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The Madras Port Trust Vs. A.M. Safiulla and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtChennai High Court
Decided On
Case NumberAppeal No. 130 of 1958
Judge
Reported inAIR1965Mad133
ActsIndian Companies Act; Madras Port Trust Act, 1905 - Sections 6, 39(2), 41-A(1), 110 and 111; Madras Harbour Trust Act, 1885 - Sections 87; Madras Harbour Trust (Amendment) Act, 1886; Madras Harbour Dues Act, 1882; Indian Railways Act, 1890; Public Authorities Protection Ordinance - Sections 2; Calcutta Port Trust Act - Sections 142; Madras General Clauses Act - Sections 3(22)
AppellantThe Madras Port Trust
RespondentA.M. Safiulla and Co. and anr.
Cases ReferredMadras v. Best and Co.
Excerpt:
madras port trust act (ii of 1905), section 110--scope of--damage of salted hides and skins stacked by port trust--damages--claim for-- limitation--'person' in section 110 including statutory body ; bundles of wet salted hides and skins belonging to the first plaintiff, which were insured with the second plaintiff arrived at madras harbour on 2nd august 1955 and were stacked by the madras port trust-- the defendants. on the next day the goods got wet and were dripping with water. the second plaintiff, with the help of another, surveyed the goods, paid the damages to the first plaintiff on 8th september 1959, got subrogated to the rights of the first plaintiff as against the defendants and filed the suit against the defendants on 29th march 1956, for their negligence and for damages. the..... (1) the madras port trust is the appellant in this appeal. they were sued by the two plaintiffs in c. s. nos. 618 of 1956, on the file of the city civil court, madras for recovery of a sum of rs. 6807-14-0, as damages caused to a consignment of goods by reason of their alleged negligence. the learned city civil court judge granted a decree in favour of the plaintiffs for recovery a sum of rs. 4200-60 np. holding that the plaintiffs were entitled to claim damages only in respect of 145 bundles, out of a total consignment of 235 bundles of salted hides and skins. the plaintiffs have preferred a memorandum of cross objections praying for a decree for the full amount claimed in the plaint.(2) the first plaintiff is a registered firm of partnership carrying on business at madras. they.....
Judgment:
(1) The Madras Port Trust is the appellant in this appeal. They were sued by the two plaintiffs in C. S. Nos. 618 of 1956, on the file of the City Civil Court, Madras for recovery of a sum of Rs. 6807-14-0, as damages caused to a consignment of goods by reason of their alleged negligence. The learned City Civil Court Judge granted a decree in favour of the plaintiffs for recovery a sum of Rs. 4200-60 nP. holding that the plaintiffs were entitled to claim damages only in respect of 145 bundles, out of a total consignment of 235 bundles of salted hides and skins. The plaintiffs have preferred a memorandum of cross objections praying for a decree for the full amount claimed in the plaint.

(2) The first plaintiff is a registered firm of partnership carrying on business at Madras. They obtained a shipment of 235 bundles of wet salted hides and skins from Calcutta per S. S. "Indian Merchant". The consignment was covered by a bill of lading No. 100 dated 21-7-1955, and was insured with the second plaintiff, which his the Asiatic Government Security Life and General Assurance Co. Ltd. incorporated under the Indian Companies Act. The goods were landed at the Madras Port on 2-8-1955. The Port Trust Authorities stacked the goods under tarpaulin covers in a special shed with platform and roof. Between 31-7-1955 and 3-8-1955, the weather at Madras was cloudy and there were drizzles of showers occasionally. The clearing agent of the first plaintiff P. W. 2 saw the consignment on 2-8-1955 after landing and found the bales in good condition. On the next day, he found them wet and dripping with water.

