AZIZ-UR-REHMAN, J.---The plaintiff has filed the above suit for recovery of Rs,1,97,07,760/- on account of storage charges with the following prayer :-
(a) "Judgment and decree for recovery of a sum of Rs,1,97,07,760/= against the defendant, with 15% mark-up from the date of the filing of the suit till realization.
(b) Costs, and
(c) Such further and other reliefs as the court, may deem fit proper under the circumstances of the suit."
1 Precisely, the facts of the case are:-
2. The plaintiff, per assertions made in the plaint are the trustees and are responsible for receiving and storage of the consignment landed at the Port -of Karachi till they are cleared by the importers or their clearing agent.
3. Messrs N.K. Enterprises, has been sued as defendant through Abdul Ghani S/o. Muhammad, Muslim, adult, (i) having business place at Shop No, 9, Jamani Centre, 177, Britto Road, Garden East, Karachi, (ii) C/o Mehran Agencies, Clearing Forwarding and Shipping Agents, Rooms Nos. 321 to 325, Shams Chambers, Near City Post Office, Shahrah-e-Liaquat, Karachi:
4. Per averments of the plaintiff the defendant in the year 1992, had imported a consignment of 100 Metric Tons Iron and Steel scraps from Singapore per M.V. "STAMFORD" bearing LGM No, 1128/92 of 14-6-1992. Index No, 43 and Bill of Entry filed declaring the imported goods as Iron and Steel scraps which landed under the custody and care of the plaintiff. It is further averred that the defendant appointed their clearing agent namely Umar Farooq Enterprises clearing the goods from the custody of the plaintiff. Per averments of the plaintiff on examination of the consignment by the Custom Department, it was found that the defendant in fact had made a mis-declaration as besides, Iron and Steel scraps the consignment contained old and serviceable auto-parts. The old and serviceable auto parts, were not permissible for import without the relevant Import Policy Order, therefore, according to the plaintiff's version it were confiscated outright and resultantly remained in the custody of the plaintiff. The plaintiff under circumstances; employed Chowkidars to watch and wards the serviceable old and used auto parts confiscated.
5. Against the order whereby the goods were confiscated, the defendant per averments of the plaint filed an appeal before the Collector of Customs (Appeals) but the same was rejected.
Thereafter a Revision Application before Member Judicial (C.B.R.) Karachi, was filed who remanded the case to the Deputy Collector of Customs (Appraisement)-III. The Deputy Collector of Custom (Appraisement) III allowed release of the confiscated portion of the consignment against redemption of fine equal to 50% of the ascertained value of the offending goods plus Custom duty and other taxes leviable thereon.
6. Nonetheless, the order passel by Deputy Collector of Custom (Appraisement)-III, was impugned through Constitution Petition No,D-2867/92 in this Hon'ble High Court. Per averments made in the plaint under order dated 22-12-1992 directions were issued to the Customs Authority to release the consignment after procuring a bank. Guarantee in lieu of the amount of fine imposed by the Deputy Collector of Customs (Appraisement)-III. Consequently, the goods detained were released by the Customs authority.
7. Per averments made in the plaint, the detained goods remained lying in the KPT and thus incurred storage charges as per rates of KPT. The period during which the detained goods remained lying with KPT/plaintiff is from 16-7-1992 to 27-9-2001. Storage charges claimed by the KPT/plaintiff for the said period [w,e,f, 16-7-1992 to 27-9-2001] comes to Rs,1,97,07,7601=(One crore ninety seven lacs seven thousand seven hundred and sixty only).
8. The Custom Department, on the request of the defendant issued a delay and detention Certificate for a period from 16-7-1992 to 5-1-1993 but per assertions, the plaintiff did not accept the same as the consignment imported in violation of ITC Regulations not qualified for concession in the rates of storage charges.
9. The order dated 22-12-1992 passed by this Court in C.P. No,D-2867/1992 to release the consignment after obtaining the bank guarantee was at the back of KPT, therefore, KPT moved an application for becoming a party in the said C.P. Filed by defendant. Consequently, KPT was joined as respondent in the Constitution Petition No,D-2867/92 (Messrs N.K. Enterprises v. C,B.R. And others). Later on, a consent order dated 12-10-1993 was passed in the aforesaid Constitution Petition which reads as under: "This petition is allowed and the case is remanded back to the respondent No, 2 for deciding it afresh on merits after hearing the parties and the final liability of demurrage etc., of the petitioner, if any will be determined in the said order. The petitioner will furnish a Bank Guarantee in a sum of Rs,5,00,0001= to the satisfaction of Nazir of this Court. On furnishing such guarantee, the goods will be released to the petitioner."
