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The Commissioners for the Port of Calcutta Vs. Khaitan Sons and Co. (Tea Chest) Ltd. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 46 of 1962
Judge
Reported inAIR1966Cal190,69CWN881
ActsCalcutta Port Act, 1890 - Section 142; ;Limitation Act, 1908 - Sections 29 and 89
AppellantThe Commissioners for the Port of Calcutta
RespondentKhaitan Sons and Co. (Tea Chest) Ltd.
Appellant AdvocateB. Das and ;P. Sen, Advs.
Respondent AdvocateAjit Roy Mukherjee and ;Nihar Majumdar, Advs.
DispositionAppeal allowed
Cases ReferredPort of Calcutta v. Abdul Rehim Oosman
Excerpt:
- .....a, n. ray, j., decreeing the suit for the sum of rs. 8415 in favour of the plaintiff against the port commissioners, calcutta with interest and costs. the only point involved is a point of limitation arising on section 142 of the calcutta port act. 2. the facts briefly are as follows: on the 14th january, 1957 an american company called steel merchant of new york, shipped 51 metal containers tinplate waste by steamship 'city of birmingham' owned by ellerman and bucknall associated lines, a shipping company of new york. the shipping company issued to the shipper a bill of lading no. 30 dated 14th january, 1957 in relation to the said cargo. the plaintiff claims to be at all material times and still is the owner of the said goods and the endorsee or the holder of the said bill of lading,.....
Judgment:

P.B. Mukharji, J.

1. This is an appeal from the judgment and decree of A, N. Ray, J., decreeing the suit for the sum of Rs. 8415 in favour of the plaintiff against the Port Commissioners, Calcutta with interest and costs. The only point involved is a point of limitation arising on Section 142 of the Calcutta Port Act.

2. The facts briefly are as follows: On the 14th January, 1957 an American Company called Steel Merchant of New York, shipped 51 metal containers tinplate Waste by Steamship 'City of Birmingham' owned by Ellerman and Bucknall Associated Lines, a shipping company of New York. The Shipping Company issued to the shipper a bill of lading No. 30 dated 14th January, 1957 in relation to the said cargo. The plaintiff claims to be at all material times and still is the owner of the said goods and the endorsee or the holder of the said bill of lading, The vessel arrived at the Port of Calcutta on the 24th March, 1957. She started discharging her cargo on or about the 8th April, 1957, at No. 4 G. R. Jetty in the Port of Calcutta into the care and custody of the defendant, the Commissioners for the Port of Calcutta.

3. On the 9th April, 1957, the plaintiffs clearing agents wanted to clear the cargo but the same could not be found by the defendant on that date and accordingly a 'not found' remark was duly recorded on behalf of the plaintiff. Thereafter some of these goods were found by several instalments in the months of April and May, 1957, the defendant delivered to the plaintiff and/or its agents a total quantity of 40 containers out of the said cargo leaving a balance of 11 containers. It is the failure of the Port Commissioners to deliver this balance of 11 containers for which the suit has been filed and the damage claimed for the same was Rs. 8415 being the value of the said 11 containers. It is alleged in the plaint that the defendant is also liable us a bailee.

4. It is not necessary to discuss the different defences in the Written Statement because the only point now before us is whether this claim of the plaintiff is barred by the Special. Limitation under Section 142 of the Calcutta Port Act.

5. A few more dates and facts may be relevant and should be stated now. The letter dated the 28th August, 1957 written to the original consignee M/'. Wooma and Co. provesthat the Out-turn of the Port Commissioners received by the shipping agents showed that there was no shortage. In other words, this shows that all the 51 containers were landed at the Port of Calcutta. What appears to have happened that 11 out of them were found missing and cannot be traced. The most important document is the Cash Import Delivery Challan of the Port Commissioners. It bears the inscription 'please deliver to the bearer, who is authorised to grant receipt on behalf of the under mentioned goods consigned to Messrs. Wooma and Co, Ex. S. S. C/o Birmingham covered by B/Entry No. 1980 of 6-4-57.' It is followed by the consignee's signature for Wooma and Co. The consignee's signature is dated the 6th April, 1957, This document is certified to be correct and it also certified that complete import delivery documents were surrendered on the date 8th April, 1957. It shows clearly under the column 'Description and Contents' 5l bundles. It shows also under date that 40 containers were delivered. This document under the column 'Balance Due' clearly shows that 11 containers were due to be delivered. That is dated the 20th April, 1957. Therefore, it was quite clear that the Port Commissioners failed to deliver the balance of 11 containers out of the 51 containers landed. There was some correspondence about 'B' form and short landing certificate which followed. There was, however, no question of any short landing as the containers had been landed in full quantity. There was a report of the Port Commissioners to the Police on the 3rd August, 1957, where these 11 containers were reported to be found missing, or pilfered or mislaid as found on the last checking on the 1st August, 1957. On the correspondence the other important fact on date is the fetter dated 15th November, 1957 when the Docks Manager wrote to M/s. Wooma and Co. stating:

'...... I am to inform you that the matteris still under enquiry and shall refer as soon its my enquiries are completed. This is without prejudice to any of the rights or contentions of the Commissioners.'