The first plaintiff wrote Ex. A. 2 dated 3-8-1955 to the defendants (The Madras Port Trust) alleging damages to the goods by exposure to the rain, and requesting them for a survey of the goods to assess the damages sustained by them. The first plaintiff made c claim to the second plaintiff on the basis of the insurance policy Ex. A. 14. The second plaintiff arranged for a survey of the goods by Messrs. Wilson and Co. Ltd. The local agents employed in Messrs Chambers and Co. dealers I hides and skins, was appointed surveyor and he submitted a report in Lloyd's from Ex. A. 1. The amount of damages suffered by the goods was estimated and fixed at Rs. 6611-13-11. The Surveyor's fee was Rs. 196 and the total of the two figures is Rs. 6807-13-11. The second plaintiff the insurer, acting on the Lloyd's report, paid to the first plaintiff the sum of Rs. 6807-14-0 and on 8-9-1955, the second plaintiff became subrogated to the rights of the first plaintiff against the defendants.

The plaintiffs charge the defendants with negligence in stacking the goods improperly with our taking sufficient precautions to keep them safe from being drenched by rain. They allege that the goods were damaged only because of such negligence on the part of the defendants. The defendants deny any negligence on their part and attribute the deterioration of the goods of the inherent vice in them. The defendants plead that they keep the goods under tarpaulin cover in a special shed, that they have done all that they need do and that, therefore, they are absolved from all liability. They also demur to the maintainability of the suit and contend that the suit claim is barred by limitation under S. 110 of the Madras Port Trust Act, 1905.

(4) The learned City Civil Judge overruled the plea of limitation observing as follows: "Ex. A. 9 (the suit notice dated 17-1-1956) seems to have been sent by the plaintiff's within six months from the accrual of the cause of action for this suit namely 2-8-1955, and further the present suit had definitely come to the filed subsequent to one month's previous notice referred to under S. 110 noted above. I am, consequently satisfied that the plaintiffs had compiled with the provisions of S. 110 as well." This finding of the learned Judge is extremely unsatisfactory and we must observe that the failed to read the section properly observe that he failed to read the section properly and of course completely misunderstood its scope and applicability. The learned Judge further held that the goods were not damaged on board ship prior to the landing. He found that the defendant failed to keep the goods properly protected while in their custody and that the failure amounted to negligence in law rendering them liable for the loss sustained by the plaintiff's. But the learned Judge, however, granted a decree in favour of the plaintiffs only for a sum of Rs. 4200.60 nP. on his finding that 145 bundles alone of the consignment were surveyed by Mr. Holland and that there was no survey in respect of the balance of 90 bundles.

(5) It is under these circumstances that the above appeal and the memorandum of cross objections have been preferred in this court.

(6) We shall first deal with the question of bar of limitation under S. 110 of the Madras Port Trust Act, as it will be unnecessary to consider the other issues arising in the case if the plaintiffs cannot over come this statutory obstacle.

(7) The Madras Harbour was constructed in or about the year 1886--the statute that governed and regulated its administration at that time was the Madras Harbour Trust Act, 1885 (Act No. II of 1886). This Act repealed the Madras Harbour Dues Act, VI of 1882. The Madras Harbour Trust Act, 1885, provided by S. 87, a period of limitation for institution of suits:

"87. No suit or other proceedings shall be commenced against any person for anything done or purporting to have been done, insurance of this Act, within giving to such person one month's previous notice in writing of he intended suit of other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding.

The Board shall not be responsible for any act or default of any officer or servant appointed under this Act, or of any master attendant, any harbour master of any pilot or of any deputy or assistant of any of the officers aforesaid, or of any person acting under the authority or direction of any such officer, deputy or assistant.

nor for any damage sustained by any vessel in consequence of any defect in any of the moorings, hawsers or other things belonging to the board;

nor shall the board or any of the said officers or servants, be liable in damages for any act bona fide done or ordered to be done by them in pursuance of this Act.

The corresponding provisions in the Madras Port Trust Act, 1905 are Ss. 110 and 111 which run as follows:

"110. No suit or other proceedings shall be commenced against any person for anything done or purporting to have been done, in pursuance of this Act without giving to such person one month's previous notice in writing of the intended suit or other proceeding, and of the cause thereof, nor after six months from the accrual of the cause of such suit or other proceeding.

