{"id":153165,"date":"1999-07-30T00:00:00","date_gmt":"1999-07-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-board-of-trustees-of-the-port-of-vs-ms-sriyanesh-knitters-on-30-july-1999"},"modified":"2015-06-29T08:11:18","modified_gmt":"2015-06-29T02:41:18","slug":"the-board-of-trustees-of-the-port-of-vs-ms-sriyanesh-knitters-on-30-july-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-board-of-trustees-of-the-port-of-vs-ms-sriyanesh-knitters-on-30-july-1999","title":{"rendered":"The Board Of Trustees Of The Port Of … vs M\/S Sriyanesh Knitters on 30 July, 1999"},"content":{"rendered":"
Supreme Court of India<\/div>\n
The Board Of Trustees Of The Port Of … vs M\/S Sriyanesh Knitters on 30 July, 1999<\/div>\n
Author: Kirpal<\/div>\n
Bench: U.Cbanerjee, B.N.Kripal<\/div>\n
           PETITIONER:\nTHE BOARD OF TRUSTEES OF THE PORT OF BOMBAY AND ORS.\n\n\tVs.\n\nRESPONDENT:\nM\/S SRIYANESH KNITTERS\n\nDATE OF JUDGMENT:\t30\/07\/1999\n\nBENCH:\nU.CBanerjee, B.N.Kripal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
      KIRPAL, J.\n<\/p>\n
      The  common  question  involved in  these\t appeals  is
\nwhether\t the appellant – Board of Trustees of the Port Trust
\nconstituted under the Major Port Trusts Act, 1963 (for short
\nthe  MPT Act) have a general lien for their dues over  the
\npresent\t or future consignments imported by the importers at
\nthe  Bombay  Port when the said dues are in respect  of\t the
\npast imports made by the said importers.\n<\/p>\n
      The respondents in these appeals are importers who had
\nimported  various consignments of woollen rags from time  to
\ntime.  After the arrival of these consignments at the Bombay
\nPort  a dispute arose between the respondents and the custom
\nauthorities  as\t to whether the imported goods were  woollen
\nrags or woollen garments.  After considerable period of time
\nthe   imported\t goods\twere   confiscated  by\tthe   custom
\nauthorities  but  the  importers secured orders to  get\t the
\ngoods  released on payment of fine.  During this period\t the
\nimported  goods\t remained  at the docks till  the  order  of
\nconfiscation was passed.\n<\/p>\n
      In  respect  of  the  period during  which  the  goods
\nremained  at the docks the appellants issued notices to\t the
\nrespondents demanding demurrage charges.  With the exporters
\ndenying\t the liability the Port Trust authorities instituted
\nvarious suits to recover wharfage and demurrage charges.  We
\nare in these appeals not concerned with the suits.\n<\/p>\n
      After  the aforesaid suits had been instituted acrylic
\nfibre was imported by the respondents.\tWhen the consignment
\narrived\t in Bombay Port the respondents filed bills of entry
\nfor  clearance\tof  the goods for  home\t consumption.\tWhen
\nnecessary  permission was granted by the custom\t authorities
\nthe  appellant\tBoard was called upon to release the  goods.