The final information which the Port Commissioners gave to M/s. Wooma and Co. is by the letter dated 10th January, 1958 whereby they intimated to the consignee that there was no question of issuing 'B' form certificate as the whole quantity had been landed. This is the date which the plaintiff states from which the limitation starts. The suit was filed on the 10th March, 1958.

6. The only point is the point of limitation under Section 142 of the Calcutta Port Act. No other issue has been raised or argued. No verbal evidence was given at the trial. The documents including correspondence were tendered and marked as Exhibits by consent.

7. To appreciate the point of limitation it is necessary to set out Section 1.42 of the Calcutta Port Act. It reads as follows:

'No suit shall be brought against any person for anything done, or purporting or professing to be done, in pursuance of this Act, after the expiration of three months from the day on whichthe cause of action in such suit shall have arisen.'

8. The main question which arises is when did the cause of action in this case start. The learned trial Judge apparently proceeded on the basis that the cause of action starts from the refusal to the demand for delivery. He takes the starting point to be in this case, on the facts stated above, the 10th January, 1958, when the Port Commissioners informed the consignee that no question of issuing 'B' form certificate arose because the whole quantity of 51 metal containers had been landed. The learned Judge held that the suit was filed on the 10th March, 1958 i.e., within three months from that date and was, therefore, in time.

9. We are of the opinion that the approach of the learned Judge was wrong. The cause of action does not depend on demand and refusal in this case. It is not a suit under Article 89 of the Limitation Act where demand and refusal are relevant. The cause of action in this case is failure to deliver the goods. Now the cause of action in this case clearly arose on or about the 20th or 26th April, 1957 when on the Import Delivery Chalan it was distinctly stated mat the balance due was 11 containers. In other words by that date the plaintiff knew that 40 containers had been delivered out of 51 and 11 containers could not be delivered on that date. In any event when the plaintiff knew finally by that letter dated the 28th August, 1957 from the Shipping Agents that the Port Commissioners' Out-turn showed full landing, the cause of action could then be said to arise on that date, the 28th August, 1957. Finally on the 15th November, 1957, the Port Commissioners made it quite clear to the plaintiff that although they were making enquiries, that was without prejudice to their rights. Further correspondence therefore, could not extend the period of limitation. Now the suit was not filed within three months either from 20th/26th April, 1957, or from the 28th August, 1957 or even from the 15th November, 1957. In any view of the matter the suit was barred under Section 142 of the Calcutta Port Act, when it was filed on the 10th March, 1958. Even if the view is taken that 40 containers out of 51 were delivered on the 26th April, 1957, then even a reasonable time thereafter could not be the 10th January, 1958, a period of more than seven months.

10. It has been contended on behalf of the respondent that Section 142 of the Calcutta Port Act uses the expression 'done or purporting or professing to be done, in pursuance of the Calcutta Port Act' and that expression does not include an omission to do an act. Apart from the General Clauses Act which includes illegal omissions in the connotation of 'acts', the point is covered by the Privy Council decision in the case of Commrs. for the Port of Calcutta v. Corporation of Calcutta of that report Lord Alness delivering the judgment of the Privy Council after emphasising the words 'purporting or professing to act in pursuance of the statute' observed as follows:

'Their Lordships regard these words as ofpivotal importance. Their presence in the statuteappears to postulate that work which is not clonein pursuance of the statute may nevertheless beaccorded its protection if the work professes orpurport to be done in pursuance of the statute. * * *

