ORDER
D.G. Karnik, J.
1. Heard learned counsel for the parties. Learned counsel submits that facts in both the suits and both the notice of motions are similar except change of dates and numbers of containers. It would therefore be, convenient to refer to the facts in suit No. 3609 of 2003.
2. Plaintiff No. 1 is a shipping company. The plaintiff No. 3 was agent of the plaintiff No. 1 till April, 1995 and plaintiff No. 2 has been appointed as its agent since Feb. 1998. The defendant No. 1 is the Port Trust constituted under the Bombay Public Trust, 1879 and functioning under the Major Port Trust Act, 1963. The defendant No. 2 is shown as “Notify party/Intermediate consignee” in the relevant Bill of Lading. Mohammed and Nassari Co. WLL are consignors who shipped the goods (21 containers of steel scrap) through the defendant No. 1, to Mumbai Port under a Bill of Lading dated 26th June, 1993. Goods were to be delivered to the order of the shipper and name of the defendant No. 2 was only shown as “Notify Party/ Intermediate consignee” in the relevant Bill of Lading. In July, 1993 goods arrived at Bombay Port and were delivered by the plaintiff No. 1 to the defendant No. 1, Port Trust. There were some disputes between the plaintiff No. 1 and the defendant No. 2 who contended that the plaintiff No. 1 was bound to deliver the goods to it at Ludhiana under the contract. On this count, the defendant No. 2 did not clear the goods. As the goods were not cleared within a period of two months, the defendant No. 1 issued a notice for sale of the goods on 10th Nov. 1993. Thereupon, the defendant No. 2 filed two suits in the court of the Sub Judge, at Ludhiana, one against the plaintiff No. 1 claiming mandatory injunction directing the plaintiff No. 1 to deliver the goods to the defendant No. 2 at Ludhiana, and another against the defendant No. 1, the defendant No. 2 claiming injunction restraining the defendant No. 1 from selling the goods in pursuance of the sale notice dated 10th Nov. 1993. An injunction was granted by the Sub Judge restraining the defendant No. 1 from effecting the sale, which was vacated only on or about 27th August, 1997. The plaintiff was not a party filed against the defendant No. 1 and claims to be unaware of any injunction granted against the defendant No. 1. After vacating of the injunction, the defendant No. 1 attempted to sell the goods for the recovery of the demurrage. However, in the suit filed by the defendant No. 1 against the defendant No. 2, in respect of the goods, receiver was appointed by this Court on 9th Oct. 1997 with power to sell the goods. The goods have ultimately been sold in Oct, 2002. It is not in dispute between the parties that goods which were delivered by the plaintiff in Nov. 1993 remained in its custody till their sale.
3. According to the defendant No. 1, it is entitled to recover a sum of Rs. 6.53 crores (amount rounded of) by way of demurrage and other charges in respect of the said 21 containers. The defendant No. 1, therefore, issued four notices of demand dated 29th March, 2003, 3rd June, 2003, 11th July, 2003 and 29th July, 2003 (Exhibits G, J, J and L) for recovery of demurrage and other charges due to it. The plaintiff challenged the said notices by filing of a writ petition which was withdrawn with liberty to file a suit as the petition involved disputed questions of fact. The plaintiff has accordingly filed the present suit in which the present notice of motion has been taken out inter alia for an injunction restraining the defendants from implementing and/or acting in furtherance of the said notices and restraining the defendant No. 1, from taking any coercive steps for the recovery of the demurrage and other charges and exercising a lien under Section 171 of the Contract Act.
4. The learned counsel contended that even though the goods were delivered to the defendant No. 1 by the plaintiff No. 1, as a ship owner, it could not be regarded as a bailor. He relied upon the Judgment of the Supreme Court in Board of Trustees of Port Trust of Bombay v. Sriyanesh Knitters wherein the Supreme Court observed (at para 25) at page 2956, of AIR
“The provision of Section 2(o) of the MPT Act regards, in relation to goods, the consignee as the owner thereof, Reading the same along with the Bills of Lading Act, the consignee of the goods named in the Bill of Lading or every endorsee of the bill of lading, for the purpose of the MPT Act, is regarded as the owner of the goods and it is from that owner that the appellant is entitled to recover charges under the MPT Act in respect of the said goods. The High Court was not right in holding that the contract was between the ship owner and the Port Trust. The correct position is that the contract is between the Port Trust and the holder of the bill of lading which in this case would be the consignee. It is the consignee which is the bailor with the Port Trust being the consignee “sic bailee.”