111. The Board shall not be liable for any act or default of any officer or servant appointed under this Act. or under the Indian Ports Act 1908, if the Board be appointed by Government under the Indian Ports Act to be conservator of the Port, or of any person acting under the authority or direction of any such employee unless such act or default is done or made under the direction of the Board:

nor for any damage sustained by any vessel in consequence of any defect in any of the moorings, hawsers or other things belonging to the Board;

nor shall the Board, or any of the said employees be liable to damages for any act bona fide done, or ordered to be done by them in pursuance of this Act."

The cause of action for this suit arose on 2-8-1955, when the goods were damaged by the alleged negligent conduct of the defendants. If S. 110 applies, the suit should have been instituted within 6 months from 2-8-1955. The second plaintiff the subrogee became subrogated to the rights of the first plaintiff on 8-9-1955. The subrogee's right is just the same as that of the person whose rights are subrogated. The subrogee steps into the shoes of his assignor and can have no higher rights than his assignor. The cause of action in a case governed by S. 110 gets barred after the lapse of six months subsequent to its accrual. The fact that the subrogee gets a complete cause of action only after payment to his assignor cannot give an extended period of limitation to the subrogee by computing the period of six months from the date of subrogation. The recognition of a fresh starting point of limitation in favour of the subrogee from the date of subrogation may lead to the anomaly of reviving barred claims. It is however unnecessary to express any opinion on the question whether the subrogee may sustain a claim under S. 110 of the Act though such a claim is unenforceable by his assignor. In the present case the suit was instituted on 29-3-1956 when six months had elapsed even from the date of subrogation after payment by the subrogee. If the first plaintiff is disentitled to sue by reason of the bar of limitation under S. 110 of the Act, the second plaintiff is in no better position than the first plaintiff and therefore the suit must fail as a whole.

(8) Section 110 of the Act will apply it. "The Trustees of the Port of Madras" designed as the Board under S. 6 of the Act are "persons" and if the loss or damage suffered by the plaintiffs was due to anything done or purporting to have been done in pursuance of the Act. Under S. 6 of the Act, the Board comprising "the trustees of the Port of Madras" a body corporate with perpetual succession and a common seal, is vested with the duty of prescribing the duties, powers and functions of the Board is in the following terms.

" 39 (1) The Board shall, according to its powers provide all reasonable facilities for and shall have power to undertake the following services

(a) landing, shipping or transhipping passengers and goods between vessels in the port and the wharves piers quays or docks in possession of the Board.

(b) receiving, removing, shifting, transporting, storing or delivering goods brought within the Board's premises.

(c) carrying passengers by rail, tramway or otherwise within the limits of the Port, subject to such restrictions and conditions as the Central Government may see fit to impose and

(d) receiving and delivering, transporting and booking and despatching goods originating in the vessels in the Port and intended for carriage by the neighbouring railways and vice versa, as a railway company or administration under the Indian Railways Act, 1890.

(2) The Board shall, if so required by any owner, perform in respect of goods all or any of the services mentioned in clauses (a), (b) and (d) of sub-section (1), provided that the Board shall not be bound to perform any service which it has relinquished under the provisions of clause (a) of sub-section (1) of S. 41-A.

(3) The Board shall, if required, take charge of the goods for the purpose of performing the service and shall give a receipt in the form and to the effect prescribed from time to time by the "Central Government"

After any goods have been taken charge of and a receipt given for them under this section no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt shall have been given or to the master or the owner of the vessel from which the goods have been landed or transhipped."

Section 40 of the Act postulates the responsibility of the Board for the loss destruction or deterioration of the goods taken charge of by them. The duty of receiving, removing, shifting, transporting, storing or delivering goods brought within the premises of the Board shall, if so required by the owners of the goods be performed by the Board.

