Full Judgment
ORDER
SHEET APO2432014 CP1502014 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE IIC CONTAINER LINE LTD.Versus TRANS ASIAN SHIPPING SERVICES (P) LTD.BEFORE: The Hon'ble JUSTICE BANERJEE The Hon'ble JUSTICE SAMAPTI CHATTERJEE Date : 19th January, 2015.
Mr.Ramesh Kumar Chowdhury, Advocate for the appellant.
Ms.Manju Bhuteria, Advocate Ms.Arpita Saha, Advocate Mrs.Atasi Sarkar, Advocate for the respondent.
The Court : This appeal would arise out of an order admitting the windingup petition allowing a claim on account of container charges and other incidental expenses that the appellant failed to pay to the respondent.
The facts would depict, the respondent was the owner of containers that carried goods by sea on behalf of the appellant.
The appellant was the shipper and/or agent of shipper.
Fact remains, the cargo arrived at Mumbai Port on August 15, 2010.
However, the appellant failed to discharge the cargo and hand over the empty container to the respondent resulting in additional claim on account of container detention charges.
Initially, the respondent claimed lien over the goods.
However, since the consignee declined to unstaff the container and take charge of the goods, the respondent subsequently took it as abandoned.
Be that as it may, there had been detention of the container for about 740 days.
Initially, the cargo arrived on August 15 2010 and the ultimate release of the container took place on September 5, 2012.
The respondent made a claim of Rs.20,69,213/- on account of container detention charges and taking into account the port charges and other charges including handling charges made of totaling claim of Rs.23,45,375/- and filed a winging-up petition preceded by a statutory notice of demand.
The appellant appeared and contested the proceeding.
In couRs.of hearing, the learned Counsel prayed for an accommodation to take further instruction in the matter.
Subsequently, she appeared on the final day and agreed to pay only container charges and disputed the balance claim.
On such concession being made, the learned Judge admitted the winding-up petition for the said sum of Rs.20,69,213/- and relegated the parties to suit for the balance amount.
Her Lordship also gave direction for payment by intalments.
Being aggrieved, the appellant filed the instant appeal through the new set of lawyers after taking necessary change from the erstwhile advocate Mr.Ramesh Kumar Chowdhury, learned Counsel appearing for the appellant would submit, the respondent was not definite in its stand and/or the quantum of claim.
Drawing our attention to page 33, Mr.Chowdhury would submit, as per the bill of lading, the carrier would have lien on the goods and any document relating thereto for all sums payable to the charterer under the contract and for general average contribution to whomsoever due.
The appellant acted as a shipper and had no liability on account of container charges.
In case the respondent would have lien over the goods, they would be at liberty to approach the customs authorities under Section 150 of the Customs Act, 1962.
Mr.Chowdhury would also draw our attention to page 39 wherein the respondent would observe, they were left with no other option than to declare the container as a total loss and recover the depreciated replacement value.
In page 42 they changed their stand and made a claim for Rs.4,74,806/- on account of detention charges calculated up to March 31, 2011.
Even on container detention charges the amount of Rs.4,74,806/- became Rs.20,69,213/- within a short span of time.
They do not give any reason for such unusual enhancement of claim when necessary particulars are absent.
He would also refer to page 53 wherein the respondent would refer to a letter dated August 30, 2010 that has been disclosed by the respondent.
In page 55 the notice of demand would describe him as consignee.
With this inconsistent stand Mr.Chowdhury would submit, the winding-up petition would not be maintainable.
Last, but not the least, Mr.Chowdhury would take the plea of limitation.
According to him, the cargo arrived on August 15, 2010 whereas the winding-up petition was filed in 2014.
Even if the plea of total loss is accepted that would make the claim barred by limitation.
He prays for setting aside of the judgment and order impugned.
Per contra, Ms.Manju Bhuteria would heavily rely upon the concession made by the learned Counsel appearing for the appellant before the learned Single Judge.
On the plea of limitation, Ms.Bhuteria would contend, since the container was ultimately released on September 5, 2012, the claim could not be said to be barred by laws of limitation as the winding-up petition was filed on February 18, 2014.
On the question of inconsistent claim, Ms.Bhuteria would draw our attention to the averments made in the winding-up petition where the detention charges as per the schedule was given.
She would try to nullify all the contentions of Mr.Chowdhury.
However, her sheet anchor would lie in the judgment and order impugned where the concession was recorded.
We heard this matter on January 16, 2015 when we requested the learned Counsel who appeared before the learned Judge to appear before us.
Accordingly, Ms.Sayanti Santra, learned Counsel, who appeared for the appellant before Her Lordship and clarified, in couRs.of hearing, Her Lordship enquired as to the stand of the appellant.
Accordingly, the matter was adjourned.
She took instruction and informed Her Lordship, the appellant was agreeable to pay the actual detention charges and not any other claim.
It was possibly misunderstood by Her Lordship.
She would, however, admit, she never made any complain before Her Lordship after going through the judgment and order impugned.
She would submit, her client was out of India and soon after passing of the order, she gave no objection to the new set of lawyers being appointed.
We have considered the rival contentions.
Pertinent to note, at the time of admission of the appeal, the appellant deposited the entire sum of Rs.20,69,213/- to show their bona fide.
The facts so discussed above, might raise a dispute which cannot be brushed aside at the threshold.
At the same time, we cannot overlook the categorical admission of liability being made before Her Lordship.
Assuming the learned Counsel was misunderstood, the appellant after going through the order, advisedly did not go back to Her Lordship for any correction that would weaken the stand taken by the appellant as to the recording of such concession.
Striking a balance, we permit the respondent to withdraw the sum so deposited by the appellant upon furnishing an appropriate bank guarantee to the satisfaction of the Registrar, Original Side, to be renewed from time to time until further ordeRs.to be passed in a civil suit, if any, filed by the respondent within a period of six weeks from date.
In case suit is filed within the time stipulated above, the respondent would be entitled to the benefit of Section 14 of the Limitation Act as they were pursuing their remedy diligently before this Court in pursuing this litigation.
In case the respondent does not file the suit within the time stipulated above, the appellant would be at liberty to withdraw the said sum and/or enforce the guarantee as the case may be.
In case suit is filed, the guarantee must be kept renewed till the disposal of the suit.
So long the guarantee is not furnished, the money be kept in a suitable interest bearing fixed deposit in any nationalised bank of the Registrar’s choice.
The judgment and order stands modified.
The appeal is accordingly disposed of without any order as to costs.
(BANERJEE, J.) (SAMAPTI CHATTERJEE, J.) sd/