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Judgment
The petitioner has filed this writ petition questioning the action of the respondents in auctioning and selling of his two fishing trawlers M.F.T. ''Sea Fox'' and MFT ''Marine Victor'' to the third respondent M/s. T.S. Enterprises, Visakhapatnam and with a consequential direction to the 1st respondent i.e., Visakhapatnam Port Trust to redeliver the said vessels to the petitioner, after setting aside the auction sale dated 9-2-1996.
In the affidavit filed in support of the writ petition, it is stated that the petitioner purchased these two fishing trawlers in a public auction held by the 1st respondent on 6-8-1986 and on the date of purchase, these two trawlers were not sea-worthy and they were about to sink. The petitioner effected extensive repairs by investing huge amounts over and above Rs.55,00,000/- in the year 1986. During that period, these trawlers were dry-docked for the purpose of repairs under the supervision of the Indian Registrar of Shipping and Mercantile Marine Department for the purpose of classification and certification of sea-worthiness. It is further stated that the petitioner paid all the charges payable for such dry-docking. Ultimately, after fully repairing the two vessels, they were fitted with echo sounders, cathodic protection, sand blasting and other works like painting (corrosion maintenance) were done between November, 1986 and March, 1987. Thus, the two vessels were brought to almost a new condition and they were specifically designed for the purpose of fishing. But the petitioner due to industrial sickness in the fishing industry, was constrained not to operate the vessels. Necessary crew required for the routine maintenance also were employed It is further stated that the 1st respondent was entitled to berth charges for keeping the vessels in its fishing harbour complex and the petitioner was paying such charges as per the monthly bills. The respondent authorities also used to collect penal charges and the wharfage if the trawlers continue to remain in the fishing harbour for more than two months. It is further stated that whenever there were arrears, the Chairman of the 1st respondent used to grant waiver of penal charges, provided normal berth charges were paid. When the matter stood thus, in the month of June, 1992, the authorities of respondent No. 1 seized the two trawlers for the alleged non-payment of berth charges. The petitioner represented the matter to the Port Trust Authorities and on his representation, the respondent No.1''s authorities directed the petitioner to pay an amount of Rs.3,80,000/- to get those two trawlers released from the seizure and also for reconciling the statement. Accordingly, the petitioner paid Rs.3,80,000/- on 17-8-1992 to the 1st respondent in account No.671/780 and the same was acknowledged. At that time, petitioner also made an application for waiver of penal charges. At any rate, the authorities lifted the seizure and the two trawlers were handed over to the petitioner. Meanwhile, the Chairman of the 1st respondent vide his letter dated 3-12-1992 considered the penal charges and by virtue of such consideration, the outstanding dues were substantially reduced, leaving a substantial deposit amount in the account of the petitioner to the credit of the petitioner. Due to unfavourable conditions, the petitioner could not move his vessels on many occasions and the petitioner was forced to tie down the trawlers in the jetty. Meanwhile, the officers of the 1st respondent instead of sending a proper statement of account after reconciliation, issued a notice dated 24-4-1995 stating that the petitioner failed to pay the berth charges and wharfage charges amounting toRs.2,12,980/- as on 27-1-1995. The two fishing trawlers were seized from the date ofthat notice and an interest at the rate of 18.5 per cent on that amount was also demanded. The petitioner stated that such seizure was illegal, since the petitioner did not fall into arrears and as on the date of the alleged seizure, there was surplus amount of Rs.4 7,229.62 ps. to the credit of the petitioner. There was also general waiver of the penal charges, subject to the payment of berth charges at normal rates. In these circumstances, the petitioner sent a reply dated 6-5-1995 to the notice of seizure, stating to the 1st respondent that the petitioner was not in arrears of any amount. Petitioner also brought to the notice of the 1st respondent that in the event of petitioner depositing the berth charges, the Chairman fiad agreed to waive the penal charges. Apprising all these facts, the petitioner requested respondent No.1 to lift the seizure of the vessels. The 1st respondent received the same, but did not deny the contents of the letter, nor lifted the seizure effected on 24-4-1995. It is further alleged that the petitioner made another representation on 31-7-1995 to the Chairman, bringing to his notice the discrepancy in charges and also sought waiver of the penal berth charges. Meanwhile, petitioner sent another letter dated 4-8-1995, which was acknowledged by the Traffic Manager. The Chairman of the 1st respondent sent a reply letter dated 31 -7-1995 advising the petitioner to pay all the outstanding dues at the normal charges with accrued interest as on that date, for making representation