Giasuddin (Md) (Appellant)
MV Forum Power and ors (Respondents)
Latifur Rahman CJ
Bimalendu Bikash Roy Choudhury J
Mahmudul Amin Choudhuiy J
Kazi Ebadul Hoque J
Judgment dated :July 19, 2000.
The Customs Act, 1969 (IV of 1969), sections 64, 66 & 67
Provisions of sections 64, 66 & 67 of the Customs Act have no manner of application in case of supply of spare parts, machineries, provision and necessaries to a vessel in distress. There is no legal bar in the Customs Act to the supply of such goods and services to the ship in distress and anchored at any port in Bangladesh………………..(16)
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record— For the Appellant.
Mvi. Md Wahidullah, Advocate-on-Record—For Respondent No. 4.
Ex-parte—Respondent Nos. 1-3, 5-9.
Civil Appeal No.13 of 1999.
(From the judgment and order dated 3-8-1999 passed by the High Court Division in Admiralty Suit No.48 of 1996).
Kazi Ebadul Hoque J.- This appeal by leave is at the instance of the plaintiff against judgment dated 3-8-1998 passed by the Admiralty Court in Admiralty Suit No. 48 of 1996 dismissing the suit.
2. Plaintiff filed the aforesaid suit for recovery of damages and compensation of US $ 22,631.80 equivalent to Taka 9,50,535.60 at the conversion rate of Taka 42.00 per US dollar from the principal defendant-respondent Nos. 1 to 5. The case of the appellant was that he is a businessman carrying on the business of ship repairer and ship chandler, watchman, chipping and painting, engine store and bunker supplier under the name and style of SOVHAN MARINE SYNDICATE. Defendant No.1 is a merchant vessel named MV Forum Power. Defendant No. 4 as agent of the said vessel wanted supply of (i) Vertical centrifugal Main cool SW pump complete with Motor, VDK 440E (ii) fire/GS pump complete with Motor, type VSK 95J (iii) Bearing Unit complete, blower side, VTR 200 (iv) Bearing Unit complete turbine side, VTR 200 and (v) Lubricating disc for VTR 200 for the defendant No. 1 who was lying in distress at the port of Mongla and for want of those machines and parts was unable to discharge her cargo. Defendant No.4 by fax message dated 1-10-1996 asked for quotation for supply of those items to defendant No.1 from the plaintiff and the plaintiff by telex message dated 3-10-1996 gave their best price including installation cost and on 22-10-1996 informed the specification by another telex message. Plaintiff by fax message gave his terra of supplying the items minimum 30 days’ credit and advance 50%. By fax message dated 23.1.1996 defendant No. 4 confirmed to supply the vessel at Mongla port the aforesaid items at the rate, terms and conditions of the plaintiff. Defendant No. 4 gave supply orders to the plaintiff as agent of defendant No.1 to be delivered an installed on board of defendant No. 1, cost for installation, transportation and labour shall be borne by the defendant Nos. 1 and 4 and by fax message dated 24-10-1996 the plaintiff also informed defendant No.4 actual cost for such works. Thereafter, plaintiff supplied those items to defendant No.1 on 29-10-1996 and defend Nos.2 and 3 acknowledged receipt of the same in writing by issuing a certificate. Those defendants issued another certificate stating that those items have been installed by the plaintiff on board of defendant No.1. Plaintiff duly submitted his bill for US $ 14,851.00 for those items. Defendant No.2 in the meantime sent a list of spare parts to the plaintiff for supplying to defendant No.1 numbering 17 by telex dated 27-10-1996. Plaintiff informed defendant No.4 quoting rate for the same by fax message dated 9-11-1996. Defendant No requested plaintiff to supply those 17 items of spare parts at the rate given by the plaintiff and accordingly the plaintiff supplied those items to defendant Nos.2 and 3 who acknowledged receipt of the same issuing a certificate on 18-11-1996, Plaintiff sent his bill to defendant No.4 for those items amounting to US $ 4,289.67. Defendant No.2 requested the plaintiff for supply of food (provisions) and laundry service and accordingly, plaintiff supplied provisions and provided laundry service to the officers/crews of defendant No.1. The bill for provisions amounted US $ 2,138.52 and bill for laundry service amounted to US $ 536.61, Defendant No.1 along with the steward of defend No.2 acknowledged receipt of those provisions and laundry service by issuing certificate. Plaintiffs sent those bills to the defendant No.4. On the request of defendant Nos.2 and 3 the plaintiff also supplied stationery amounting to US $ 134.00. Plaintiff demanded payment of the bills for the aforesaid goods supplied by him from the defendants who in spite of promises did not pay the same. After coming to learn that the vessel may leave Bangladesh at any time plaintiff issued a notice on 2-12-1996 demanding immediate payment of the dues with 20% interest but defendants paid no heed to the demand of the plaintiff. So the plaintiff was compelled to file the suit for realisation of the amount mentioned hereinbefore.
