TMI Blog1997 (10) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... ods and had failed to do so. In the instant case it was the appellants, who admittedly had acted as holders of the Letters of authority and were the licensee's agents for clearance of the consignment from the customs and entitled to receive the goods which they failed to receive and clear. They could therefore be fastened with the liability to pay charges by way of demurrage etc. to the Port Trust. No merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to off-set the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs Authority vide order dated 28th February, 1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Import and Export (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of ₹ 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs Authority within a fortnight to redeem the goods. That option was never exercised. Since, the goods stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that the goods would be cleared and at the time of clearances, charges would also be paid. Since, the goods had not been cleared. On October 6, 1976, the Port Trust informed respondent No. 1 that demurrage charges amounting to Rs. 1,58,545.10 ps. were due "up to the date of confiscation" and called upon appellant No. 1 to remit the said amount. Since, there was no response, the Port Trust sent a reminder to appellant No. 1 on November 10, 1976 also for remitting the due amount. On December 3, 1976, Appellant No. 1 informed the Port Trust that it had merely opened a Letter of Credit and that the licence holder was liable to pay the costs and charges, who had failed to do so and 45 days' time was, therefore, sought by appellant No. 1 to arrange necessary finance for payment of the dues. Since, appellant No. 1 failed to pay the charges and dues, the Port Trust instituted Suit No. 394 of 1979 on the Original Side of the High Court of Judicature at Bombay on November 26, 1979 for recovery of Rs. 1,58,545.10 with interest thereon @ 12% per annum from the date of the said suit till realisation. Appellants resisted the suit and various pleas were raised. It was claimed that the suit wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled?"9. 3.While the Port Trust led no evidence, the appellants examined Shri Badri Prasad Chaudhary, constituted Attorney of appellant No. 2. The parties also produced various documents in support of their respective cases. On a consideration of the evidence on the record, the learned Single Judge concluded that the suit filed by the Port Trust was not barred by limitation. However, on merits, the learned Single Judge held that since the appellants were not the importers and/or owners of the goods covered by the consignment, the Port Trust could not recover the dues from the appellants. It was admitted before the learned trial Judge that there was no dispute about the quantum of the claim raised by the Port Trust on account of various charges. Aggrieved by the decision of the trial Judge, the Port Trust filed an appeal before the Division Bench of the High Court. The Division Bench allowed the appeal on 9/10th February, 1993 and setting aside the judgment and decree of the trial Court, decreed the suit filed by Port Trust with 12% interest per annum from the date of the suit till the realisation of the amount of Rs. 1,58,545.10 ps. The appellants were also directed to pay costs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by appellant No. 1 to obtain Customs' clearance in respect of the consignment. It is also admitted that notice regarding confiscation and option of redemption on payment of penalty was issued by the Customs Authority to appellant No. 1. That the appellants were acting as agents for the consignee is not denied. It is also admitted that at no point of time did the appellants inform the Port Trust about or liability of the licence, Laxmi Engineering or that they were acting only on behalf of the said firm till the suit was filed. So far as the quantum of charges is concerned, there is no dispute about its correctness either. 10.Thus from the admitted facts it would be seen that for all intent and purposes the rights which vested in the original consignee stood transferred in favour of the endorsee and the original consignee could thereafter exercise no rights in respect of the consignment, without cancelling the endorsement. A reference to the statement of Shri Badri Prasad Chaudhary, the constituted attorney and husband of appellant No. 2, also goes to show that it was appellant No. 1 who had opened the Letter of Credit and it had also incurred expenses and accepted its liability i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e title holder in the goods as canvassed by Mr. Tripathi, from the definitions noticed above it follows that the expression "owner" would include within its ambit a "consignee" as well as the "agent for the custody of the goods" in question. We are in agreement with the view of the Division Bench of the High Court that on the endorsement made by the "consignee" on the Bill of Lading, the appellant No. 1 became the "consignee" and in view of the Letters of authority issued to it, appellant No. 1 was obliged to clear the goods as an "agent". Appellant No. 1 would therefore squarely fall within the definition of an "owner" both under the Bombay Port Trust Act as also under the Major Port Trusts Act, more particularly since it is not disputed that appellant No. 1 had secured an endorsement on the Bill of Lading with a view to obtain custody of the consignment. It is, therefore, not available to Mr. Tripathi to contend that the appellants could not be considered even to be the "agents for the custody" of the consignment. This being the fact situation, the liability to pay demurrage and other charges to the Port Trust would squarely lie on the party who was obliged to remove the goods fr ..... 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