1. This is a defendants' appeal against a decree for Rs. 35,000/- and interest awarded as damages sustained by the plaintiffs in respect of their goods. The Premier Automobiles Ltd., the plaintiffs, are engaged in the manufacture of cars in Bombay. The trustees of the Port of Bombay are the defendants. The Plaintiffs imported under a licence 13 cases of machinery from Ming antis of Italy for the purposes of their manufacturing plant. Case No. 249 contained an internal grinding machine weighing over 3 tons (2960 kilograms). The case arrived in Bombay on 21st February, 1960 by S.S. Jalsilton Hall belonging to Messrs. Scindia Steam Navigation Co. Ltd. The goods were unloaded and taken charge of by the Port Trust Authorities under their statutory powers.
2. The case No. 249 was placed on a four wheeler trolly driven by a tractor attached to it and was being carried to one of the sheds in the docks when the case fell down from the trolly. The case was broken and the internal grinding machine encased therein was severely damaged. Several of the employees of the Port Trust were in charge of the case and the trolly at that time, since it was being conveyed to the shed.
3. On 27th February, 1960 a ship survey of the damage was carried out by the firm of Messrs, Ericson and Richards, surveyors at the instance of the plaintiffs. Thereafter the plaintiffs took delivery of the broken case on 29th February, 1960. After carrying it to their factory they removed the machine and got it examined in detail by another firm of surveyors Messrs. Machine Tools (India) Private Ltd. Their report as Ex. B dated 16th April, 1960 shows severe damage. According to the report the machine which was valued at Rs. 65,000/-was damaged to the extent of Rs. 55,000/-. Previously on the 23rd of March, 1960 the shed Superintendent of the Bombay Docks had reported (vide Exhibit 'K') to the Defendants that whilst the case was being hauled on a four wheeled truck by a tractor in the open behind Shed No. 1 Alexandra Dock, it accidentally slipped and fell on the ground with the result that the entire wooden case cover was broken exposing the contents. He also added that the case containing the machine and parts was in a damaged condition on landing.
4. On receiving the report of their surveyors the plaintiffs served a statutory notice upon Port Trust Authorities on 5th June 1960. They alleged that the damage resulted 'owing to acts of negligence, malfeasance and non-feasance on the part of the administration at the Docks and/or acts of misconduct on the part of your employees............' and therefore the defendants were liable. In the original notice the full price of the machine namely Rs. 65,774.10 N. P. was claimed. The Bombay Port Trust replied to this notice on the 2nd of July, 1960. They alleged that the machinery was in a 'broken' condition at the time of landing and that due to the damaged condition of the case, the case slipped from the trolly and fell on the ground. They relied upon the report of the Shed Superintendent (now Ex. K) for this purpose. They denied that any damages had ensued in consequence of the action of the defendants or its employees and denied that they were liable because of Section 87 of the Bombay Port Trust Act and the Docks bye-laws, particularly bye-law No. 82.
5. On 19th August, 1960 the plaintiffs filed the present suit. They alleged that the damage to the internal grinding machine was due to careless handling of it by the defendants; that the case had slipped from the trolly and fallen on the ground and as a result of the fall the wooden case containing the internal grinding machine was severely damaged. They alleged that the defendants moved the case in their capacity as bailees thereof. They recounted the survey by Messrs. Ericson and Richards on the 27th of February, 1960 and admitted that they took delivery on the 29th February, 1960. At the time of taking delivery of the machine and spare-parts they had pointed out to the Port Trust Authorities that the case was entirely broken and the machine was severely damaged. After recounting the notice served by them, they denied that the bye-laws or any of them purporting to have been made in pursuance of Section 73 of the Bombay Port Trust Act exonerated the defendants from liability nor did 87 of the said Act. They specifically alleged that '.........the said internal grinding machine was taken charge of by the defendants after the same was landed from the said steamer 'S. S. Jalsilton Hall' as per their abovementioned statutory obligation and the same was removed by them as bailees thereof.' They therefore claimed the damages sustained by the machine amounting to Rs. 55,774. 10 N. P. as per particulars in Ex. D attached to the plaint.
6. The original defence taken in answer to this claim of the plaintiffs was that the case No. 249 was already damaged when it was in the custody of the ship and that this was noted in the Shed Superintendent's remarks list (Ex. No. 2) and subsequently also noted in the Shed Superintendent's report dated 21st February, 1960 (Ex. K). They denied that any damage was caused to the grinding machine much less by the employees of the defendant Port Trust. The defendants raised a number of legal pleas in exoneration. They alleged that upon the allegations in the plaint the case No. 249 was damaged according to the plaintiffs due to the failure on the part of the employees of the Port Trust and therefore under Section 87 para 2 of the Bombay Port Trust Act 1879 they were not liable at all. In any event, they alleged that bye-laws Nos. 80, 82 and 91 of the Dock's bye-laws exonerated them. No notice of loss or damage as required by bye-law No. 93 had been given prior to the delivery and therefore the defendants had no responsibility for loss or damage to the case. The damage was not ascertained, pointed out to and acknowledged by the Docks Manager previous to the removal of the case from the Docks and therefore under bye-law No. 80 the responsibility of the trustees did not commence at all. Moreover, the case when landed was in a damaged condition and therefore the trustees could not accept or admit any responsibility or liability whatsover for it. As regards the incident which occurred while case No, 249 was being conveyed their case wag 'the said case whilst it was being hauled to the storage yard with the help of a tractor and with mazdoors posted on all sides of the trolly accidentally slipped from the trolley and fell on the ground with the result that the outer packing (casing) was entirely broken and the contents thereof were exposed .........'. They denied that any damage had occurred and in any case that they were liable for any damages to the plaintiffs.
7. Upon these pleadings issues were framed on the 23rd of June, 1964 and the parties went to trial and considerable evidence was also recorded but in the midst of the trial the parties came to certain interim consent terms whereby each party gave up some part of its stand, admitted some of the facts alleged by the other party and limited the trial to certain specific issues. Much of the difficulty experienced by the learned single Judge and by us in this Court upon the arguments was due to these 'interim consent terms' because it has been a question of some difficulty to disentangle what were the admitted facts from the facts as originally pleaded by either party and what was the nature of the particular issue submitted for decision upon certain points.
8. The interim consent terms are dated 7th October 1964 (Ex. A) and it is necessary to advert to them here in some detail. Issues Nos. 1 and 2 are the principal issues which relate to the question whether the Port Trust is at all liable. Unfortunately Issue No. 1 poses the question thus 'whether the defendants are not liable to the plaintiffs by reason of the provisions of Section 87 of the Bombay Port Trust Act as alleged in para 1 of the Written Statement.' The last clause of this issue brings in paragraph 1 of the Written Statement and when discussing the issue we will advert to the detailed allegations in that paragraph. Issue No. 2 raised constitutional issues as to whether Section 87 was inconsistent with Article 14 and/or Article 19(1)(b) of the Constitution and therefore void. This point was not pressed before us, and therefore it will be unnecessary to deal with any constitutional issue.
