Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2015 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (3) TMI 1300 - HC - Indian LawsSuit for recovery for alleged detention charges upto to the date of the filing of the suit - Held that:- In the present case, despite lapse of considerable time, defendants No.1 to 5 were neither lifting the goods nor paying the detention charges. This conduct of defendants No.1 to 5 was a clear pointer to the plaintiff that the defendants No.1 to 5 had more or less abandoned the goods. There can be no reason or explanation as to why the plaintiffs have continued to keep waiting and did not take steps to mitigate their damages. The burden is on the petitioner to produce sufficient material to suggest malafides of the authorities concerned. It is a heavy burden which can be discharged ordinarily by initiating civil proceedings. Unless malafides are established, liability on the customs cannot be established. In the present case also in the written statement itself defendants No.1 to 4 have stated that the goods of the defendants were detained illegally as there was a demand of ₹ 50 lacs made by one of the Customs Department official for release of the goods. DW-1 in his evidence by way of affidavit has clearly pointed out the name of the official namely Mahesh Kumar Badha. It is stated that the said official has been chargesheeted for his conduct relating to the goods of Sanjeev Woolen Mills. His chargesheet has been filed alongwith affidavit though it has not been proved and has been given a mark as D-7. The said document has not been contested by the plaintiffs. It is an article of charge framed against Mahesh Kumar Badha the then Collector of Customs who was operating as Collector of Customs from January 1991 to January 1992. The allegation pertains to his conduct regarding Sanjeev Woolen Mills, namely, not allowing clearance of waste/woollen waste imported by the firm. In the light of the above categorical averments, and the evidence of DW-1 it is clear that defendants No. 1 to 4 have established malafides on the part of defendant No.6. However, defendants No.1 to 4 have filed no counter claim. In view of the judgment of the Division Bench of this High Court in the case of CWP 17976-77/2004, no liability can be thrust on defendant No.6. Defendant No.5 is not appearing and has been proceeded ex parte. The admitted position is that when the transaction took place in 1991 he was a partner of defendant No.1. He has exited sometime in 1993. If there is no liability of defendants No.1 to 4 no liability can also fall on defendant No.5. As already held that the plaintiffs are not entitled to claim detention charges on account of clause 18 of the Bill of Lading and the explanation to section 73 of the Contract Act for the period claimed in the suit i.e. March 1997 to March 2000. The onus regarding this issue was on defendant nos. 1 to 4. No submission has been made by defendant nos. 1 to 4 in regard this issue. Hence, hold that there is privity of contract between the plaintiff and defendant nos. 1 to 4. The onus to prove this issue was on defendants No.1 to 4. In the written submissions filed no submissions have been made to support this contention. In the present suit the plaintiffs claimed detention charges of only three years prior to filing of the suit. Hence, I hold that the suit is not barred by time. In view of my finding on issue no. 1 above, the present suit is dismissed with costs. The goods are still lying in a container with the plaintiff. The plaintiffs are free to take steps to destuff the container and dispose of the goods of defendant No.1 in the best possible manner. As value of the goods would have considerably reduced, no need is felt to appoint a court auctioneer. As defendants No. 1 to 5 have abandoned the goods, the plaintiff would be entitled to retain the sale proceeds from sale of such goods.
|