intimation in writing was given to both the
 defendants with regard to the sale of consignments
 and they were called upon to clear them failing
 which the plaintiffs informed them of the sale
 without further notice. Both the sale notices are
 dated 28th February, 1983. Since the originals are
 received by the defendants, the certified true
 copies of the same are tendered. The witness
 proves the contents thereof and identifies the
 signatures below the same. The signature is that
 of one V.B.Vanwari, Asstt.Manager (Sales) of the
 plaintiffs. The case specifically set out is that
 the first defendant abandoned the cargo and that
 abandonment is in writing of the first defendant
 dated 3rd March, 1983. The said letter is produced
 in original. The receipt thereof as evidenced by
 stamp of the plaintiffs is proved by the said
 witness. This letter is, therefore, marked in
 evidence as Exhibit P-2.

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 9. There are further intimations which are more
 particularly set out in para 6 of the deposition.
 The contents of which are also proved together with
 signature of the Asstt.Manager (Sales). The
 acknowledgements are also proved in as much as the
 witness states that they have been despatched in
 ordinary and usual course of business. The said
 letters are taken on record and marked as Exhibit
 P-3 and P-4 respectively.

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 10. In para 7 of the deposition the Advertisement
 published in the issue of Times of India dated 14th
 March, 1983 and entry in the Govt. Gazette dated
 17th March, 1983 are produced in as much as the
 photo copies of the same are placed on record. The
 explanation has been given with regard to absence
 of the original. The photo copies have been kept
 in separate file and from the file the photo copies
 have been produced. The said photocopy of the
 advertisement is taken on record and marked as
 Exhibit P-5.

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 11. The same can be relied upon in absence of any
 defence on behalf of defendant no.1 and no the
 dispute raised with regard to their selling by
 defendant no.2. Defendant no.2 has been served
 with the affidavit in lieu of the evidence and

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 documents along with the list but none appears to
 challenge the correctness or veracity thereof. It
 is in such circumstances that the witness deposed
 that the consignment was put up for sale and after
 adjusting the proceeds towards the dues of the
 plaintiffs, the deficit of Rs.5,40,090.96 remains
 and which has been claimed by demand notice
 referred to in para 8 of the deposition. Once
 again the first defendant reiterated the stand that
 they had abandoned the consignment and have nothing
 to do with regard to the same. The second
 defendant was also intimated and letters have been
 received respectively by each one of them. The
 plaintiffs’ witness confirms the statement made in
 these letters and states that they have been
 despatched in the ordinary and regular course of
 business. The contents are verified from the
 accounts which have been maintained with regard to
 Port Trust charges. Thus, these documents are also
 relied upon and proved.

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 12. Thereafter a letter dated 31st October, 1983
 addressed by second defendant is also produced.
 The contents of this letter are clear enough in as
 much as the second defendant contends that the
 consignment having been sold by public auction does
 not mean that the amount can be recovered from

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 them. Reliance is placed upon section 63(2) of the
 Major Port Trust Act on the basis that the second
 defendants are the shipping agents for their
 principal. They submitted an application for
 payment of surplus amount of sale proceeds in order
 to meet the portion of expenses incurred by owners
 on account of container lease and container

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 rentals. They have relied upon the earlier
 application. The said letter dated 31st October,

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 1983 is also taken on record and marked as Exhibit
 P-6.

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 13. The plaintiffs have disputed the contents of
 this letter by their letter dated 12th December,
 1983 and informed that they are not entitled to
 claim the surplus amount, if any. In any event
 there was a deficit and no surplus of sale
 proceeds. This letter is also duly received and,
 therefore, the copy thereof can be safely relied
 upon. The same is taken on record and marked as
 Exhibit P-7. The said letter is in reply to
 defendant no.2’s letter dated 31st October, 1983.
 Ultimately, the suit notice of 24th February, 1986

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 signed by the Asstt.Manager (Sales)

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 Smt.V.R.Hardikar is relied upon by producing the
 copy thereof. The original thereof has been duly
 received by the first defendant. The copy of the

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 suit notice dated 24th February, 1986 is taken on
 record and marked as Exhibit P-8. Similar letter
 is addressed to second defendant on 7th March, 1986
 and copy thereof is produced. The copy of the said
 letter dated 7th March, 1986 is taken on record and
 marked as Exhibit P-9.

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 14. The defendants having failed to pay the sum
 the present suit has been filed.

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 15. The deficit is sought to be demanded on the
 basis of the work sheet and allocation sheet
 showing the calculations. The defendants have
 failed to pay the amount or any part thereof. The
 said working sheet and allocation sheet have been
 duly scrutinized and verified by the concerned
 officials and they have been produced from the
 custody of the plaintiff. The witness states that
 he is the plaintiff’s Asstt.Docks Manager and is
 depositing before the Court after having perused
 the working sheets and duly verified the same. The
 said working sheet and allocation sheet are
 produced and marked as Exhibit P-10 and Exhibit
 P-11 respectively. In such circumstances, even the
 working sheets can be relied upon in absence of any
 defence.

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 16. Having perused the plaint averments together
 with deposition of the plaintiffs’ witness and the
 documents exhibited I am fully satisfied that there
 is no impediment for this Court to decree the suit.
 It is clear that the claim of the plaintiff is
 within limitation in as much as the plaint
 averments in para 15 are clear. They are not
 refuted by the first defendant. However, the
 second defendant raised a dispute thereto but has
 not remained present to either cross examine the
 plaintiffs’ witness nor has led any evidence to
 show that the claim is not within limitation.

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 17. Since the consignments have landed at Mumbai
 and they were sold at Mumbai and the amount was due
 and payable at Mumbai, this Court has jurisdiction
 to entertain and try the suit. Further it is clear
 that the defendant nos.1 and 2 are carrying on
 business at Mumbai. In absence of any cross
 examination by defendant no.1 nor defendant no.2
 remaining present to lead evidence to prove his
 case the suit is decreed. Additionally Mr.Makhija
 placed reliance upon the Division Bench judgment in
 the matter of the Trustees of the Port of Bombay
 Vs. M/s Jayantilal L.Gandhi reported in A.I.R.1979
 Bombay 12. There are ample powers conferred upon
 this Court to decree the suit in absence of any

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 cross examination of the plaintiffs’ witness by the
 defendants. The defendants have also not availed
 of any opportunity to lead their own evidence. The
 claim is thus proved. Hence, the suit is decreed
 as prayed. Advocates’ cost as per rules. No order

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 as to costs.

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 18. Issuance of certified copy expedited.

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(S.C.DHARMADHIKARI J.)

The Board of Trustee of the Port of Bombay v. M/S.Margh International and Anr.

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The Board of Trustee of the Port of Bombay v. M/S.Margh International and Anr.

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