5. Relying on these observations, the learned Counsel contended that in the present case also, the plaintiff No. 1 who was the shipowner cannot be regarded as the bailor but the defendant No. 2 who was the consignee would have to be regarded as a bailor. He therefore, submitted that a right of lien under Section 171 of the Contract Act could be exercised only against the defendant No. 2 who was the bailor and not against the plaintiff No. 1.
6. Per contra, the learned counsel for the defendant No. 1 relied upon the judgment of the Constitution Bench of the Supreme Court in the case of Trustees of Port of Madras vis. K.P.V. Sheikh Mohammed Rowther and the Company Ltd. reported in 1963 Supp (2) SCR 915. At page 940 of the reports, the Supreme Court observed thus :
“The person delivering the goods is called the bailor and the person to whom they are delivered is called the bailee. It is clear therefore that when the Board takes charge of the goods from the shipowner, the shipowner is the bailor and the Board is the bailee, and the Boards responsibility for the goods thereafter is that of a bailee. The Board does not get the goods from the consignee. It cannot be the bailee of the consignee. It can be the agent of the consignee only if so appointed, which is not alleged to be the case, and even if the Board be an agent, then its liability would be as an agent and not as a bailee. The provisions of Sections 39 and 49, therefore further support the contention that the Board takes charge of the goods on behalf of the shipowner and not on behalf of the consignee, and whatever services it performs at the time of the landing of the goods or on their removal thereafter, are services rendered to the ship.”
7. When the goods are delivered by the shipper (consignor) to the shipping company for the purpose of transportation, the shipowner or the shipping company transports the goods usually up to the destination port where the goods are delivered to the port authorities (Port Trust) and the goods are collected by the Port Trust and delivered to the consignee on production of the Bill of Lading. The Bill of Lading confers upon a right on the consignee to collect the goods . Sometimes, however, the consignor himself is the consignee in which case the goods are deliverable to the order of the consignor by the Port Trust. When the Port Trust takes charge of the goods from the shipowner, thesis owner is usually the bailor Anthill Port Trust is the bailee. In the case of Rowther, the Supreme Court held that the shipper is the consignor and the Board of Trustees takes charge of the goods on behalf of the shipowner and not on behalf of the consignee. In the case of Sriyanesh Knitters after considering the judgment of the Constitution Bench in Rowther’s case, it was held that the contract of bailment was between the consignee and Board of Trustees and not between the shipper and the Port Trust. Earlier decision of the Constitution Bench of the Supreme Court in Rowthers case was distinguished. In the case of Sriyanesh Knitters, a distinguishing feature was that the consignee was named in the Bill of Lading. It was held that under Section 2(o) of the Major Port Trust Act, the consignee of the goods named in the Bill of Lading and other endorsee or the Bill of Lading is regarded as the owner of the goods and is therefore regarded as the bailor. What is therefore, required to be seen is who is the owner of the goods when the goods are delivered to the Port Trust. If the consignor continues to be the owner of the goods then the shipowner who is the agent of the consignor would be regarded as the bailor but, if the property in the goods has been passed to the consignee then the goods are delivered to the Port Trust for and on behalf of the consignee of the goods and the shipowner would not normally be the bailor of the goods,
8. In the present case, as stated earlier the defendant No. 2 is not shown as a consignee but is only shown as a notified party/ intermediate consignee. The Bill of Lading shows that the goods were deliverable to the order of the consignor. Thus, the consignor continued to be the owner of the goods. The goods were not delivered to the defendant No. 1, Port Trust by the plaintiff No. 1 on behalf of the defendant No. 2. In para 13, of the affidavit in reply, Mr. Sanjeevkumar, Assistant Docks Manager of the defendant No. 1 has stated thus :
“I say that in the present case, indisputably, the plaintiffs are the agents of the concerned consignments /containers which are discharged in the custody of the defendant No. 1 herein, Further, the plaintiffs herein have not even issued necessary delivery order in favour of the consignee.”
In rejoinder affidavit filed on behalf of the plaintiff No. 1, Mr. Jude Ferara has stated in para 18:
“I say that in the facts and circumstances of the present case the delivery order would not be issued because defendant No. 2 did not surrender the original bill of lading. A delivery order is only issued on surrendering the original Bill of Lading and not otherwise.”