3. Defendant No.6, the local agent of defendant No.1 against whom no claim was made in the suit, contested the suit by filing a written statement stating, inter alia, that the suit is not maintainable in the present form and that the plaintiff has no cause of action and that the plaintiff filed the suit with the malafide intention and vexatious pleas to harass the defendant; the suit is also bad for misjoinder and non-joinder of parties. Further case of the defendant is total denial of alleged supply made by the plaintiff of any spare parts or provisions and laundry service and that the plaintiff is not entitled to any amount. Further case of defendant No.6 is that they never forwarded any requisition for the items allegedly supplied on board the vessel by the plaintiff and the plaintiff is required to obtain agreement on shipping export bill from the customs authority against supply of those requisitioned items. Their further case is that no supply was made in presence of customs officer on board the ship and no shipping/ export bill was used/ sealed and signed by the master of the vessel and customs officer. So the plaintiff is not entitled to any decree in the suit.
4. After considering the evidence adduced by the parties learned Admiralty Judge dismissed the suit by the impugned judgment dated 3-8-1998 on the view ‘that plaintiff has not in fact supplied the spare parts, provisions and provided laundry service in accordance with law and I very much doubt that if the plaintiff himself fabricated and/or manufactured those spare parts in his workshop and supplied the same to the defendant No.1 vessel, Therefore I find that the plaintiff has failed to discharge its onus of proving that he had supplied spare parts, provisions and provided laundry service to the defendant No.1 vessel. In fact, the plaintiff has failed to prove his case by adducing sufficient and reliable proper evidence. Accordingly, I am of the opinion that the plaintiff is not entitled to a decree as prayed.’
5. Aggrieved by the impugned judgment plaintiff sought leave to appeal and leave was granted to consider the following submissions: “That the petitioner having proved to have supplied the spare parts and provisions and rendered laundry service to the vessel, defendant No.1 which has not been denied by the principal defendants and the present suit being an action in rem as well as in personam defendant Nos. 1 to 5 are liable to satisfy the claim of the plaintiff and a bank guarantee having been furnished to deposit the amount of the claim made by the plaintiff in the event of a decree being passed against the ship and/or other defendants, the learned Judge of the High Court Division acted illegally in dismissing the suit against defendant Nos. 1 to 5 although they did not contest the suit.” “That the High Court Division having itself clearly found that the plaintiff had supplied 17 items of spare parts, beside (i) Main Cool SW Pump complete with motor type; VDK 440E. (ii) Fire and GS pump complete with motor type; 95J (iii) Bearing Unit complete blower side VTR 2000. (iv). Bearing Unit complete turbine side VTR 2000 and (v) Lubricating Disc for VTR 200 has fallen into an error of law in not decreeing the suit upon an erroneous view that the plaintiff could not make the supplies to the foreign ship without obtaining any permission from the Custom Authority. He maintains that the learned Judge misread and misinterpreted the various provisions of the Customs Act in taking such a view.” “That there being no legal bar for the plaintiff to release his claim for supply of spare parts, provisions and laundry services from the defendants in the admiralty jurisdiction the High Court Division was wrong in dismissing the suit.” “That the High Court Division having itself noted the oral evidence of DWI that ‘DW l has stated that the money that was deposited with the bank was furnished by the owner of the vessel” and there being no evidence that defendant Nos. 1 to 5 had ever denied the claim of the plaintiff, defendant No.6 was not competent to deny the claim of the plaintiff on any ground whatsoever and therefore, the plaintiff was entitled to the decree prayed for in the suit.”
6. Plaintiff prayed for decree against the defendant Nos. 1-5 and not against the local agent defendant No.6. In spite of the same defendant No.6 contested the suit by filing a written statement mainly on the grounds that no requisition for supply of the machineries, spare parts, provisions and laundry service was made by the defendant No.6 as local agent of defendant No.1 and no clearance was obtained from the customs authorities for supply of the said goods and services to the defendant Nos.1-5.
