1. The facts of this appeal should only be shortly stated, as we propose to dispose of the same only on one point, viz, the bar of limitation.
2. It is the case of the appellants Trustees of the Port of Bombay that the consignment of 629 coil wire shorts arrived at Bombay by s. s. 'Indian Reliance' on or about October 7, 1960 at Alexandra Docks. The respondents were the consignees of the said consignment. They failed and neglected to take delivery of the said goods within seven day a from the date of landing, as provided under Section 61-A (2) of the Bombay Port Trust Act, 1879 (hereinafter referred to as 'the Act'). As the goods were not cleared, they were stored in uncleared warehouse.
3. By an order dated December 5, 1960, the Collector of Customs Bombay, confiscated the said consignment, and a copy of the said order was sent to the appellants. It appears, later on, on December 5, 1961, the appellants were advised by the Customs Inspector that only 167 coils were under confiscation, and the balance of 462 coils should be taken charge of by the appellants.
4. The case of the appellants is that the defendants are liable to pay to them wharfage and demurrage charges from the date of landing of 167 coils till the date of confiscation. Their case further is that the defendants failed and neglected to take delivery of the remaining 462 coils. Ultimately, after two infructuous earlier sales by the notice dated January 23, 1964, the Docks Manager of the appellants intimated to the defendants that as the said 462 coils had not been cleared, the same would be disposed of by a public auction in accordance with the provisions of Ss. 64 and 64-A of the Act, on February 6, 1964. At the said auction, the said 462 coils were sold for the price of Rs. 17,300. According to the appellants, in respect of the wharfage, demurrage etc. a sum of Rs. 62,475.60 was due, as per particulars, Exh. 'D' to the plaint. As the defendants did not pay the amount, the plaintiffs filed this suit for recovery of the sum of Rs. 33,082.86 on March 20, 1968, restricting their claim in suit in respect of the amount claimable for wharfage, demurrage etc. for a period of six years immediately preceding the date of institution of the suit.
5. The suit was resisted by the defendants on various grounds.
6. The learned Judge inter alia held that the claim of the appellants for wharfage and demurrage charges for 167 coils that were confiscated for the period from October 6, 1960 to December 4, 1961, was barred by limitation. He further held that the coils of wire short that were sold by auction on February 6, 1964, were not established as belonging to the defendants. He accordingly dismissed the suit of the appellants. Even though the issue as regards limitation was raised before the learned Judge, he did not consider it necessary to decide that issue. The appellants have preferred this appeal against the said decision of the learned Judge dismissing the suit.
7. Mr. Nain, on behalf of the defendants, has contended that the suit is clearly barred by limitation having regard to the provisions of Section 67 of the Act. He urged that the present suit is filed to recover the balance of wharfage, demurrage charges etc., after giving credit for the sale proceeds, and as such balance amount or deficit amount was ascertained for the first time on February 6, 1964, a suit to recover such deficit amount ought to have been filed under Article 113 of the Limitation Act,1963. within a period of three years from the date of auction sale on February 6,1964. His submission was that as the suit was filed on March 20, 1968, it was clearly barred by limitation.
8. Mr. Daji, on the other hand, on behalf of the appellants, submitted that as under the Limitation Act, 1908, under Article 120 thereof, the limitation prescribes for such suits was six years, having regard to the provisions of Section 30 of the Limitation Act, 1963, the claim for wharfage and demurrage charges for the period March 21, 1962 to December 31, 1963, is clearly within limitation and to claim such an amount a suit can be filed within six years, as claim for wharfage and demurrage accrues from day to day and the claim by the plaintiffs waswithin time as the present suit was instituted on March 20, 1968.
9. If regard be had to the averments in the plaint, it is quite clear that the suit was to recover the sum of Rupees 33,082:86 in a suit filed under Section 67-A of the Act. That section provides as under:--
'67-A. Notwithstanding anything contained in the seven sections last preceding and in Section 85, the Board may recover by suit any tolls, dues, rents, rates, charges, damages, expenses, costs, or in case of sale the balance thereof, when the proceeds of sale are insufficient or any penalties or fines payable to, or recoverable by, the Board under this Act or under any bye-laws made in pursuance thereof.'