9. The defendant No. 1 has specifically stated that the necessary delivery orders for the delivery of the goods to the consignee were not issued. The plaintiff has admitted that the delivery order was not issued. In other words, the defendant No. 2 could not have claimed the delivery of the goods from the defendant No. 1 without the delivery order from the plaintiff No. 1, Shipping Company. This shows that at the time the goods were delivered to the Port Trust by the Plaintiff No. 1, the property in the goods still vested in the consignor and the goods were deliverable only to the order of the consignor. Thus, the distinguishing feature which was present in the case of Sriyanesh Knitters is absent in the present case and the present case is squarely covered by the Judgment of the Constitution Bench of the Supreme Court in Rowthers case.
10. In the case of Trustees of Port of Madras v. K.P.V. Sheikh relied upon by the learned counsel for the plaintiff, the issue was whether the consignee was liable to pay wharfage and demurrage charges to the Port Trust. The Supreme Court quoted with approval a passage from the Judgment of the High Court which reads as under :
The person delivering the goods is called the bailor and the person to whom they are delivered is called the bailiff. His, clear there fore that when the Board takes charge of the goods from the shipowner, the shipowner is the bailor and the Board is the bailee, and the Boards responsibility for the goods thereafter is that a bailee. The Board does not get the goods from the consignee. It cannot be the bailee of the consignee. It can be the agent of the consignee only if so appointed, which is not alleged to be the case and even if the Board be an agent, then its liability would be as an agent and not as bailee. The provisions of Sections 39 and 40, therefore, further support the contention that the Board takes charge of the goods on behalf of the consignee and whatever services it performs at the time of the landing of the goods or on their removal thereafter are services rendered to the ship.”
(Underlining supplied)
11. Thus, the Supreme Court approved that the shipowner would be the bailor of the goods and the Port Trust would be the agent of the consignee only if it was so appointed. In the present case, the Bill of Lading was not endorsed in favour of the defendant No. 2. The delivery order was also not issued. In the circumstances, the goods were delivered to the defendant No. 1 by the plaintiff No. 1 not as an agent of the defendant No. 2 as the defendant No. 2 was not a consignee and was not entitled to the delivery of the goods without the endorsement of the delivery order. Thus, prima facie, it cannot be said that the plaintiff No. 1 is not liable to for the demurrage payable.
12. In the case of Shivkumar Chhadda v. Municipal Corporation of Delhi , the Supreme Court observed thus :
“It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit, the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is thus to maintain the status quo. The Court grants such relief according to the legal principles ex debito justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him.”
13. It is clear that for the grant of interim injunction, the plaintiff is required to make out a strong prima facie case and prove that the balance of convenience is in its favour. The Court may also take into consideration the public interest. In the present case, the defendant No. 1 is a statutory body which provides the port and wharfage facilities. If the goods which have been unloaded are not cleared within a reasonable time, the Port Trust is required to make arrangements for storage, a large area is required for storage and if all the area of the part is occupied in storing the uncleared goods, then it may not be able to unload new incoming cargo. Hence, it levies demurrage which is often substantial. Under Section 171 of the Contract Act, the defendant No. 1 is entitled to a lien for the recovery of demurrage. The defendant No. 1 is seeking to exercise a statutory lien. If it is to be prevented from exercising a statutory lien, it must be sufficiently secured. As the dues of the defendant No. 1 are to the extent of Rs. 6.53 crores, an injunction can be granted against the defendant No. 1 only if the plaintiff furnishes security to the extent of Rs. 6.53 crores to the satisfaction of the Prothonotary and Senior Master.
14. Accordingly, ad interim injunction in terms of prayer Clauses (a) and (b) is granted subject to furnishing security in the sum of Rs. 6.53 crores to the satisfaction of the Prothonotary and Senior Master. In respect of the Notice of Motion No. 3405 of 2003, there shall be ad interim order of injunction in terms of prayer Clauses (a) and (b) subject to the plaintiff No. 1 furnishing security of Rs. 11.65 crores (which is the amount of demurrage in that case) to the satisfaction of Prothonotary and Senior Master.
15. Learned counsel for the plaintiff states that ad interim order was granted by this Court on 20th Nov. 2003. Thereafter, statement made by learned counsel for the defendant No. 1, that defendant No. 1 would not take any coercive steps till the hearing on ad interim relief. Hence, the defendant No. 1 is directed not to take coercive steps against the defendant No. 1 for a period of four weeks from today.