2020 (3) TMI 1063

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.... the petitioner or persons claiming under it to destuff the cargo from the containers covered by Bill of Lading Nos.235900805914 dated 30.08.2019, 0399X30482 dated 06.09.2019 and 0399A22251 dated 15.09.2019, move it to a more economical storage and sell the cargo to an interested buyer or dispose of it or otherwise deal with the same as the owner of the cargo; and (ii) issue a writ of mandamus or any other appropriate writ, direction or order commanding the Respondent No.1 to allow the petitioner or persons claiming under it to make and prefer necessary filings etc- either electronically in the Customs Automated System of the Central Board of Indirect Taxes and Customs (ICEGATE accessible at www.icegate.gov.in) or manually in relation to the import goods covered by Bill of Lading Nos.235900805914 dated 30.08.2019, 399X30482 dated 06.09.2019 and 0399A22251 dated 15.09.2019; and (iii) issue a writ of mandamus or any other appropriate writ, direction or order and commanding Respondent No.1 to direct Respondents 3 to 5 refrain and desist from demanding, collecting or in any way recovering or appropriating' container detention charges' and 'ground rent'....

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....to an intended demand of container freight station and as well as demurrage charges at the end of the 3, 4 and 5th respondents. The expression 'importer' used Section 22 and defines under sub clause 26 of Section 2 of the Customs Act has undergone an amendment with effect from 31.03.2017 by including any owner or beneficial owner or any person holding himself to be an importer thus for all intends and purposes respondent No. 2 cannot be granted as an importer. 5. A very piquant situation in the instant case as the reason where the respondent No.2 despite having submitted bill of entries has not come forward for claiming the title of the goods or made the payments resulting into a impasse and dispute. No doubt the petitioner would have arrived to claim damages in terms of money arising out of the contract by taking the aid of the conditions imposed therein, but the predicament at the moment is writ large. It is in this background of the matter the reliefs, as aforementioned, have been sought seeking the indulgence of this Court. 5. In this context, reliance has been laid in the judgment of Hon'ble Supreme Court in Rasiklal Kantilal & Co. V. Board of Trustee of Port of ....

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.... only for facilitation of the petitioner, nothing beyond. 8. I have heard the learned counsel for the parties, perused the paper book and I am of the view that there is no force and merit in the submission of Mr. Aswin Gopakumar on account of the following reason: I. This court has been prevented of the contract if any arrived at between the petitioner and the insurance company as the normal transaction business as well as ascertainable from the terms and conditions of the contract (Ext.P1), the goods are always against the insurance of the freight ie. Cost Insurance Freight. II. It is still a mystery whether the petitioner has launched claim with the insurance company and claiming the amount due or not, I would not be further commenting on this as it may not have devastating effect on the purported claim of the petitioner vis-a vis the insurance company. III. In view of the situation as explained above, the remedy for the petitioner to recover the cost if permissible in law in the absence of any insurance ie. in the absence of insurance cover can be resorted to by invoking the arbitration clause. IV. No doubt importer after the amendment as r....

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....owner " to be relevant; (iv) While Forbes-II relies upon the Constitution Bench decision in Rowther-I to come to its conclusions, Rasiklal does not find Rowther-I to be an authority for the proposition that until the title in goods is passed to the consignee, the liability to pay various charges payable to a Port Trust, for its services in respect of goods, falls exclusively on the steamer agent; (v) In Rowther-II, it was held that once the goods are handed over to the Port Trust by the steamer and the steamer agents have duly endorsed the bill of lading or issued the delivery order, their obligation to deliver the goods personally to the owner or the endorsee comes to an end. The decision in Rasiklal, which has been delivered after the reference of Forbes-I was disposed of, takes a contrary view that in cases where the consignee does not come to take delivery of goods, the position of law laid down by Rowther-II would result in a situation that the Port Trust would Incur expenses without any legal right to recover such amount from the consignor, with whom there was no contractual obligation; and (vi) The Bench of two Judges in Rasiklal opined that it agr....