10. Plaintiff/KPT felt aggrieved, preferred a Civil Petition for Leave to Appeal before the hon'ble Supreme Court of Pakistan wherein the second part of the order dated 12-10-1993 regarding release of consignment against bank guarantee in the sum of Rs,5,00,0001= was questioned as according to plaintiff/KPT the storage charges then due and payable were more than Rs,13,00,00/=.
An application for stay in Civil Petition for Leave to Appeal was also filed by the plaintiff. Per assertions of the plaintiff on 2-12-1993 operation of the second portion of the order dated 12-10- 1993 was suspended till the Special CPLA is heard. The said CPLA was finally heard on 26-1-1994 and leave was refused to KPT in CPLA No, 495-K of 1993 [Karachi Port Trust v. Messrs N.K. Enterprises and 3 others]. The relevant observations of the Hon'ble Supreme Court of Pakistan read asunder:-- 26-1-1994 "2. It is to be noted that the petitioner was represented before the High Court when the consent order was passed; if it had not consented to the furnishing of bank guarantee it should have approached the High Court for correcting its record. With this observation leave is refused."
11. Pursuant to the above observation of apex court, KPT/plaintiff had also filed a review application but the same being time barred was dismissed. Thereafter on the contempt application filed by the defendant herein/N.K. Enterprises, the Division Bench of this Court on 21-8-2001 took strong notice of the fact that order passed by Division Bench on 12-10-1993 in C.P. No,D-2867/92 was till then not implemented. Nevertheless, on 28-8-2001 a consent order in the said CP was passed.
Operative and relevant portion of the said order runs as under:-- 28-8-2001.
"By consent of the parties, following order is passed:-- It is ordered that a bank guarantee shall be given by the petitioner in the sum of Rs,500,0001= to the satisfaction of the Nazir of this Court within one week, thereafter within three days of the acceptance of the bank guarantee by the Nazir, the KPT shall release the goods of the petitioner.
The petitioner shall provide all the necessary documents to show that the goods are out of charge of the customs at the time of clearance of the goods. The KPT after releasing the goods shall serve a notice upon the petitioner calling upon the petitioner for a hearing to settle the outstanding dispute of demurrage. The petitioner in turn shall provide all the necessary documents and the KPT shall resolve the dispute as provided under the law. This exercise shall be conducted and finished within three months from today."
12. Pursuant to the aforesaid order, the goods of the defendant viz. N.K. Enterprises were released on 26/27-9-2001 as by that time the defendant had deposited the amount of Rs,5,00,000/= with the Nazir of this Court. Plaintiff/KPT also, in compliance with the aforesaid order sent notice(s) to the defendant viz. Messrs N.K. Enterprises by registered post A/D as well as by courier service calling upon Messrs N.K. Enterprises/defendant to have a meeting with the Traffic Manager of KPT on 24-11- 2001 so the issue regarding outstanding storage charges is settled down.
13. Nonetheless, both the notices per averments in the plaint remained unserved as the postal Department and TCS returned the notices with endorsement to the effect that "No company in the name of Messrs N.K. Enterprises is operating business in the Shop No, 9, Jamani Centre, 177, Garden East, Karachi." Per assertion made in the plaint cause of action inter alia accrued to the plaintiff against the defendant when the consignment was lodged at the time of landing at the Port of Karachi and on 21-11-2001, when pursuant to and in compliance with the order dated 28-8-2001 notice(s) was sent to the defendant and also on other dates as mentioned in para. 19 of the plaint.
In view of the foregoing circumstances, the instant suit has been filed by the plaintiff for recovery of Rs,1,97,07,760/= plus markup @ 15% from the date of filing of the suit till realization and cost of the suit against the defendant.
