JUDGMENT
1. By this Writ Petition under Article 226 of the Constitution, petitioner seeks a direction against Bombay Port Trust to pay the petitioner Rs. 48,016.82 with interest thereon at 21% from 11th September, 1989 till payment.
2. The facts giving rise to this Writ Petition briefly are as follow:
(a) Sometime in June, 1981, petitioners imported alloy steel sheets. After Customs formalities were duly completed, the said consignment was abandoned.
(b) On August 30, 1982, Bombay Port Trust sold the goods by way of auction. This resulted in a deficit of Rs. 1,41,123.18.
(c) By letter dated 17th May, 1985, addressed by the Bombay Port Trust, the Bombay Port Trust claimed the said amount as they had relinquished the goods.
(d) By their letter dated 6th August, 1985, the petitioners denied their liability to pay the said amount as they had relinquished the goods.
(e) Sometime in October, 1985, the petitioners imported another consignment of a different item viz. choline chloride. In respect of the said item, the Customs initiated adjudication proceedings against the petitioners. Ultimately, the petitioners succeeded in the adjudication before the Customs authorities.
(f) In June, 1987, the Customs authorities issued a Detention Certificate in favour of the petitioners for the period 4th June, 1985 upto 25th September.
(g) On 30th June 1987, petitioners applied for refund of dumarrage charges from the Bombay port trust on the basis of the above Detention Certificates issued by the Customs.
(h) On 27th July 1987, the claim for refund of demurrage was rejected by the B. P. T. on the ground that the claim was time-barred.
(i) On 8th February, 1988, the petitioner made their representation to the Chairman of the B. P. T. interalia, contending that the claim was within time as the facts herein indicate.
(j) On 2nd February, 1989, the Chairman accepted the contentions raised by the petitioners and granted refund of demurrage amounting to Rs. 48,016.82 (which the petitioners seek to recover by this Writ Petition, as stated above). However, by impugned letter dated 13th March, 1989, addressed by the Deputy Docks Manager (Refund) the petitioners were informed that Rs. 1,41,123.18 remained as outstanding against the petitioner’s firm and in the circumstances, an endorsement was made to the effect that the petitioners were not entitled to refund of Rs. 48,016.82, but the said amount stood adjusted against the outstanding amount of Rs. 1,41,124.18.
(k) Being aggrieved by the said letter/Order dated 13th March, 1989 (Ex-C herein), the present petition has been filed.
3. Mr. Patel, the learned counsel appearing on behalf of the petitioners submitted that the Bombay Port Trust’s rights of recovery are governed exhaustively by the Major Port Trusts Act, 1963 and in the absence of any provision under the Act which empowered the B. P. T. to make the above impugned adjustment, the B. P. T. had no authority to make such an adjustment. Mr. Patel invited my attention to Sections 59, 61, 63 and 131 of the said Act, 1963 and submitted that separate modes of recovery of the dues have been laid down and none of the Sections empowered the B. P. T. to make the adjustment as is sought to be done in the present case. He submitted that Section 59 indicates power of the B. P. T. to detain and seize specific goods whereas Section 61 gives power to the B. P. T. to recover their dues by mode of sale. Similarly, Section 63 deals with application of sale proceeds pursuant to the sale under Section 61 of the said Act. Section 63(e) gives power to the B. P. T. to make adjustment of the surplus of the net sale proceeds which accrues pursuant to the sale against other dues of the B. P. T. Section 131 provides for the B. P. T. to file a suit for recovery of their dues. The above sections, it was submitted, do not empower the B. P. T. to make unilateral adjustment of set-off. He further submitted that apart, from the facts of the case, the consequence of such unilateral adjustment being conferred as a mode of recovery on the B. P. T. would result in arbitrary adjustments and it is for this reason that Legislature has not provided under the Statute, for such unilateral adjustment. Mr. Patel further submitted that in any event, in the present case, the impugned adjustment was done on 13th March, 1989 and the suit was consequently barred. He accordingly submitted that in any view of the matter, even assuming that the B. P. T. had the power to make the adjustment, such a power could be based only on a legally enforceable claim. In the present case, the claim was barred by limitation and, therefore, the adjustment was bad in law.