9. Issues Nos. 3, 4, 5, 6 and 7 deal with the question whether one or more of the bye-laws exonerates or exempts the Port Trust from liability. We will deal with each issue separately when we come to deal with the bye-laws. Lastly Issues Nos. 9, 10 and 11 are concerned with the question whether the statutory notice given by the Plaintiffs on the 5th of June 1960 was valid or invalid. Issues Nos. 18 and 19 are merely formal issues. No other issues were referred for decision.
10. If these issues alone had been left to be determined, the questions arising in this suit and in this appeal would have been simpler but the parties chose to add Paragraph 2 to the interim consent terms whereby they purported to add a gloss to one or more of the issues or to clarify what they wanted to be decided. In paragraph ii (a) they set forth the rival contentions on the merits of the case as to how the damage to the grinding machine was sustained. Then in paragraph ii (b) there is an important statement with relation to the principal issue in the case and paragraph ii (b) states 'Issues Nos. 1 and 2 to be decided on the assumption that (sic- there was) some misfeasance, malfeasance or non-feasance of the persons handling the said case who according to the defendants are their employees appointed under the said Act, whilst who according to the plaintiffs are the employees as also the agents of the defendants were responsible for the damage to the contents of the said case.' The contents of this paragraph leaves much to be desired. But three things are clear from this paragraph (1) that in deciding issue No. 1 (we are not concerned with issue No. 2 now) the Court had to assume that there had been some misfeasance or malfeasance (there is no case of non-feasance anywhere pleaded) of the persons handling the case No. 249, that is to say, the employees of the Port Trust. In other words, the element of negligence on the part of the employees of the Port Trust was admitted. (2) it is also admitted that those employees were appointed under the said Act, (3) The defendants merely alleged that they were employees while the plaintiffs alleged that they were employees as well as the agents of the Trust and that this side issue will have to be decided. In paragraph II (c) relating to issues Nos. 3 and 4, the Court was asked to assume that the claim of the defendants (the Port Trust authorities) was that the mere fact of a remark being made in the Tally Sheet Entry that the case was 'broken' was alone sufficient to attract the application of bye-law No. 82 'without reference to the fact whether it was so broken or not'. This paragraph also was rather clumsily worded, but it was agreed that once the Court accepts that the word 'broken' was written on the Tally Sheet, the question to be determined was whether that writing alone was sufficient to exonerate the Port Trust under bye-law No. 82, (4) That whether the machine was actually broken or not need not be ascertained.
11. Paragraph II (d) enjoins that in determining Issues Nos. 5, 6 and 7 several facts must be taken as admitted namely (1) that no written notice of loss or damage to the contents of the case was given by the plaintiffs prior to its clearance, but oral notice was given to the Shed Superintendent; (2) that damage to the contents of the case was orally brought to the notice of and pointed out to the Shed Superintendent previous to the removal of the goods by the plaintiffs; (3) that the Shed Superintendent made a report relating to the damage which is at Ex. K. It has to be noted in connection with this point that the Court is not enjoined to accept the contents of that report as correct; (4) that the loss or damage to the goods was not pointed out by the plaintiffs or acknowledged by the Docks Manager previous to the removal of the goods from the docks. This is so far as bye-law No. 93 is concerned. The fact of the notice dated 5th June, 1960 being served on the defendants was accepted. As to damages, both the parties agreed that if damages were to be awarded the amount should be Rs. 35,000/-. Lastly it was provided that 'Except as indicated above, no other evidence hitherto recorded has to be taken into consideration in the further proceedings in the suit or for the decisions on the said remaining issues in the suit'. Since no other evidence was to be led it is clear that the parties somewhat narrowed down the controversy by admitting certain facts and limiting it only to points of law and indeed the learned single Judge decided the case only upon those points of law. What those points of law were will appear from this judgment.
12. The learned single Judge has held the defendants liable for breach of the statutory duty imposed upon them under Section 61B of the Bombay Port Trust Act and he has negatived the exoneration which they claimed under the second paragraph of Section 87 of the Act. In doing this he has relied upon a Division Bench decision of this Court in Gulam Hussain Ahmedali & Co. Private Ltd. v. Trustees of the Port of Bombay : AIR1963Bom45 (to which the learned single Judge was himself a party). He held that the contents of the case No. 249 were damaged on account of the failure of the Board (of Trustees of the Port of Bombay) to take that degree of care which it was required to take under Section 61B and that the provisions of Section 87 do not absolve the Board from their liability for that failure. As regards the bye-laws, the learned Judge held for reasons which we shall analyse later, that the Docks bye-laws Nos. 80 and 82 did not apply and did not absolve the defendants from their liability. Moreover, bye-law No. 80 is invalid as it is inconsistent with the provisions of Section 61B. So far as bye-law No. 93 is concerned, the learned Judge has held that bye-law No. 93 was complied with by the Plaintiffs and therefore will be Of no avail to the defendants. He has also remarked incidentally that he was inclined to think that there was a good deal of force in the argument that bye-laws Nos. 80 and 93 were both unreasonable and inconsistent with the provisions of Section 61B of the Bombay Port Trust Act. On the question of notice the learned Judge held the notice valid and upon his findings decreed the claim for the admitted amount of Rs. 35,000/-.
13. In the appeal before us counsel on behalf of the Bombay Port Trust (the appellants) has taken us through the provisions of the Act and particularly Section 61B and Section 87 and the Docks Bye-laws Nos. 80, 82 and 93. The principal point which he has stressed is that even assuming that the liability under Section 61B was placed upon the Port Trust Authorities to take as much care of the goods as a bailee still the Port Trust Authorities were statutorily exempt from liability if the damage resulted from misfeasance, malfeasance or non-feasance of the employees of the Trust having regard to the second paragraph of Section 87, He pointed out that in this case it was an admitted position that the employees of the Trust were in charge at the time that the grinding machine was being conveyed from the wharf to one of the sheds in the Alexandra Dock and that therefore the second paragraph of Section 87 will clearly apply and if it applies then there is a total and categorical exemption from responsibility. Secondly counsel urged that for want of compliance on the part of the plaintiffs with the three Dock-Bye-laws Nos. 80, 82 and 93 the Port Trust would be exempt or immune from liability. Thirdly counsel urged that the notice in this case was bad and not in compliance with the provisions of Section 87, paragraph 1. He also urged that the cause of action as mentioned in the notice was different from the cause of action upon which the suit has been founded and that therefore no valid notice regarding the cause of action in the suit having been given the suit must fail upon the same provision of law.
14. The principal and substantial point in this appeal is as to the true scope and effect of Section 61B and Section 87 paragraph 2 of the Act and in order to understand these provisions it is necessary to analyse them in the light of the other provisions of the Act and of the provisions of the Contract Act referred to in the former Section. Section 61B runs as follows:--
'The responsibility of the Board for the loss, destruction or deterioration of goods of which it has taken charge shall, subject to the other provisions of this Act............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.' (we have quoted only the relevant portion).