14. Upon filing of the suit, summons were issued to the defendant but returned unserved with endorsement that office of the defendant has been closed down. Per diary sheet dated 24-9-2004 maintained by the Additional Registrar (O.S.), the plaintiff was directed to file fresh address of the defendant. Thereafter inter alia for such purpose, the case was adjourned from time to time. Per diary sheet of the Additional Registrar (O.S.) of 2-5-2006, summons issued to the defendant on fresh address had returned with the endorseiment that officer of the defendant had received the summons. Besides, it also mentions about defendant's letter of no concern with case.
15. Prom perusal of diary sheet it reveals that thereafter from time to time the case was adjourned for one reasons or the other. Lastly on 30-4-2010 service upon defendant was held good because of publication of summon in "daily Jang" Urdu of 6-4-2010 and other modes as well. Despite of service through publication etc., no-one appeared on behalf of the defendant or any written statement filed. Under circumstances, vide order dated 13-12-2010 defendant was ordered to be proceeded ex parte.
16. Thereafter, on 25-9-2012, the plaintiff was permitted to file affidavit-in-ex parte proof.
Accordingly, 'affidavit-in-ex parte proofof Mr. Muhammad All lssani S/o Abdul Rauf Issani was filed on 1-10-2012 along with various documents/orders mentioned therein.
17. On 22-11-2012, deposition of witness PW-1 was recorded and he produced besides plaint as Exh.PW-1/1, affidavit-in-ex parte-proof and other documents as Exh.PW-1/2 to PW-1/9. Apart from the exhibits [Exh.PW-1/1 to Exh. PW-1/9] other documents were also produced in evidence but the same were marked as X-1, X-2 and X-3 respectively.
18. I have heard learned counsel for the plaintiff and have gone through the record available before me.
19. Mr. Muhammad Sarfaraz Sulehry, learned counsel for the plaintiff contended that KPT being trustees is responsible for receiving and storage of consignment landed at Port of Karachi until the goods are cleared by the importer or their clearing agent. Per learned counsel in the year, 1992 the defendant had imported a consignment of 100 Metric Tons Iron and Steel scraps from Singapore as per M.V. "STAMFORD" bearing IGM No, 1128/92 of 14-6-1992. Index No,
43. Per learned counsel the defendant had filed Bill of Entry declaring the landed goods as Iron and Steel Scraps. Since 16-7- 1992 till 27-9-2001, the goods landed, remained in custody and care of the plaintiff. Per learned counsel the storage charges for the aforesaid goods comes to Rs,1,97,07,760/= which per learned counsel is recoverable from the defendant.
20. Indeed, per learned counsel, the defendant had appointed Umar Farooq Enterprises as their clearing agent, to clear the goods from the custody of the plaintiff. However, on the examination of consignment by the Custom Department, it was found that the defendant actually had made mis- declaration about the goods imported. Per learned counsel upon checking/examination of the consignment the Custom Department had found that besides, the Iron and Steel Scraps consignmentalso contained old and serviceable auto-parts. Per leaner counsel the import of old and serviceable auto-parts was not permissible under the relevant import policy.
