1994 PLP 1866 (SCMR)

Kh. A. Tariq Rahim, Advocate Supreme Court instructed by Kh. Mushtaq Ahmad, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 22nd February, 1994. ABDUL QADEER CHAUDHRY, J: ‑‑Leave to appeal has been sought against the judgment of the High Court of Sindh, Karachi, dated 20‑11‑1993.

2. The facts in brief are that the petitioners placed an Order with Messrs Texel Manchester (U.K) for supply of second‑hand reconditioned, textile machinery under Cash Licence Scheme of the Government of Pakistan. The petitioner opened an irrevocable Letter of Credit dated 21‑6‑1986. The petitioners were informed by their local agents M/s. Consolidated Shipping Ltd. vide letter dated 21‑9‑1986 that the consignment of 24 containers was due to arrive on m.v. "Norasia Susan" and 10 containers under B/L No.1038‑A, dated 2‑9‑1986 were due to arrive on m.v. "Norasia Susan". The vessel in question arrived on 4‑10‑1986 and 24 containers brought by her were transported to Lahore Dry Port and delivered to the petitioners. According to the petitioners, in the first week of October 1986, it was disclosed that 10 containers had already arrived on 27‑7‑1986, and respondent No.3 had failed to inform the petitioners about their such early arrival. The petitioners located the said containers on 14‑10‑1986, which were lying in the KPT premises. The petitioners filed a Constitutional petition for delivery of the goods without any payment of demurrage charges in respect of these 10 containers. The goods were delivered to the petitioners on the High Court's order. Finally the petition was dismissed by the impugned judgment. The High Court recorded the following findings: "It is evident from record that the containers in question were detained by the Shipping Agent M/s. Marine Services Ltd. at their terminal and the same were in their custody. It being so, as per rule 35 (a) of Manual of Procedure for the Handling, Berthing and Operation of Containers Vessels and Containers at Karachi Port, the KPT Storage Charges on Cargo in containers are to be levied against the Shipping Agents/Operators as per KPT Scale of Charges." After making the above findings, the High Court made the following observations:‑‑ "At initial stage, the question was whether those dues were to be paid by the petitioners or respondent No.3. The petitioners, by their letter dated 14th October, 1986, withdrew their right to claim KPT damurrage etc. from respondent No.3. Therefore, it is not the liability of the petitioners to pay those charges:"

3. The learned counsel for the petitioners has submitted that the Court has itself held respondent No.3 liable for charges. Under the Rules, the petitioners cannot be burdened with the damurrage on the basis of letter dated 14th October, 1986, addressed by the petitioners. Before the filing of the Constitutional petition, the anxiety of the petitioners was to get the delivery of the goods in order to save further damages. According to Rule 35(a) of the Manual of Procedures for the Handling, Berthing and Operation bf Container Vessels and Container at Karachi Port, "in case when cargo is withheld by Shipping Agents/Operators in containers after the 10 working days dwell time then KPT storage charges on cargo in containers will be levied against the Shipping Agents/Operators as per KPT Scale of Charges." The High Court relying on this Rule itself held that the containers were detained by respondent No.3, therefore, they were liable for payment of KPT charges. Leave is granted. Stay to continue. AA./S‑863/S Leave granted.