Dismissed

M/S.Faiz and Co.and Anr. v. the Trustees of the Port of Mumbai and Ors.

Bombay HC14 Sept 2009WP/1473/2000

Case brief

AI extract

What is this about?

This writ petition challenged the six-month limitation period for claiming refund of surplus proceeds from the sale of impounded goods under the Major Port Trusts Act, 1963. The court held the provision was reasonable as fair notice was given, allowing ample time for applications.

What did the court decide?

Writ petition dismissed. Rule discharged. No order as to costs.

M/S.Faiz and Co.and Anr. Vs the Trustees of… — Pension and Retirement Benefits | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION NO. 1473 OF 2000

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M/s.Faiz & Co. and anr. ...Petitioners

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v/s

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The Trustees of the Port of
Bombay & others...Respondents

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Mr.Mangal Bhandari with Mr.N.M.Shah for the
Petitioners.

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Mr.V.J.Makhija with Mr.Pankaj Khandar i/b

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Mulla & Mulla for the Respondents Nos.1 to 3.

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Mr.A.M.Sethana with Mr.S.C.Pal i/b

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T.C.Kaushik for Respondent No.4.

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CORAM: D.K.DESHMUKH, &
 R.G.KETKAR, JJ

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DATED: 14th September, 2009

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P.C.:

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challenges the validity of the provisions of

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Section 63(2) of the Major Port Trusts Act,

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1963. The relevant facts are that the

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consignment meant for the Petitioner was
received by the Port Trust. The Petitioner

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did not clear cargo. Therefore, the

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Petitioner was informed that if the goods are

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not cleared within two months from that date

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the cargo will be placed in the custody of
the Port Trust. It was made clear that under

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Sections 61 and 62 of the Major Port Trusts
Act the cargo is liable to be sold by public

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auction. Accordingly the cargo was sold on
11-8-1997. Sub-section 2 of Section 63 of the

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said Act lays down that after deducting

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expenses which are mentioned in sub-section 2
of Section 63, if there is any surplus amont
then it can be refunded either to the

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importer or to the owner or consignee or his
agent if an application is made in this
behalf within six months from the date of
sale of the goods. In the present case, the
sale took place on 11-8-1997. An application

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for refund was made on 14th October, 1999 by
the Petitioner. That application was rejected
by communication dated 12th November, 1999,
because the application was made beyond the
period of six months from the date of sale.
It is this communication at Exh.C whereby the
Port Trust refused to refund the amount which
is challenged in this petition.

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2.The learned Counsel appearing for the
Petitioner submitted that the period of six
months which is laid down by Sub-section 2 of

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Section 63 for consignee or owner or the
importer to make an application for refund is
unreasonable. He submits that an application
is required to be made within a period of six
months from the date of sale of goods. In
case where the importer, owner or consignee
does not know that the goods are to be sold
or are sold and comes to know subsequently

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the fact of sale, he is deprived of an
opportunity to make an application for
refund. The learned Counsel further says that
in the present case the Petitioner was not
aware of the sale. When he came to know of

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the sale, he made an application and
therefore his application should not have
been rejected.

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3.We have heard the learned Counsel
appearing for the Respondents also.

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4.Section 61 of the Act lays down that

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the Port after expiry of two months from the
time when any goods have passed into its

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custody, unless the goods which are not
perishable or hazardous, sale the goods by
public auction. Sub-section 2 lays down that
before making such sale the Port shall give
ten days� notice of the same by publication
thereof in the Port Gazette or where there is
no Port Gazette, in the Official Gazette and
also in at least one of the principal local
daily newspapers. Under sub-section 3 of
Section 61, even the owner of the goods is to

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be served with a letter informing him about
the proposed sale. Section 62 lays down that
where any goods are placed in the custody of
the Board upon the landing thereof are not

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removed by the owner or other person entitled
thereto from the premises of the Board within
one month from the date on which such goods

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were placed in their custody, then the Board
may, after following the same procedure as
laid down in Section 61, sale the goods.

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5.Thus, it is clear that when the goods

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are sold either under Section 61 or Section
62, they are sold by the Port after issuing
public notice of the same and also after
serving individual notice of sale on the
owner or consignee. In the present case, the
Petitioner does not challenge the sale or
validity of the sale. Therefore, we have to

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assume that the sale of the goods was
conducted as per the provisions of either

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Section 61 or Section 62 of the Act.
Therefore, we will have to attribute the
knowledge of the date of sale to the
Petitioner. In the present case apart from

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such deemed knowledge being attributed to the
Petitioner, in fact the communication dated

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7th July, 1997 addressed by the Port Trust to

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the Petitioner is on record, it is stated in

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that letter that for failure of the

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Petitioner to clear the goods, the goods were
placed into the custody of the Port Trust and
that the Port Trust proposes to sale the
goods in accordance with the provisions of
Sections 61 and 62 of the Act by public
auction or tender. That the goods will be
sold either on 21-07-1997 or any other
subsequent date. The Port has also placed on
record a postal acknowledgement which shows

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that this communication was received by
somebody on behalf of the Petitioner. In the
rejoinder that is filed , though it is

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claimed that the communication dated 7-7-1997

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was sent at a wrong address, neither
inspection of the original of the acknowledge

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is sought nor the authenticity of the
signature found on the acknowledgement is

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disputed. In our opinion, therefore, we have

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to assume that the Petitioner was aware of

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the date of sale because of public notice
published and also because of the
communication dated 7thJuly, 1997, and

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therefore, he should have applied within a
period of six months from the date of sale.

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Even assuming that the Petitioner had no

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knowledge and therefore he could not have
applied within a period of six months of the

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sale, then also we see that in the
application dated 14th October, 1999 the
Petitioner does not state the exact date when

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he came to know when he became aware of the

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sale. He refers to a communication from

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Shipping Company M/s.Lloyd Triestino, but the
copy of the communication is not annexed nor

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is it produced. In our opinion, therefore, so

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far as the facts are concerned,the Petitioner
cannot claim that he had no knowledge of the

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sale and therefore, the Port was perfectly
justified in rejecting his application. So
far as the validity of the provisions of sub-

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section 2 of Section 63 is concerned, in our
opinion, the limitation of six months laid
down also cannot be said to be unreasonable.

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Because, the provision is made in a scheme by
the Legislature. We have to read the
provisions of Sections 61, 62 and 63 of the
Act together. They appear in one scheme.
Several steps are to be taken in relation to
the clearance of the goods, sale of the goods
and for refund of the surplus amount. In our
opinion, providing period of six months for
making an application for refund cannot be
said to be unreasonable because the sale
itself is conducted after public notice in
official gazette as also in newspapers and
after giving notice to the owner. Six months,
in our opinion, would be ample time to make

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an application, if you know the date of the

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sale. Thus, we do not find that the period of
six months laid down for making an
application under Section 63(2) of the Act

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can be called unreasonable. There is no

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substance in the petition. Petition fails and
is dismissed. Rule discharged. No order as to
costs.

M/S.Faiz and Co.and Anr. v. the Trustees of the Port of Mumbai and Ors.

Case brief

What is this about?

What did the court decide?

M/S.Faiz and Co.and Anr. v. the Trustees of the Port of Mumbai and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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