The following points may be noted regarding this section:--
(1) The word 'the Board' is used in the section because it is used in Section 4 which constitutes the 'Board' called 'the trustees of the Port of Bombay'. Section 4 says that 'the duty of carrying out the provisions of this Act shall, subject to such conditions and limitations as are hereinafter contained, be vested in a Board, to be called 'the Trustees of the Port of Bombay', and such Board, hereinafter referred to as 'the Board', shall be a body corporate and have perpetual succession and a common seal, and shall sue and be sued by the name first aforesaid.' That is why the word 'the Board' is used in all the subsequent sections, though in the course of the arguments counsel for the defendants referred to it as the Bombay Port Trust or the Port Trust which is the name by which the body is popularly known. Thus the Board is a statutory corporation and under Sections 16A and 18 the Board has power to contract and compound for breach of contract.
(2) The next point which would throw light upon its provisions is to Inquire why was it necessary to enact section 61B? The Act was passed in 1879 and for the first 46 years of its existence the Act continued without any provision such as Section 61-B. The reason why that section came to be enacted is clear if one considers the provisions of Section 61A, Sub-section (1). That Sub-section provides that the Board shall, immediately upon the landing of any goods, take charge thereof, except as may be otherwise provided in the bye-laws, and store such as are liable in their opinion to suffer from exposure in any shed or warehouse belonging to the Board. By Section 61A (1), therefore, the Board which is a statutory corporation is saddled with the statutory duty to take charge of all goods as soon as they are landed in the Port of Bombay, It is curious that in the whole Act there is no provision for delivery of the goods to the proper parties and no obligation is cast upon the Port Trust Authorities to deliver the goods of which they take charge under Section 61A (1) except perhaps by implication. It is clear that Section 61A (1) was brought into force because it was necessary to legalise the possession of the Port Trust. Without Section 61A. the possession which the Port Trust take of all goods which arrive in the Bombay Docks would be illegal and would make them liable as trespassers in respect of the goods. Therefore Section 61A (1) puts the seal of legality upon the possession of the goods by the Port Trust; but having given them legal possession it was also necessary to provide for the safety, care, protection and preservation of the goods while they were in the possession of the Board and to circumscribe their liabilities. After all, the Board was in possession of something which belonged to third parties namely the consignees and the law had given them the statutory power to take possession, compulsively. Therefore the law had to provide that during the period of the statutory possession the goods should be safeguarded and also prescribe the limits of the Boards duty to safeguard. That is why Section 61-B was brought into force.
(3) In simple terms Section 61B says that the responsibility of the Board for the goods shall be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act. Section 151 provides that in all cases of bailment the bailee is bound to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances take of his own goods of the same bulk, quality and value as the goods bailed. The standard of care imposed therefore is that of a man of ordinary prudence. Section 152 says that the bailee in the absence of any special contract is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care described in Section 151. Therefore so lone as he takes that care which a man of ordinary prudence would take, the bailee is exonerated from the liability for loss, destruction or deterioration of the goods bailed to him. Section 152 reaffirms the same principle of liability but negatively. It says that if the bailee has taken that amount of care of the thing bailed as prescribed by Section 151 then the bailee is not liable for loss, destruction or deterioration. But this limit of liability in Section 152 is subject to the words 'in the absence of any special contract'. Thus if the section by itself were to operate, the bailee may make a special contract, making himself liable for loss, destruction or deterioration of the goods even though he may have taken the same care as a man of ordinary prudence would, but in imposing the same liability upon the Port Trust. Section 61B says that the words 'in the absence of any special contract' in Section 152 shall be omitted. Therefore the only meaning of that provision is that the Bombay Port Trust cannot make any special contract incurring greater responsibility than that of a bailee i. e. a man of ordinary prudence. They cannot for instance act as insurers of the goods of which they are enjoined to take charge. That appears to be the only effect of the last clause of Section 61-B and counsel were agreed that, that would be the effect. Fortunately so far as the points arising in this appeal are concerned, we are not concerned with that clause at all except to understand the full effect of Section 61-B. Sections 151 and 152 are thus complementary. They lay down affirmatively and negatively the ambit of the duty of care which the bailee owes to the person who is the owner of the goods (we will not use the word 'Bailor' because under Section 61-B there is no 'bailor'). Section 161 of the Contract Act lays down the bailee's responsibility when goods are not duly returned and it says that if, by the fault of the bailee the goods are not returned, delivered or tendered at the proper time, he Is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. This refers to the time when the bailee (in this case the Port Trust authorities) will have to deliver the goods to the true owner and it must be within a reasonable time if no exact time is specified.
(4) The next thing to notice is that while these Sections 151, 152 and 161 of the Contract Act are bodily lifted from the Contract Act and applied with a minor modification to the Port Trust to indicate the ambit of their responsibility to the consignees of the goods of which they took charge, the Bombay Port Trust do not thereby become bailees themselves. Section 61-B does not say that Section 148, which defines who a 'bailee' is, is applicable to the Bombay Port Trust. Therefore though for the purposes of judging their responsibility Sections 151, 152 and 161 of the Contract Act will have to be referred to, the Bombay Port Trust is in no sense a bailee of the goods. Section 61-B does not say they shall be deemed to be bailees or that they are bailees but only that their responsibility shall be that of a bailee as described in the stated sections of the Contract Act. Therefore at the most all that can be said of their responsibility or duty towards the goods or the owner of the goods is that they are under a statutory duty imposed by Section 61B and nothing more. The provisions of the Bombay Port Trust Act do not bring in the bailor as in the case of the Contract Act and its provisions are not made with reference to the owner of the goods at all. The provisions are unilateral and unilaterally the statute imposes on the Bombay Port Trust alone the duties under Sections 151, 152 and 161 of the Contract Act. Thus without making the Port Trust a bailee the statutory duties corresponding to the bailee are imposed upon them.
(5) The further point that there-fore must be noted upon this analysis of the provisions of Section 61-B is that if these duties are not fulfilled or are broken by the Board, the Board can be sued for damages by the person to whom the goods belonged hut the Board will be liable not as bailees or upon a contract but because a statutory duty has been imposed upon them by Section 61-B and there has been a breach of it. The claim is thus not founded upon any provisions of the Contract Act nor is it founded in tort. It is founded upon the breach of a statutory duty.
(6) Another and a very important point to note is that one and the same action whereby the statutory duty of the Port Trust imposed by Section 61-B is breached, may give rise to more than one cause of action. For instance, we have already shown that it gives rise to a liability to pay damages for a breach of the statutory duty. It may also in given cases amount to a tort and if it amounts to a tort it may give rise also to a claim for damages. The same may also in certain circumstances give rise to a crime and may be punishable as such, but so far as Section 61-B is concerned, it does not speak of liability for a contract or a tort, much less for a crime. It only speaks of the statutory obligations which it prescribes and for the breach of which a suit may lie for damages. It is essential that this distinction must be clearly understood. It arises upon a clear provision of Section 61-B and it is upon the understanding of this distinction that the true scope and effect of paragraph 2 of Section 87 only will become clear.