\nThese  goods  were  not\t released by  the  appellant  as  it
\ndemanded  payment in respect of wharfage and demurrage which
\nwas  due  from\tthese  respondents  in\trespect\t of  earlier
\nconsignments  of  woollen  rags which had been\timported  by
\nthem.\tThis refusal of the appellants to allow the  removal
\nof  the goods was based on a circular dated 2nd October 1979
\nwhich had been issued by the appellants.  The said circular,
\ninter alia, stated as follows:\n<\/p>\n
\tThe  Board of Trustees of the Port of  Bombay  have
\nbeen  advised that under Section 171 of the Indian  Contract
\nAct,  1872, they have a general lien which they can exercise
\non  the\t goods which came into their custody  of  importers,
\nexporters,  owners,  consignee\twho   have  for\t any  reason
\nwhatsoever not paid the Port Trust charges such as wharfage,
\ncrainage,  storage demurrage or any other dues in respect of
\nany  earlier consignment\/s imported\/exported or sought to be
\nexported by them.\n<\/p>\n
      In  the circumstances this department will exercise  a
\nlien  for General Balance of account in respect of wharfage,
\ncrainage,  storage, demurrage and other dues of the Board of
\nTrustees    of\t the   Port    of   Bombay    against\t the
\nimporters\/exporters, owners of consignees of the goods taken
\ncharge of by the Board of the Trustees.\n<\/p>\n
      The  respondents\tthen  filed   writ  petitions  under
\nArticle\t 226  of  the Constitution of India in\tBombay\tHigh
\nCourt  seeking a declaration that the aforesaid circular was
\nultra virus of MPT Act and was violative of Articles 14, 19,
\n265 and 300A of the Constitution of India.  The relief which
\nwas sought was that the appellants herein should withdraw or
\ncancel\tthe  circular and deliver the consignments of  goods
\nimported by the respondents and detained under the Circular.
\nDuring\tthe pendency of the writ petition a single judge  of
\nthe High Court, by an interim order, directed the release of
\nthe  consignments of acrylic fibre on the undertaking of the
\nrespondents to give a bank guarantee for an amount due which
\nmay  be\t claimed by the appellants in respect of  the  suits
\nfiled in the court.\n<\/p>\n
      The  contention  of  the respondents before  the\tHigh
\nCourt  was  that the appellants were not entitled  to  claim
\ngeneral\t lien  under Section 171 of the Contract Act,  inter
\nalia,  for the reason that there was no existing contractual
\nrelationship  between  the appellants and  the\trespondents.
\nThey  also contended that the MPT Act was a complete code in
\nitself and it was not permissible for the appellants to rely
\non  the\t provisions  of the Contract Act so as\tto  claim  a
\ngeneral\t lien.\t The appellants herein contended  that\tthey
\nwere  entitled\tto  exercise  general lien  as\tprovided  by
\nSection\t 171 of the Contract Act as they were wharfingers to
\nwhom acrylic fibre had been bailed.\n<\/p>\n
      The single judge by judgment dated 24th November, 1982
\nallowed the writ petition and granted the relief sought for.
\nThe  appellants\t were  directed to withdraw  or\t cancel\t the
\ncircular  dated\t 2nd October, 1979 and it was,\tinter  alia,
\nheld  that  the\t appellants herein could not  in  law  claim
\ngeneral\t lien  under Section 171 of the Contract  Act.\t The
\nappellants then filed LPA before the High Court, but without
\nany success.  The Division Bench held as under:\n<\/p>\n
      (a) There is no right of general lien in favour of the
\nPort Trust under the provisions of the Port Trust Act.\n<\/p>\n
      (b)  The\tPort Trust does not have a right of  general
\nlien under Section 171 of the Indian Contract Act.\n<\/p>\n
      (c)  The\tright of the Port Trust flows only from\t the
\nprovisions  of\tthe Port Trust Act and thus the claim for  a
\ngeneral\t lien  by reason of a possessory bailment  has\tbeen
\nnegatived by the Learned Judges.\n<\/p>\n
      (d)  The\tgeneral lien in favour of the Port Trust  is
\nexcluded  by the provisions of the Port Trust Act which is a