7. In addition to the evidence of PW1 plaintiff relied on the documents marked Exts.1-18 in support of his case. It appears that Exts. 1 to 1(d) are the fax and telex correspondence between the plaintiff and the defendant No.4, foreign agent of the defendant No.1 vessel for supply of some machineries and parts and terms and conditions including price were settled through the said correspondence. Exhibits 2 and 2(a) are the fax messages by the plaintiff to the defendant No.2 informing about supply of those machineries and parts to defendant No.1. Exhibits 3 and 3(a) are the certificates issued by the Master and Chief Engineer of the vessel defendant No.1 acknowledging receipt of the said machineries and parts. Exhibit 4 is the fax message communicating the bill of US $ 14,851.00 towards the price of aforesaid machineries and parts, installation cost and labour cost. Exhibit 5 is a fax message communicating price quotations by the plaintiff for supply of some spare parts requisitioned by the defendant No.2, Master of the vessel. Exhibit 6 is the fax message by which defendant No.4 gave confirmation for supply of the said spare parts at that rate. Exhibit 7 is the certificate granted by the defendant No.2, Master of the vessel acknowledging receipt of the spare parts supplied by the plaintiff. Exhibit. 8 is the bill for US $ 4,289.67 submitted by the plaintiff to defendant No.4 for the aforesaid spare parts. Exhibit 9 is a fax message by which defendant No.2 requested the plaintiff to supply provisions to the vessel and laundry service and another fax message by defendant No.4 confirming the said requisitio1 by the defendant No.2. Exhibit 10 series are the certificates issued by the defendant No.1 acknowledging receipt of the provisions supplied by the plaintiff. Exhibit 11 series are the bi11i submitted by the plaintiff for US $ 2,138.52 for the supply of provisions to the defendant No.1. Ext. is the certificate issued by the defendant No. 2 acknowledging receipt of the laundry service provided by the plaintiff. Exhibit 13 is the bill for US $ 536.61 submitted by the plaintiff for the laundry service provided to the defendant No.11. PW1 in his deposition stated that on the request the Master they supplied some stationery to the vessel for which bill for US $ 134. Exhibit 14 was submitted by the plaintiff. But Exhibit 14 is not the bill for the said amount. However assertion of the PW 1 about the said amount has not been specifically denied by the DW1. Exhibits 14 to 17 are the subsequent communications between the parties about the aforesaid transactions. Exhibit 18 is the bill for US $ 682.00 spent for telex, fax and telephone for the correspondence and communication. On consideration of the pleading oral evidence of the parties and aforesaid documents it appears that plaintiff supplied machineries, spare parts, provisions, stationeries and laundry services worth US $ 21,949/80 and also spent US $ 682.00 for sending fax, telex, telephone to the defendants Thus plaintiff spent US $ 22,631.80 as claimed the plaint and the same at the rate of Taka 42/00 per US $ was equivalent to Taka 9,50, 535,60 at the time of institution of the suit. At present per US $ is equivalent of Taka 51.25. So US $ 22,631.80 is equivalent to Taka 11,59,882.25.
8. Let us consider whether the p1ainti appellant is entitled to recover the aforesaid amount from the defendant-respondent Nos. 1 to 5 Defendant-respondent Nos. 1 to 5 did not contest the claim of the plaintiff-appellant by filing any written statement denying the claim of the plaintiff- appellant. There is nothing on record to show that defendant Nos.1 to 5 instructed defendant No.6 to contest the suit denying the claim on their behalf. On the other hand, it appears that defendant Nos.1 to 5 furnished the claimed amount to defendant No.6 to deposit the same in the bank to give a bank guarantee to satisfy the claim of the appellant in the event of a decree in the suit.
9. It is true that defendant No.6 local agent of the vessel, defendant No.1 did not give any requisition to the plaintiff-appellant for supply of the goods and services but it appears from the evidence on record that defendant No.4 the foreign agent of the ship defendant No.1 as well as defendant Nos.2 and 3 Master and Chief Officer of the vessel gave orders to the plaintiff-appellant for supply of the aforesaid goods and services. There is no legal bar on the part of defendant Nos.2 to 4 to give orders for the supply of goods and services for the use of the vessel, its officers and crews. So absence of any order from defendant No.6 for supply of the aforesaid goods and services to the ship cannot be said to be illegal. It has already been noticed that all the supplies of the goods and services have been acknowledged by the Master, Chief Engineer and other Officers of the ship. Defendant Nos. 1 to 5 having not denied the claim of the plaintiff and the officers of the ship having acknowledged the receipt of the aforesaid goods and services, we find no reason on the part of the defendant No.6 to deny the claim of the plaintiff appellant for recovery of the value of the said goods and services from defendant Nos. 1 to 5.
10. Learned Judge of the High Court Division held that supply of spare parts, provisions and laundry services should be provided to the vessel through the customs authority and the plaintiff did not supply the same with the approval of the customs authority. In coming to the above conclusion learned Judge relied on the provisions of sections 50, 64, 66 and 67 of the Customs Act, 1969.
