Commissioners, Port of Calcutta vs Ghasiram Lachminarayan and Co.

Das Gupta, J.—The main question that arises for consideration in these three Rules is whether the Petitioners, the Commissioners for the Port of Calcutta, are entitled to the protection of the second Sub-section of Section 113 of the Calcutta Port Act, in three suits for recovery of damages for nondelivery of certain goods that were landed by them.

Civil Revision Case No. 2901 of 1953, arises out of a suit on a claim for damages for non-delivery of three bags of betelnut out of 79 bags of betelnut which arrived in the Port of Calcutta by SS. "Shirala". These bags were landed on June 21, 1949 and customs duty as claimed on the papers was paid. There was, however, an order by the customs officer for detention of 10 bags, and the remaining 69 bags were delivered to the owner on June 30, 1949. The excess duty demanded by the customs officer was paid thereafter and there was an order on July 18, 1949, releasing the remaining bags. When, however, the owners'' agent went to take delivery of the 10 bags, delivery was given only of seven bags and three bags were not delivered on the ground that they could not be traced.

Civil Revision Case No. 2902 of 1953 arises out of a suit by the same Plaintiff for recovery of damages for non-delivery of four drums of cocoanut oil. 67 drums of cocoanut oil consigned to the Plaintiff arrived in the Calcutta Port by SS. "Ha'' Kang" on September 29, 1949, and were landed on the Port Commissioners'' jetty on September 29 and 30, 1949, Instead of taking delivery of these at the port, the Plaintiff instructed the Port Commissioners to despatch these by train to Bankura. 63 drums were actually despatched but the remaining four were not; and when the Plaintiff enquired about these, he was told that these could not be traced.

Civil Eevision Cose No. 3011 of 1953 arises out of a suit by another Plaintiff Yousuff Abdulla for recovery of Rs. 1,306-4 as damages for non-delivery of five bags of split betelnuts. 100 bags of split betelnuts consigned to the Plaintiff Yousuff Abdulla arrived at the Calcutta Port by SS. "Eastern Saga" and were landed on the Port Commissioners'' jetty on July 12, 1950. Of these 95 bags were delivered to the Plaintiff on July 25, 1950, but the other five were not delivered. On July 25, it is to be noticed, customs duty of Rs. 9,800 was paid by the Plaintiff. The order of the customs authorities on that date was; "Pass out of Customs control in part. Detain five bags". There was a further order on August 25, 1950: "Pass out of "Customs control in full".

In all the three cases, the Defendant pleads exemption from liability under the second Sub-section of Section 113 of the Calcutta Port Act.

The trial court rejected this contention and decreed the suits and the decrees have been affirmed by a Full Bench of the Small Cause Court, Calcutta. It is contended before us that the courts below have erred in law in holding that the provisions of the second Sub-section of Section 113 of the Calcutta Port Act do not exempt the Port Commissioners from liability.

The second Sub-section of Section 113, before amendment which does not apply to these cases, is in these words:

If any owner, without any default on the part of the Commissioners, fails to remove any goods other than those stored in warehouses licensed u/s 16 of the Sea Customs Act, 1878, from the premises of the Commissioners within three clear working days from the time of landing such goods shall remain on the premises at the sole risk and expense of the owner.

As Rule No. 2902 will require special consideration in view of the fact there that the Port Commissioners were authorised to despatch the drums of cocoanut oil to Bankura, it will be convenient to consider first the other two Rules, namely, Civil Revision Case Nos. 2901 and 3011, the facts of which, in so far as they affect the applicability of the above provisions, are similar.

It is not disputed that the Plaintiffs in those two suits failed to remove the bags for which damage is now being claimed within three days from the time of landing. The case was sought to be made that the failure to remove was due to some default on the part of the Commissioners. The learned trial court has remarked that for the failure to remove, the Plaintiffs were in no way liable. It is not necessary, however, to consider whether the Plaintiffs are liable or not. The question that requires decision, in considering whether the protection afforded by Section 113(2) will be available to the Port Commissioners, is first whether there was any default on the part of the Commissioners which was in any way responsible for the owners'' failure to remove any goods. The fact that the customs authorities ordered detention and so in spite of the Plaintiffs'' readiness to pay full customs duty the Plaintiffs were unable to remove the goods, might well justify the conclusion that the Plaintiffs were not to blame for not removing the goods but that would be no reason to find any default on the part of the Commissioners. It has to be remembered that the customs officers are in no way the agents of the Port Commissioners and if the customs officers order detention, it is not open to the Commissioners to direct removal. When, therefore, as we find in these two cases, the real reason why the bags of betelnuts could not be removed, was that the customs officers had ordered detention, it must, in my judgment, be necessarily held that the failure to remove the goods cannot be said to be because of any default on the part of the Commissioners. The failure to remove the goods in these two cases was without any default on the part of the Commissioners.

The other condition necessary to prove in order that the protection may be available is that the goods have not been stored in any warehouse licensed u/s 16 of the Sea Customs Act, 1878. That fact is not disputed before us.

