M/S Transworld Shipping Services ... vs Central Warehousing Corporation ...
2009 Latest Caselaw 1587 Del

R-1.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Decided on: 22.04.2009
+
                        W.P. (C) 1721/1990

      M/s Transworld Shipping Services (I) P. Ltd.
                                                            ..... Petitioner
                  Through: Mr. Rajesh Kumar, Advocate.

                  versus

      Central Warehousing Corporation & Ors.
                                                        ..... Respondents

Through: Mr. K.K. Tyagi, with Mr. Iftekhar Ahmed, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)

% The writ petitioner seeks directions to the respondents to immediately

de-stuff and handover a container to it. A further direction to them is sought

not to claim ground rent and other charges (including detention charges)

against the petitioner to deal with the consignees for recovery of the same.

2. The facts of this case are that the petitioner is engaged in shipping

services; it also deals with containers, it landed a container at Mumbai; the

same was handed over to the Railways for its ultimate destination in Delhi.

The container reached the Delhi at Indian Container Depot (ICD) at Pragti

Maidan; it was managed by the Indian Railways. In terms of the then

prevalent policy, the consignee or the shipper had to follow certain

procedures notified by the railways and also by the first respondent i.e.

Central Warehousing Corporation. The terms of these are indicated in the

"Procedure and Tariffs" notified by the Deputy Collector of Customs. The

relevant provisions of such procedures are reproduced below: -

"IMPORTANT PROCEDURES"

AT THE PORT OF ENTRY The Shipping Lines or their authorized agents who shall act as Combined Transport Operator (CTO) shall offer the containers with LCL import cargo to the Railways for transhipment to CFS, Patparganj through ICD, Pragati Maidan after obtaining necessary permission for transhipment from the Customs authorities at the Port of Entry.

INFORMATION BY RAILWAYS The Railway Officer Incharge of ICD, Pragati Maidan shall give necessary information to CWC Officer posted at ICD, Pragati Maidan about the expected date and time of arrival of train of LCL containers from from the port of entry as soon as this information is received by the Railway Officers at ICD, Pragati Maidan. Amendments made to the Procedures and Tariff, 1984 of ICD Pragati Maidan, New Delhi are given at Annexure-IV CUSTOM'S PER-

MISSION FOR MOVEMENT OF LOADED CON-

TAINERS FROM

ICD TO CFS On arrival of LCL Containers at ICD, Pragati Maidan, CWC Officer posted at ICD shall prepare a list in triplicate of LCL containers to be moved to CFS, Patparganj. The Custom Officers shall endorse the transhipment permit and give permission for the movement of containers from ICD to CFS on all the copies of the list prepared by CWC. INSPECTION OF CONTAINERS & CONTAIN-

ERS LOCKS AND SEALS Before discharging the containers from the r4ailways flats on to the road trucks of CWC a joint inspection of container locks and seals and the condition of container shall be made by the representative of Railways, CWC and Customs.

DAMAGED CONTAINERS Any containers received at ICD, Pragati Maidan with deficiency in seals or locks or the container damaged in such a manner that pilferage is suspected, the container shall not be taken over by CWC until an assessment is made by a Surveyor arranged by the concerned shipping lines or its authorized agents, the goods are inventorised by the by the Customs, Railways and Containers are re- sealed by the Customs and Shipping lines or its authorized agents.

HANDING OVER/ TAKING OVER CONTAINERS AT I.C.D. The condition of containers and container locks and seals shall be recorded in the registers maintained separately by CWC and Railways at ICD. These registers shall be jointly signed by these two agencies in token of handing over/taking over of LCL containers depicting the factual condition of container, its locks and seals and special observation regarding the condition of the containers.

CLEARANCE OF RAILWAY DUES The shipping lines or its authorized agents shall clear freight and other dues of the Railways and obtain a cash receipt from the Railways about the clearance of their dues within 48 hours of the arrival of containers at ICD, Pragati Maidan. Only on production of the said Receipt from the Railways by the Shippling Line or its authorized agent, CFS shall arrange for de-stuffing of containers and prepare a tally of the contents duly signed by the Shipping Lines representative, Customs and CFS or its agents.

CUSTOM CLEARANCE The import cargo de-stuffed from LCL containers and taken into account by CWC shall be delivered to the importers as per procedure laid down by the Customs on payment of the dues to the Customs and the CFS. Custom procedure for the clearance of import cargo is given at Annexure-V.

3. The petitioner contends having applied for transfer of the container to

the Container Freight Station (CFS) at Patparganj, managed by the first

respondent on 15.12.1987 and also paying the requisite shifting charges for

such purpose on 19.12.1987. Apparently there was some delay in shifting of

the container, due to the congestion in the ICD, Pragati Maidan. Later the

Indian Railways started insisting that the petitioner ought to pay ground rent

and other enhanced charges for the period. The petitioner relies upon

correspondence with the Indian Railways and submits that shifting charges

had been paid on 19.12.1987 and that in these circumstances, the Railways

should not have insisted on payment of ground rent and enhanced charges.

