2021 (2) TMI 1308

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.... Co. for Appellant. Mr.Prathamesh Kamat with Vikrant Shetty i/b. Gurdeep Singh Sachar for the  Respondent  ORAL ORDER (Per S.C. GUPTE, J.) : This commercial appeal challenges an order passed by a learned Single Judge of this court on an interim application in a Sheriff's report filed in a commercial admiralty suit. The controversy concerns the bill of charges raised by the Appellant herein (original defendant No.2 and Respondent No.2 in the interim application), who is the Board of Trustees of the Port of Mumbai, for port dues and anchorage charges against Respondent No.1 herein (original Applicant), who is an auction purchaser of the defendant vessel. The parties to this appeal are hereinafter referred to by their nomenc....

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....wers under Sections 48, 49 and 50 of the Major Port Trusts Act, 1963, Tariff Authority for Major Ports has issued a notification notifying inter alia scale of rates for major ports. Clause 2.15 of this notification provides for a schedule of anchorage fees. Any vessel or self propelled barge, except lash barge or dumb barge, remaining at any anchorage point shown in this schedule attracts anchorage fees in accordance with the rate shown in it. For anchorage point V1/Y, with which we are concerned in the present case, the rate per GRT (Gross Registered Tonnage) per hour or part thereof for a foreign going vessel is 0.0047 USD from first day onwards and upto 30 days. If the vessel is docked at such anchorage point for more than 30 days, the a....

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....e to the Applicant by this court in exercise of its admiralty jurisdiction, the vessel vested free from all encumbrances, liens, attachments, registered mortgages and charges of the same nature on the vessel. Learned Counsel for the Applicant submits that the charge beyond 30th day of anchorage is in the nature of a penalty; it is attracted by reason of prior docking of the vessel at the anchorage point. Learned Counsel submits that the penal rate beyond 30th day is, thus, in the nature of an encumbrance, of which the Applicant must be spared by reason of Section 8 of the Admiralty Act. 5 The argument has no merit. It is quite far fetched to suggest that prior anchorage of the vessel under sale and the rate that it attracts as a result o....

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.... condition rather than its encumbrance. Section 8 of the Admiralty Act, thus, has no application here. 6 As the Supreme Court has clarified in the case of The Trustees of the Port of Madras vs. M/s. Aminchand Prarelal (1976) 3 SCC 167, anyone desiring to have the benefit of the Board's services in behalf of cranage or storage as specified in Clauses (c) and (d) of Section 42 is liable to pay for such services at the prescribed rates. These rates are in the nature of a contract between the Board and the user of these services. It is immaterial whether the services are, from the point of view of the user optional in the sense that he may or may not require them or that he has no option except to avail himself of them. If these services are....

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.... the rate with which she otherwise would be chargeable. Under this provision, it is submitted, MbPT could not have charged more than half the rate under the scale of rates for anchorage charges. Relying on Section 50-B, learned Counsel submits that port dues not having been defined under the Act, all charges payable within the premises of the port should be subsumed within the broad expression "port dues". Whether port dues within the meaning of Section 50-B of the Major Port Trusts Act include other charges leviable within the port premises (i.e. charges other than port entry charges) is beside the point. What we are concerned with in the present case is the scale of rates fixed by the Tariff Authority for use of services within the port p....