21. Under circumstances, per learned counsel the used auto parts were confiscated and remained in the custody of the plaintiff. Mr.Muhammad Sarfaraz Sulehry learned counsel for the plaintiff also made reference to certain orders passed by Division Bench of this Hon'ble Court in C.P. No, 2867 of 1992 (Messrs N.K. Enterprises v. C.B.R. And others) and the Honourable Supreme Court of Pakistan in C.P.L.A. No, 495-K of 1993 (Karachi Port Trust v. Messrs N.K. Enterprises and others). Learned Counsel, further argued that the consignment imported in violation of I.T.C. Regulation never qualifies for concession in the rates of storage charges
22. While, making reference to Exh.PW-1/5, the learned counsel for K.P.T/plaintiff vehemently argued that the charges accrued during 16-7-1992 to 27-9-2001 amounting to Rs,1,97,07,760/= (Rupees one crore Ninety Seven lacs Seven Thousand Seven Hundred Sixty only) of course being lawful is recoverable from the defendant. The Break-up of storage charges per Exh.PW-1/5 is as under:-- S.No.DESCRIPTION AMOUNT
1. 16-7-1992 TO 17-7-1992 (Two days) @ RS. 26/= PER TON PER DAYRS 4,472.00
2. 18-7-1992 TO 27-7-92 (10 DAYS) @ RS. 36/= PER TON PER DAY.RS. 30,960.00
3. 28-7-1992 TO 30-6-1993 (338 DAYS) @ Rs.54/= PER TON PER DAYRS. 15,69,672.00
4. 1-7-1993 TO30-6-1994 (365 DAYS) @ Rs.62/= PER TON PER DAY.RS. 19,46,180.00
5. 1-7-1994 TO 27-9-2001 (2646 DAYS) @ Rs.71/= PER TON PER DAY.RS. 1,61,56,476.00 TOTAL RS.1,97,07,760.00
23. Mr. Sarfaraz Sulehry, leaned counsel for the plaintiff, further argued that the defendants despite service has not only failed to file any Written Statement but has also avoided and/or neglected to lead any sort of evidence in rebuttal/denials of the averments made on oath by the plaintiff in plaint and in affidavit-in-exparte proof (Exh.PW-1/1 and Exh.PW-1/2). Besides, the learned counsel further contended the documents exhibited i. e. , [Exh. PW-1/3 , PW- 1 /4 , PW . 1/5 , Exh. PW-1/6 , Exh.PW-1/7, Exh. PW-1/8 and Exh.PW-1/9] have also gone unchallenged. Not only this the deposition of PW-1 recorded on 22-11-2012 has also gone un-rebutted/un-denied.
24. In support of his contention and with view to justify the claim of storage charges, the learned counsel made reference to the 3 Notifications as below:--
(a) S.R.O No, 145 (KE)/92 dated June, 28, 1992.
(b) S.R.O. No, 148(KE)/93 dated June, 27, 1993.
(c) S.R.O. No, 129(KE)/94 dated July, 12, 1994.
25. It would be advantageous to reproduce the relevant portions of the 3 S.R.Os and Table-II thereof being relevant as far as the instant case is concerned.
(A) The Gazette of Pakistan Extraordinary PUBLISHED BY AUTHORITY KARACHI, SATURDAY, JULY 25, 1992 PART II Ministry of Communications (Ports and Shipping Wing)
NOTIFICATIONS Karachi, the 28th June, 1992 (A) S.R.O. 145 (KE)/92: In pursuance of section 43 (B) of the Karachi Port Trust Act, 1886 (Bombay Act VI of 1886) and in supersession of the Ministry of Communications Notification No, S.R.O. 197 (KE)/91, dated 6th May, 1991 and all other notifications altering the scales of rates, dues and charges notified thereunder it is hereby notified that the Trustees of the Port of Karachi have, with the sanction of the Federal Government, framed under sections 43 and 43(A) of the said Act, the scales of tolls, dues, rates and charges effective from 1st July, 1992 as shown in the tables below: TABLE -II STORAGE CHARGES IMPORTS
(1) EAST WHARVES, KEAMARI GROYNE CONTAINER COMPLEX WEST WHARVES, M.I. YARD JUNA BUNDER AND/OR ANY OTHER NOTIFIED LANDING PLACES.
Storage will accrue on all goods, not otherwise specifically mentioned in this table, stored in Fast Wharves, West Wharves, M.I. Yard and Juna Bunder, or any other notified landing places, remaining un-cleared after the expiry of free days and will be charged at Rs,9.00 per tonne or part thereof plus the following rates:- RS.
First 10 Days 18.00 per tonne per day Next 10 days 26.00 do Next 10 days 36.00 do Thereafter until clearance.54.00 do
(B) The Gazette of Pakistan Extraordinary PUBLISHED BY AUTHORITY KARACHI, MONDAY, AUGUST 2, 1993 PART II MINISTRY OF COMMUNICATIONS (Communications Division)
(Ports and Shipping Wing)
NOTIFICATION Karachi, the 27th June, 1993 S.R.O. 129 (KE)/94: In pursuance of Section 43 (B) of the Karachi Port Trust Act, 1886 (Bombay Act of 1886) and in supersession of the Ministry of Communications Notification No, S.R.O.
