Trustees of the Port of Madras vs Union of India (UOI)

Ganapatia Pillai, J.—This appeal is preferred against the decree of an Assistant Judge of the City Civil Court, Madras, awarding Rs. 7290-

78 nP. as damages to the respondent railway, payable by the appellant, the Port Trust of Madras. A consignment containing among other

packages one package in which six cast steel cross-heads were packed arrived in the port of Madras by S. S. ""Clan Maclean"" along With other

goods on 17-9-1956. The number of packages that arrived by this steamer for the Southern Railway was a little more than 380. A tally receipt

was duly issued by the Port Trust and the other packages were delivered to the consignee. But the package in question was missing although it was

loaded in the port along with the rest of the consignment.

A claim was made for payment of the value of the goods contained in the missing package on 23-4-1957, By the letter sent by the railway to the

Port Trust. A ''C'' certificate was issued by the Port Trust as required by the statute on 15-4-1957 regarding to the missing package. Two

defences were taken to the action, one of limitation and the other repudiation of liability on the ground that the Port Trust had discharged its duties

as a bailee and was not liable for the loss occasioned despite all care taken. The learned Judge negatived both the pleas and granted a decree. The

first contention raised by the counsel for the appellant is that the suit was tarred by limitation u/s 110 of the Madras Port Trust Act, since it was not

brought within six months of the issue of the ""C"" certificate. Section 110 of the Act reads thus:

No suit or other proceeding 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 thereto, nor after six

months from the accrual of the cause of such suit or other proceeding.

We are not concerned here with one month''s notice but we are concerned with the period of limitation prescribed for the suit, namely six months,

from the accrual of the cause of action for such suit. Counsel for the railway contends that the cause of action accrued only when the Port Trust

denied liability for the claim made for the value of the goods under the letter sent by the railway (Ex. A-4) on 23-4-1957. According to him the

repudiation of liability was made by the letter Ex. A-7 dated 31-8-1957, when the Port Trust denied liability for the claim made by the railway.

Consequently, counsel''s contention is that six months from 31-8-1957 would be me period within which the suit ought ''to be filed.

There is no direct authority of this Court or any other High Court on the point. The cause of action for the suit must consist of the facts which give

rise to the claim actually made in the plaint. The claim in this case consists of a demand for the return of the goods entrusted to the bailee or its

value in case the moveable goods are not available for delivery. The Port Trust is in the position of a bailee when it takes charge of the goods

landed in the Port for the purpose of effecting warehousing and delivery of the goods to the consignee. The bailee is expected to take care of the

goods by storing them properly till delivery is asked for and in this case delivery was asked for even before November 1956, when all the other

packages concerned in the consignment had been delivered.

The correspondence between the parties shows that since November 1956 the railway was insisting upon delivery and the Port Trust was putting

off giving delivery on the excuse that it was searching the godowns warehouses for the package in question. Ultimately, the railway called upon the

Port Trust to issue what is called ""C"" certificate by which the Port Trust declares that goods landed had been lost while in its custody. Such a ""C

certificate was issued on 15-4-1957. The certificate runs in these terms :

Shed Master''s Certificate C

I certify that the package enquired for as noted below, are shown as landed but a thorough search has been made for the packages and to the best

of my belief they are not lying in this section.

Then follow the details of the packages not traceable. The certificate is signed by the shed master it is unnecessary for the purpose of this appeal to

dilate upon ''the nature of certificates ""A"" and ""B"", prescribed by the Rules framed by the Madras Port Trust They relate to goods either not landed

or goods landed but not claimed within the period of free delivery. The nature of the duties performed by the Port Trust, as already pointed out by

us, is in their capacity as bailees. They act as agents of the steamer company for the purpose of giving delivery. Once they take charge of the

goods, it is their duty to warehouse the goods properly and give delivery to the consignee on demand. There was no question of the identity of the

consignee or the identity of the goods being in doubt. The cause of action for damages for non-delivery of the goods clearly arose, in our opinion,

on the date when the ""C"" certificate was issued by the Port Trust declaring their inability to deliver the goods, because the goods were not

available. Any further attempt made by the Port Trust to locate the goods elsewhere would be no answer to the claim for delivery made by the

railway.

Indeed, our inference as to the nature of the ""C"" certificate is confirmed by the letter of the railway Ex. A-4 by which immediately on receiving the

C"" certificate the railway makes the claim for the value of the lost goods. That can only be on the basis that the cause of action was complete

when the ""C"" certificate was issued, otherwise, we cannot understand how a claim for payment of value of the lost goods can be made when the

cause of action had not arisen at all. We therefore hold, differing from the learned Judge of the City Civil Court, that the cause of action in this case

arose on the date of the ""C"" certificate and since the suit was not filed within Six months from that date, it was barred by limitation.

In this view it may not be necessary to go into the other contention raised by counsel for the appellant, though we may briefly indicate that that

contention has no merits. The argument was that the Port Trust had taken every precaution to safeguard the goods by engaging watchmen, locking

the doors of their warehouses and making ether arrangements for the safety of the goods in their custody and therefore they had discharged their

responsibility as bailees. The goods in question were bulky goods, easily identifiable and stored. To say that in respect of such goods the liability of

the Port Trust was discharged by engaging watchmen, locking the warehouse and taking other precautions, would be to ask us to accept the

impossible.

It is no satisfaction to the consignee that the Port Trust engaged watchmen, locked their warehouses and took precautions necessary for

safeguarding the goods, in the case of goods like steel castings, which are contained in bulky packages, the Port Trust must be able to exercise

sufficient vigilance over the warehouses to see that such bulky articles are lost by theft.

The only explanation which the Port Trust could possibly give for the loss of the goods was that they were stolen. That explanation could not be

accepted having regard to the nature of the goods and therefore the explanation offered cannot be accepted as sufficient to discharge the liability

which lay upon the Port Trust as bailees. On that point we are in agreement With the finding of the learned Judge in the court below. However, In

view of our finding on the question of limitation, the appeal is allowed, the decree of the lower court is set aside and the suit is dismissed. We do

not award costs to the appellant in this court. We are informed that the costs awarded by the lower court has already been recovered by the

respondent. The reversal of the decree of the lower court will not extend to modification of the order for costs made by the lower court.