(9) The Board handled the goods of the first plaintiff and warehoused them on the 2nd and 3rd August 1955 only in the performance of their statutory functions. The language of S. 39(2) extracted above, cannot be read so as to disassociate the Board from its normal statutory functions in the matter of shortage and delivery of goods after their landing from the ship. The fulfilment of a statutory duty by the Board is not merely the literal obedience to the letter of the Act but is also the carrying on of things and matters which are incidental to and necessary for the proper and effective discharge of that duty. It is impossible to expect the consignee of goods to clear them from the harbour premises eo instanti they are landed from the board of the ship. In the interval between the landing and the clearance of the goods they have to be in the charge of the Port Trust Authorities whose obligation under the Act is a continuous chain commencing from the landing and ending with the clearance.

(10) The case reported in Firestone Tyre and Rubber Co. v. Singapore Harbour Board, 1952 AC 452 related to the applicability of S. 2 of the Public Authorities Protection Ordinance and of the Straits Settlements (which is substantially in the same terms as S. 1 of the English Public Authorities Protection Act 1893). A cargo of rubber tyres consigned to the Firestone Co. at Singapore was discharged from the ship by the Singapore Harbour Board in July 1946. The goods were received by the Board in one of their godowns in the harbour. There was a short delivery to the extent of 17 tyres and the company claimed the Board damages for the loss of those tyres. Section 2 of the Ordinance was pleaded as a bar by the Board and they contended that the suit not having been commenced within 6 months after the Act, neglect or default complained of must fail. The language of S. 2 of the Ordinance was as follows:

"Where any action...................is commenced against any person for any act done in pursuance..............of any public duty or authority, or in respect of any alleged neglect or default in execution of any duty...............or

authority...................(2) The action....................shall not lie or be instituted unless...................it is commenced within six months next after the act, neglect or default complained of....................."

The Judicial Committee held that the Singapore Harbour Board in taking the goods of the company into their care and custody in their godowns were in substance acting in the course of exercising for the benefit of the public, an authority power conferred on them by the Ordinance and such a power was not a mere subsidiary power. The action of the company was held to the time bared. Lord Tucker delivering the judgment of the Judicial Committee observed thus at page 468:

".............the Board were exercising their permissive powers to perform a normal function of a harbour board and in so doing were providing a service essential to the shipping and commercial community of Singapore and accordingly entitled to the protection of the Public Authorities Protection Ordinance."

We have no difficulty in holding that the defendants received and stacked the goods in the special platform in the harbour premises purporting to discharge their statutory functions in pursuance of the Act. In Calcutta Port Commrs. v. Corporation of Calcutta, ILR (1938) 1 Cal 440: (AIR 1937 PC 306) the Judicial Committee had occasion to construe the provisions of S. 142 of the Calcutta Port Trust Act which are in pari materia with S. 110 of the Madras Port Trust Act. In the Calcutta Act, the words used are "purporting of professing" but the Madras Act does not contain the word "professing". This difference in language is absolutely immaterial. At page 448 adverting to these words the Judicial Committee observed thus:

"Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which is not done in pursuance of the statute may nevertheless be accorded its protection, if the work professes or purports to be done in pursuance of the statute."

It is quite clear that an assumption of duty by the Board not made incumbent upon them by any of the express provisions of the Act or by necessary implication flowing from them attracts the applicability of S. 110. A breach of statutory duty as wall as an omission to perform a statutory duty are equally within the ambit of that provision see ILR (1938) 1 Cal 440 at p. 449: (AIR 1937 PC 306 at p. 310) Ganapatia Pillai J. has also taken the same view in his judgment in Home Insurance Co. Ltd v. Trustees of the Port of Madras, C. S. Nos. 4, 5 and 6 of 1957 (Mad) on the file of the Original Side of this court.

