Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
CASE NO.:
Appeal (civil) 2134 of 2006
PETITIONER:
Forbes Forbes Campbell & Co. Ltd
RESPONDENT:
Board of Trustees, Port of Bombay
DATE OF JUDGMENT: 14/02/2008
BENCH:
H.K. SEMA & MARKANDEY KATJU
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2134 OF 2006
H.K.SEMA,J
1. This appeal is preferred by the second defendant in
the suit.
Brief Facts:
2. The appellant-defendant is a steamer agent of the
vessel S.S.President Madison. The vessel was owned by a
foreign company by the name American President Lines Ltd.
One M/s Metal Fabs India Pvt. Ltd. (First Defendant) was a
consignee of seven cartons of ball bearings which landed in
the Port of Bombay on 5.2.1972 being carried by a vessel S.S.
President Madison. The goods remained uncleared for a
period of over two months from the date of landing. The Port
Trust of Bombay (plaintiff) by a letter dated 10.10.1974
addressed to the appellant requested to furnish the name and
address of the consignee. As no reply was received from the
appellant, by a further letter dated 12.10.1974, the plaintiff
(respondent herein) served a notice of sale upon the appellant
with a request to issue the same to the ultimate consignee by
R.P.A.D. As no action was taken, the respondent by its notice
dated 11.5.1975 informed the appellant that the goods were
lying uncleared in the warehouse and if the same were not
cleared within 10 days on payment of charges thereof, the
same would be sold in auction. As no action was forthcoming
from the appellant despite notice and correspondences, as
stated above, the plaintiff/respondent sold the goods in a
public auction on 2.9.1976 and realized an amount of
Rs.62,000/- as sale proceeds. The plaintiff found that after
deduction of the due amount such as port charges, custom
duty etc. an amount of Rs.4752/- was still due and payable to
them.
3. The plaintiff filed R.C.S.No.2212/2911 of 1979 in
the Court of Small Causes at Bombay for recovery of the
aforesaid amount of Rs.4752/-.
4. Defendant no.1 consignee did not contest the suit
though served. However, on being served the appellant
(defendant No. 2) filed a written statement on 6.11.1979. In
the written statement it was inter alia contended that
defendant no.2 has no liability to clear the landed goods and
that the second defendant was not concerned with the goods
remaining uncleared, as alleged. It was further contended
that the plaintiff has been negligent in not auctioning the
goods immediately and waiting for four years before
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
completing the sale. It was further claimed that the liability to
meet the claim of the plaintiff was only upon the consignee,
namely, defendant no.1. It was further the case that
defendant no.2 was not the owner of the goods and, therefore,
defendant no.2 was not liable to pay the deficit in the sale
proceeds.
5. Both the parties led evidence before the Trial Court
and also produced relevant materials. The Trial Court after
perusing the documents and evidence on record and after
hearing the parties dismissed the suit against defendant no.2.
The appeal filed by the plaintiff before the full Court of Court
of Small Causes was allowed by the judgment and order dated
7.11.1989. In the interregnum writ petition came to be filed.
A Special Leave Petition was filed before this Court and was
remanded by this Court with which we are not concerned.
6. On the first blush since the amount towards the
storage charges was only to the extent of Rs.4752/- we
thought of dismissing the appeal with a question of law left
open.
7. However, having regard to the questions of law of
public importance involving in this appeal, which are of a
recurring nature, the matter needs to be considered in depth.
8. The questions of law of public importance in this
appeal are as follows:-
1. Whether a steamer agent can be construed
as owner of the goods carried in his
principal’s vessel within the definition of
owner in relation to goods under Section
2(o) of the Major Port Trusts Act, 1963?
2. Whether a steamer agent at all can be made
liable for payment of storage
charges/demurrage, which are uncleared
by the consignee, even where steamer agent
has not issued delivery order?
3. In the event a steamer agent is held liable,
to what extent he is liable and whether it
absolves the respondent from acting
promptly under Section 61 of 62 of the Act?
9. On behalf of the appellant, Mr. R. Venketeshwaran,
learned senior counsel, contended that the appellant was not
the owner of the goods within the meaning of Section 2(o) of the
Major Port Trusts Act, 1963 (in short the Act) and, therefore,
the appellant could not be made liable to pay any amount due
in respect of the goods. In this connection, reliance has been
placed on the judgment rendered by a three-judge Bench of this
Court in the case of Trustees of the Port of Madras through
its Chairman vs. K.P.V. Sheikh Mohd. Rowther & Co.
Pvt. Ltd. (1997) 10 SCC 285, wherein this Court while
approving the judgment of the Division Bench of the High Court
in M/s. K.P.V. Sheik Mohamed Rowthar vs. The Trustees
of Port of Madras, ILR (1975) Vol. 1 Madras 59 held that the
demurrage charges have to be collected by the Port Trust only
from the consignee and not from the steamer agent. After
reading the aforesaid judgment, we doubted the correctness of
the said judgment and we are unable to persuade ourselves to
accept the ratio laid down in the aforesaid judgment of this
Court.
10. Per contra Mr. T.R. Andhyarujina, learned senior
counsel, appearing for the respondent strenuously contended
that the issues involved in the present case are squarely
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
covered by the judgment rendered by a Constitution Bench of
this Court in the case of The Trustees of the Port of Madras
by its Chairman vs. K.P.V. Sheik Mohamed Rowther & Co.,
1963 Supp.(2) SCR 915.
11. In that case it was held by this Court that the steamer
agent is liable to pay the charges. It may be pointed out that
the said case was referred to before a three-judge Bench of this
Court in Trustees of the Port of Madras through its
Chairman (supra) and this Court distinguished the facts. It
may also be pointed out here that the facts before the
Constitution Bench, in our view, did not relate to payment of
demurrage and it was for charges for shore labour ordered by
the steamer agents themselves. Therefore, the decision
rendered by the Constitution Bench, in our view, is
distinguishable on facts with the facts of the present case.
12. Since, we have doubted the correctness of the decision
rendered by a three-judge Bench of this Court in the case of
Trustees of the Port of Madras through its Chairman (supra)
and in view of the questions of law of public importance as
framed above, involved in this appeal, this appeal may be
referred to a larger bench, for an authoritative decision. Let the
matter be placed before the Hon’ble Chief Justice of India for
appropriate orders.