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TMI Blog2002 (2) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... September, 1989 an interim order was passed, whereunder the Appellant was permitted to clear the goods on payment of duty as assessed on the basis of the CIF value as appearing in the invoice. However, the Appellant had to furnish to the Customs authorities a bank guarantee to pay the difference between the duty found payable on a proper assessment and the duty being then paid by the Appellant. The Customs authorities were also allowed to take a sample of the goods for necessary testing. This interim order did not provide that the Appellant could clear the goods without payment of the charges due to the 1st Respondents. Thus the Appellant could have cleared the goods only after payment of the charges payable to 1st Respondent. 6.The Customs authorities then applied to the Calcutta High Court for modification of the earlier order. The Customs authorities opposed clearance of the goods. On 15th December, 1989 the earlier order was modified. It was directed that the goods could be stored in a bonded warehouse of the Customs Authorities. To be noted that at this sage also the 1st Respondents are not a party to the Writ Petition. Therefore the goods could be cleared from custody of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l have a lien on such goods, any may seize and detain the same until such rates and rents are fully paid. (2) Such lien shall have priority over all other liens and claims, except for general average and for the ship-owner's lien upon the said goods for freight and other charges where such lien exists and has been preserved in the manner provided in sub-section (1) of section 60, and for money payable to the Central Government under any law for the time being in force relating to customs, other than by way of penalty or fine." Thus, 1st Respondent has a statutory lien. It is entitled to retain the goods until all amounts payable to it are paid. By directing removal of goods from the custody of the 1st Respondent without payment of their charges, the High Court was also setting at naught the statutory lien. 10.Being aggrieved the 1st Respondent field an Appeal against the Order dated 2nd February, 1990. The Appellate Court rightly stayed the Order dated 2nd February, 1990. 11.The Customs authority withdrew the seizure Order on 19th December, 1989. Now the Appellant was free to clear the goods by payment of all charges to the 1st Respondent. The Appellant made no efforts to clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Major Port Trusts Act is similar to a lien exercised by a bailee under Section 171 of the Indian Contract Act. He submits that once a right of lien has been exercised the bailee cannot charge rent for storage of goods. 16.Mr. Nageshwar Rao relies upon the case of Board of Trustees of the Port of Bombay v. Sriyanesh Knitters reported in (1999) 7 SCC 359. In this case the Port Trust Authorities were claiming lien not under Section 59 of the Major Port Trusts Act but under Section 171 of the Indian Contract Act. The question before the Court was whether the Port Trust Authorities could claim a lien both under Section 59 of the Major Port Trusts Act and under Section 171 of the Indian Contract Act. This Court held that when the Port Trust Authorities stored the goods a relationship of bailer and bailee came into existence. It was held that the Port Trust Authorities could claim a lien under Section 171 of the Indian Contract Act also. In our view, this authority does not support the proposition that principles which apply to a lien under Section 171 would also apply to the statutory lien under Section 59. 17.Statutorily the 1st Respondent is entitled to claim payment of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s permitted clearance of the goods. Thus the 1st Respondent could not sell the goods. The 1st Respondents were further directed by Order dated 2nd February, 1990 not to raise any objection to the goods being cleared. Even though they obtained an Order of stay of clearance they could not have sold off the goods when the subject matter of clearance of goods was before the Court. Thereafter by Order dated 16th September, 1991 the High Court again permitted clearance of goods. The interim Order dated 16th November, 1991, in the Appeal filed by the 1st Respondents, also permitted clearance on furnishing a Bank Guarantee. At no stage did the Appellant inform the 1st Respondent that they were not going to furnish a Bank Guarantee. Thus the 1st Respondent could not have sold the goods. 20.Mr. Nageshwar Rao then submits that the 1st Respondent had applied to the Appellate Court for permission to sell the goods. He points out that by Order dated 10th January, 1992 it was held as follows :- "................After hearing the Counsel for the parties, it is not possible for this Court to specify as to what consequential action the Board of Trustees for the Port of Calcutta is entitled to take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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