It would appear that in these two cases as the owners had failed to remove the goods within three working days from the time of landing and as this failure was without any default on the part of the Commissioners and as these goods had not been stored in any warehouse licensed u/s 16 of the Sea Customs Act, the Port Commissioners would be protected from liability as a result of words:

Such goods shall remain on the premises at the sole risk and expense of the owner.

What the learned Judges of the Full Bench of the Small Cause Court, Calcutta, say is that while it may be true that ordinarily this protection would be available, these cases are taken out of the rule because of the fact that when there was this order of detention by the customs officers, fresh charge wag taken of the goods by the Port Commissioners, resulting in a fresh contract of bailment. In this connection, reference has been made by the learned Judges to an unreported decision of Chunder, J., namely, Ghasiram Lachmi Narayan and Co., a firm v. Commissioners for the Port of Calcutta Civil Rule 2866 of 1951, in which there are some observations indicating some such view on his part though this is not quite clear. The relevant observations are in these words:

The goods arrived on the 11th. In ordinary course delivery had to be taken within three days. Delivery was applied for on the 18th. Had the circumstances stopped here, there is no doubt that there would have been protection to the Port Commissioners u/s 113(2), but the facts as found by both the trial and the appellate court are that on the 18th the claim of the Petitioner Plaintiff was accepted, the goods were weighed on the 22nd for delivery. It was under order of the customs authorities that the Port Commissioners held over delivery and kept the goods themselves. Subsequently, they alleged that they could not trace the goods.

As the goods kept by them as bailees were lost through their own negligence, and no question of Section 113(2) can arise, on the facts as found by both the courts the only possible conclusion is the conclusion of the trial court that it was through the negligence of the Defendant that the goods were lost.

As I have already indicated, it would seem, though this is not clearly stated by Chunder, J., that his Lordship was of the view that though the Port Commissioners might be free from liability arising out of their possession of the goods on landing them, they could not escape any liability on a fresh contract.

I would respectfully agree with the view that if there was a fresh contract of bailment, the Port Commissioners cannot escape liability. Section 113(2) deals in no way with any other case of bailment expect such as is created by the goods remaining in possession and control of the Port Commissioners on landing. It is helpful to consider the scheme in which Section 113 appears. Part VIII of the Calcutta Port Act deals with questions of the landing and shipment of goods. The first section of this Part, Section 90, provides that "the Commissioners "shall provide and keep and maintain sufficient servants and "apparatus for the expeditious and convenient landing and "shipment of goods..." Section 103 in Part IX provides for the levying of tolls and rates for the landing and shipment of goods. The first Sub-section of Section 113 provides that "the Commissioners shall, immediately upon the landing by them of any goods, take charge thereof, and store such as are liable to suffer from exposure in any shed or warehouse belonging to the Commissioners. Even if there had not been any special provision for liability of the Commissioners for loss when in such custody, they would certainly have been liable under the ordinary law of contract unless specially exempted therefrom. Section 112 of the Calcutta Port Act, however, deals with this question of responsibility of the Commissioners. It is in these words:

The responsibility of the commissioners for the loss, destruction or deterioration of animals or goods, whether landed for import or received for export or for carriage by railway, during such time as the same remain in the possession or under the control of the Commissioners, shall, subject to the other provisions of this Act, and, in the case of animals, or goods received for carriage by railway, subject also to the provisions of the Indian Railways Act, 1890, be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872, omitting the words "in the absence of any special contract" in Section 152 of the last mentioned Act.

The second Sub-section of Section 113 limits this liability in effect to three days from the time of landing-unless the goods are stored in licensed warehouses or the owner has attempted to remove the goods but failed because of default on the part of the Commissioners.

The question that really arises is whether on the order passed by the customs officers for detention of the goods, a new contract of bailment arises. The learned Judges of the Full Bench have said that as soon as there is such an order, fresh charge is taken of the goods by the Commissioners. I am unable to see any basis for such a view. Under the first Sub-section of Section 113, the Commissioners have to take charge immediately upon the landing of the goods. That charge continues, and liability because of the possession and control of the Commissioners continues, unless limited by the second Sub-section. The order of the customs officers on the Commissioners to detain the goods is nothing more than a refusal to allow the goods to pass out of control. It is obviously because of such refusal that the Commissioners have to continue to remain in charge of the goods which they have landed. If there is a detention order by the customs officers, how can it be said that fresh charge was being taken? There is no evidence on the record to indicate that on such orders being given, any special arrangement was being made for keeping these goods or that the goods were removed elsewhere. It is the goods which were already in their charge that were detained and I find it impossible to spell out any fresh contract of bailment with regard to these goods merely because they continue to remain in charge of the Port Commissioners because of the order of detention.

Our attention was drawn to the fact that for the period up to the date, when the last delivery was made, the Port Commissioners charged rent of warehouse for even the goods which had not been delivered. Whether they are entitled to euch charges legally or not is not relevant for our present purpose. I am unable to see, however, how the fact that they have charged such rent can justify a view of fresh contract of bailment. It may very well be that they were not entitled to such charge and if that be the correct position in law, the owner is entitled to get a refund of what was charged for the goods which could not be delivered but, in my judgment, the fact that rent was charged in respect of goods not delivered, cannot justify the conclusion that any fresh contract of bailment was entered into between the Port Commissioners and the owners because of the order of detention of the customs officers.