10.148 (KE)/93, dated June 27, 1993 and all other notifications altering the scales rates, dues and charges notified thereunder, it is hereby notified that the Trustees of Port of Karachi have, with the sanction of the Federal Government, framed under sections 43 and 43(A) of the said Act, the scales of tolls, dues, rates and charges effective from 1st July, 1994 as shown in the tables below. TABLE II #TBS SCALE "A" #TBE STORAGE CHARGES IMPORTS
(1) EAST WHARVES, KEAMARI GROYNE CONTAINEF COMPLEX WEST WHARVES, M.I. YARD JUNA BUNDEF AND/OR ANY OTHER NOTIFIED LANDING PLACES.
Storage will accrue on all goods, not otherwise specifically mentioned- in this Table, stored in East Wharves, West Wharves, M.I. Yard, and Juna Bunder, or any other notified landing places, remaining un-cleared after the expiry of free days, and will be charged at Rs, 10.00 per tonne or part thereof plus the following rates :- RS.
First 10 Days 21.00 per tonne per day Next 10 days 30.00 do Next 10 days 41.00 do Thereafter until clearance.62.00 do
(C) The Gazette of Pakistan Extraordinary PUBLISHED. BY AUTHORITY.
KARACHI, THURSDAY, JULY 28, 1994 PART II GOVERNMENT OF PAKISTAN MINISTRY OF COMMUNICATIONS (Ports and Shipping Wing)
Karachi, the 12th July, 1994 NOTIFICATIONS S.R.O. 129 (KE)/94: In pursuance of Section 43 (B) of the Karachi Port Trust Act, 1886 (Bombay Act of 1886) and in supersession of the Ministry of Communications Notification No,S.R.O. 148 (KE)/93, dated June 27, 1993 and all other notifications altering the scales rates, dues and charges notified thereunder, it is hereby notified that the Trustees of Port of Karachi have, with the sanction of the Federal Government, framed under section 43 and 43(A) of the said Act, the scales of tolls, dues, rates and charges effective from 1st July, 1994 as shown in the tables below.
TABLE II SCALE "A"
STORAGE CHARGES IMPORTS
(1) EAST WHARVES, KEAMARI GROYNE CONTAINER COMPLEX WEST WHARVES, M.I. YARD JUNA BUNDER AND/OR ANY OTHER NOTIFIED LANDING PLACES.
Storage will accrue on all goods, not otherwise specifically mentioned in this Table, stored in East Wharves, West Wharves, M.I. Yard, and Jima Bander, or any other notified landing places, remaining un-cleared after the expiry of free days, and will be charged at Rs,12.00 per tonne or part thereof plus the following rates:-- RS First 10 days 24.00 per tonne or part thereof per day.
Next 10 days 35.00 do Next 10 days 47.00 do Thereafter until clearance71.00 do
26. Per learned counsel, the Board in terms of Sections 43 and 43-A of the KPT Act, 1863, is empowered to frame and alter the scale of tails, dues, rates and charges for services and for use of facilities which KPT Provides inter alia regarding landing, shipment, storing and keeping of goods in any premises belonging to the Board.
27.Finally, learned counsel for the plaintiff submitted, the suit of the plaintiff deserves to be decreed as prayed.
28. From bare perusal of the aforesaid Notifications (a) S.R.O. No,145(KE)/92 dated June 28, 1992 (b)
S.R.O. No,148(KE)/93 datedJuly 27, 1993 and (c) S.R.O. No,129 (KE)/94 dated July 12, 199'4, it is crystal clear that the scale of charges notified their under are not only with the sanction of the Federal Government but have also been published after sanction in Part-II of the Gazette of Pakistan thus such Notifications besides having the force of law are binding.
29. The effective dates of operation of the notifications in terms of section 43 B of KPT Act 1886, however, would be only after publication of rates/charges in the official gazette and not from the date of sanction or prior thereto. The key words used in section 43 B of KPT Act, 1886 are that "when so sanctioned and published in the official gazette shall have the force of law"; therefore, in my view unless the two mandatory requirements i,e,, sanction and publication in official gazette are not fulfilled a notification can have no force of law or binding effect.
