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Food Corporation of India Vs. K.K. Uppal, Chairman Bombay Port Trust - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberChamber Summons No. 680 of 1982 in Suit No. 69 of 1981
Judge
Reported in(1983)85BOMLR9
AppellantFood Corporation of India
RespondentK.K. Uppal, Chairman Bombay Port Trust
Excerpt:
.....the light of the allegations made in the plaint. where the plaintiffs have clearly averred in the plaint that the loss which would be caused to them if the orders and injunctions sought were not granted was a specified amount, it is no longer open to them to say that the loss was not capable of monetary evaluation, and the court-fee payable would be ad valorem court-fee on the amount of the loss sought to be prevented.;neelavathi v. n. natarajan [1980] a.i.r. s.c. 691 referred to. - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the..........to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief, as aforesaid, the court-fee payable would be ad valorem court-fee on the amount of the monetary gain, or loss to be prevented, according to the scale prescribed under article 1. i need not consider article 1 because it is not disputed that, if article 7 of schedule i applies to the case, the decision of the taxing master must be upheld.7. the submission of mr. advani, learned counsel for the plaintiffs, is that, in the present case, even if defendant no. 2 had sailed away without issuing a clean bill of lading or a clean mate's receipt, it was not.....
Judgment:

Kania, J.

1. This is a Chamber Summons by way of a revision from the judgment and order of the Taxing Master dated September 20, 1982 ordering the plaintiffs to pay Court-fee in the sum of Rs, 15,000 under art 7 of Schedule I of the Bombay Court-fees Act, 1959.

2. It is necessary to state only a few facts for the disposal of this Chamber Summons. I am taking these facts merely as they are set out in the plaint. The plaintiffs are the Food Corporation of India. Defendant No. 1 is the Chairman of the Bombay Port Trust. Defendant No. 2 is the Master of the vessel 'm.v. Capitan Lukis.' Defendants No. 3 are the local agents of the Steamship Company, which owns the said vessel and the 4th defendants are the surveyors appointed by the buyers. By a contract dated May 25, 1981 the plaintiffs agreed to deliver to the buyers, who executed the contract on behalf of the U.S.S.R. Government a large quantity of rice. Under the contract it was provided that the risk would pass from the sellers or suppliers, that is, from the plaintiffs to the buyers at the time when the cargo was loaded and stowed in the holds at the port of shipment. The said contract provided for survey and, inter alia, provided that the buyers had appointed defendants No. 4 as their surveyors in India. Clause 34 of the contract provided that the payment would be made under the contract on the presentation of the original documents enumerated therein. Amongst these documents enumerated, there is a full set of clean 'on Board' bills of lading. Defendant No. 2 was the master of the 1st defendant vessel, which was chaptered by the buyers to take the said rice to Baltic/Black Sea Port as per the said contract. The said vessel arrived in Bombay and loading operations started on August 7, 1981. The goods in question were inspected and certified at the warehouses of the plaintiffs by defendants No. 4, who were the surveyors nominated by the buyers. Loading of a large quantity of rice amounting to 12,000 metric tonnes was completed up to August 23, 1981 and the balance of 1,000 metric tonnes was expected to be loaded on the night of August 23, 1981. The goods were being exported on a confirmed basis against an irrevocable and transferable letter of credit. In para. 9 of the plaint, it is submitted that as soon as the goods were loaded in the vessel after due inspection, the Master of the vessel was required to give a 'clean mate's receipt.' Paragraph 11 sets out that defendant No. 2, being the Master of the said vessel, for some oblique reasons, started creating problems and entered into correspondence and defendant No. 2 threatened the plaintiff that he would not give a clean mate's receipt and would sail away the said vessel from the Bombay Port without issuing such receipts. There are certain material averments in para. 11 of the plaint, which it is necessary to set out and which run as follows:

The plaintiffs say that if such threat is allowed to be carried out and/or implemented, the plaintiffs will not be able to recover the large amount of price amounting to Rs. 4,55,00,000 even though all the terms of the contract have been satisfied on the part of plaintiff Corporation including inspection of goods. The defendant No. 2 is about to leave Bombay Port without giving clear mate's receipt in favour of the plaintiffs and if he is allowed to do so, the plaintiffs will suffer a financial loss to the extent of errors of Rs. ....

3. Paragraph 12 contains the following averments:

Further he (defendant No. 2) intends to leave the berth at India Dock, Bombay, without, issuing the mate's receipt or clean bill of lading in favour of the plaintiff Corporation and if he is allowed to do so the plaintiff Corporation will suffer heavy losses amounting to approximately Rs. 4,53,00,000.

Prayers in the plaint are to the effect that defendant No. 1 should be directed not to permit the said vessel to sail out of Bombay Port jurisdiction without issuing a clean mate's receipt and a clean bill of lading in favour of the plaintiffs. Prayer (c) is for a direction or injunction to defendant No. 2 to issue clean mate's receipt and a clean bill of lading in favour of the plaintiff Corporation in respect of the cargo loaded in the said vessel.

4. The plaintiffs sought to file the suit on payment of Court-fee of Rs. 30 on the footing that the permanent injunctions, which were sought, were not capable of monetary evaluation. The officer of the Court, whose duty it was to examine the plaint and assess the Court-fees, did not agree with the valuation put on the plaint by the plaintiffs and directed the plaintiffs to pay or deposit a sum of Rs. 15,000. The matter was referred to the Taxing Master and the Taxing Master by the aforesaid judgment and order upheld the decision of the said Court Officer. It is against the decision of the Taxing Master that the present Chamber Summons is directed.