\ncomplete  code\titself\tand is comprehensive in\t respect  of
\ncollection and recovery of charges.\n<\/p>\n
      The   learned  Additional\t  Solicitor  General   first
\ncontended  that the appellants had a general lien under\t the
\nprovisions  of\tthe MPT Act on the acrylic fibre  which\t had
\nbeen  imported\tin  respect of the earlier dues.   For\tthis
\nsubmission  reliance  was sought to be placed  primarily  on
\nSections  59  and  61  of  the\tMPT  Act.   Section  59\t and
\nsub-section  (1) of Section 61, which are relevant, read  as
\nfollows:\n<\/p>\n
      59.   Boards lien for rates – [1] For the amount\tof
\nall rates (leviable under this Act) in respect of any goods,
\nand  for  the  rent  due to the\t Board\tfor  any  buildings,
\nplinths,  stacking  areas, or other premises on or in  which
\nany  goods may have been placed, the Board shall have a lien
\non  such goods and may seize and detain the same until\tsuch
\nrates and rents are fully paid.\n<\/p>\n
      [2] Such lien shall have priority over all other liens
\nand  claims,  except  for  general   average  and  for\t the
\nship-owners  lien upon the said goods for freight and other
\ncharges where such lien exists and has been preserved in the
\nmanner\tprovided  in sub-section (1) of Section 60, and\t for
\nmoney  payable to the Central Government (under any law\t for
\nthe  time being in force relating to customs, other than  by
\nway of penalty or fine.]<\/p>\n
      61.   Sale of goods after two months if rates or\trent
\nare  not paid or lien for freight is not discharged – [1]  A
\nBoard may, after the expiry of two months from the time when
\nany  goods  have passed into its custody, or in the case  of
\nanimals\t and perishable or hazardous goods after the  expiry
\nof such shorter period not being less than twenty-four hours
\nafter  the landing of the animals or goods as the Board\t may
\nthink  fit,  sell by public auction (or in such case as\t the
\nBoard  considers  it necessary so to do, for reasons  to  be
\nrecorded in writing, sell by tender, private agreement or in
\nany  other manner], such goods or so much thereof as, in the
\nopinion of the Board, may be necessary –\n<\/p>\n
      (a)  if  any rates payable to the Board in respect  of
\nsuch goods have not been paid, or<\/p>\n
      (b) if any rent payable to the Board in respect of any
\nplace  on  or in which such goods have been stored  has\t not
\nbeen paid, or<\/p>\n
      (\t c)  if\t any lien of any ship-owner for\t freight  or
\nother  charges\tof which notice has been given has not\tbeen
\ndischarged  and if the person claiming such lien for freight
\nor  other  charge has made to the Board an  application\t for
\nsuch sale.\n<\/p>\n
      Plain  reading of Section 59 shows that in respect  of
\nany  goods  which are imported the Board has a lien for\t the
\namount\tof all rates leviable under the Act and for the rent
\ndue to it and it also has a lien on such goods and the Board
\nmay seize and detain the same until such rates are paid.  It
\nis  clear  that it is only in respect of the amount due\t qua
\nthe  goods  imported and existing there that the  Board\t has
\nalien  under Section 59.  Under Section 61 (1), in  exercise
\nof  its lien, the Board is empowered to sell the said  goods
\nfor  realisation  of the amount due to it.  Reading the\t two
\nsections  together  it is clear that the goods which can  be
\nsold  in  exercise of its lien are only those in respect  of
\nwhich  amount  is due and payable to the Board.\t  The  words
\nsuch  goods in Section 61 (1) has reference to those goods
\nin  respect  of which rates due to the Board have  not\tbeen
\nfully paid.\n<\/p>\n
      Coming  to  the facts of the instant case\t the  amount
\nwhich  was  claimed by the appellants was in respect of\t the
\nconsignment of woollen rags.  There can be little doubt that
\nin respect of the amount claimed by the Board the provisions
\nof  Sections  59 and 61 (1) would have been applicable\twith