for waiver of penal charges. For that, the petitioner vide his letter dated 17-11-1985 stated that there was no necessity to make any payment, since there was excess amount lying in the account of the petitioner, he also requested for reconciliation of the accounts. It is further stated that the petitioner learnt from the caveat petition filed by the 3rd respondent, that the two trawlers were already auctioned to the 3rd respondent, who quoted the highest price. But the petitioner had not received any notice regarding the sale by tender system and such a sale effected by the 2nd respondent in favour of 3rd respondent is illegal, unwarranted and mala fide. It is stated that no notice was issued to the petitioner before the sale was effected in favour of 3rd respondent. Petitioner further alleged that, the so called arrears amount was only Rs.3,00,000/- and odd, and for that purpose, the trawlers whose value is not less than 1,75,40,000/- should not have been sold. The sale also was illegal, as the 1st respondent failed to take the permission of the Registrar of Indian Ships as per the provisions of Merchant Shipping Act, 1953. Therefore, the sale being in contravention of Section 426 of Merchant Shipping Act, is illegal and void. Moreover, the so called sale by tender was contrary to the instructions of sate issued by the 1st respondent to the 2nd respondent, vide letter of the 1st respondent dated 21-10-1995. When the 2nd respondent was instructed to sell the trawlers by public auction, the 2nd respondent as an authorised auctioner, could not have sold it by tender and such a procedure is illegal. At any rate, directing the delivery of the vessels to the 3rd respondent was violative of Section 139 of Merchant Shipping Act. Since, no notice was issued to the petitioner, the sale is in violation of principles of natural justice and so called outstanding dues of Rs.2,27,132/-as claimed by 1st respondent is incorrect. The sale is also liable to be set aside being collusive and unfair, since the same has been sold as a scrap. The 2nd respondent also has issued sale order, without collecting 25 per cent of the amount towards excise and custom duty as per the law. The impugned sale by tender is also in contravention of Section 64 of the Major Port Trust Act, 1963, since in the instant case there has been no refusal or neglect to pay dues to the 1st respondent.
The petitioner further stated that he had filed a separate suit in OS No.105 of 1996 on the file of III Additional Subordinate Judge, Visakhapatnam for setting aside the sale order. On application IA No.403 of 1996 for injunction, the Court had granted status quo on 27-2-1996 on the condition the amount that was disputed shall be deposited into Court accordingly, the petitioner deposited the said amount in the Court as directed. Meanwhile, the petitioner also filed a writ petition in WP No.4578 of 1996 questioning the act of selling the fishing vessels. However, this Hon''ble Court refused to entertain the writ petition, as the same relief was already sought for in OS No.105 of 1996. Meanwhile, the 3rd respondent also filed a writ petition in WP No.3993 of 1996 seeking a direction to deliver the fishing trawlers on payment of sales tax etc. But this Hon''ble Court clarified the interim order stating that the interim orders obtained by the 3rd respondent in WP MP No.4865 of 1996 in WP No.3993 of 1996 would not nullify the effect of the other orders issued by the competent Courts restraining delivery. The crew of the vessels in question also filed a separate writ petition in WP No.7897 of 1996, contending that their wages were not paid and as such the vessels cannot be delivered to the 3rd respondent and in that writ petition, all the proceedings including the delivery of the vessels were stayed, and the said stay was extended till 25-4-1996. Certain members of the crew questioned the auction as illegal in WP Nos.4549 and 4670 of 1996. The said writ petitions were disposed of. So far as OS No.105 of 1996 is concerned, the petitioner stated that the III Additional Subordinate Judge, before whom the matter was pending was raising an objection as to the maintainability of the suit, on the ground that the suit was filed without issuing the statutory notice as contemplated u/s 120 of the Major Port Trust Act. Writ Petition No.4578 of 1996 was not admitted only because the suit was pending. Hence, petitioner filed IA No.559 of 1996 under Order 23 Rule 1(iii)(b) of CPC for permission to withdraw the suit with permission to institute a fresh suit in respect of the subject matter. The respondents, who are the defendants in that suit opposed such an application. But the learned Subordinate Judge rejected the said petition for withdrawal. Being aggrieved by the said order, the petitioner filed CRP No.1707 of 1996. Meanwhile, the 3rd respondent in collusion with 1st and 2nd respondents has purchased the two fishing trawlers valued at Rs.88,30,000/- and Rs.87,10,000/-for a paltry sum of Rs. 11,74,000/- and such a sale is illegal. In view of one order or the other of the High Court, or of Subordinate Court, the vessels were not delivered to 3rd respondent and if the vessels are delivered to him, petitioner would be put to great loss and hardship. It is in these circumstances, the petitioner filed the present writ petition.
