TMI Blog2020 (3) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... J.MATHEW (SR.) BY ADV. SRI.VIPIN P.VARGHESE BY ADV. SRI.ADARSH MATHEW BY ADV. SMT.ATHIRA ANTONY A. BY ADV. SHRI.S.K.KASHYAP BY ADV. SRI.BECHU KURIAN THOMAS (SR.) BY ADV. SRI.RONY JOSE BY ADV. SMT.SUZANNE KURIAN BY ADV.SRI.SREELAL WARRIER JUDGMENT The petitioner, a company registered in Vietnam represented by Indian power of attorney holder Sri.Amarnath Naik, has approached this Court claiming following reliefs: (I) issue a writ of mandamus or any other appropriate writ, direction or order and commanding Respondent No.1 to allow the petitioner or persons claiming under it to destuff the cargo from the containers covered by Bill of Lading Nos.235900805914 dated 30.08.2019, 0399X30482 dated 06.09.2019 and 0399A22251 dated 15.09.2019, move it to a more economical storage and sell the cargo to an interested buyer or dispose of it or otherwise deal with the same as the owner of the cargo; and (ii) issue a writ of mandamus or any other appropriate writ, direction or order commanding the Respondent No.1 to allow the petitioner or persons claiming under it to make and prefer necessary filings etc- either electronically in the Customs Automated System of the Central Board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 25.09.2019, wherein over and above 21 days of free time, sought another 14 days of extension to lift the goods with a further prayer of cash discount of 150 US dollars per metric tonnes only on account of extreme delay, but before that, had submitted the bill of entries on 19.09.2019, 23.09.2019 and 08.10.2019 (Exts.P41 to P43). Respondents 3 and 4 are the shipping agencies and respondent 5 is the container freight station. 4. Despite having submitted the bill of entry, the goods have not been lifted entailing into an intended demand of container freight station and as well as demurrage charges at the end of the 3, 4 and 5th respondents. The expression 'importer' used Section 22 and defines under sub clause 26 of Section 2 of the Customs Act has undergone an amendment with effect from 31.03.2017 by including any owner or beneficial owner or any person holding himself to be an importer thus for all intends and purposes respondent No. 2 cannot be granted as an importer. 5. A very piquant situation in the instant case as the reason where the respondent No.2 despite having submitted bill of entries has not come forward for claiming the title of the goods or made the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods in open auction to recover the detention and another charges in accordance with law and urges this Court for dismissal of this writ petition. 7. Mr.Manu Radhakrishanan, the learned counsel appearing for the 3rd respondent submits that his clients had let out the container consisting of the consignment of 1500 metric tones of steel and it would be bound by the contract between his clients and the petitioner. The submission of the statement of account of the tariff of the containers cannot be the actual demand it is only for facilitation of the petitioner, nothing beyond. 8. I have heard the learned counsel for the parties, perused the paper book and I am of the view that there is no force and merit in the submission of Mr. Aswin Gopakumar on account of the following reason: I. This court has been prevented of the contract if any arrived at between the petitioner and the insurance company as the normal transaction business as well as ascertainable from the terms and conditions of the contract (Ext.P1), the goods are always against the insurance of the freight ie. Cost Insurance Freight. II. It is still a mystery whether the petitioner has launched claim with the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bailor and bailee between the consignee and the Port Trust, the decision in Forbes-II disagrees with this view of Sriyanesh Knitters. Rasiklal opines that enquiry into such relationship is irrelevant in determining the right of a Port Trust to recover its dues; (iii) While the decision in Sriyanesh Knitters was based on the interpretation of the term owner Under Section 2(o) of the MPT Act, the judgment in Forbes-II and Rasiklal do not find the question of interpretation of the term owner to be relevant; (iv) While Forbes-II relies upon the Constitution Bench decision in Rowther-I to come to its conclusions, Rasiklal does not find Rowther-I to be an authority for the proposition that until the title in goods is passed to the consignee, the liability to pay various charges payable to a Port Trust, for its services in respect of goods, falls exclusively on the steamer agent; (v) In Rowther-II, it was held that once the goods are handed over to the Port Trust by the steamer and the steamer agents have duly endorsed the bill of lading or issued the delivery order, their obligation to deliver the goods personally to the owner or the endorsee comes to an end. The dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