15. With this analysis of the provisions of Section 61-B we turn to the provisions of paragraph 2 of Section 87. Unfortunately Section 87 consists of several separate paragraphs, which are not numbered, because of the peculiar manner in which it is drafted, but we are only concerned with the following paragraph which we shall hereafter refer to as paragraph 2:--
'The Board shall not be responsible for any misfeasance, malfeasance or nonfeasance of any employee appointed under this Act;'
The word 'Employee' was substituted by Act 35 of 1951 for the words 'any officer or servant'. Now paragraph 2 of Section 87 speaks of misfeasance, malfeasance, and nonfeasance. It is well known that these are the three major heads under which all torts may be classified and it is obvious therefore that by the use of these words the Legislature provided for immunity of the Port Trust from torts committed by its employees. In this respect we may here remind ourselves that by paragraph II (b) of the consent terms dated 7th October, 1964, the Court is enjoined to assume that there was some misfeasance, malfeasance or nonfeasance of the persons handling the case No. 249. Therefore so far as the claim in tort is concerned in the present case, we have no doubt that it would fall within the ambit of paragraph 2 of Section 87 because misfeasance, malfeasance or non-feasance is specifically admitted. It is also admitted that it was on the part of the persons handling the case No. 249 and that those persons were admittedly the employees of the Port Trust. But as we have said that was not the only basis of the claim in suit. Apart from the claim in tort the Plaintiffs also claimed for the breach of the Trust's statutory liability under Section 61-B. Though no doubt the plaintiffs laid their claim in tort, there is also no doubt (and we shall presently demonstrate it from the pleadings) that the Plaintiffs did found their claim upon the breach of the statutory duty under Section 61-B also.
16. It was strenuously urged by counsel on behalf of the appellants that Section 61-B in terms says that it is 'subject to the other provisions of this Act' and therefore it is subject also to Section 87 para 2 and if the defendants are exonerated under para 2 of Section 87, they would equally be exonerated under Section 61-B. No doubt, Section 61-B is made subject to the other provisions of the Act and there are several provisions in the Act to which it can upon a reading of those provisions be subject, such as for instance Sections 62, 63, 64, 64-A, 66 and 67, but when the section says that it is subject to the other provisions of the Act, it certainly cannot mean that it is subject to every provision of the Act whether applicable or inapplicable. The expression 'subject to the other provisions of this Act' must necessarily imply that it is subject to such other provisions of the Act as are relevant for consideration and applicable having regard to the subject-matter of Section 61-B. The provisions of Section 87, para 2 are upon a totally different subject with which Section 61-B is not at all concerned. Therefore they cannot possibly be held to control Section 61-B. We have already explained that in our opinion, one and the same act may give rise to two liabilities one for breach of statutory duties and the other for the commission of a civil wrong or a tort. Section 61-B provides for the former and Section 87, para 2 for the latter and the area of the two provisions do not overlap. We are therefore unable to accept the contention that because of the use of the words 'subject to the other provisions of this Act' in Section 61-B. Section 87 paragraph 2 controls Section 61-B. It seems to us that the Board cannot claim exemption under Section 87 para 2 in so far as the claim of the plaintiffs is founded upon the breach of the statutory duty, prescribed under Section 61-B.
17. It remains now to deal with the contention that the Plaintiffs' claim is only founded upon misfeasance, malfeasance or nonfeasance and that the plaintiffs did not claim on the basis of a breach of statutory duty. We are unable to accept this contention. A fair reading of the plaint makes it clear beyond doubt that the plaintiffs pleaded both causes of action. In paragraph 5 of the plaint, the Plaintiffs first set out the facts to show how the grinding machine sustained damage in the following words:--
'After the defendants completed taking charge of the said goods on the quay side the defendants placed the said case No. 249 containing the said internal grinding machine on a trolly for removing the same to an open shed belonging to the defendants. While the said case No. 249 was being removed as aforesaid by the defendant on a trolly, on account of careless handling by the defendants, the said case slipped from the trolly and fell on the ground. As a result of the said fall the wooden case containing the said internal grinding machine was entirely broken and the said internal grinding machine was severely damaged.'
Then they set out their first cause of action in the following words:--
'The plaintiffs say that the defendants moved the said case as aforesaid in their capacity as bailees thereof.' In our opinion, imprecise though it may be. the reference to 'bailees' in this pleading is clearly to the liability of the Board under Section 61-B. We agree that it does not betray a correct appreciation of the provisions of Section 61-B. We have already shown that though only the duties of a bailee are taken out of the Contract Act and laid upon the Board by Section 61-B, that section does not make the Board itself a bailee. All that it says in terms is that the responsibility of the Board shall be 'that of a bailee ... ... ...', but the mention of the appellants' capacity as bailees can have reference only to their liability under Section 61-B, Moreover for the reason that the pleading may be vague we do not think that we can ignore paragraph 5 of the plaint altogether. The appellants could have clarified the position by asking particulars but they did not and it is now too late to complain that the pleading is vague. In our opinion it clearly sets out the liability of the appellants (defendants) as bailees. What should have been said is that their liability was that of bailees. In any event, the further paragraphs of the plaint make the position taken by the plaintiffs very clear. In paragraph 12 the plaintiffs say that 'the said damage to the said case and the said internal grinding machine contained therein was caused as a direct consequence of the failure on the part of the defendants to take necessary care of the said case and in handling and removing the same. The plaintiffs say that the defendants were bound to take as much care of the said case as a man of ordinary prudence would under similar circumstances take of his own goods of the bulk, quality and value as the said goods. The plaintiffs say that the defendants failed to take such care as was required of them in law'. The reference to the care 'which a man of ordinary prudence would under similar circumstances take of his own goods' is a direct reference to Section 151 of the Contract Act and therefore the intention of the plaintiffs to claim under Section 61-B is manifest because Section 61-B refers to Section 151 of the Contract Act. Similarly in paragraph 14 the plaintiffs have alleged 'The said machine and the said case were damaged in Bombay and the same were taken charge of under law and removed as bailees by the defendants in Bombay'. Upon these pleadings we are satisfied that the case of the plaintiffs was that there was a breach of the statutory duty prescribed by Section 61-B of the Bombay Port Trust Act on the part of the defendants. Therefore there was no defect in the pleadings entitling the defendants to say that the pleadings do not accord with the findings given by the learned Judge.
18. So far It will be noticed that we have assumed for the sake of disposing of the main point argued in this appeal that paragraph 2 of Section 87 applies to the facts of the present case, but in our opinion, upon a correct reading and construction of paragraph 2 of Section 87 the exoneration from liability which it confers upon the Board is not as wide as counsel on behalf of the Board would have it. Upon the facts of the present case paragraph 2 would not exonerate the Board.