By filing counters, the allegations made in the writ petition are denied by respondents 1, 2 and 3. In substance they stated that the petitioner purchased these two trawlers for a sum of Rs. 1,50,000/- and Rs.1,85,000/- on 6-8-1986. As per the request, the petitioner was given berthing facility of those two trawlers in the fishing harbour and for that purpose, he was to pay certain amounts like berth charges and wharfage charges as per the rules. But the same was not paid regularly. The petitioner also was required to pay enhanced birth charges and wharfage charges, if the trawlers continuously remain idle in the fishing harbour without operating the same. The petitioner failed to clear the bills within the required period of 14 days and hence, penal charges were levied and ultimately the petitioner became a defaulter. Therefore, demand was raised for an amount of Rs.2,47,512/- as on 31 -8-1995, together with interest at 18.5 per cent per annum and also further dues accruing from 1-9-1995 onwards,, with a request to pay on or before 20-9-1995, failing which the trawlers would be seized. In fact, petitioner vide his letter dated 22-8-1986 agreed to pay the necessary charges on account of these two trawlers. But he did not pay it. At any rate, the petitioner paid certain charges upto May, 1993 and thereafter, he failed to pay the berth charges, wharfage charges etc. on the two trawlers. Since the petitioner did not pay the berth charges at the rate prescribed as per the demands raised from time to time, the respondent No. 1 exercised the right provided u/s 123 of the Major Port Trust Act and consequently seized the two trawlers for the purpose of selling them in public auction after expiry of 5 days from the date of receipt of notice. But the petitioner failed to clear the outstanding dues and accordingly, he was informed on 22-3-1995 stating that if the outstanding dues of Rs.2,23,056/- as on 28-2-1995 together with interest was not paid on or before 31-3-1995, necessary action would be initiated for realising the same. Since inspite of such notices, petitioner failed to pay the outstanding dues, the two trawlers were seized on 24-4-1995 staling that, they would be sold in public auction and the sale proceeds would be adjusted towards the outstanding dues. The notice seizing the trawlers was acknowledged by the petitioner on 26-4-1995, for that the petitioner submitted that he has already deposited Rs.3,08,000/-on 17-8-1992 and the seizure may be lifted. For that, a reply was given by the Port Trust Authorities on 26-5-1995 stating that the said amount of Rs.3,08,000/- deposited by him in 1992 was already adjusted towards the bills pertaining to that period and as such no balance amount was available to the credit of the petitioner, for the purpose of adjustment and the petitioner may get the reconciliation of the accounts by sending a representative, and in fact petitioner did send a representative to verify the account and such representative found that the accounts were correct. It is further stated by the 1st respondent that vide letter dated 31-7-1995, the petitioner requested waiver of the enhanced rates and to stop the sale of the two trawlers, and in reply to that, it has been informed to the petitioner that if the petitioner failed to pay the outstanding dues of Rs.2,47,512/-as on 31-8-1995 with interest, on or before 20-9-1995, the fishing trawlers would be sold in public auction. The notice of seizure of fishing trawlers and auctioning of the same were also published in local newspapers on 28-8-1995 and 5-9-1995. Petitioner also was informed by the authorities of the 1st respondent vide letter dated 1-11-1995 that the waiver of penal charges will not be considered unless the petitioner paid all the outstanding dues at normal charges together with accrued interest. But the petitioner did not pay the berth charges at the normal rates seeking waiver. On the contrary petitioner raised a contention stating that there was already surplus amount with 1st respondent authorities and, therefore, there were no arrears. They further stated that since the petitioner failed to pay the amounts, the Port Trust Authorities instructed the auctioner to sell the two trawlers by public auction vide their letter dated 21-10-1995. The auctioner invited tenders by newspaper publication on 3-12-1995. The petitioner was also informed on 15-11-1995 about the auction of the trawlers as on 5-12-1995. On 5-12-1995 tenders were opened. Since the bid amount of the 3rd respondent was highest, the bid was accepted and the sale order was issued in their favour on 9-2-1996 and accordingly the auction purchaser deposited an amount of Rs.11,74,000/- by way of demand draft on 27-2-1996. They stated that since the petitioner was defaulter, there was no option to the Port Trust Authorities to exercise their statutory power of selling these two trawlers by calling for public tenders. They further stated that the Metal Scrap Trading Company (MSTC) was an authorised auctioner. The 1st respondent in their additional counter stated that