10. This is a suit to recover the balance of the wharfage and demurrage charges, after giving credit for the sale proceeds. Such amount of deficit could only be ascertained when the auction sale took place on February 6, 1964, and since the appellants have adopted the remedy permitted to them under Section 67-A of the Act, the cause of action for such a suit arose when such deficit was determined upon an auction sale having effectively taken place. Thus, under Section 67-A of the Act the cause of action to recover the balance of the amount, after giving credit for the sale proceeds, accrues, for the first time, when the sale took place, and the deficit of the balance of the amount recoverable is ascertained. Thus, clearly under Section 67-A of the Act to recover the amount, the cause of action accrues when such deficit or balance of the amount to be recovered is ascertained. That event took place in the present case on February 6, 1964.
11. It is not disputed before us that since the present suit is filed on March 20, 1968, the limitation prescribed by the Limitation Act, 1963 will be applicable, Counsel of both the parties are agreed that to such a suit ordinarily Art. 113 of this Limitation Act will be applicable and it provides for-
'Any suit for which no period of limitation is provided elsewhere in the Schedule.'
In the first Schedule to that Act a suit has to be instituted within a period of three years from the date of the accrual of the right. The deficit or the balance of the amount claimable became ascertainable only on February 6, 1964, beingthe date of the auction sale. The right to sue accrued on that date and under this Article to recover the balance amount the suit has to be instituted within a period of three years from that date. As the present suit was instituted on March 20, 1968, it is clearly barred by limitation, having regard to the provisions of Article 113 of the Schedule to the Limitation Act, 1963.
12. It was, however, urged by Mr. Daji that as the claim from wharfage and demurrage commenced right from the day when 629 coils which landed at Bombay Alexandra Docks in Oct. 1960, they ought to have been removed by the defendants within seven clear days from the date of landing, as provided under Section 61-A (2) of the Act. He submitted that since these coils were not cleared by the defendants within the said time, the liability to pay wharfage and demurrage accrued from day to day upon the expiry of the period of seven clear days. Such a claim, according to Mr. Daji's submission, will be governed by the residuary Article 120 of the Limitation Act, 1908, which prescribes a period of six years and the time has to commence from the date the right to sue accrues. He submitted that since the period of limitation prescribed under the limitation Act, 1908, was six years, i. e. larger than that prescribed under Article 113 of the Limitation Act, 1963, the provisions of Section 30 of the latter Act will be attracted and under the said provisions any suit filed within the period of seven years next after the commencement of the Limitation Act, 1963, or within the period prescribed for such suit by the Limitation Act, 1908, which-ever period expires earlier, is within ( time. His submission was that in view of the special provisions of Section 30 of the Limitation Act, 1963, a claim for wharfage and demurrage for the period from March 21, 1962 to December 31, 1963, will not be barred by limitation, in view of the provisions of Section 30 of the Limitation Act, 1963. It is not possible for us to accept this contention.
13. This is not a suit to claim wharfage and demurrage simpliciter. This is a suit to claim the balance of the amount which can be claimed by the appellants in respect of wharfage and demurrage charges after credit is given for the sale proceeds realised upon the auction of the goods and for such a suit a clear provision is made in Section 67-A of the Act. It should not be overlookedthat Section 67-A of the Act starts with a non obstante clause and its provisions are applicable 'notwithstanding anything contained in the seven sections last preceding and in Section 85'. As we have earlier stated, the deficit or the balance of the amount claimable can only be ascertained after the auction sale is held and, therefore, it is not possible for us to accept the contention that the amount claimed in the present suit in respect of wharfage and demurrage charges should be regarded as one for which the cause of action accrues from day to day. Since the cause of action, in our opinion, for the first time, arose when the auction sale took place and that event took place after the Limitation Act, 1963, came into force, there is no question of the provisions of Section 30 of that Act being attracted at all. In that view of the matter, since the present suit has been filed after the expiry of the period of three years from the date of accrual of the cause of action, it is clearly barred by limitation under Article 113 of the Limitation Act, 1963. As a finding on the point of limitation is sufficient to dispose of the appeal, it is unnecessary for us to go into other questions which were agitated before the learned Judge in respect of which findings have been given against the appellants.
14. In the result, the appeal fails and is dismissed with costs. Costs of the appeal are quantified at Rs. 750 (Seven hundred fifty). Liberty to the respondents to withdraw the sum of Rs. 500 (Five hundred) deposited by the appellants as security for costs towards the costs.
15. Appeal dismissed.