19. In order to understand the true scope and effect of paragraph 2 of Section 87 it is necessary first of all to see what was the law which was in operation prior to the enactment of Section 87 by the Bombay Port Trust Act, 1879. Until this enactment was brought into force what was operating in India was the ordinary law or the common law (if we may use that term for the sake of convenience only). The common law prior to the enactment of Section 87 was settled by the leading case of Barwick v. English Joint Stock Bank, (1867) LR 2 Ex 259 which contains the classic statement of the law of Willes, J. 'The master is answerable for every such wrong of the servant as is committed in the course of the service and for the master's benefit though no express command or privity of the master be proved'. (See page 265 of the report.) As regards the phrase in this quotation 'for the master's benefit' it is now settled law that the actual benefit need not be shown. See Salmond on Jurisprudence, 11th Edition page 860. Thus a master or employer is always liable for all torts committed by his servant provided it is in the course of his employment. Whether a particular tort is committed by the servant in the course of his employment in a given case is always a question of fact. A tort is committed in the course of employment if the tort consists of, or is necessarily incidental to, an act expressly or impliedly authorised by the master.
20. The question then is how far was it the intention in paragraph 2 of Section 87 to abrogate the common law. On the other hand, it was urged on behalf of the respondents-plaintiffs that paragraph 2 of Section 87 does nothing more or less than reiterate what was the common law till that date and makes it applicable to the new body corporate which has been created by the Bombay Port Trust Act. We are inclined to agree with this contention. Since a new body corporate was created by Section 4 and it was a peculiar body corporate in that it was a corporation and a trust at the same time vide the provisions of Sections 28, 29 and 30, it was necessary to provide statutorily whether such a body would or would not be liable for torts committed by its employees in the same manner in which a person would be liable. The provisions of paragraph 2 of Section 87 merely say that the Board shall not be responsible for any misfeasance, malfeasance or non-feasance of any employee appointed under this Act. Now that may mean one of two things (1) that the Board is not responsible for any and every tort of its employees howsoever committed and even though the employee was directly acting under the authority of and in the discharge of his duties imposed by the Board or (2) it may mean that the Board shall not be responsible for the torts of its employees having regard to the common law (which was the normal law) till then operating. The question is. must we necessarily accept the first alternative and not the second? To put it more precisely under the common law it was only in respect of an employee acting outside the scope of his duties that a master was not responsible but if the employee was acting within the scope of his duties or in the course of the performance of his master's service, the master would be liable. The important question is does paragraph 2 upon its plain language abolish that distinction? Does it say that the Board shall not be responsible for any misfeasance, malfeasance or non-feasance of any employee appointed under the Act, even though he may be acting within the course of the Board's service.
21. Normally something much more than is stated in paragraph 2 of Section 87 would be required in order to thus abrogate the common law which had been operating from times immemorial, and give the Port Trust absolute and general immunity from every tortious action of its employees even though they may plainly be acting in the course of their master's duty and for the benefit of the Trust. Quite apart from the fact that any such conclusion would lead to some absurd results and be disastrous for the business community whose imported goods are compulsorily taken charge of by the Trust, it is a cardinal principle of construction of statutes that there is a strong presumption against alterations in the common law and unless there is express or implied language in the statute to abrogate the common law, the courts would not assume that the common law is altered. This is said in all the authorities. See Maxwell on the Interpretation of Statutes, 12th Edition page 116 where the learned author quotes with approval of the statement of Lord Eeid in George Wimpey and Co. Ltd. v. B.O. A.C. 1955 AC 169. The principle is thus stated:--
Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness, and to give any such effect to general words merely because this would be their widest, usual, natural or literal meaning would be to place on them a construction other than that which Parliament must be supposed to have intended. If the arguments on a question of interpretation are 'fairly evenly balanced, that interpretation should be chosen which involves the least alteration of the existing Law.'
(the underlining is ours)
To the same effect is the rule of construction stated in Halsbury's Laws of England, Vol. 36 page 412 para 625, 'Except in so far as they are clearly and unambiguously intended to do so, statutes should not be construed so as to make any alteration in the common law.' From the statement in para 2 of Section 87 it does not follow by 'necessary implication' nor is there an expression of intention with 'irresistible clearness' that it was the Intention to nullify the principles of common law till then operative and to exonerate the Port Trust from all torts committed by its employees even though they may be acting in the discharge of their duties and for the benefit of the Trust. Having regard to the principles of construction to which we have adverted above, we think that we would therefore not presume that the common law was being abrogated by this ambiguous statement. To put it in terms of Lord Reid's dictum 'The arguments on this question of interpretation are so evenly balanced that we must choose that interpretation 'which involves the least alteration of the existing law'.
22. Apart from that it also seems to us that to construe paragraph 2 of Section 87 in the manner in which the appellants want it to be construed would virtually render the provisions of Section 61-B largely nugatory. If the construction is given that for any and every misfeasance, malfeasance or non-feasance of its employee, the Board is given complete immunity, then we do not see what is the sense of prescribing in Section 61-B any duties at all much less the duties of a bailee namely to take care of the goods as a man of ordinary prudence would, because even though the employee may throw all prudence to the winds and act with utter negligence the Board is upon the contention protected under Section 87 (2). This would virtually lead to an abrogation of the provisions of Section 151 which are to be read into Section 61-B. For instance, if the driver of a trolley belonging to the Port Trust knowing full well that the trolly has no brakes functioning starts driving the trolley full of goods belonging to third parties and being unable to stop falls into the sea and the goods are destroyed, obviously he has not acted as a man of ordinary prudence would and therefore it would give rise to the statutory liability under Section 61-B. It would also be a tort, but so far as the tort is concerned, the Port Trust upon the interpretation pressed upon us would be completely exonerated from liability. That would lead to an anomalous result that under Section 61-B the Port Trust would become liable and yet be exempt under Section 87 paragraph 2. If liability under Section 61-B is as we have said separate and distinct and the Port Trust can be sued, we do not see much point In providing that they shall not be liable for torts, under the normal law.
The interpretation which the appellants want us to place upon the provisions of Section 87 would therefore lead to great hardship upon the public. It is a cardinal rule that a construction leading to gross absurdity or manifest public mischief or injustice should be avoided. See Halsbury's Laws of England, Vol. 36, page 408 para 617. The Supreme Court has also accepted that rule of construction. See AIR 1967 SC 1211 col. 2 D. Sanjeevayya v. Election Tribunal Andhra Pradesh. In our opinion, therefore a fair construction of paragraph 2 of Section 87 would be that when it says that the Board shall not be responsible for any misfeasance, malfeasance or non-feasance of any employee etc., it only means that the Board shall not be responsible for any misfeasance, malfeasance or non-feasance of any employee etc., to the same extent that the Common law prescribes. It only shows that it was intended to state that the existing law relating to torts would govern the statutory corporation although it is constituted under a special Act like the Bombay Port Trust Act and although it happens to be of the nature of a trust. This would therefore, be an alternative reason why the Board cannot escape liability under Section 87, paragraph 2.
