Commissioners for The Port of Calcutta vs Narsingh Das Biswanath

P.N. Mookerjee, J.—This Rule raises a question of interpretation of Section 113(2) of the Calcutta Port Act, 1890.

The matter was considered by Chunder J. in Ghasiram Lachminarayan v. Commissioner for the Port of Calcutta Unreported decision of Chunder J. in Civil Rules 2866 of 1951 dated September 5, 1951. Chunder J. took a particular view of Section 113(2). Thereafter, the matter was considered by a Division Bench of this Court consisting of Das Gupta and Debabrata Mookerjee, JJ. This was in The Commissioners for the Port of Calcutta v. Ghasiram Lachminarayan in a firm Unreported decision of Das Gupta and Debabrata Mookerjee, JJ. in Civil Rules Nos. 2901, 2902 and 3011 of 1953 dated April 29, 1953. In these cases, a contrary view appears to have been taken of the said section. This latter decision, however, being a Bench decision must be taken to be binding upon me, sitting singly. Before their Lordships Das Gupta and Debabrata Mookerjee JJ., the decision of Chunder J. was cited, but the view which had found favour with the learned Judge in the earlier case apparently was not accepted by the Division Bench. The present case, therefore, must be decided in the light of later Bench decision, noticed above.

The relevant facts, which led up to the present Rule, are as follows:

Ten bags of Gum Gopal arrived at the Calcutta Port per S.S. "Sangola". They were landed in the Port on October 28, 1952. On the 30th October, a detention order was issued by the Customs Authorities in respect of one of the bags and, on November 1, 1952, the present Plaintiffs, who were the consignees of the bags in question, took delivery of the remaining nine bags. After the period of detention, from October 30, 1952, to November 20, 1952, had expired, the Plaintiffs applied for delivery of the remaining one bag. This was on November 27, 1952, and a reminder or fresh requisition was sent by them on or about December 12, 1952. The Defendants, the Port Commissioners, intimated to the Plaintiffs, by their letter, dated January 27, 1953, that the bag in question was missing from the shed. Thereafter, the present suit was brought by the Plaintiffs seeking to recover from the Defendants, the Commissioners for the Port of Calcutta, the sum of Rs. 196-15 for the value of the said missing bag for non-delivery of the same.

One of the main defences which were taken by the Port Commissioners was that they were protected in the case from any liability in respect of the missing bag u/s 113(2) of the Calcutta Port Act.

This defence was negatived by the trial court and the application against the trial court''s decree u/s 38 of the Presidency Small Cause Courts Act was eventually rejected. Thereafter, the present Rule was obtained by the Defendants, the Commissioners for the Port of Calcutta.

The relevant part of Section 113(2) of the Calcutta Port Act runs as follows:

If any owner, without any fault on the part of the Commissioners, fail to remove any goods from the premises of the Commissioner within five clear working days from the time of landing, such goods shall remain on the premises at the sole risk and expense of the owner.

In the present case, the goods were landed at the Port and taken to the Port Commissioner''s shed on October 28, 1952, and the first requisition for delivery was made on November 1, 1952. Delivery of the relevant bag, however, could not be made, as there was the detention order from the Customs Authorities, issued on October 30, 1952. The effect of Section 113(2) in these circumstances requires to be considered.

It is true as set out above, that the Plaintiffs made attempts to take delivery within five clear working days, but the delivery could not be made, not because of any default on the part of the Commissioners for the Port of Calcutta but because of the detention order of the Customs Authorities. In similar circumstances, it was held by the Division Bench in the case, to which reference has been made above, that Section 113(2) of the Act would protect the Commissioners. This could not be denied by the Plaintiff''s learned Advocate. Sitting singly, I am bound by that Bench decision. I must hold, therefore, disagreeing with the two courts below, that the Defendants, the Commissioners for the Port of Calcutta, are entitled to resist the Plaintiffs'' claim in the present suit on the strength of the said Section 113(2) and that that section will relieve them of all liabilities in respect of the missing bag.

A point was sought to be taken in this Court that the section in question, namely, Section 113(2) may be invoked by the Defendants, the Commissioners for the Port of Calcutta, to protect them only during the period after the expiry of five clear working days, mentioned in that section, and it was sought to be argued that it was incumbent upon the Port Commissioners to show that the missing bag was in the shed for these five days, or, at least, uptill the date of the issue of the detention order by the Customs Authorities. This aspect of the matter may well be relevant for consideration in connection with Section 113(2) of the Calcutta Port Act, but, in the present case, it appears clear from the records before the court that the missing bag was not lost before the detention order had been passed by the Customs Authorities. The oral evidence of P.W. 1 and D.W. 2, read in the light of Exts. F and G, supports the view that, on November 1, 1952, delivery was given to the Plaintiffs of nine bags out of ten, then in existence. Indeed, the existence of the disputed one bag, since missing during the relevant period is practically admitted by the Plaintiff''s own witness (P.W. 1) in Cross-examination. Fuller materials might have been available on this point, if this aspect of the matter had been raised before the learned trial Judge. In my opinion, however, even the materials, which are on record,-and particularly the Cross-examination of the Plaintiffs'' own witness (P.W. 1),-sufficiently show that the missing bag was not lost before November 1, 1952. I would, accordingly, hold that this new argument of the learned Advocate for the Plaintiffs opposite parties in this Court will not help his clients.

In the above view of the matter, this Rule must be made absolute; the decree of the learned trial Judge, affirmed by the Full Bench u/s 38 of the Presidency Small Cause Courts Act, must be set aside and the Plaintiffs'' suit must be dismissed. In the circumstances of this case, however, I would direct the parties to bear their own costs throughout.