TMI Blog1977 (3) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... the clearance of the two consignments as well as the third consignment was considerably delayed and the Port Trust claimed demurrage for the period from March 25, 1957. The respondents disputed the right of the Port Trust to charge any demurrage for the period during which the goods were detained by the Customs authorities for analytical test. as well as for the Import Trade Control formalities. It is common ground that so far as the period for analytical test certified by the Customs authorities is concerned the Port Trust cannot charge demurrage. But so far as the period during which the goods were detained for the Import Trade Control formalities by the Customs authorities the Port Trust claimed demurrage. Due to protracted correspondence between the parties the goods were not cleared and ultimately the suit was filed by the respondents for recovery of a sum of ₹ 24,950 and interest thereon from the Port Trust being the aggregate loss sustained by them. The appellants denied that liability and pleaded that the Port Trust. was in law entitled to collect the demurrage levied on the respondents and that as they failed to pay the demurrage the Port Trust was entitled to sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anction and, when so sanctioned and published in the Bombay Government Gazette, shall have the force of law; and subject to the like sanction and publication, may from time to time be amended or added to by the Board. It is admitted that the Board framed a scale of rights for demurrage of goods and the scale so framed by the Board was submitted to the Central Government and was sanctioned by the Central Government and published by the Bombay Government in the Gazette as required. The result is that under section 43B(1 ) the scales so framed by the Board and approved by the Central Government shall have the force of law. The learned counsel for the appellants as the Port Trust in this appeal have given up its claims to refund of the money taken by the respondents. In view of this the counsel for the respondents confined his arguments to supporting the view taken by the High Court regarding the question of law. He submitted that the Central Government had taken action under section 43B (IA) and had called upon the Board to modify the operation of such scales and therefore the Board was bound to modify the scales accordingly. This contention is based on a D.O. letter dated 7th Sept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is that they are in no way responsible for the delay in clearing the goods as the goods had been detained under the Import Trade Control Regulations. It is no doubt true that before clearance is given by the Import Trade Control authorities and the Customs Department the goods cannot be cleared by the respondents. Neither can the Port Trust deliver the goods without the consent of the Import Trade Control authorities. Taking into account the hardship caused to the importer because of the delay certain concessions in demurrage rates are permitted. The Port Trust has prescribed the reduced demurrage levy which is 1/6th of the normal rate from the date of expiry of the free days upto the 60th day, 1/3rd of the normal rate after the expiry of the 60th day, upto the 90th day, half the normal rate after the expiry of the 90th day upto the 120th day, 2/3rd of the normal rate after the expiry of the 120th day upto the 150th day and at the full rate after the expiry of the 150th day. As the scale of rates are framed by virtue of the statutory powers conferred on the Board under section 43 and as the rates have been approved by the Central Government under section 43B the rates have the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transit area and he had defaulted or was negligent in clearing the goods. Justice Chandrachud, who spoke for the Court, observed in his judgment at page 736 supra that the statute had not placed any limitation on the power of the Board to fix rates and as the Board had the power to frame a scale of rates at which and the statement of conditions under which any of the services specified in the section shall be performed and as the Board has fixed the scale of rates it was difficult to see in what manner or respect the Board has exceeded its power under section 42. The Court proceeded to observe in rejecting the view of the High Court that the Board cannot fix rates of demurrage when the failure to remove was not due to some fault or negligence of the importer, that there is no such fetter on the Board s powers to fix the rates. This decision of the Supreme Court is on all fours with the facts of the present case and concludes the question. Mr. Nariman, counsel for the appellants cited three decisions of the English Courts in support of his contention that even on the basis of a contract the right of the Port Trust to recover demurrage cannot be denied unless the person claimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the shipowner failed in his duty through any default of his own or of persons for whom he is responsible ? As the non-delivery was occasioned by something which the shipowner could not foresee or by the act of persons over whom he had any control it was held that he was not liable. In Compania Crystal De Vapores of Panama v. Herman Mohatta (India) Ltd., ([2953] 2 ALl. E.R. 508) Justice Devlin quoted with approval the law laid down by Lord Esher in Budgert Co. v. Binnington Co. (supra) which is in the following terms :-- If the shipowner by any act of his has prevented the discharge, then, though the freighter s contract is broken, he is excused , he was referring to a case in which the shinowner s act preventing the discharge was in breach of his obligation to give the charterer all facilities for the discharge. But here the act of the shipowner which delayed the discharge was not a breach of any obligation of his. The position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rates imposed are under the authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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