JUDGMENT
1. The petitioner carries on business in the State of Haryana and imported 141 times of lead-ore from Casablanca in the month of May 1976. The goods arrived in Bombay Port by ship ‘m.v. Chicago’ but could not be cleared by the petitioner within three months on account of Customs and ITC formalities. A sample from the consignment was forwarded for analytical test and before the report could be received from the customs House Laboratory, the imported goods were auctioned by the Assistant Docks Manager, Sales Branch Office of the Trustees of Port of Bombay. The auction was held on November 24th, 1976 and respondent No. 1 realised a sum of Rs. 55,000/- as sale proceeds. The auction was held under the provisions of Section 64A and 65 of the Bombay Port Trust Act, 1879.
2. The State Bank of India, Overseas Branch, Bombay, addressed a letter dated February 16, 1977 to the Assistant Docks Manager of respondent No. 1 requesting to pass the claim in respect of surplus, if available, after deduction of the amount due to the Port Trust from the amount of Rs. 55,000/- realised, and issue a cheque in favour of the State Bank in the account of the petitioner. The State Bank agreed to forward the requisite documents. On May 23, 1977, the requisite documents were sent by the Clearing Agents of the petitioner to the Assistant Docks Manager, and the said documents were received by respondent No. 1 on May 30, 1977. Certain correspondence ensued thereafter between the petitioner and respondent No. 1, and ultimately, on March 21, 1979, the Assistant Docks Manager of respondent No. 1 informed the Advocates of the petitioner that the claim for surplus sale proceeds lodged by the petitioner cannot be undertaken under the provisions of the Major Port Trust Act. The refusal of the Port Trust to pay the amount of surplus to the petitioner has given rise to this petition filed under Article 226 of the Constitution of India on October 24, 1979.
3. Shri Shetye, learned counsel appearing on behalf of the petitioner, submitted that under Section 63 of the Major Port Trust Act, 1963, the proceeds of every sale under Sections 61 and 62 are to be applied in the manner set out in sub-section (1), sub-section (2) and sub-section (3) of Section 63 read as under :
“(2) The surplus, if any, shall be paid to the importer, owner or consignee of the goods or to his agent, on an application made by him in this behalf within six months from the date of the sale of the goods.
(3) Where no application has been made under sub-section (2), the surplus shall be applied by the Board for the purposes of this Act.”
The learned counsel urged that respondent No. 1, after applying the amount to the items specified in sub-section (1) of Section 63, have an amount of Rs. 27,192.67 available as surplus and the said amount is required to be paid by respondent No. 1 to the petitioner, who was the importer of the goods. Shri Shetye submits that the amount of surplus is denied to the petitioner solely on the ground that the application for receipt of surplus was not filed within the requisite period of six months. Shri Chinoy, learned counsel appearing on behalf of respondent No. 1, on the other hand submitted that the petitioner is not entitled to the amount of surplus because the application was not filed within six months as required under sub-section (2) of Section 63 and in any event the present petition should not be entertained because the claim of the petitioner would have been barred even in a suit under Section 120 of the Act.
4. In view of these rival submissions, the first question which requires determination is whether the claim made by the petitioner was lodged within the period of six months from the date of sale of the goods. Shri Shetye submits that the documents were sent respondent No. 1 on May 23, 1977, that is within a period of six months and the mere fact that it was received by respondent No. 1 on May 30, 1977, that is after the expiry of six months could not deprive the petitioner of the advantage of the amount of surplus. It is not dispute that the State Bank of India had addressed a letter to respondent No. 1 on February 16, 1977 requesting for passing the claim at an early date arising out of the auction held on November 24, 1976 of the goods imported by the petitioner. The Bank requested respondent No. 1 to issue the cheque for the sale proceeds in favour of the Bank in the account of the petitioner. In may judgment, this request or the application made by the Bank can be treated as a sufficient compliance with the requirement of sub-section (2) of Section 63. Shri Chinoy submitted that though the surplus is payable under the sub-section to the agent, the Bank cannot be considered as the agent of the petitioner. The submission is not correct, because the amount which the Bank was demanding was to be credited in the account of the petitioner and the demand could not been made by the Bank without consent of the petitioner. Accordingly, the Bank was demanding the amount as the agent of the petitioner and as such demand was made within a period of six months, the requirement of sub-section (2) od Section 63 was more than satisfied. Shir Chinoy then submits that the sub-section demands that an application shall be made by the importer and therefore the application by the Bank could not be treated as valid. There is no merit in this submission. The requirement of making an application by the petitioner is only a procedural one and if the amount could be received by the Agent of the importer, then it would be difficult to imagine why the agent cannot make an application under sub-section (2) of Section 63 of the Act. In my judgment, on the facts and circumstances of the case, the requirement of sub-section (2) of Section 63 are complied with and respondent No. 1 cannot refuse the payment of surplus amount to the petitioner on the ground that the application was filed beyond period of limitation.
5. Shri Chinoy then submitted that the petition filed under Article 226 of the Constitution should not be entertained, because if the petitioner would have filed the suit for recovery of the amount, then it would have been barred under Section 120 of the Act, which inter alia provides that no suit or proceedings shall be commenced against respondent No. 1 after six months after the accrual of cause of action. Shri Chinory submits that the cause of action accrued on November 26, 1976 when the auction was held and the claim was barred after expiry of six months from that date. The learned counsel submitted that as the claim could not have been entertained even in a suit, this Court should not entertain the petition in exercise of the writ jurisdiction. The learned counsel relied upon, in support of the submission, two decisions of the Supreme Court State of Madhya Pradesh and Another v. Bhailal Bhai and Others and Suganmal v. State of Madhya Pradesh and Others. In my judgment, it is improper for a public authority like Bombay Port Trust to raise such contention. Apart from that fact, the contention has no merit. In the first instance, the period of limitation has no application to the writ proceedings and this Court would be very slow in refusing the relief when justice is loaded on the side of the petitioner. Secondly, it is improper for the Port Trust to seek undue enrichment by raising such technical contention. Respondent No. 1 has no defence to the claim of the petitioner and it is not fair to defeat the claim on technicalities. In my judgment, this is a fit case in which this Court must exercise jurisdiction and grant relief to the petitioner.
6. Accordingly, rule is made absolute and respondent No. 1 is directed to pay the amount of Rs. 27,192.67 to the petitioner within a period of two weeks from today. Respondent No. 1 shall pay the costs of the petition.
