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M/s. Orissa Stevedores Limited Versus The Traffic Manager, Chennai Port Trust

2016 (8) TMI 674 - MADRAS HIGH COURT

Refund - payment towards demurrage under protest - (i) whether the goods in question are easily identifiable and distinguishable (ii) whether delay in clearing or taking delivery of the consignment is attributable on the part of the petitioner or the respondents 1 to 3 and (iii) whether the respondents 1 to 3 are justified in slapping demurrage charges payable by the petitioner. - Held that:- It is the case of the petitioner that though the goods of the petitioner as well as the fourth respo .....

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tter from the fourth respondent 15.11.2014 and only thereafter the goods were released on 24.11.2014. - Whether the delay is attributable on the part of the petitioner or respondents 1 to 3 cannot be gone into by this Court in this writ petition. They are disputed questions of fact. In fact, the petitioner also paid the demurrage claimed by the respondents 1 to 3 under protest. - The petitioners would mainly contend that the goods imported by the importers, to whom the petitioner and fo .....

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y event, such disputed questions of fact cannot be gone into by this Court by conducting a roving enquiry in exercise of jurisdiction conferred under Article 226 of The Constitution of India. However, the petitioner is given liberty to agitate their claim for refund of the demurrage amount before the appropriate Civil forum. - Writ petition dismissed - Decided against the appellant. - Writ Petition No. 3445 of 2015 - Dated:- 22-3-2016 - Mr. R. SUBBIAH J. For the Petitioner : Mr. Abdul Quddho .....

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briefly be stated as under:- (i) The petitioner is a licensed customs broker, steamer agent and Stevedores having office at various places in India, including a branch office at Chennai. During the course of their business, they have acted as Custom broker for M/s. Shah Brothers Ispat Private Limited who imported 458 Nos. (2544.648 metric tonne) of steel plates. The goods reached the Port Trust by Vessel M.V. Serpentine on 07.08.2014. Further, one M/s. Suzlon Energy Limited also imported 919 Nos .....

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e customs broker and 919 pieces meant only for M/s. Suzlon Energy Limited. According to the petitioner, the bill of lading in respect of both the cargo clearly discloses the description of the cargo meant for the petitioner and the fourth respondent and they can be easily segregated due to their distinct dimension. On 07.08.2014, the Vessel arrived Chennai and discharge of the cargo from the vessel commenced on 12.08.2014. As customers broker, the petitioner submitted the Bill of entry correspon .....

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eant for the petitioner and the fourth respondent have got mixed up. On such oral instructions, the petitioner stopped taking delivery of the remaining quantity of 24 pieces on 18.08.2014. On 19.08.2014, the petitioner written a letter to the Area Traffic Manager attached to the Chennai Port Trust and requested them to release the balance cargo so as to avoid payment of any demurrage by them. On receipt of the letter, the third respondent made an endorsement in the letter of the petitioner stati .....

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el plates. In the meantime, M/s. Suzlon Energy Limited sent a letter dated 06.09.2014 stating that they have no objection for the release of the balance cargo in favour of the petitioner. Inspite of the same, the goods were not released to the petitioner. (ii) While the facts are so as stated above, on 11.09.2014, the Senior Deputy Traffic Manager of Chennai Port Trust called upon the petitioner to pay ₹ 21,07,575/- towards demurrage for the period from 21.08.2014 onwards as a condition pr .....

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tion of the balance 24 pieces of steel plates, M/s. Shah Brothers Ispat Pvt Ltd., to whom the petitioner acted as customs broker, suffered huge loss as they could not honour their commitment to the customers. In any event, the amount of ₹ 21,07,575/- collected from the petitioner is unlawful and therefore the petitioner has filed this writ petition. 3. The learned counsel appearing for the petitioner would vehemently contend that demurrage can be levied only if it is shown that the delay i .....

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clearing the goods is attributable either on the part of the petitioner or the importer to whom the petitioner is acting as a customs broker. In fact, even as early as on 19.08.2014, the petitioner sent a letter to the respondents 1 to 3 for which the third respondent made an endorsement clearly stating that the goods have landed in a mixed condition and therefore the cargo was detained for checking other consignments. It was further stated in the endorsement made by the third respondent that a .....

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pondents 1 to 3 from taking delivery purportedly on the ground that the cargo meant for the importer of the petitioner and the fourth respondent got mixed up. According to the counsel for the petitioner, the goods meant for the importers of the petitioner and the fourth respondent are easily distinguishable and identifiable and therefore the reasons for detaining the goods and the consequential collection of demurrage from the petitioner are unlawful, arbitrary and unreasonable. The learned coun .....