\nregard\tto  the said consignment of woollen rags.   But\t the
\ncontention  now\t is that it is in respect of the said  dues,
\nrelatable to woollen rags, that the Board has a general lien
\non  the\t subsequent  consignment  of  acrylic  fibre.\tThis
\ncontention  is clearly untenable because, as we have already
\nobserved,  Sections 59 and 61(1) give a lien on those  goods
\nin  respect of which amount is claimed or due under  Section\n<\/p>\n
59.  The Board was not demanding or claiming lien on acrylic
\nfibre  on  the ground that any amount in respect of  acrylic
\nfibre was due.\tOnce it appears that the lien referred to in
\nSections  59  and  61(1) is only those goods in\t respect  of
\nwhich  amount is due it is clear that the said provisions do
\nnot  contemplate  a  general  lien   as\t contended  by\t the
\nappellants.   The  High Court, in our opinion, was right  in
\ncoming\tto  the\t conclusion that the lien conferred  on\t the
\nBoard under Section 59 of the MPT Act was not a general lien
\nbut was a lien on specific goods.\n<\/p>\n
      It was then contended on behalf of the appellants that
\nas  wharfingers\t they are entitled to a general\t lien  under
\nSection\t 171 of the Contract Act.  In this connection it was
\nsubmitted  that\t the  High  Court erred\t in  coming  to\t the
\nconclusion  that  the MPT Act was a complete code in  itself
\nand that Section 171 of the Contract Act was not applicable.\n<\/p>\n
      The  MPT Act is not, in our opinion, an exhaustive and
\ncomprehensive  code and the said Act has to be read together
\nwith other acts wherever the MPT Act is silent in respect of
\nany  matter.  The MPT Act itself refers to other  enactments
\nwhich  would  clearly  indicate that the MPT Act  is  not  a
\ncomplete  code\tin itself which ousts the  applicability  of
\nother  acts.  The preamble of the Act does not show that  it
\nis  a  codifying Act so as to exclude the  applicability  of
\nother  laws  of\t the land.  Even if it is  a  codifying\t Act
\nunless a contrary intention appears it is presumed not to be
\nintended  to  change  the  law.\t  [See\tBennions  Statutory
\nInterpretation,\t Second Edition page 444] Furthermore  where
\ncodifying   statute  is\t silent\t on  a\tpoint  then  it\t  is
\npermissible  to\t look at other laws.  In this connection  it
\nwill  be useful to refer to the following observation of the
\nHouse  of  Lords  in  Pioneer\tAggregates  (UK)  Ltd.\t Vs.
\nSecretary of State for the Environment and others [(1984)] 2
\nAll ER 358 at page 363]:\n<\/p>\n
      Planning\tlaw, though a comprehensive code imposed in
\nthe  public  interest,\tis, of course, based  on  land\tlaw.
\nWhere  the  code  is  silent or\t ambiguous,  resort  to\t the
\nprinciples  of private law (especially property and contract
\nlaw)  may  be  necessary  so that  the\tcourts\tmay  resolve
\ndifficulties  by  application  of common  law  or  equitable
\nprinciples.   But  such cases will be exceptional.  And,  if
\nthe  statute  law  covers  the\tsituation,  it\twill  be  an
\nimpermissible exercise of the judicial function to go beyond
\nthe  statutory provision by applying such principles  merely
\nbecause\t they may appear to achieve a fairer solution to the
\nproblem\t being considered.  As ever in the field of  statute
\nlaw  it\t is  the duty of the courts to give  effect  to\t the
\nintention  of  Parliament  as  evinced by  the\tstatute,  or
\nstatutory code, considered as a whole.\n<\/p>\n
      In J.K.  Steel Ltd.  Vs.\tUnion of India ([1969] 2 SCR
\n481 ) it was held that cognate and pari -materia legislation
\nshould\tbe  read  together  as forming\tone  system  and  as
\ninterpreting  and enforcing each other.\t In B.C.  Shukla vs.
\nKhubchand<\/a>  ([1964] 6 SCR 129} it was held that Code of Civil
\nProcedure  has to be read along with the Limitation Act.  In
\nState of Madras Vs.  V.\t Iyer<\/a> ( 1958 SCR 580) at page 590 it
\nwas  held  that Prevention of Corruption Act should be\tread
\nalong  with  the  Evidence  Act.  In Mannan  Lal  Vs.\tMst.