23. Then we turn to consider whether one or more of the bye-laws relied upon help the appellants to escape liability. The bye-laws relied on are bye-laws Nos. 80, 82 and 93. So far as bye-law No. 80 is concerned, only the last sentence of it is relied on 'The trustees will not be answerable or liable for any losses or deficiencies whatever, unless ascertained, pointed out to and acknowledged by the Docks Manager previous to the removal of the goods from Docks'. Before the learned single Judge there was some dispute as to who the Docks Manager was but then the definition in bye-law No. 2 (5) was referred to where 'Docks Manager' means the trustees, officer for the time being in charge of any Dock or Docks and includes the deputies and assistants to the Docks Manager and any other officer or officers acting under the authority of the Docks Manager. That is a very wide definition and includes any officer acting under the authority of the Docks Manager. The Shed Superintendent was present when the goods in the present case were unloaded from the ship and re-loaded on to the trolley for conveyance to the shed. Admittedly several other employees were also present. There is nothing to show who were officers and who were not. It is not disputed that the Shed Superintendent is an officer. They were all acting under the authority of the Docks Manager and therefore they would be included in the definition of 'Docks Manager' within the meaning of bye-law No. 80. The question only is whether the bye-law No. 80 is otherwise complied with.
24. The learned Judge held that the provision of the bye-law that the Board will not be answerable or liable for any losses or deficiencies in the goods unless they are acknowledged by the Docks Manager is inconsistent with the provisions of Section 61B and therefore invalid. In that view the learned Judge did not consider whether the plaintiffs had or had not complied with the provisions of the bye-law No. 80. In our opinion, the view which the learned Judge took upon the point he decided was correct because there is no point in Section 61B making the trustees answerable for the loss, destruction or deterioration of goods if they do not take the same care that a bailee does namely the standard of care of an ordinary prudent man and the bye-law protecting them by saying that they will not be answerable or liable for any losses or deficiencies unless (1) ascertained, (2) pointed out to and (3) acknowledged by the Docks Manager previous to the removal of the goods from the Docks. These are additional conditions put upon the liability created by Section 61-B. Obviously the bye-law lays down limitations to the parent section. To the extent that the liability under the section is being limited by the bye-law it must necessarily be declared inconsistent with Section 61-B and therefore invalid.
25. But in our opinion, even assuming that the words of the bye-law No. 80 were consistent with Section 61-B we are unable to see how having regard to the facts in the present case the bye-law has not been complied with. The words we have quoted do not require that the pointing out should be in writing. The plaintiffs have alleged that they had orally pointed out the damage before removal of the goods. The fact is also admitted in paragraphs II (c) and II(d) (i) of the interim consent terms namely that oral notice was given by the plaintiffs to the Shed Superintendent of damage to the contents of the said case No. 249 before its clearance and delivery. Therefore pointing out was complied with. When it was so pointed out obviously it was pointed out with reference to the damage which could be seen and therefore we do not see how it can be said that the damage was not ascertained. To ascertain means to find out the fact of damage. It is not necessary for ascertainment of damage that an evaluation should be made. Lastly there is the term 'acknowledged by the Docks Manager.' In paragraph II (d) (iii) of the interim consent terms, the admitted fact has been stated that the Shed Superintendent had made a report relating to the damage being Ex. K in the suit. In the body of the report (we are for the time being not taking into account the addendum in the margin), it is said 'It accidentally slipped from the 4 wheeler tractor and fell on the ground with the result that the entire wooden case cover was broken exposing the contents'. This report was made by the Shed Superintendent who, we have already said, would be included in the definition of Docks Manager. Therefore it is clear from the manner in which the accident occurred and before the goods were removed, delivered or cleared the Docks Manager himself has referred to the damage and acknowledged it. It is not necessary, in our opinion, that the ascertainment or the acknowledgment must be of the precise valuation of the damage. In our opinion, therefore, the bye-law No. 80, assuming that it is legal and valid, has been complied with, by the respondents.
26. So far as the bye-law No. 82 Is concerned, it is somewhat curiously worded. It says 'Remarks will be passed on all goods landed from any vessel in an apparently broken, chafed or damaged condition, and for all such goods the Trustees will neither accept nor admit any responsibility whatsoever'. Upon the argument this bye-law exonerates the Board the moment a remark is passed. Who is to pass that remark is not specified. It can be a petty official or employee but if he makes the remark then the Board is discharged from liability or responsibility. Moreover the remark has to be passed upon 'all goods ... ... ... in an apparently broken, chafed or damaged condition.' What is the significance of 'apparently'? 'Apparently' means 'seemingly' in contrast with 'really'. Therefore even if the goods are only seemingly broken, chafed or damaged, though not really so, a remark has to be made and the Board is exonerated unless the consignee shows the remark to be false. The bye-law does not insist on the real state of affairs being looked at, at all nor does it require that the remark must be correct or truthful. Thus read the bye-law will make nonsense of Section 61-B.
27. We therefore very much doubt having regard to the nature of this bye-law that it is anything more than a bye-law for the guidance of the trustees themselves. On the other hand if it be argued that it binds the importer we cannot see how it can legally alter so radically the liability of the Board under Section 61-B. Section 61-B places the responsibility for the loss, destruction or deterioration of the Roods upon the Board, where the board has not taken care of the goods as a bailee should but the bye-law according to the argument would exonerate the Board even if an incorrect remark is made that the goods on landing were damaged and subsequently it is found that the goods were really not damaged. Such an interpretation would immediately bring the bye-law into conflict with Section 61-B. As between two interpretations, one leading to a bye-law being ultra vires of a Section of the Act and the other giving it validity, that interpretation is to be preferred which makes it valid. It really seems to us that bye-law No. 82 was made in order to give guidance to individual trustees or a certain number of trustees against acknowledging liability or responsibility on behalf of the Board.
28. The bye-law can only be understood if one turns to the parent provision under which it could at all be made namely the provisions of Section 73. There does not appear to be any clause in Section 73 under which such a bye-law can be made except perhaps Clause (a) which speaks of the making of bye-laws 'for the guidance of persons employed by them under this Act', but even the trustees would not fall under Clause (a) because they are not employed by the Board under this Act. We wonder therefore under what 'power or provision of the law this bye-law could be framed. If it is nonetheless framed and forms part or the Docks bye-laws it can only be justified because it is an internal instruction to the trustees and nothing more. So far as third parties are concerned, it does not affect their rights at all. If on the other hand it is held to be binding on third parties it would be difficult to find the power to make such a bye-law in Section 73.