4. Whatever be the initial dispute with the Railways eventually the

container was transshipped and landed at CFS, Patparganj on 6.3.1988. The

petitioner's woes apparently begin thereafter. Since it had not settled its

dispute with the Railways, it could not produce the No Objection Certificate

"NOC", one of the essential pre-conditions for release of the container.

Thereafter it began to correspond with the CWC for the release of the

container. A series of letters between the parties have been produced,

before the Court. It would not be necessary to discuss the effect of each one

of them since broadly the petitioner's position was one of innocence and that

it was absolved of any liability due to the fault of Railways. On the other

hand, CWC, first respondent kept insisting that without the necessary

documentation (i.e. NOC by the Railways; No Dues Certificate by the

Customs Authorities and payment of requisite detention charges to it),

neither the container nor the goods stuffed in it, could be released.

4. The petitioner in these circumstances, approached this Court and filed

the present proceedings on 23.5.1990. Earlier it had caused the legal notice

to be issued to the respondent - Northern Railways on 4.11.1989.

5. It is contended that the inaction of the Railways with regard to the

issuance of the NOC is extremely arbitrary and unreasonable. The petitioner

contends that the unreasonable insistence by the Railways for payment of

ground rent and enhanced charges, for a period concededly when the

container was stuck up for none of its fault, led to a situation where

detention charges mounted. It is submitted that the shifting charges had

been deposited on 19.12.1987 and the prompt action was warranted.

Instead, the container was transferred only on 6.3.1988. It is submitted that

the delay in shifting not being attributable to the petitioner, further refusal of

the Railways to issue NOC resulted in a impasse whereby CWC also refused

to release goods in the absence of NOC. Learned counsel relied upon the

correspondence exchanged with the Indian Railways on various dates, in

1988-89 whereby the petitioner consistently took the position that the NOC

ought to have been released.

6. The Railways in its counter affidavit states that since the petitioner

requested for shipping of the container on 15.12.1987, steps were taken. It

is contended by the Railways that the container could not be sent due to

non-availability of CFS trucks. The Railways disclaim any responsibility for

the detention of the container on the date of issuance of the gate pass i.e.

15.12.1987. The Railways, however, contends that 50% of the charges

payable could have been waived and the petitioner could have taken action

for shifting the container to the first respondent - CFS.

7. The CWC in its return states and also argues that it is bound by the

procedures notified by the customs authorities. According to the CWC, there

are two types of containers; one classified as less than container load (LCL)

which contains goods of more than one consignee. The clearance of such

containers and payment of detention charges has to be necessarily borne by

the respective consignees since it is not possible for the CWC to deal with

shipper since consignees may chose to contact it at different points of time.

It contends that in the case of other types of container i.e. "full container

load (FCL) since the load would be only in respect of one consignee, the

detention charges are collected directly from the consignee. Both, therefore,

involved different procedures. It is submitted that in this case, the petitioner

should have paid detention charges immediately after the container was

sent to CFS on 6.3.1988; instead it chose to correspond with the Railways

and also with the CWC as a result of which the charges being now mounted

up to Rs.8,37,400/-. Learned counsel submitted that being a service agency,

which is bound to comply with directions of the customs authorities and

follow the procedures prescribed strictly, the CWC could not have permitted

release of containers in the absence of NOC.

8. The above discussion would show that on the essential facts there is

no dispute. The container landed in the ICD, Pragati Maidan on 7.12.1987;

the petitioner apparently unaware of the proper procedure, applied for

transshipment of the container on 15.12.1987. What precisely led to the

delay is unknown at this point in time; yet the affidavit of the CWC as well as

the Railways shows that for some reasons transportation could not be made

of the container for a while. The petitioner had in the meanwhile asked the

Railway to shift the container on 19.12.1987 and paid the requisite shifting

charges. After a lot of correspondence, the container was finally shifted to

CFS, Patparganj on 6.3.1988. The Railways in its affidavit states that the

petitioner could possibly have sought for 50% waiver of the charges.

9. This Court had during the pendency of the proceedings permitted the

container to be de-stuffed by an order dated 25.1.1991. The consignment

has now been cleared.

10. From the preceding discussion, it is evident that what was a small

dispute with the Railways assumed much larger proportions; the petitioners'

container was detained for non-payment of detention charges. Even if the

petitioner had paid the detention charges perhaps the CWC still would have

withheld the container for not following the procedure i.e. not furnishing the

NOC. Having regard to these circumstances and in view of the admitted fact

that the container was sent to the ICD, Patparganj only in March, 1988, this

Court is of the opinion that the petitioner deserves some relief.

11. In view of the above and in view of the fact that the container has been

released to the petitioner pursuant to the interim orders of the Court, CWC is

hereby directed to waive 50% of the charges sought to be levied for this

purpose. This is in line with the position of the Railways which has also

indicated that the petitioner was entitled to 50% waiver. The Writ Petition is

partly allowed in the above terms.

12. Since the container was released in favour of the petitioners almost

more than 18 years ago by virtue of an unconditional interim order, it would

be but appropriate that the amount which are legitimately due to the

respondents (being 50% of Rs.8,37,400/-) are paid within six weeks from

today.

The Writ Petition is allowed to the above extent.

S. RAVINDRA BHAT (JUDGE) APRIL 22, 2009 /vd/