Dr. ANAND, J. - (1.) Appellant No. 1, a sole proprietary concern of appellant No. 2, imported 10 cases of stainless steel tubes in July, 1974. The import of the consignment was effected against two Import Licences dated 13th November, 1973 and 1st February, 1974 which were held by a firm running under the name and style of M/s. Laxmi Engineering Company, District Sonipat, Haryana. The said firm obtained from the Joint Controller of Imports and Exports two letters of authority dated 20th February, 1974 whereunder the first appellant was to clear the goods in respect of those two licences. The consignment landed by vessel s.s. "JALA VEERA" on July 26/27, 1974 at Indira Docks. The consignment was to be cleared by the first appellant from the warehouse at Indira Docks. That, however, was not done. The Collector of Customs vide his order dated 28th February, 1976 found that the goods covered by the consignment were liable to confiscation under S. 111(d) of the Customs Act, 1962 for various reasons detailed in the order. Option to redeem the goods was, therefore, given to the appellant on payment of Rs. 2,00,000/- as penalty.
(2.) Since, the goods were not recovered from the warehouse at Indira Docks, the respondent, Bombay Port Trust authorities, served a notice on appellant No. 1, on April 19, 1976, informing it about the non-clearance of the consignment and calling upon it to do the needful and pay the dues of the Port Trust. Appellant No. 1 informed the Port Trust on May 24, 1976 that the Bill of Entry was being completed and that the goods would be cleared and at the time of clearance, charges would also be paid. Since, the goods had not been cleared, on October 6, 1976, the Port Trust informed respondent No. 1 that demurrage charges amounting to Rs. 1,58,545.10 ps. were due "up to the date of confiscation" and called upon appellant No. 1 to remit the said amount. Since, there was no response, the Port Trust sent a reminder to appellant No. 1 on November 10, 1976 also for remitting the due amount. On December 3, 1976, appellant No. 1 informed the Port Trust that it had merely opened a letter of credit and that the licence holder was liable to pay the costs and charges, who had failed to do so and 45 days' time was, therefore, sought by appellant No. 1 to arrange necessary finance for payment of the dues. Since, appellant No. 1 failed to pay the charges and dues, the Port Trust instituted Suit No. 394 of 1979 on the Original Side of the High Court of Judicature at Bombay on November 26, 1979 for recovery of Rs. 1,58,545.10 with interest thereon @ 12% per annum from the date of the said suit till realisation. Appellants resisted the suit and various pleas were raised. It was claimed that the suit was barred by limitation. On merits the contention of the appellants was that since they were not the importers or owners of the goods, they were consequently not liable for the wharfage and demurrage charges. It was asserted that M/s. Laxmi Engineering Company of Haryana, being the licence holders for the import of stainless steel tubes, who had imported the said goods were the owners of the goods within the meaning of the expression "owner" under the Bombay Port Trust Act as well as under the Major Port Trusts Act, 1963 and as such that firm alone was liable to pay the dues of the Port Trust and since the Port Trust had failed and neglected to recover their dues from M/s. Laxmi Engineering Company, they were estopped from claiming demurrage and other charges from the appellants. From the pleadings of the parties, the following issues were framed:- "1. Whether the suit is barred by the law of limitation 2. Whether the defendants were the importers and/or owners of the goods mentioned in para 4 of the plaint, as alleged in para 6 of the plaint 3. Whether the plaintiffs were not entitled to take charge of the consignment mentioned in the plaint except on the request of the owners of the goods as provided under the Major Port Trusts Act 4. Whether the defendants were under an obligation or were bound to apply for and take delivery of the said goods and to clear the same within seven clear days as alleged in paras 6 and 9 of the plaint 5. Whether the defendants were bound and liable to pay wharfage, demurrage and other charges as alleged in para 6 of the plaint or at all 6. Whether the plaintiffs are entitled to claim demurrage and other charges in respect of the said goods for the period subsequent to the period of one month from the date on which the goods were taken in their custody that is for the period subsequent to the 30th August, 1974 7. Whether the plaintiffs abandoned or waived or forfeited their claim in respect of their dues and are estopped from making a claim in respect thereof against the defendants and/or Laxmi Engineering Co., as alleged in para 8 of the written statement 8. Whether the defendants are bound and liable to pay to the plaintiffs a sum of Rs. 1,58,545.10 as per Exhibit 'B' to the plaint or any part thereof either with interest at the rate of 12% per annum or at any other rate 9. To what reliefs are the plaintiffs entitled -
(3.) While the Port Trust led no evidence, the appellants examined Shri Badri Prasad Chaudhary, constituted attorney of appellant No. 2. The parties also produced various documents in support of their respective cases. On a consideration of the evidence on the record, the learned single Judge concluded that the suit filed by the Port Trust was not barred by limitation. However, on merits, the learned single Judge held that since the appellants were not the importers and/or owners of the goods covered by the consignment, the Port Trust could not recover the dues from the appellants. It was admitted before the learned trial Judge that there was no dispute about the quantum of the claim raised by the Port Trust on account of various charges. Aggrieved by the decision of the trial Judge, the Port Trust filed an appeal before the Division Bench of the High Court. The Division Bench allowed the appeal on 9/10th February, 1993 and setting aside the judgment and decree of the trial Court, decreed the suit filed by Port Trust with 12% interest per annum from the date of the suit till the realisation of the amount of Rs. 1,58,545.10 ps. The appellants were also directed to pay costs of the suit. The decision of the Division Bench dated 9/10th February, 1993 is assailed through this appeal by special leave.;