TMI Blog2001 (3) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... lants/plaintiffs could remove the goods only after the strike came to an end. But, the Port authorities levied charges under Section 48 of the Major Port Trusts Act, 1963 from 5-7-1979 to 25-7-1979 which worked out to a total amount of Rs. 93,967.33 under five bills. The levy was unilateral. They debited the amount towards payment due to the clearing agency, but in turn, the clearing agent had the same reimbursed by collecting the same from the appellants/plaintiffs. The appellants/plaintiffs were not at fault for non-removal of the cargo from the Dock yet. It was only due to the strike of the trailer workers. Therefore, the appellants/plaintiffs are not liable to pay demurrage. They issued a notice to the respondent/defendant-Port Trust authority to refund the amount with addition of Rs. 6,032.67 being the loss of earnings since the cargo was unnecessarily kept in the Port premises. The respondent/defendant refused to accede the request of the appellants/plaintiffs by letter, dated 8-9-1979. The appellants/plaintiffs had come forward with the suit seeking a decree for Rs. One lakh from the respondent/defendant with interest at 6% p.a. with costs. 3.The respondent herein as defen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re prevented by the striking trailer men. The learned Additional Judge held that the Port Trust being a protected area coming under the control of the Chairman of the Port Trust, if really the appellants/plaintiffs had ventured to remove the logs through the lorries and if there had been an obstruction by striking men, the appellants/plaintiffs would have complained of such objection to the Port Trust authorities, but they have not done so. Finally, the learned Additional Judge held that the logs were in the transit area, which cannot be allotted for rental basis. Then holding that though the respondent/defendant has a discretion under Section 53(2) of the Major Ports Act to exempt payment of the charges, the respondent/defendant cannot be found fault with for not doing so, the learned Additional Judge, accordingly, dismissed the suit. Aggrieved by the judgment and decree, the plaintiffs have come forward with the instant appeal. 7.Heard both the sides. The point for consideration is whether the learned Additional Judge erred in holding that the appellants herein/plaintiffs are not entitled to refund of demurrage charge. It is not in dispute that the appellant herein had imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth, mooring, stage or erection, land or building in the possession or occupation of the Board or at any place within the limits of the port or port approaches; (c) cranage or porterage of goods on any such place; (d) wharfage, storage or demurrage of goods on any such place; (e) any other service in respect of vessels, passengers or goods, excepting the services in respect of vessels for which fees are chargeable under the Indian Ports Act. (2) Different scales and conditions may be framed for different classes of goods and vessels." Section 42 of the Major Port Trusts Act recites as under :- "42. (1) A Board shall have power to undertake the following services :- (a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves, piers, quays or docks belonging to or in the possession of the Board; (b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises; (c) carrying passengers by rail or by other means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngside any buoy, mooring, wharf, quay, pier, dock, land, building or place as aforesaid by vessels; (b) entering upon or plying for hire at or on any wharf, quay, pier, dock, land, building, road, bridge or place as aforesaid by animals or vehicles carrying passengers or goods, (c) leasing of land or sheds by owners of goods, imported or intended for export, or by steamer agents; (d) any other use of any land, building, works, vessels or, appliances belonging to or provided by the Board. Different scales and conditions may be framed for different(2) classes of goods and vessels. Notwithstanding anything contained in sub-section (1), the(3) Board may, by auction or by inviting tenders, lease any land or shed belonging to it or in its possession or occupation at a rate higher than that provided under sub-section (1)." According to the learned Counsel for the appellants, the appellants were occupying only about 300 sq. ft. of the space and if at all they could have to pay the rent as fixed by the respondent under the Rules of the Port Trust for the period from 5-7-1979 to 25-7-1979. 8.Per contra, the learned Counsel for the respondent submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that expression in Rule 13(b) and (c) cannot constitute a fetter on its powers to fix the rates. The validity of the exercise of that power has to be judged on the language of Section 42 which is the source of the power." The Apex Court has pointed out in paragraph 31 of its judgment as under :- "The High Court has cited many texts and dictionaries bearing on the meaning of "Demurrage" but these have no relevance for the reason that demurrage being a charge and not a service, the power of the Board is not limited to fixing rates of demurrage. Besides, it is plain that the Board has used the expression 'Demurrage' not in the strict mercantile sense but merely to signify a charge which may be levied on goods after the expiration of Free Days. Rule 13(b) itself furnishes a clue to the sense in which the expression 'demurrage' is used by the Board. It provides, inter alia, that "demurrage" shall be recovered at a concessional rate for a period of thirty days plus one working day where the goods are detained for compliance with certain formalities and where the Collector of Customs certifies that the detention of goods is "not attributable to any fault or negligence on the part of ..... 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