MSTC conducted auction of about 15 fishing trawlers belonging to AP Fishing Corporation and it was competent to sell these trawlers. The 1st respondent Port Trust Authorities further stated that as on 31-3-1996 the total amount due was 4,05,000/-along with the interest at 18.5 per cent per annum and as such they have exercised the power u/s 123 of the Major Port Trust Act for realising the outstanding dues and those two trawlers were auctioned after due notices on 28-12-1994, 24-3-1995, 24-4-1995, 8-5-1995, 26-5-1995, 6-9-1995 and 15-11-1995 and by giving fill! and fair opportunity, and consequently the auction was conducted on 5-12-1995. They further stated that filing of writ petitions in WP No.4549 and 4670 of 1996 by the alleged crew of the trawlers has nothing to do with the merits of this writ petition. They further pointed out in their counter that the said writ petitions were dismissed by this Court with a direction to pursue the matters with the civil Court, since by that time the crew also filed their suit and also other proceedings. They also stated that out of Rs.11,74,000/- collected through auction, they have deposited Rs.5,00,000/-on 16-4-1996 as per the directions of Hon''ble High Court, in the Court of II Metropolitan Magistrate, Visakhapatnam to the credit of CC Nos.109 and 110 of 1996, since the trawlers were sold on 5-12-1995 and delivery orders were issued by MSTC. The Port Trust had given a paper delivery order to the 3rd respondent on 9-4-1996 and meanwhile there is stay order from the Hon''ble High Court on 10-4-1996 and Port Trust did not physically handover the trawlers to the auction purchaser and accordingly, the respondents prayed for the dismissal of the writ petition.
To these counters, additional replies were filed by the petitioner reiterating his stand.
Heard the learned Counsel on both sides.
The learned Counsel appearing for the petitioner contended that there was no amount due to paid to the Port Trust Authorities on account of these two trawlers and whatever the arrears that were due, stood paid and adjusted when the petitioner deposited an amount of Rs.3,80,000/- vide department account No.671/780. The learned Counsel appearing for the respondents contended that the payment on that account was on a different account and towards the berthing and penal charges of the two trawlers, there is a separate account, on which the petitioner was due an amount of Rs.2,27,132/- and accordingly the same was demanded vide letter of the Port Trust, which the petitioner has not paid and consequently the two trawlers were sold in public auction by calling tenders by duly advertising in the newspapers. Both sides relied upon number of documents filed in the book of Annexure-C in support of their respective contentions. The petitioner also relied upon number of documents to show that he has invested huge sum for repairing two trawlers after he purchased them from respondent No. 1 in the year 1992. Such alleged repairs were vehemently denied by the respondents contending that after purchasing the two trawlers from respondent No.1 in public auction, the petitioner did not effect any repairs at all and he was given permission for docking in the shipping harbour. But the petitioner fell in arrears by not paying the charges due as per the rules. Therefore, the two trawlers were sold in public auction by calling for tenders. Both the Counsels argued with reference to number of documents, asking the Court to add one figure and substract the other etc. During the arguments only, the Court pointed out that the jurisdiction of this Court under Article 226 of the Constitution cannot be converted into a suit calling upon the Court to decide upon certain disputed questions of fact. At any rate, from the respective stand taken by the petitioner on his side and the respondents on their side, I find that they are not in agreement regarding the amounts payable , their rates, prior to the amendment of the rules and subsequent to the amendment of the rules and the quantum of arrears due, if any. The respondents specifically denied the case of the petitioner that the petitioner was not in arrears at all. Having regard to these circumstances it is difficult for this Court to come to any conclusion one way or the other, either in favour of the petitioner or in favour of the respondents, without there being any evidence with reference to the documents relied upon by both sides. According to the petitioner, the trawlers were sold without any notice to him. But according to the Port Trust Authorities, even before auction, a notice was issued to the petitioner regarding the seizure and the petitioner was informed by notice regarding the auction proceedings to be held. This, the petitioner vehemently denied. Even on this aspect also, it is difficult for this Court to give a finding one way or the other, unless evidence is lead in this behalf. In the absence of any evidence, it is not possible for the Court to hold whether the two trawlers were sold for a paltry sum as against their actual value, as contended by