29. Another consideration which militates against the applicability of bye-law No. 82 is even more telling. As its opening words show bye-law No. 82 only refers to remarks re: 'goods landed from any vessel in an apparently broken, chafed or damaged condition ... ... ...'. In other words, it refers to all such goods as may first have been damaged in the hands of the carrier, that is to say, in the present case until they were placed on the wharf from s. s. 'Jalsilton Hall'. No doubt in the present case at the inception the defendants suggested that the case and the machine were broken before they were landed on the wharf from the ship. No doubt also that, that was their stand in reply to the notice given by the plaintiffs and also in their written statement but when it came to submitting the case upon the consent terms to the learned single Judge, it seems to us that the defendants abandoned the stand. There is nothing in the consent terms to show whether the internal grinding machine was in fact broken or not, prior to its landing. In fact they abandoned the issue to such an extent that they did not even want the issue to be decided whether it was at all broken and this is clear from the submission made in Clause II (c) of the consent terms. We have already refer-ed to it. Precisely with reference to the applicability of bye-law No. 82 they stated that it should be determined whether only the remark 'broken' made in the Tally Sheet Entry relating to case No. 249 is sufficient to attract the application of bye-law 82 without reference to the fact whether it was so broken or not'. (Underlining is ours). Therefore the fact whether the machine was at all broken had not to be tried by the learned single Judge. All that had to be assumed was that an entry that it was broken was made. But the bye-law No. 82 though it refers to 'remarks passed on all goods' does not bring it into operation even upon false or incorrect remarks but the fact that the goods are landed in a broken, chafed or damaged condition has to be taken into account. We do not think that it was intended by bye-law No. 82 to make the remarks so to say binding or conclusive as to the factum of damage. Therefore if it is proved that the goods were not broken, chafed or damaged, the mere remarks cannot carry the matter any further, nor will bye-law No. 82 apply only upon those remarks.
30. The submission in paragraph II (c) of the consent terms moreover merely says that 'issues Nos. 3 and 4 should be decided on the assumption that the claim of the defendants is that the mere fact that the remark 'broken' was made In the Tally Sheet Entry relating to case No. 249 is sufficient to attract the application of bye-law 82'. It does not enjoin upon the court that it must not consider whether the remark is correct or not. It was specifically argued before us that the remark is false if it was intended to convey that the case or the goods were damaged prior to their landing on the wharf, and that if the remark is false then no question of the applicability of any bye-law on its basis can arise. While we are not entitled to go Into the question whether the goods were damaged or not, by virtue of the consent terms, we think that we are not precluded from considering whether the remark was true or false so far as paragraph II (c) of the consent terms is concerned.
31. A glance at Ex. K which is the report of the Shed Superintendent made on the very day the goods were landed namely 21st February 1960, would show the very dubious nature of the remark. In the body of the report there is no statement that the grinding machine was damaged before the landing. Although there is a statement that it accidentally slipped from the 4 wheeler tractor and fell on the ground with the result that the entire wooden case cover was broken and the contents exposed, long after this statement was made on 21st February, 1960 an asterisk was put after the passage we have referred to and by way of Interpolation the remark was alleged to be made 'The case was remarked for as broken at the time of landing C. C. M/s. Scindia Steam. This Department cannot accept any liability in the above incident.' This remark was added on 14th March 1960 by whom it is difficult to find, but the manner in which this interpolation was made speaks volumes against the genuineness of the remark. An attempt was made to buttress its genuineness by reference to what is known as the Tally sheet (Ex. 2) but then again the original tally sheet is not before us and all that is to be found is the remark in the 'remarks column' 'broken'. The Tally Sheet is dated 21st February, 1960. Now this may imply as well that it was broken when landed or that it was broken in the incident that took place. Nothing is made clear. We can see no reason why the Tally Sheet should be read only to mean that it was broken before landing. Moreover the report of the Shed Superintendent militates against the entry in the Tally Sheet because the report made on the 21st February, 1960 is completely silent as to the damage. It is only the subsequent remark interpolated on 14th March 1960, that may support the tally sheet. The last column of the Tally Sheet can be entered at any time. There is no guarantee that all this was written on the very day namely 21st February, 1960. The whole entry in our opinion is so suspicious upon such material as has been placed before us that we cannot accept that there was any genuine remark made. For these reasons we do not think that bye-law No. 82 is at all attracted. We affirm the findings of the learned single Judge as to bye-law No. 82.
32. Then we turn to bye-law No. 93 and it is couched in language reminiscent of bye-law No. 82 'The Trustees will accept no liability or responsibility or whatsoever for loss or damage to goods unless notice of loss or of the damage alleged shall have been received prior to shipment or delivery as the case may be'. The learned single Judge also declared this bye-law ultra-vires on the same reasoning that he adopted in the case of bye-law No. 80. They both placed additional conditions to the liability created by Section 61-B and to the extent that, that liability is thereby restricted it virtually amounts to restricting Section 61-B itself. We are in agreement with the findings of the learned single Judge so far as bye-law No. 93 is concerned,
33. We may further make two points in relation to these bye-laws Nos. 80, 82 and 93. Firstly that Section 61-B itself makes it subject to the other provisions of 'the Act'. When it says 'Act' we do not for a moment suppose that it was intended to apply the bye-laws made under the Act. The whole argument invoking the bye-laws to whittle down the liabilities of the Board under Section 61-B is based upon a cardinal misconception as to the rule of construction. No bye-law made under an Act can claim to nullify or modify any provisions of an Act unless the Act itself so provides and there is no such provision in the Bombay Port Trust Act nor was any other provision pointed out. All these bye-laws are made under Section 73 of the Act and nowhere is there any power given to modify or limit any provision of the Act by making of the bye-laws. We do not therefore think that upon the sort of liability that we have found proved in this case (i.e., under Section 61-B) any provision of any of the bye-laws can help to get over that liability. Secondly we may also add that having had our attention drawn to the provisions of Section 73 and its Clauses (a) to (g), we have experienced considerable difficulty in finding under which clause of Section 73 one or more of the bye-laws invoked were made unless they were made under the power under Clause (a) of Section 73 in which case they would be for 'guidance' only. In our opinion upon a plain reading of the bye-laws they do not affect the liability of the defendants in the slightest degree. We hold that none of the bye-laws invoked exonerates the appellant defendant from the liability,