The respondents argued that the Indian Statute fell to be strictly construed and that, while it protects against a claim based on breach of statutory duty, it does not protect against an omission to perform a statutory duty. Their Lordships are unable to accept either argument.' It has been argued that the scope of this Privy Council decision has been whittled down by the Supreme Court decision in the State of Punjab v. Modern Cultivators, : [1964]8SCR273 . We are unable to accept that view. The Supreme Court in that case was concerned with the question which arose in an action for damages for inundation of plaintiffs land due to preach of a canal in the management of the defendant, under the Northern India Canal and Drainage Act, 1873 and came to the finding that the break in the bank was not that kind of act or omission under the Act. The reason why we do not think that the Supreme Court decision whittles down the law laid down by the Privy Council may be stated briefly. In the first place the Supreme Court decision was concerned with a competition between Articles 2 and 86 of the Limitation Act. The language of Article 2 of the Limitation Act is very different from Section 142 of the Calcutta Port Act. Secondly, the Privy Council decision was expressly referred to by the Supreme Court and the Supreme Court did not express any dissent from the Privy Council decision. Thirdly, the question here is a question of the liability of the Port Commissioners of Calcutta to deliver the goods lauded in their custody. The statute enjoins that they must receive the goods in the Port. Therefore, failure to deliver the goods which they had received is reasonably connected with performance of their duties to deliver under the Calcutta Port Act. Therefore, failure to deliver in this case is an omission which comes within the ambit and scope of Section 142 of the Calcutta Port Act. The liability of the Port Commissioners of Calcutta to deliver the goods can be seen by bare reference to such sections as Sections 112, 113, etc. of the Calcutta Port Act. Fourthly there is a special statute with special limitation here in this case which was not present in the Supreme Court decision which was, as I have said, a question of: applicability of either Article 2 or Article 36 of the Limitation Act. A special statute with special limitation is expressly provided in Section 29(2) of the Indian Limitation Act. It provides that where any special or local law prescribes for any suit, a period of limitation different from the period prescribed therefor by the first schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that schedule. It also expressly provides for the purpose of determining any period of limitation prescribed for any suit by any special or local law, The provisions con-mined in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extentto which, they are not expressly excluded by such special or local law and the remaining provisions of the Limitation Act shall not apply. If there is any conflict between the Indian Limitation Act and the Calcutta Port Act on the point of limitation the Calcutta Port Act must prevail on the point of limitation against the Commissioners for the Port of Calcutta.

11. Mr. Mukherjee developed the argument on omission by saying that the omission must be specially under the statute. In support of that he cited the case of State of Gujarat v. Kansara Manilal Bhikhalal, : 1965CriLJ90 and specially the observations at pp. 1896-97. This, however, was a prosecution under the Factories Act and the language was 'Anything done or intended to be done under this Act' which is materially different from the language used in Section 142 of the Calcutta Port Act. Mr. Mukherjee relied on the following observations of the Supreme Court at pp. 1896-97:

'But the critical words are 'anything done or intended to be done' under the Act. The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of the provisions. It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words 'good faith'. It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done.'

We do not think that this decision helps the respondent in construing the different words in Section 142 of the Calcutta Port Act and that is why we feel that the Supreme Court did not, in this case, make any reference to the Privy Council decision in . I need hardly say that no question of limitation arose in this Supreme Court case, Mr. Mukherjee also relied on another Supreme Court decision in the Provincial Govt. of Madras v. J.S. Basappa, : [1964]5SCR517 . That case was concerned with Section 18 of the Madras General Sales Tax Act. It comes to the conclusion that Section 18 applies to suits for damages and compensation in respect of acts under the Act, and it protects and indemnifies authorities, including Government in respect of bona fide acts done or purporting to be done under powers conferred by the statute. It holds that the period of limitation does not apply to a suit by an assessee for refund of tax on the ground that it is legally recovered from him. There again the case was different and that is why no reference was made to the Privy Council decision reported in . The particular section of the Madras General Sales Tax Act used the language: 'No suit or other proceeding shall, except as expressly provided in this Act, be instituted in any Court to set aside or modify any assessment made under this Act.' That language is very different from thelanguage that we have to construe under Section 142 of the Calcutta Port Act.

12. Reference in this connection may also be made to the decisions of the Privy Council in H.H.B. Gill v. The King Emperor and the decision of the Federal Court in Hari Ram Singh v. The Crown and the observations of Sulaiman, J, there at pp. 177 to 181 (of FCR):(at pp. 51 to 53 of AIR). The decision of the Supreme Court in Matajog Dobey v. H.C. Blari : [1955]28ITR941(SC) may also be seen in this connection. These cases have been cited on the question how far omission and what kind of omission are or can be included within the language 'or act done or professing or purporting to he done with (Sic) the Act.' It is not necessary in the facts of this case to discuss in detail all the various authorities on this point. The facts in the instant appeal are simple. It cannot be disputed that the failure of the Port Commissioners to deliver the goods in this case was a breach of their statutory duty to deliver. They received the entire quantity of goods. They delivered the major part but failed to deliver the balance. This was closely connected with what the Port Commissioners are intended to do or have to do under the Calcutta Port Act, namely by receiving the goods, by holding them and thereafter by handing them over to the consignee, agent or claimant or the owner. In this connection there is no difficulty in establishing a reasonable connection between the act and the omission. If it is the legal duty and obligation of the Port Commissioners to deliver the goods, failure to deliver part of such goods is connected with the statutory duty and obligation to deliver them.