the petitioner. What exactly is the amount that was spent by the petitioner, on the basis of the bills and vouchers etc., have got to be determined only on the basis of evidence lead in the case. In fact, the petitioner had rightly instituted suit in OS No. 105 of 1996 challenging the impugned sale in favour of respondent No.3. The earlier writ petition filed by the petitioner in WP No.4578 of 1996 has been dismissed by the Division Bench of this Court holding that writ petition could not be entertained as the petitioner has already filed a suit in OS No.105 of 1996 for the same relief. From this fact it is clear that the petitioner did suffer an order at the hands of the Division Bench, observing that the writ petition could not be entertained since the petitioner was pursuing the suit. The Division Bench while dismissing the said writ petition had not given any permission to institute the present writ petition. However, the petitioner sought the withdrawal of the suit in OS No. 105 of 1996 on the ground that there was some formal defect. Against the order of the trial Court dismissing the said petition for withdrawal of the suit, the petitioner preferred a CRP before this Court in CRP No. 1707 of 1996, This Court vide Judgment and order dated 15-7-1996 allowed the petitioner''s CRP, permitting him to withdraw the suit in OS No.105 of 1996 with a liberty to file fresh suit on the same cause of action by complying with the requirements of statutory notice. The operative portion of the said order reads as under:
"Considering the facts stated above and the rulings cited above, this Court is of the considered view that if the notice is not issued by the plaintiff to the defendant, which is a statutory notice and if such mistake is realised by the plaintiff during the pendency of the suit and if he makes the prayer to the Court seeking permission to withdraw the suit and seeks further permission to file a fresh suit on the same cause of action by complying with the statutory requirements, then such defect has to be held as "formal defect" as contemplated under Order 23 Rule 1(3)(a) CPC. Therefore, this Court allows the Civil Revision Petition and directed the learned III Additional Subordinate Judge, Visakhapatnam to allow the petitioner herein to withdraw the suit and file a fresh suit on the same cause of action by complying with the requirements of statutory notice. Parties to bear their own costs."
From the above order it is clear that the petitioner was allowed to withdraw the suit with a liberty to file a fresh suit on the same cause of action, but not a writ petition to this Court. From these admitted facts, it is clear that the petitioner suffered an order at the hands of the Division Bench dismissing the writ petition on the ground that the same cannot be entertained and the petitioner also suffered an order of the learned single Judge in the CRP No.1707 of 1996 permitting him to withdraw the suit with a liberty only to institute a fresh suit on the same cause of action. Therefore, the petitioner could not have filed this writ petition at all. The petitioner is bound by these orders. These orders cannot be by-passed by the petitioner as pointed out by the Hon''ble Supreme Court in the decision reported in State of U.P. and another Vs. Labh Chand, . In that case also a writ petition challenging the order of compulsory retirement was dismissed by the Division Bench refusing to exercise its jurisdiction under Article 226 of the Constitution, on the ground that the petitioner had other forums for the redressal of his grievances. But the petitioner therein filed a second writ petition challenging the same order before a learned single Judge, who entertained the writ petition. Finding fault with the judgment of the learned single Judge, the Hon''ble Supreme Court observed that such a second writ petition could not have been entertained by the learned single Judge and such a second writ petition was not maintainable. The said judgment of the Hon''ble Supreme Court squarely applies to the facts of this case. Hence, the present writ petition being a second writ petition on the same cause of action, cannot be entertained at ail. It is even now open to the petitioner to file a fresh suit on the same cause of action as per the order of this Court in CRPNo.1707 of 1996, if he is so advised, according to the law of the land. Moreover, as I have already pointed out, this writ petition involves disputed questions of facts, which cannot be decided in the writ jurisdiction at all. In these circumstances, I do not think that it is necessary for me to refer to the other contentions and judgments referred to by both sides regarding the merits of the case. Hence, I pass the order as under:
Writ Petition is dismissed. However, it is open to the petitioner to institute a suit as per the order of this Court in CRP No.1707 of 1996 on the same cause of action, if he is so advised, according to taw. All the contentions of respective parties are kept open. In the above circumstances, I direct the parties to bear their own costs.