(11) We have now to examine whether the Board--which compediously describes the "Trustees of the Port"--is a person within the meaning of the said expression S. 110. The Port Trust Act does not define that expression. The Madras General Clauses Act, S. 3 sub-section (22) defines the word "person" as follows: "Person" shall include any company or association of individuals whether incorporated or not." The Board is within this definition. The law recognises a "legal person" which is any subject matter other than a human being to which the law attributes personality. A corporation with perpetual succession and a common seal is undoubtedly a "legal person". It is no doubt an arbitrary creation of the law. But it is a legal entity personified in the eye of law. The word "person" in S. 110 is certainly comprehensive enough to include statutory body, namely, the Board created under the Madras Port Trust Act.

(12) The words used in a statute should receive their full meaning without being stretched to give an extended sense or crippled to a restrictive operation. The subject matter of legislation and the context have a controlling effect over the understanding of the words. Maxwell in his "Interpretation of Statutes", 10th Edn. observes at page 60 that "it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention."

(13) The Act has no doubt to be construed secundum subjectam materiam and the question is whether it would be reasonable that the Board should be within the word "person". The following observation of Lord Blackburn in the Pharmaceutical Society v. London and Provincial Supply Association Ltd. (1880) 5 AC 857 at p. 869 is instructive:

"The word 'person' may very well include both a natural person, a human being, and an artificial person, a corporation. I think that in an Act of Parliament, unless there be something to the contrary, probably (but that I should not like to pledge myself to) it ought to be held to include both. I have equally no doubt that in common talk, the language of men not speaking technically a "person" does not include an artificial person, that is to say, a corporation. No body in common talk if he were asked, who is the richest person in London, would answer, "The London and North Western Railway Co." The thing is absurd. It is plain that in common conservation and ordinary speech, "a person" would mean a natural person; in technical language it may mean the artificial person; in which way it is used in any particular Act, must depend upon the context and the subject matter."

There is nothing in the subject matter or in the context of the particular provision, S. 110, to warrant the view that the word "person" should be confined in its applicability to natural person alone and not to the artificial or legal person, the Board.

(14) The learned counsel for the respondents contended that the words "purporting to have been done in pursuance of this Act" indicated the subsistence of mens rea on the part of the person doing the act and that the statutory body or the body corporate like the Board could not be supposed to have any mens rea. We do not agree with this contention. It is now settled law that a corporation can be held liable for wrongful acts and that such liability extends even to cases in which malice, fraud or other wrongful motive or intent is a necessary element. An action for libel, malicious prosecution deceit will lie against a company.

(15) We can usefully refer to a decision of this court reported in the Trustees of the Harbour, Madras v. Best and Co. ILR 22 Mad 524 which arose under the Madras Harbour Trust Act, 1886 (Act II of 1886). The suit in that case was to recover a balance of coal alleged to have been landed at Madras harbour and to have been left in the custody of the Harbour Authorities and which remained undelivered by the defendants--the Trustees of the Harbour to the plaintiffs--Best and Co. The question for considerations was whether the defendants wee exempt from responsibility for any undelivered portion of coal either under bye-laws in force under S. 70 of the Madras Harbour Trust Act or under and by virtue of S. 87 of that Act. Section 87 that Act was practically the same as the present Ss. 110 and 111 of the Act of 1905. It is only necessary to refer to the following observation of Shephard J. at page

528.

Some attempt was made to show that the word person occurring in the first paragraph, did not include the Board mentioned in the second paragraph. I do not think that this argument can be accepted. It is clear, I think, that the word "person" mentioned in the first paragraph, includes, among other persons, the Board."

(16) The actual decision in the said case has no material bearing on the question now in issue but the observation quoted above of the learned Judge is relevant and significant. We are of opinion that the suit is barred by limitation under S. 110 of the Act. It is unnecessary for us to consider and deal with the question of the alleged negligence on the part of the defendants making them liable to the plaintiffs' claim for damages.

(17) In the result, the appeal is allowed, the judgment and decree of the Court below are set aside and the suit is hereby dismissed. The memorandum of cross objections is also dismissed. The parties will bear their respective costs here and in the court below.

(18) Appeal allowed.


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