13. The Privy Council in H.H.B, Gill's case , was concerned with sanction for prosecution under Section 197 of the Criminal Procedure Code where the words used were 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty.' Reliance was placed by Mr. Mukherjee for the respondent on the observation of Lord Simonds at p. 574 (of Cal WN) :(at p. 133 of AIR) stating that the test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does by virtue of his office. Mr. Mukherjee emphasised the point of reasonable connection. Similarly the Federal Court in Hori Ram Singh's case was concerned with a similar problem. It may not, however, be out of place here to mention the observation of Varadachariar, J. at p. 191 of the Report (FCR):(at p. 58 of AIR F.C.) stating:

'But it seems to me that an act is not less one done or purporting to be done in execution of a duty because the officer concerned does it negligently.'

As was pointed by Chandrasekhara Aiyar, J., in : [1955]28ITR941(SC) of the report quoted already the question is one of reasonable connection and the learned Judge made the following observations:

'The result of the foregoing discussion is this: There must be a reasonable connectionbetween the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.'

Mr. Mukherjee for the respondent relied on these observations but they do not help his clients in the present facts. On the facts there is here sufficient reasonable connection. Here failure to deliver a part of the goods which the Port Commissioners had a legal duty to deliver in whole was not a pretended or a fanciful claim or an omission unconnected with the legal duty to deliver.

14. Finally it is contended by Mr. Mukherjee on behalf of the respondent that the words 'any person' in Section 142 of the Calcutta Port Act do not mean and cannot include the Commissioners for the Port of Calcutta who are a body corporate and who are mentioned as the Commissioners in many of the sections of the Calcutta Port Act. The substance of this argument: is that Section 142 of the Calcutta Port Act is an immunity for the persons or officers or employees of the Port Commissioners and not the Commissioners of the Port of Calcutta as a body corporate. Therefore, he contends that Section 142 of the Calcutta Port Act does not apply at all in the facts of this case which is concerned with a suit against the Port Commissioners. The argument is attractive and if there were no decisions on the point already it would require serious consideration.

15. It is not possible to accept this argument at this time of the clay because of the following reasons: In the first place, the Privy Council decision in is itself an authority for the proposition that Section 142 of the Calcutta Port Act was applied against the Port Commissioners as such as a body corporate, In the second place, a Division Bench decision of this Court in Commrs. for the Port of Calcutta v. Abdul Rehim Oosman, 68 Cal WN 814, is also against this contention. That case also arose out of a suit against the Commissioners for the Port of Calcutta for recovery of damages for short delivery of a consignment of cocoanut oil. This Division Bench Authority decides first that the expression 'any person' in Section 142 of the Calcutta Port Act includes the Commissioners for the Port of Calcutta and that in the second place a case of non-delivery falls within the mischief of Section 142 of the Calcutta Port Act. On both the points, therefore, it is an authority against the contention of the respondent. The trial Judge did not have the guidance of his decision of the Court of Appeal at the time when he delivered the present judgment under appeal.

16. The cause of action in this case is failure to deliver 11 containers. With the failure to deliver the goods the cause of action arose. Correspondence thereafter could not postpone accrual of the cause of action, nor stop the running of the time under the limitation. No doubt, the Commissioners for the Port of Calcutta as a responsible body corporate said in correspondence that they were making inquiries. But then their attempt to help the plaintiff bymaking inquiries for tracing the goods cannot involve the Commissioners for the Port of Calcutta into a liability for which the claim is barred by special limitation of the special statute by which the Port Commissioners are governed. Acknowledgments in this case cannot extend the time because acknowledgments within the meaning of the Limitation Act are expressly excluded by Section 29 of the Limitation Act where special laws and special limitations have to be construed.

17. On the facts this Court is of the opinion that on the 20th/26th April, 1957 as stated above, the cause of action arose, when the plaintiff could not get the eleven containers and the defendant failed to deliver them, Indulging in delay thereafter by either the plaintiff or the defendant would not make a new limitation for them under Section 142 of the Calcutta Port Act. In any event, taking the most liberal view, the letter of the 15th November, 1957 made it quite clear to the plaintiff that the inquiry was without prejudice to the rights of the Port Commissioners. Therefore, even in that view the suit should have been filed in February, 1958. As it was not so filed, the suit must be barred in any view of the matter under Section 142 of the Calcutta Port Act.

18. No other point has been argued before vis in this appeal.

19. For the reasons stated above, this appeal must be allowed and the judgment and decree of the learned trial Judge are set aside. We hold that the suit is barred by limitation under Section 1.42 of the Calcutta Port Act.

20. On the point of costs, we think that the appellant should get the costs of this appeal--and we order accordingly. Certified for two counsel. But so far as the cost of the trial Court is concerned, we direct that each party will bear its own cost.

Masud, J.

21. I agree.


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