30. Besides, a notification can be given no retrospective effect so as to override the prevailing rates of charges or otherwise cause a disadvantage to a beneficiary thereof vis-a-vis existing vested right. In this regard reliance is placed on the case of SHEIKH FAZAL AHMED AND ANOTHER V. CLAIMS COMMISSIONER, LAHORE, reported in PLD 1964 SC 494 wherein on page 501 it was observed held as under:- "This amendment had tome into force on 22-2-1993. An obvious objection to this amendment is that it is a notification by the Government in exercise of the power of subordinate legislation and such power does not include a power to give retrospective effect. The power of subordinate legislation which is exercised by the executive is a very limited power. Its exercise even to a limited extent had been objected to on the ground that the fact that a Legislature had been empowered to legislate on a particular subject did not imply that it could delegate its power of legislation to any other person or body of persons. The power of delegation had however, to be accepted to a limited extent because in many cases it is almost impossible for the Legislature to make provisions in detail and in some cases the time or the occasion for applying a statue has to be left to the executive Government. It was considered that it was not possible for the Legislature to exercise its functions properly unless the grant of subordinate legislative power to the executive was permitted to this extent. However, the subordinate legislative power is to be permitted only to the extent to which it is necessary for the proper exercise of this function by the Legislature and a power to legislate with retrospective effect has never been accepted as included in a power of subordinate legislation. In "Rahmat Ullah v. Deputy Settlement Commissioner (1), this Court held that a notification by the Government under the Displaced Persons (Compensation and Rehabilitation) Act could not have retrospective effect."
Likewise, in the case of M/s. ARMY WELFARE SUGAR MILLS LIMITED AND OTHERS v. FEDERATION OF PAKISTAN AND OTHERS reported in 1992 SCM R 1652 on page 1672 it was observed as under "It seems to be well settled proposition of law that a notification which purports to impair an existing or vested right of imposes a new liability or obligation, cannot operate retrospectively in the absence of legal sanction, but, the converse i,e,, a notification which confers benefit cannot operate retrospectively, does not seem to be correct proposition of law. It may be observed that para 2 of the above S.R.O. 814(1)185 was a beneficial provision and, therefore, in the absence of any prohibition in the Act or any other law, it was valid. It is also significant to note that the above S.R.O. 814(1)/85 was issued by the Federal Government in exercise of power conferred on it under section 12-A of the Act, whereas, the above impugned notices dated 18-4-1989 have been issued by the Collector. It is not understandable as to how the Collector, Central Excise and Land Customs, could have declared the above SRO as void ab initio in presence of sections 38 and 41 of the Act. The former section provides that 'all rules made and notifications issued under this Act, whereas, the latter section lays down that 'all officers and persons employed in the execution of this Act and the rules made thereunder shall observe and follow the orders, directions and instructions of the Central Board of Revenue."
31. Manifestly, in the instant case the charges calculated by KPT from 1-7-1994 to 28-7-1994 at the enhanced rate of Rs,71.00 instead of Rs,62/-, is illegal as the S.R.O. No, 129(KE)/92 got the force of law only on 28-7-1994 [i,e,, when it was published in the Gazette of Pakistan, Extraordinary, Part-II]. As stated hereinabove a notification cannot be given retrospective effect lest for taking away the vested rights accrued. The extra amount, charged by the plaintiff/KPT, comes to Rs,252/= (Rupees two hundred fifty two only) which being illegal is disallowed. On deducting this amount of Rs, 252/=, the KPT claim has now reduced to Rs,1,97,07,508/= only [Rupees one crore ninety seven lacs seven thousand five hundred only].
32. The defendant despite service inter alia through substituted service/publication of summons in "daily Jang" of 6-4-2010 [Exh.PW-1/9] has failed and/or avoided to contest the claim of the plaintiff by way of filing of a written statement and/or raising any defence or otherwise, leading any evidence, therefore, plaintiff's suit in view of the evidence led/documents exhibited [PW-1/2 to Exh.PW-1/9] by the plaintiff deserves I to be decreed. The defendant it appears in their own wisdom have chosen to remain absent. Nonetheless the conclusion has been drawn after going through the available record minutely.
33. In view of the foregoing discussion, and arguments of the learned counsel for the plaintiff, I decree the plaintiff's suit in the sum of Rs,1,97,07,508/= [Rupees one crore ninety seven lacs seven thousand five hundred eight only] plus markup @ 12% from the date of filing of the suit i,e,, 20-10- 2003 till payment. Cost of the suit is also awarded.