TMI Blog2002 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant wants clearance of the goods he has to pay all charges of the 1st Respondent till 10th January, 1992. In the event of the Appellant not clearing the goods after paying all charges within 30 days from today the 1st Respondent will be at liberty to take action under Section 62 of the Major Port Trusts Act and also, if permissible in law to do so, to make a claim against the Appellant for recovery of the balance amount due after sale of the goods. - 1407 of 2002 - - - Dated:- 22-2-2002 - Syed Shah Mohammed Quadri and S.N. Variava, JJ. [Judgment per : S.N. Variava, J.]. - Leave granted. 2.Heard the learned Counsel for the parties. 3.This Appeal is against an Order dated 27th July, 2000. 4.Briefly stated the facts are as follows : The Appellant had imported into India, from Singapore, a consignment of bearings,. The said consignment landed at the Port of Calcutta on 13th July, 1989. The Appellant submitted a Bill of Entry for home consumption for clearance of the said goods. The said goods were assessed by the Customs and valued at Rs. 1,24,69l/-. However, on 1st August, 1989 before the goods could be cleared by the Appellant, the Customs authorities passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Rates in respect of goods to be landed shall be payable immediately on the landing of the goods and rates in respect of goods to be removed from the premises of a Board, or to be shipped for export, or to be transhipped, shall be payable before, the goods are so removed or shipped or transhipped. (emphasis supplied)" Thus the charges of the 1st Respondent are to be paid before the goods are removed. The High Court seriously erred in permitting removal of the goods without payment of the port charges. To be noted that it was never disputed that the charges were payable. The 1st Respondent was not concerned with the dispute as to who had to pay the charges. It was the Appellant who was interested in clearance of the goods. It was for him to have paid the charges and cleared the goods. Even if it was the Appellants' case that the Customs authority had to pay the charges, the Appellant should have first cleared the goods by paying charges due to the 1st Respondent and then claimed reimbursement from the Customs authority. 9.Now Section 59 of the Major Port Trusts Act may be noted. It reads as follows : "59. Board's lien for rates. - (1) For the amount of all rates leviable by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad, by that time, paid the demurrage charges upto 2nd February, 1990 the Customs authorities would reimburse the Appellant for the same. Mr. Nageshwar Rao, produces letters dated 25th September, 1991 and 11th October, 1991 and submits that the Appellants had offered to pay charges till 2nd February, 1990. 13.The 1st Respondent filed an Appeal. By an interim Order dated 16th November, 1991 the Appellants were permitted to clear the goods on payment of demurrage up to 2nd February, 1990 and on furnishing a Bank Guarantee in the name of the Chairman of the 1st Respondent. The Bank Guarantee was to be for the charges of the 1st Respondent from 3rd February, 1990 till the date of Bank Guarantee. The Appellants now did not pay the charges up to 2nd February, 1990 nor furnished the Bank Guarantee. They allowed the goods to remain with the 1st Respondent knowing full well that further demurrage charges were being incurred. 14.The Appeal of the 1st Respondent was disposed of by the impugned Order dated 27th July, 2000. The directions of the learned single Judge directing the 1st Respondent to recover only till 2nd February, 1990 has been set aside. It is held that the 1st Respondent can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal of the goods without offering to pay the storage charges. If the bailee were to refuse to allow clearance and exercise his right of lien, as he is bound to do, the bailor's purpose would be served. He would thereafter have rent free storage space. He could then continue to store the goods free of rent. On the other hand, if the bailee were to permit clearance, in almost all cases, his charges would not be subsequently paid and he would have to then pursue the bailor for recovery of his charges. This could never be the law. 19.Faced with this situation, Mr. Nageshwar Rao submits that the 1st Respondent should have exercised their power of sale under Section 62 of the Major Port Trusts Act. He submits that it was the duty of the 1st Respondent to sell off the goods. He submits that the 1st Respondent cannot be permitted to continue to levy demurrage charges when they themselves do not sell off the goods. He submits that after they obtained a stay on 11th May, 1990 the 1st Respondent should have sold off the goods. He submits that the 1st Respondent should not be allowed to claim demurrage charges after 11th May, 1990. We are unable to accept this submission. Till 19th Decem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... They are a statutory body. Merely because there is no obligation to sell does not mean that they can allow the goods to lie around. By this time the 1st Respondent well knew that the Appellant was not paying the charges. Now the Court had permitted them to take recourse to such action as was available in law. Sale is contemplated in the Major Port Trusts Act itself. In our view the 1st Respondent should have now sold the goods. Apart from the fact that demurrage charges would have stopped running, valuable godown space would also have become available to them. On facts of this case, we feel that it would be just and proper that the 1st Respondent not be allowed to charge demurrage charges after 10th January, 1992. 23.Mr. Nageshwar Rao next submits that the adjudication proceedings have ended in favour of the Appellant. He submits that under the Order of the learned single Judge the Customs authorities have to pay the demurrage charges. As against this Ms. Bagchi submits that under the Order of the learned single Judge the Customs authorities have to pay demurrage only for the period of detention. These are not matters with which we are concerned in this Appeal. This does not for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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