Recovery of differential shipping Fees., Other Topics

[vinay wakde]

We have removed coastal cargo of our finished goods and also received various coastal cargo of Raw materials  through  Mini Bulk Carriers (MBCs).   The port from which we have removed the goods / received the R/M is Minor Port. The Port authority had recovered Shipping fees / Landing fees from us at the time removal /receipt of the goods.  We have now received a letter (i.e. after lapse of Ten years) from Port authority to pay  differntial amount  of dues, which remains to be recovered from us due to amendment in the prescribed rate.

Kindly let us know whether differential amount shall be recovered from us after lapse of ten years or is there any time period in Port Act for recovery of dues. Any case law in the matter.

Regards,

VINAY

 

Posts / Replies

[Pradeep Khatri]

Madras High Court

The Trustees Of The Madras Port ... vs The London Trading Company, ... on 17 August, 1961

Equivalent citations: AIR 1962 Mad 415, (1962) 2 MLJ 45

Bench: S R Iyer, O.C.J.

ORDER

(1) This revision petition raises a question of limitation. lie respondent, a merchant at Madras, imported 8 package, of diesel oil engines from foreign countries. The consignment reached Madras Harbour on 10-10-1949, when they were cleared by the Port Trust Authorities and transported to their warehouse within their premises. It appears that the goods had been ordered and imported by the respondent in contravention of the Indian Trade Control Regulations. On 11-3-1953 the packages were confiscated to Government for such contravention. The Port Trust authorities, to whom the shortage fees and fees for services rendered were due made a claim upon the respondent. The latter made certain payments, which reduced the claim of the former to a considerable extent. The balance due was found to be Rs. 919-14-0 for recovery of which a suit was filed in the court of Small Causes, Madras. The suit was contested by the respondent mainly on the ground that the claim was barred by limitation.

The trial court overruled the plea and decreed the suit. It was held that the period of limitation applicable to the suit claim would be governed by Art. 120 of the Limitation Act and that the petitioner would be entitled to file a suit within a period of six years from the time when the right to sue accrued The respondent thereupon moved for a new trial before the Full Bench of the court, of small Causes. The Judges sitting on the Full Bench set aside the decree of the trial judge on the ground that the proper Article to be applied in the instant case was Art. 110, as the charges claimed were in the nature of rent for the godowns wherein the consignments were warehoused by the Port Trust authorities till they were confiscated by the Government. Holding, therefore, that only a three-year rule would apply to the case, the learned Judges set aside the decree of the trial court and dismissed the suit. In this revision the petitioner challenges the correctness of that finding.

(2) Article 110 provides for a suit claiming arrears of rent. The period of limitation is three years when the arrears became due. The word "rent" in the Article implies that there must have been a relationship of landlord and tenant between the parties, or, at any rate, there must have been an agreement between the parties in regard to the payment of rent. There is no such agreement in this case. What is claimed on behalf of the Port Trust is not rent but fees and charges for services rendered and for accommodation in their godowns which they are entitled to levy under the, authority conferred on them by the port Trust Act. Section 39 of the Act prescribes that the Board shall provide reasonable facilities and shall have power to undertake services enumerated therein. Section 42 enables the Board to prescribe a scale of rates at which and a statement of the conditions under which any of the services specified in the section shall be performed. By virtue of the authority conferred under S. 42, the appropriate authority has fixed charges for certain services, which the Board is prepared to render to the public.

Section 50 provides the time for payment of rates levied on goods. That section states.

"Rates in respect of goods to be landed shall be payable immediately on the landing of the goods, in respect of goods to be removed from the premises to the Board, or to be shipped for export, or transshipped."

Section 51 provides for a lien in respect of the charges leviable for services rendered to the owner. The right to recover the charges is therefore a statutory one vested in the Board. There is no specific provision in the Limitation Act for recovery of the fees and charges so levied. In Rajah of Vizianagaram v. Thammanna, ILR (1937) Mad 498. (AIR 1937 Mad 217) (FB), a question arose as to the period within which a suit by a Zamindar for recovery of cess payable to the Government from the holder of an inam within the Zamindary could be claimed, a liability that arises under S. 88 of. the Madras Local Boards Act. A Full Bench of this court held that a suit which was not based on any contract, express or implied, could not be regarded as one for rent and that the case before them, being one to enforce a liability created by a statute, Art. 120 alone would apply. I am of opinion that the same rule would apply to the claim in instant case, which is also one where the liability that is sought to be inferred is by reason of the exercise of a statutory power and not the result of any contract between the parties.

(3) The question then arises whether the petitioner will be entitled to the entire amount claimed or only to a portion of them. The goods were landed on 10-10-1949, they were confiscated on 11-3-1953, but the suit was filed on 18-3-1956 more than six years after the landing of the goods. Therefore in respect of the services rendered for landing, the claim would be prima facie barred by limitation. But a substantial portion of the claim related to charges for warehousing the goods. The total claim, according to the petitioner, came to about Rs. 5205. Of that sum all but As. 919-14-0 had been paid; most of the payment being made even within six years from the date of landing the petitioner would be entitled to appropriate the payments made from time to time to the earliest of the amounts which accrued due. The sum of Rs-919-14-0, could in the circumstances of the case be taken as accruing within the period of six years of suit. The petitioner will therefore be entitled to recover the entire sum claimed.

(4) The trial court, in the instant case, had decreed the suit. But the new trial Judges on g n-misrepresentation of Art. 110 of the Limitation Act held that the claim was in respect of rent within the meaning of that provision and dismissed the suit. This misapprehension as to the nature of the claim and the consequent decision on the basis will certainly amount to a material irregularity in the exercise of the jurisdiction by the appellate court, which can be interfered with in revision. The decree of the lower court is set aside and that of the trial judge restored. This petition is allowed with costs.

(5) Petition allowed.