There remains the question whether the Port Commissioners are deprived of the protection u/s 113 because of their failure to give any notice as provided u/s 114. Section 114 is in these words:

(1) Whenever the owner of any goods other than those stored in warehouses licensed u/s 16 of the Sea Customs Act, 1878, fails to remove the same within the time specified in the last preceding section, the Commissioners shall give notice to the consignee or owner of such goods, if his address be known, by letter sent by post to such address or left thereat, that all liability which the Commissioners may have hitherto incurred in respect of such goods has ceased;

(2) and shall also publish in one or more daily newspapers notice of the expiry of such liability; and shall specify therein the numbers, marks and descriptions of such goods, so far as the same may appear.

It is worth noting that no time limit is mentioned for the issue of such notice, unlike Section 119 where before any sale can be made ten days'' notice has to be given by publication in the Calcutta Gazette. Even without any time being mentioned, it was within the power of the Legislature to lay down clearly that unless such notice is served, the Commissioners would be deprived of the protection of the second Sub-section of Section 113. The Legislature has chosen not to say so. When without saying anything as to the consequence of the failure to carry out the directions, the Legislature gives certain directions, the consequence must be that any party aggrieved by the breach of those directions will be entitled to such damages as may result therefrom. The consequence cannot, however, be that some special provision made by the Legislature in the foregoing section will disappear. I am unable to read into the fact of provision of service notice on the consignee and publication of such notice into daily newspapers in Section 114 the indication of any intention of the Legislature that without such service and such publication, the provision laid down in Section 113(2) that in certain circumstances the goods "shall remain on the premises at the sole risk and expense of the owner", will not come into effect. In the absence of any such indication, I think, we are bound to hold that even though the Port Commissioners have failed to carry out the duty imposed on them by the Legislature in Section 114 to give certain notices, the provisions of Section 113(2) will operate and consequently they will not be deprived of protection because of such non-service of notice. It may be mentioned that this view has been taken by Genves, J. in Purna Chandra Kurndoo v. The Port Commissioners'' of Calcutta I.L.R.(1919) Cal. 56 and Sarkar, J. in Prabhudas Mulji Doshi v. Governor General of India in Council and Ors. (unreported) Suit No. 1255 of 1944.

I have, therefore, come to the conclusion that in these two suits the Defendant is entitled to the protection of Section 113(2) of the Calcutta Port Act and that the suits should have been dismissed.

I would, therefore, make these two Rules, namely, Civil Revision Cases, Nos. 2901 and 3011 of 1953 absolute, set aside the orders passed by the courts below and order that these suits be dismissed; but in the circumstances of the cases parties will bear their own costs in all the Courts.

As I have already stated, the facts of Civil Revision Case No. 2902 of 1953 are substantially different. As the goods were landed on September 29 and 30, 1949 and customs duty was paid as late as only on October 8, 1949, the Port Commissioners would be exempted from liability if on the Plaintiff asking for delivery at the Port Commissioners shed, the goods could not be traced. The fact, however, that the Port Commissioners undertook to despatch the goods to Bankura changes the position. As a necessary consequence of that undertaking, the goods would not be removed by the Plaintiff and if it could have been shown that the four drums were lost after three days had passed but before the Plaintiff had paid the customs duty and placed all other necessary documents in the hands of the Port Commissioners, there would be scope for an argument that the loss having occurred when the goods were lying at the Plaintiff''s risk, the Port Commissioners were not liable. If, however, the goods were in the possession of the Defendant by reason of his having landed them-at the time all the necessary documents including the customs clearance order were made over by the Plaintiff to the Defendant so as to enable the Defendant to remove the goods from the jetty for despatch by railway in accordance with the further contract-the Defendant would be liable for the loss of the goods on the fresh contract for bailment. Whether the goods were in the Defendant''s possession at this time or had been lost earlier was a fact within the knowledge of the Defendant. As no evidence has been adduced by the Defendant about this, we are bound to conclude that all the 67 drums were in the Defendant''s possession at the time the necessary steps for removal of the goods had been taken by the Plaintiff by handing over the goods to the Defendant and that the Defendant''s possession thereafter was not in consequence of its having landed them but because of its having taken delivery on behalf of the Plaintiff for removal to Bankura by railway.

On considering the circumstances, I am of opinion that the 67 drums were in the possession of the Port Commissioners, when armed with the necessary documents, it was in a position to clear the goods, and that they must, therefore, be held to have entered into a new contract of bailment for these 67 drums. As four of these have been lost though they were the bailees and they have not offered any explanation for the loss, it must be held that the loss was due to their negligence.

My conclusion, therefore, is that the suit for damages for non-delivery of these four drums of cocoanut oil was rightly decreed and the Rule, namely, Civil Revision Case No. 2902 of 1953, should be discharged with costs.

Debabrata Mookerjee, J.

I agree.