5. The submission of Mr. Advani, learned Counsel for the plaintiffs, is that the relief in the plaint is incapable of monetary evaluation and the plaintiffs are entitled to file the suit on the payment of fixed Court-fee of Rs. 30 under Section 6(iv)(j) of the Bombay Court-fees Act. This contention is supported by Mr. Vyankateshwaran. It is, on the other hand, contended by Mrs. Chowgule, learned Counsel for the State of Maharashtra, that the suit is covered by the provisions of Article 7 of schedule I of the Bombay Court-fees Act and the plaintiffs have been properly directed to pay Court-fees of Rs. 15,000.

6. Section 6 deals with the computation of fees payable in certain suits for money. Section 6(iv)(j) runs as follows:

6. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :

(iv) (j) In suits where declaration is sought, with or without injunction or other consequential reliefs and the subject matter in dispute is not susceptible of monetary evaluation and which are not otherwise provided for by this Act ad valorem fee payable, as if the amount or value of the subject-matter was three hundred rupees.

Article 7 of schedule I provides that in respect of any plaint, application or petition (including memorandum of appeal) to obtain substantive relief capable of being valued in terms of monetary gain or prevention of monetary loss, including cases wherein application or petition is either treated as a plaint or is described as the mode of obtaining the relief, as aforesaid, the Court-fee payable would be ad valorem Court-fee on the amount of the monetary gain, or loss to be prevented, according to the scale prescribed under Article 1. I need not consider Article 1 because it is not disputed that, if Article 7 of schedule I applies to the case, the decision of the Taxing Master must be upheld.

7. The submission of Mr. Advani, learned Counsel for the plaintiffs, is that, in the present case, even if defendant No. 2 had sailed away without issuing a clean bill of lading or a clean mate's receipt, it was not as if the plaintiffs would have been totally unable to recover the price of the goods shipped and all that would have resulted is some delay in payment and loss of interest thereby. It was urged by him that this loss sought to be prevented was not capable of monetary evaluation and hence the plaintiffs were entitled to file the suit on the payment of Court-fee of Rs. 30. Mrs. Chowgule, on the other hand, urged that the present case the plaintiffs had, in fact, in the plaint, evaluated the monetary loss, which they sought to prevent by obtaining the injunctions and orders which they sought and hence it was not open to them to contend that the reliefs in this suit were not capable of monetary evaluation.

8. Before dealing with the contentions of the parties, it may be useful to refer to the decision of the Supreme Court in Neelavathi v. N. Natarajan : [1980]2SCR307 . In that case it has been held that it is settled law that the question of Court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole. It is in the light of these principles that the arguments of the learned Counsel before me will have to be considered.

9. In the present case, I find that the plaintiffs by the aforesaid averments, which I have set out earlier, make it quite clear that unless the orders and injunctions sought for by them are granted, they would be put to a loss of Rs. 4,55,00,000. I fail to see, therefore, how, in view of this statement, it is now open to them to contend or aver that the relief, which they were seeking, was incapable of monetary evaluation. If, as suggested by Mr. Advani, the plaintiffs wanted to proceed on the footing that the loss which would be caused to them if no orders or injunctions were granted was the loss of interest or the loss caused by the delay in obtaining payment, it was for them to have filed the plaint on that footing; but, having filed the plaint on the footing that the loss that would be caused if the injunctions and orders sought were not granted, was of Rs. 4,55,00,000, I fail to see how it is now open to them to take up a different stand. I may point out here that it was submitted by Mrs. Chowgule that in view of the abovementioned clause in the contract between the plaintiffs and the buyers regarding payment, the plaintiffs would not have got the payment, unless a clear bill of lading and a clean mate's receipt were issued by defendant No. 2. I am, however, not concerned with that question. To my mind, the plaintiffs have clearly averred that the loss, which would be caused to them if the orders and injunctions sought for by them were not granted was Rs. 4,55,000,00'. It is, therefore, no longer open to them to say that loss was not capable of monetary evaluation. Hence the decision of the Taxing Master must be upheld and the plaintiffs have been rightly directed to pay Court-fees in the sum of Rs. 15,000.

10. The Chamber Summons dismissed with costs in favour of the State of Maharashtra.

11. The plaintiffs have deposited Rs. 15,000 with the Prothonotary and Senior Master. Normally the plaintiffs would have been directed to withdraw this amount and to utilise the same in purchasing Court-fee stamps to be applied to the plaint. However, it is pointed out to me that the suit has been settled by a consent decree obtained on September 7, 1981. The plaintiffs would, therefore, be entitled to one-half of the refund of the Court-fees. The plaintiffs are, therefore, permitted to withdraw the said amount of Rs. 15,000 deposited by them on the plaintiffs' attorneys Messrs Raghavayya Nagindas and Company personally undertaking that out of the said amount a sum of Rs. 7,470 will be utilised for purchasing Court-fee stamps and the said stamps will be applied on the plaint within one week of the withdrawal. Prothonotary to act on the minutes of the order on the plaintiffs' advocates personally undertaking to draw up the order within five weeks from to-day.

12. The plaintiffs to pay to the State of Maharashtra the costs of the Chamber Summons.

13. No order as to costs as far as defendants 2, 3 and 5 are concerned.


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