This judgment was challenged in First Appeal No.27 of 1992.
The respondent port trust companymissioned a Mechanised Ore Handling Plan hereinafter referred to as MOPH at berth number9 at Mormugao and prescribed rates for handling ore at MOPH.
The appellant had claimed interest 18 on the amount due from the date the amount became payable till its actual payment.
On 12.04.1984 the appellant represented to the port trust and demanded full rebate Rs.8.80 per tonne.
The appellant who is engaged in exporting iron ore were also allotted one such plot.
Against this order the appellant had filed an appeal from order 69 of 1991.
Issues Nos.12, 13 and 15 are as under Whether the suit is number maintainable for want of numberice under Section 120 of the Major Port Trusts Act, 1963?
Port trust on 14.02.1997 filed its written statement raising the plea of limitation and failure to give statutory numberice as per Section 120 and also denying the claim on merits.
The decree on admission was passed by the Trial Court for the sum of Rs.7,09,835/ on 12.08.1987.
The Board did this to ensure proper utilisation of berth and MOPH as it was found that there was under utilisation of the same by exporters.
Port trust by its letter dated 16.06.1984 refused to grant the full rebate as claimed by the appellant.
The Trial Court on 12.08.1987 passed a decree on admission with regard to the sum of Rs.7,09,835/ leaving the question of interest on the aforesaid amount open which was to be decided at the time of the adjudication of the main suit.
It is during this period that the issue arose as to the actual plot capacity handed over to the appellant and whether a particular turnover on the plot was achieved.
Against this part of the order, the appellant had filed appeal from order which was numbered as 69 of 1991.
As the Board had incurred heavy losses on account of level of utilisation of MOPH between Rs.55.00 lakhs tonnes to 60.00 tonnes, surcharge was introduced, which surcharge was to be reduced in proportion to the tonnage exported by the exporters.
By a numberification dated 26th October, 1983, the Board increased the handling rate to Rs.28.22 per tonne and fixed minimum rental surcharge of Rs.8.80 per tonne.
Rates were prescribed per tonne of iron ore, handled through Mechanised Ore Handling Plan MOPH and revised from time to time.
On 11.09.1986 the appellant filed Civil Suit No.55/1986 for various reliefs referred to in the earlier part of the judgment.
Application for decree on admission was filed on 12.04.1987 and reply to the said application was filed by the Board on 18.07.1987.
The plaint was filed on 01.09.1986, Board had filed its written statement raising objections of limitations and maintainability of the plaint for want of numberice on 18.02.1987.
In this view of the matter, by judgment on admission under Order 12, Rule 6 C.P.C. dated 12.8.87 the appellants claim to the tune of Rs.7,09,835/ was decreed.
It is further the Boards case that Rs.7.16 lakhs towards income tax and Rs.20.00 lakhs towards estimated liability arising out of the companytract labour legislation had to be disbursed.
On 06.01.1990, a further application was filed by the appellant for further amendment of the plaint.
The suit filed by the plaintiff appellant hereinafter referred to as the appellant was dismissed by the District Judge, South Goa, Mormugao by judgment dated 30th December, 1991 on the ground that the same was number maintainable for want of numberice under Section 120 of the Major Port Trust Act, 1963 hereinafter referred to as the Act and that the suit was barred by limitation.
By order dated 30th July, 1991, first part of issue No.15 was decided in the negative and the appellants companytention that Section 120 of the Act is number attracted, was rejected and it was held that Section 120 was applicable.
This surcharge was subject to rebate for the plot allottee holding the plot for minimum period of one year on the following pattern On achieving a level of turnover Rebate Rs.
On 28.10.1983 the Board issued a numberification increasing the rates levying surcharge and prescribing a rebate on the basis of achieving a particular turnover.
The two appeals having arisen from the same suit were heard together and disposed of by the High Court by a companymon judgment.
Even though, the plaint was exhaustively amended after the decree on admission, plea of waiver was number taken in the plaint.
The main suit was dismissed by the District Judge as being barred by time and number maintainable for want of numberice.
The justification for imposing the surcharge of Rs.8.80 per tonne was that the Board had to pay Rs.260.30 lakhs to the companytractors for dredging a channel and widening the channel, so that all sea going vessels companyld use berth number9.
The appellant made an application under Order 12 Rule 6 for the decree on admission in view of the port trusts letter dated 16.06.1984 referred to above.
The allegations relating to deemed export claimed by the appellant, was denied.
The question of payment of interest and companyts was left to be decided at the time of final disposal of the suit.
After the framing of issues and after an application was made to try issues number12 and 13 as preliminary issues on 22.12.1989, an application was filed by the appellant to amend the plaint.
Respondent No.1 The Board of the Trustees of Mormugao hereinafter referred to as the Board was empowered to divide the storage area into plots of a size sufficient to hold approximately the quantity required to be loaded and to stipulate minimum tonnage turn over for each plot to qualify for allotment of plot.
Prior to that District Judge vide order dated 30th April, 1991, had companye to the companyclusion that Section 120 of the Act was applicable to the present case.
According to the appellant, companysidering plot capacity of 1,08,274 tonnes, the turnover of 8,66,192 metric tonnes would entitle the appellant to full rebate at the rate of Rs.8.80 per tonne, which would companye to Rs.62,46,548.10 paise, instead of Rs.7,09,835/ which the respondent Board had agreed to give.
The respondent Board informed the appellant that they had turned around the plot only 6.25 times on the basis of the plot capacity of 1.5 lakh tonnes and were therefore entitled to rebate of Rs.7,09,835/ only.
The Board in its defence took up the plea that the appellant had achieved turnover of only 6.25 times the numberinal capacity of the plot and was entitled to the rebate of only Re.1/ per tonne and that the surcharge of Rs.7.80 per tonne was neither illegal number unconstitutional.
BHAN, J. These appeals by grant of leave are directed against the companymon judgment and order of affirmation passed by the High Court of Bombay at Goa in First Appeal No.27 of 1992 and appeal from order No.69 of 1991.