34. The learned single Judge relied strongly upon a decision of the Division Bench in : AIR1963Bom45 for the view which he took and since it has been referred to in the arguments before us we may deal with that decision. We think we have said enough upon the provisions of Section 61-B and Section 87 to show what we think is the correct interpretation of the two sections. We have shown that Section 61-B merely creates artificially with the aid of statute a liability comparable to that of a bailee under Sections 151, 152 and 161 of the Contract Act, but those sections are referred to only in order to delineate the nature of the responsibility of the Board and the reference to these sections does not make the Board a bailee. We have also shown that Section 61-B has nothing whatsoever to do with any malfeasance, misfeasance or non-feasance, that is to say with the subject of torts at all, although one and the same act may happen to be a breach of a statutory duty under Section 61-B and the commission of a tort under Section 87, paragraph 2. Upon this view we must confess that many of the reasons which impelled the decision of the Division Bench in 64 Bom LR 670 do not commend themselves to us. At page 673 the learned Judges who decided Gulam Hussain's case : AIR1963Bom45 stated 'The scope and the effect of the second para of Section 87 is to protect the Board from the vicarious liability which they might have otherwise incurred for the torts committed by their employees in the course of employment'. (the underlining is ours) with great respect, we are unable to accept the words underlined in the statement above, for the reasons which we have already given that in our view paragraph 2 was not intended as a positive enactment of any new law but was incorporated in Section 87 merely to indicate that the normal liability for torts in common law will continue to operate so far as the Board is concerned after its incorporation and in spite of the fact that they have the character of trustees, i.e., that the Board will not be liable for the torts of its employees acting beyond the scope of their duties. We cannot, therefore, accept that the second paragraph includes cases where vicarious liability may be incurred for torts committed by employees in the course of employment. Paragraph 2 exempts the Board from liability to the extent that the common law so exempts it. For all acts done in the course of employment the Board would be liable for the acts of its employees and that it seems to us is the correct position so far as paragraph 2 is concerned. Secondly in the latter part of the same paragraph the learned Judge has distinguished between direct responsibility of the Board itself and the responsibility of any of its employees, in order to show the distinction between Section 61-B on the one hand and Section 87, paragraph 2. We are unable to find any warrant for that distinction upon the terms of Section 61-B, or paragraph 2 of Section 87. On the other hand, it seems to us that though no doubt by reason of para graph 2 of Section 87 it is the responsibility only of employees, that is being dealt with so far as Section 61-B Is concerned it includes the responsibility both of the Board as well as of its employees and there is nothing to compel us to make the distinction between the employer and his servants or agents so far as Section 61-B is concerned. As regards Section 87 we are also unable to accept the following observation at page 674:--
'As stated above, this provision (Section 87) is intended to meet a very different situation. The second para, of Section 87 does not say that the Board shall not be responsible for any loss or damage caused by any misfeasance, malfeasance, or non-feasance of any employee appointed under the Act.' With great respect, we are unable to find this distinction upon the terminology of paragraph 2 of Section 87.
35. We may, however, say that upon the facts of that case, were we to decide Gulam Hussain's case, : AIR1963Bom45 we would have reached the same conclusion. We say this here precisely because in the course of the arguments before us when we indicated our views upon the interpretation of Section 61-B and Section 87 counsel urged that the matter may be referred to a larger Bench because of the view which we have taken as to the reasoning in Gulam Hussain's case. We might have considered doing so provided in our opinion Gulam Hussain's case upon the view which we have taken can be considered to have been wrongly decided, but in our opinion it has not been wrongly decided. It has been decided correctly and we say so with greatest respect, but for reasons with which we are unable to agree. It is not necessary therefore to refer this case to a larger Bench merely because a subsequent Division Bench does not agree with one or more of the reasons there in. The conclusion reached in Gulara Hussain's case is binding upon us and with respect we follow it subject to what we have said above,
36. Then there remains the last point raised in the appeal and that is as regards the notice in this case. It was urged that having regard to the provisions of Sub-section (1) of Section 87 a notice is an essential pre-condition to the institution of a suit against the Board. The issue whether, if the Board acts in breach of a statutory duty it is still doing or purporting to do something in pursuance of this Act, has not been raised before us. We will assume, therefore, that the present was a suit of the nature which fell under Sub-section (1) of Section 87. A notice has actually been given. The defendants in their written statement have challenged the notice and stated that 'the said notice dated 5th June 1960 purporting to be under Section 87 of the said Act does not comply with the provisions of the said Act and is invalid'. (See paragraph 13). This charge is extremely vague and it is impossible to ascertain what was intended. But issues Nos. 9, 10, and 11 submitted for the decision of the learned single Judge by the interim consent terms poses the question whether the plaintiffs were bound to give a notice under Section 87 and whether the notice was invalid as alleged in paragraph 13 of the written statement. We have already reproduced that part of paragraph 13. In the arguments before us counsel elaborated what was left in doubt in the written statement. He urged that the notice relies exclusively upon the liability for tort against the Board whereas in the plaint the liability is founded exclusively on the breach of the statutory responsibility under Section 61-B as we have found. Therefore the notice did not give any indication of the claim as it has been actually put forward in the plaint and the plaint is liable to be dismissed on that short ground. A minor point which was raised in the course of the arguments before us may be disposed of here. In indicating what are the requirements of the notice Section 87, paragraph I uses the words 'and of the cause thereof' and also the words 'from the accrual of the cause of such suit or other proceeding'. It was doubted whether the word 'cause' means the same thing as cause of action as is commonly understood in law and as is referred to in the Code of Civil Procedure in Section 20 for instance, but it is unnecessary in our opinion to decide this issue because whether it is a cause of the suit or cause of action for the suit it seems to us that having regard to the actual notice given in this case the notice stated both very clearly.
37. The gravamen of the complaint is that the notice does not mention, the statutory liability of the defendants under Section 61-B and therefore does not support the cause or the cause of action pleaded in the suit. We cannot accept this contention. In the third paragraph at the end of the notice the facts of the claim are clearly stated as 'I am further instructed to state that whilst the said case was being hauled by the Port Trust Dock authorities on a four wheeled truck by tractor in the open behind shed No. 1 Alexandra Dock it slipped and fell on the ground with the result that the entire wooden case was completely broken exposing the contents thereof, and owing to damage so caused the machinery wrapped in the said case had become useless as stated above.' It may be that Section 61-B is not in terms mentioned, but at least it can be said in favour of the plaintiffs that neither is Section 87 mentioned. The plaintiffs, however alleged negligence, malfeasance and non-feasance on the part of the administration and it is that which has been seized upon to say that the notice was founded in tort. But counsel has also stated 'and/or acts of misconduct on the part of your employee and therefore it is submitted that the Bombay Port Trust is bound to pay the value of the said machinery.'
Now misconduct does mean conduct contrary to duty, though it may also include misfeasance, malfeasance or non-feasance. Therefore when acts of misconduct are charged it seems to us that counsel intended to imply breach of duty imposed upon the board and as we have said vis-a-vis the goods of third parties in their possession the duty is that prescribed by Section 61-B. Therefore the cause or cause of action for the suit was sufficiently stated in the notice. It is a settled rule of construction of notices that notices are to be construed ut res magis valeat quam pereat, that is to say with a view to make sense out of them and not with a view to find fault with them, and having regard to the totality of this notice we are satisfied that a 'cause' or cause of action has been set out in the plaint and which has ultimately been found by the learned single Judge in favour of the plaintiffs. We hold that the notice was in compliance with paragraph 1 of Section 87 and was a good and valid notice.
38. These were all the contentions raised in this appeal and in our opinion the contentions fail. The appeal is dismissed with costs. The amount of Rs. 500/- deposited by the appellants may be withdrawn by the attorneys for the respondents towards their costs.
39. Appeal dismissed.