\nChhotaka  Bibi ([1971] 1 SCR 253) it was held that the\tCode
\nof  Civil Procedure has to be read along with the Court Fees
\nAct.   In V.R.\tShelat Vs.  Pranlal ([1975) 1 SCR 534)\tthis
\nCourt  observed that the Companies Act should be read  along
\nwith the Transfer of Property Act.\n<\/p>\n
      From  the aforesaid decisions it clearly follows\tthat
\nit  is\tpermissible to read the provisions of the  two\tActs
\ntogether  when the same are complementary to each other.  In
\nfact  some  provisions of the MPT Act themselves  show\tthat
\nother laws are applicable.\n<\/p>\n
      It   is  an  Act\twhich\tmakes  provision   for\t the
\nconstitution   of   port    authorities\t   and\t vests\t the
\nadministrative\tcontrol and management of such ports in such
\nauthorities  and  provides for matters connected  therewith.
\nTo  the\t extent provisions of the said Act  are\t applicable,
\nthere  can  be little doubt that any provision which  is  in
\nconflict  therewith  contained\tin any other Act  would\t not
\napply.\tThe enactment of MPT Act does not ipso facto exclude
\nthe  operation\tof  other  laws\t which\tmay  be\t applicable.
\nWherever a departure from the general law has to be made the
\nAct  specifically  provides for the same.  This\t is  evident
\nfrom the following provisions:\n<\/p>\n
      {a} Section 29 (2) provides that the provisions of the
\nIndustrial  Act 1947 or any other law for the time being  in
\nforce  will not apply to the claim for compensation made  by
\nan employee whose services are transferred to the Board.\n<\/p>\n
      {b}   Section  47\t of  the   MPT\tAct   provides\t for
\ncompensation  payable  in  certain cases where\tuse  of\t any
\nprivate\t wharf etc.  is rendered unlawful.  Sub-section\t (3)
\nprovides  for the manner in which the compensation is to  be
\ndetermined  and\t in the absence of agreement arbitration  is
\ncontemplated.\tClause\t(i)  of\t  Section  47(3),   however,
\nspecifically  states  that the Arbitration and\tConciliation
\nAct, 1996 shall not apply to the arbitrations under the said
\nsection.   The\tsaid  provision\t makes the  general  law  of
\narbitration  contained\tin the Arbitration and\tConciliation
\nAct inapplicable.\n<\/p>\n
      {c  }  Section  68 of the MPT Act is important  as  it
\nprovides  that\tnotwithstanding the provisions contained  in
\nSection\t 45 of the Indian Contract Act, 1872 in case of Port
\nTrust  security\t payment would be made to joint\t promise  in
\naccordance  with  the provisions contained in Section 68  of
\nthe  MPT  Act and not in accordance with Section 45  of\t the
\nIndian\tContract  Act.\t Thus Section 68  makes\t a  specific
\ndeparture  from\t the provisions of Section 45 of the  Indian
\nContract Act.\n<\/p>\n
      {d}  Sections  70 and 71 of the MPT Act make  specific
\ndeparture  of  the  provisions contained in  the  Negotiable
\nInstruments  Act, 1881 regarding endorsements to be made  on
\nPort Trust security and the effect thereof.\n<\/p>\n
      The  aforesaid  sections of the MPT Act  clearly\tshow
\nthat  the  said Act is not exhaustive or comprehensive\tcode
\nand it envisages joint reading with other relevant statutes.