11. Section 50 of the said Act is as follows:
Order for entry outwards or loading of goods to be obtained before export goods are loaded.-(1) No goods other than passengers baggage and mail bags shall be loaded on a conveyance until— (a) in the case of vessel, a written application for entry of such vessel outwards, subscribed by the master of such vessel has been made to the appropriate officer and an order has been given thereon for such entry; and (b) in the case of any other conveyance a written application for authority to load the goods subscribed by the person-in-charge of the conveyance has been made to the appropriate officer and an order has been given thereon authorising the loading. (2) Every application made under this section shall specify the particulars as prescribed by the Board.
12. The aforesaid provision speaks of obtaining order before entry of a vessel outwards or loading of the goods in the vessel other than passengers, baggage and mail bags. This provision has no manner of application to supply of machineries, spare parts, provisions and necessaries to a vessel in distress.
13. Section 64 is as follows:
Goods not to be loaded or unloaded or waterborne except in presence of officer.— Save where general permission is given under section 67 or with permission in writing of the appropriate officer, no goods other than passengers, baggage or ballast urgently required to be loaded for the vessels safety, shall be shipped or water-borne to be shipped or discharged from any vessel, in any customs- port, nor, any goods except passenger, baggage shall be loaded in or unloaded from any conveyance other than a vessel at any customs- station or customs-airport except in the presence of an officer of customs.
14. Section 66 is as follows:
Goods not to be loaded or unloaded except at approved places.—Save where general permission is given under section 67 or with permission in writing of the appropriate officer, no imported goods shall be unloaded or goods for export loaded at any place other than a place duly approved under clause (b) of section 10 for the unloading or loading of such goods.
15. Section 67 is as follows:
Power to exempt from sections 64 and 66.—Notwithstanding anything contained in section 64 or section 66, the Board may, by notification in the Official Gazette, give general permission for goods to be loaded at any customs-station from any place not duly appointed for loading and without the presence or authority of an officer of customs.
16. The above provisions relate to loading and unloading of export goods in a vessel and exception there from. Those provisions have no manner of application in case of supply of spare parts, machineries, provision and necessaries to a vessel in distress. Defendant No.1 was in distress condition at Mongla port and required the supply of machineries and spare parts for proper maintenance of the said vessel. It also required provisions and laundry services for the use of its officers and crews. There is no legal bar to our knowledge in the Customs Act to the supply of such goods and services to the ship in distress and anchored at any port in Bangladesh. Commissioner of Customs has been impleaded in the suit as defendant No.9 but he did not enter appearance nor raised any objection to the supply of machineries, spare parts, provisions and laundry service to the vessel by the plaintiff. His silence shows that the supply of above goods and services to a ship in distress was not objectionable. So the learned Judge of the High Court Division was not justified to refuse a decree to the plaintiff-appellant on the ground that the goods and services were not supplied with the approval of the customs officer on board the vessel.
17. It has already been noticed that the defendant Nos. 1-5 did not contest the suit. On the other hand they sent money to the defendant No.6 to enable him to furnish a bank guarantee for release of the vessel from attachment. DW 1 admitted in his deposition: “It is a fact that the money we have deposited with the bank guarantee in this suit was given to us by the owner. I do not know whether there is paper in my office from the defendant Nos. 1 and 4 ever denied or disputed the claim of the plaintiff.’ From the above admission it is clear that the defendant Nos. 1-5 did not dispute the claim of the plaintiff rather sent the claimed amount to furnish bank guarantee for the release of the vessel. So there is no scope for the defendant No.6 to be adversely effected in the least by the decree passed in the suit.
18. Learned Judge of the High Court Division found fault with the plaintiff for his failure to adduce evidence to show he either purchased the machineries and spare parts from the market or fabricated the same in his factory. When defendant Nos. 1-5 acknowledged the receipt of the same there was no necessity of adducing evidence to show from whom those were purchased or from where those were fabricated. That was not an issue in the suit. Learned Admiralty Judge misdirectioned himself to enter into such an enquiry unnecessarily. When the supply of the machineries and spare parts are admitted by the principal defendants against whom decree has been sought there was no necessity of enquiring about the origin of the same We are of the view that failure of the plaintiff to adduce evidence as to from whom those were purchased or from where those were fabricated cannot deprive the plaintiff from recovering the price of the same from the defendant Nos. 1-5.
19. In the facts and circumstances and discussion made above we find merit in this appeal. In the result the appeal s allowed without any order as to costs. Impugned judgment is set aside and the suit is decreed in full for realisation of Taka 11,59,882.25 with cost against the defendant respondent Nos. 1-5 as prayed for.
Source : 53 DLR (AD) (2001)19