4. Mr. Makhija, the learned counsel appearing for the B. P. T. submitted that under Section 63(e) of the Act, the B. P. T. had the power to make the adjustment as is sought to be done in the present case. He further submitted that under Section 59 of the Act, the B. P. T. has a statutory lien in respect of the refund sanctioned in favour of the petitioner by the Chairman’s Order dated 2nd February, 1989. Mr. Makhija vehemently submitted that apart from the statutory lien under the Act, the B. P. T. has general lien under section 171 of the Contract Act as a wharfinger and in the circumstances, it was submitted that the impugned adjustment had been made by the B. P. T. pursuant to the general lien which applies not only to a specific property, but to every other property of the petitioner which is with the B. P. T. He further submitted that in the present case, the facts clearly indicate that the impugned adjustment is only remission under Section 53 of the Act. He further submits that in substance, the matter pertains to refund under Section 53 of the Act and, therefore, no interference is called for under Articles 226 of the Constitution particularly in view of the fact that there is no dispute regarding the determination of the deficit of Rs. 1,41,124.18 Mr. Makhija next submitted that under section 42 of the said Act, 1963 an implied contract subsists between the B. P. T. and the consignee and the general lien flows from the said implied contract. Accordingly, it was submitted that the B. P. T. was entitled to make the above adjustment and no interference is called for under Article 226 of the Constitution. It was further submitted that if the adjustment in a given case is arbitrary, then the petitioners have a right to file a suit and challenge the said adjustment in the present case, it is also argued that once the Port Trust have a lien over the property in the goods of the petitioners by way of a general lien, then the question as to whether the claim in respect thereof according to any scale of rate in force under the Act. Under Section 53 of the Act, the B. P. T. has also the power to remit the whole or any portion of such rate or charges so levied. In the present case, the order of the remission/refund sanctioned by the Chairman on 7th September, 1989 granting refund of Rs. 48,016.82 has been passed under Section 53 of the Major Port Trusts Act, 1963. Sections 55 and 56, inter alia, provide for refund of over-charges. Section 58 deals with rates in respect of goods to be landed which rates shall be payable immediately on landing of the goods. This is also one of the modes of recovery. Section 59 deals with the Board’s lien for rates. Section 59 lays down that for the amount of all rates leviable by the B. P. T. under the Act in respect of any goods and for the rent due to the Board for any buildings, plinths stacking areas etc. the Board shall have a lien on such goods and the Board may seize and detain the same until such rates and rents are fully paid. This Section provides for another mode of recovery viz. recovery by detention of specified goods. Section 61, inter alia, empowers the B. P. T. in appropriate cases after expiry of two months from the time when any goods in respect of the rates payable to the B. P. T. and which have not been paid. Similarly, Section 63, inter alia, lays down the method of applying the proceeds of sale under Section 61 or 62 of the said Act. Section 63(1)(e) lays down inter alia, that the proceeds of the sale under Section 61 or 62 shall be applied in payment of any other form due to the Board. Heavy reliance is placed on Section 63(e) by the B. P. T. in support of the impugned action. It was submitted that the impugned adjustment has been made in the present case under Section 63(1) (e) of the Act. Similarly, Section 131 of the Act expressly lays down that without prejudice to any other action that may be taken under the Act, the B. P. T. may recover by a suit, any rates, damages, expenses, costs or in case of sale, the balance thereof, when the proceeds of sale are insufficient, to be recovered by B. P. T. filing a suit for such recovery. The present case falls under Section 131. In the present case, the B. P. T. is certainly entitled to file a suit for recovery of the balance/deficit of Rs. 1,41,123.18. However, the B. P. T. claims a right of unilateral adjustment under section 63(1)(e). The B. P. T. also makes the claim on the basis of the general lien under section 171 of the Contract Act.
6. Having noticed the above Sections, it is clear that different modes of recovery are contemplated under the Act. However, there is no expenses power given to the B. P. T. to make unilateral adjustments, as in sought to be done in the present case. No such power is given under the Major Port Trusts Act, 1963. The catena of Sections referred to above, inter alia, indicate the Board’s power to detain the goods, to sell the goods by public auction, to apply the proceeds and in that regard to make adjustment under Section 63(1)(e) of the Act or to recover the said amount under Section 58 or by filing a Suit under Section 131 of the Act. However, no power of making unilateral adjustment has been given under the Act. Section 63(1) is a sequel to Section 61and 62 of the Act. Section 63 merely lays down the mode of application of sale proceeds after the sale of goods take place under section 61 and 62 of the Act. In the present case, no such sale has taken place. Therefore, Section 63 has no application. On the other hand, Section 131 of the Act expressly lays down that the B. P. T. is entitled to recover the deficit which result in the auction sale by filing a Suit under Section 131 when the sale proceeds are insufficient or when penalties are payable to the Board or any amount is payable to the Board under the regulations framed under the Act. In view of the specific power given to the Board to recover the deficit in the proceeds of the sale under section 131 of the Act, section 63(1)(e) has no application to the facts of the present case. The B. P. T. was entitled to file a Suit, which they have not done in the present case. In the circumstances, there is no merit in the contention of the B. P. T. that under the Act they have the power to make unilateral adjustments. Mr. Makhija has invited my attention to various other provisions of the Act. But no single Section has been shown empowering the B. P. T. to make unilateral adjustments. It may also be mentioned that Section 131 of the Act has empowered the B. P. T. advisedly to file a Suit to recover the balance when the proceeds of the sale are insufficient. The B. P. T. has not been given the power to make unilateral adjustments, but they have been empowered only to file a Suit which is clearly indicative of the fact that there is no power under the Act to make such unilateral adjustment. However, the question still remains whether in the present case a general lien vested in the Port Trust to make the above unilateral adjustments. In this connection it may be noted that heavy reliance is placed on Section 171 of the Contract Act. It was submitted that in the present case there was an implied contract under Section 42 between the B. P. T. and the consignee in respect of service rendered by the B. P. T. to the said consignee and it was pursuant to the said implied contract under Section 42 of the Act that general lien vested in the B. P. T. I do not see any force in the contention raised by the B. P. T. The question in the present in the present case is whether the power of unilateral adjustment could be asked in respect of remission or refund granted by the Chairman under section 53 of the Act. In the present case, the Chairman has sanctioned the refund under Section 53 of the Act. The order of refund is issued pursuant to statutory Order. In the circumstances, the B. P. T. was not entitled to make adjustment with regard to statutory Order of refund which has been passed under Section 53 of the Act. The present case is not like a Banker’s lien where a lien is vested in the Bank with regard to various accounts of the judgment debtor. The present case concerns a statutory refund being granted under Section 53 of the Act and the only limited question is whether the mode of recovery impugned in the present case has been sanctioned by the Legislature under the said Act, 1963. For the reasons mentioned hereinabove, the B. P. T. has no such power under the Act to make unilateral adjustments.
7. In the circumstances, the impugned Order dated 13th March, 1989 (Ex-C to the Petition) is set aside. The petitioner would be entitled to refund amount of Rs. 48,016.82 which have been sanctioned by the Chairman as far back as 2nd February, 1989. The petitioner would be entitled to the said amount of Rs. 48,016,82 with interest at the rate of 12% per annum from 2nd February, 1989 till payment.
8. Accordingly, Rule is made absolute with no order as to costs. Certified copy expedited.