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e Trustees of the Port of Bombay vs. Indian Goods Supplying Company) (1975) 77 Bombay LR 475 to contend that demurrage can be recovered only where the importer failed to clear the goods in time. When there is impediment created by the department themselves, it is impossible to clear the goods and hence the importer is not liable to pay any demurrage. 5. The learned counsel for the petitioner also relied on the decisions of the Honourable Supreme Court in (i) (Board of Trustees of the Fort of Bom .....

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issue a Mandamus for refund of the amount. Merely because the amount has been paid to the Government or instrumentalities of the Government, it cannot be said that the Court cannot issue a direction for refund of the amount. 6. Per contra, the learned counsel appearing for the respondents 1 to 3, relying on the counter affidavit of the first respondent, would contend that the writ petition is not maintainable before this Court and the remedy available to the petitioner is only to file a civil su .....

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rned counsel for the respondents 1 to 3, as per the Scale of Rates, seven free days are allowed in case of imported cargo from the date of completion of landing and it is for the parties concerned to take delivery of the cargo within the time stipulated above. If the cargo is not taken delivery within the time or taken delivery beyond the time, demurrage is leviable as per the scales of rates. The port is a transit area where quick evacuation of landed cargo is essential so as to facilitate stoc .....

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th the consignees or their agents. In this case, the petitioner was engaged as a customs broker by M/s. Shah Brothers Ispat Pvt Ltd.,for clearing the goods in question. Similarly, the fourth respondent acted as customs broker for M/s. Suzlon Energy Limited. Both the consignments landed with "Nil" mark and the unloading was completed on 12.08.2015. The free days viz., seven days for clearing the cargo expired on 20.08.2015. Both the cargos were stacked in mixed condition by using privat .....

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was enormous delay. On 12.11.2014, the respondents 1 to 3 convened a meeting with the petitioner, fourth respondent and the importers. During the meeting, the parties were informed about their obligation to pay demurrage inasmuch as even the No Objection Certificate was produced by the petitioner at a much later date on 15.11.2014. According to the learned counsel for the respondents 1 to 3, the petitioner, being a customs broker is jointly liable to pay the demurage along with the principles f .....

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y identifiable are incorrect. The fact remains that the consignment handled by the petitioner itself are of different dimensions and the fact of mixing up of the cargo had also been admitted by the petitioner in the letter dated 09.09.2014. It is further submitted that there was a dispute between the petitioner and the fourth respondent and therefore, the petitioner has obtained No Objection Certificate from the fourth respondent. The non-delivery of the consignment is attributable to the petiti .....

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age, however, the petitioner remained silent till the date of taking delivery of goods on 24.11.2014. The demurrage claimed by the respondents 1 to 3 is not towards the charges incurred for segregation of the cargo handled due to mixing up of the cargo but towards non-taking of delivery of the cargo within the seven free days. Therefore, the learned counsel appearing for the respondents 1 to 3 would justify the slapping of demurrage by the respondents 1 to 3 and prayed for dismissal of the writ .....

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slapping demurrage charges payable by the petitioner. 10. It is an admitted fact that the petitioner has cleared 95% of the goods in question and the remaining 5% of the goods has not been cleared. There was delay in clearing the goods due to various factors. In other words, the petitioner took delivery of 434 pieces of steel plates out of 458 pieces of steel places as early as on 19.08.2014. The balance 5% of the goods were cleared on 24.11.2014. As per the Regulations governing the respondent .....

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d thereafter, they were restrained from clearing the remaining goods on the ground of purported mix-up of cargo. It is the case of the petitioner that though the goods of the petitioner as well as the fourth respondent are easily distinguishable, the official respondents restrained the petitioner from taking up the delivery of the goods on the ground that the goods have been mixed-up and therefore, they are not in any liable or responsible for the delay in clearing the goods. But this allegation .....

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in advance by a notice dated 11.09.2014 regarding their obligation to pay demurrage inasmuch as the goods were detained in the cargo area of the Port Trust beyond the period of seven days. Further, on 12.11.2014, the respondents 1 to 3 convened a meeting with the petitioner, fourth respondent and their respective importers and attempted to resolve the issue. In such circumstances, there was a delay in clearing the cargo and therefore the respondents 1 to 3 have collected the demurrage. Whether t .....

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