\nWhenever  any  departure  has  to be made  from\t other\tlaws
\nspecific  provision to that effect has been made in the\t MPT
\nAct.\n<\/p>\n
      The High Court has rightly come to the conclusion that
\nthe MPT Act and Sections 59 and 61 in particular do not give
\nto the appellants the general lien which it is claiming.  In
\nother words it is because the MPT Act does not provide for a
\ngeneral\t lien  that  the  appellants   are  relying  on\t the
\nprovisions of Section 171 of the Contract Act.\tThis, in our
\nopinion,  is  permissible.  It is not possible to hold\tthat
\nthe  MPT  Act ousts the applicability of the  provisions  of
\nSection\t 171  of the Contract Act under which the  Board  is
\nclaiming  a  right  of general lien as\ta  wharfinger.\t The
\ngeneral\t lien  of  the type contemplated by Section  171  in
\nrespect of the past dues is not provided for by the MPT Act.\n<\/p>\n
      There  is\t another aspect which is relevant.   Section
\n171  of the Contract Act only enables the retention of goods
\nas  security.  On the other hand in respect of current\tdues
\nin  respect of existing goods in their possession the  Board
\nnot  only has a lien under Section 59 of the MPT Act but  it
\nalso  has the power to sell the said goods and realise\tits
\ndues  by virtue of Section 61 of the MPT Act.  The procedure
\nfor exercising this power of sale of the goods in respect of
\nwhich  the Board has lien is contained in the said  section.
\nBefore\tselling\t the  goods no order of any court  or  other
\njudicial  authority  is\t required.  On the  other  hand\t the
\ngeneral lien contemplated by Section 171 of the Contract Act
\nonly  enables  the  retention  of  the\tbailed\tgoods  as  a
\nsecurity.   Their retention does not give any power to\tsell
\nthe  goods, unlike the power contained in Section 61 of\t the
\nMPT  Act.   If payment is not made by the consignee  to\t the
\nwharfinger,  in a case where Section 171 of the Contract Act
\napplies,  the wharfinger can only retain the goods bailed as
\nsecurity and will have to take recourse to other proceedings
\nin  accordance\twith law for securing an order\twhich  would
\nthen  enable  the  goods to be sold for realisation  of\t the
\namounts\t due to it.  It may in this connection, be necessary
\nfor  the  wharfinger to file a suit for the recovery of\t the
\namount\tdue  to\t it and Section 131 of the MPT\tAct  clearly
\nprovides that such a remedy of filing a suit is available to
\nthe  Board.  The added advantage of sale given by Section 61
\nof  MPT Act in respect of current dues cannot be regarded as
\nwhittling  down\t the  right  of general\t lien  contained  in
\nSection 171 of Contract Act in respect of old dues.\n<\/p>\n
      Having  come  to the conclusion that the MPT Act\tdoes
\nnot  oust the provisions of Section 171 of the Contract\t Act
\nwhat  we have now to see is whether the appellants can claim
\nany  relief or benefit under the said section.\tSection\t 171
\nof the Indian Contract Act, 1872, reads as follows:\n<\/p>\n
      171  General  lien of bankers, factors,  wharfingers,
\nattorneys,   and   policy-brokers    –\t Bankers,   factors,
\nwharfingers,  attorneys\t of a High Court and  policy-brokers
\nmay, in the absence of a contract to the contrary, retain as
\na  security  for  a general balance of\taccount,  any  goods
\nbailed\tto  them;   but\t no other persons have\ta  right  to
\nretain,\t as  a\tsecurity for such balance, goods  bailed  to
\nthem, unless there is an express contract to that effect.\n<\/p>\n
      This  section  is in two parts.  The first part  gives
\nstatutory  right  of lien to four categories  only,  namely,
\nbankers,  factors,  wharfingers and attorneys of High  Court
\nand  policy-brokers  subject  to their\tcontracting  out  of
\nSection\t 171.\tThe  second part of Section 171\t applies  to
\npersons\t other\tthan aforesaid five categories and  to\tthem
\nSection\t 171  does not give a statutory right of  lien.\t  It
\nprovides  that\tthey  will  have  no  right  to\t retain\t  as
\nsecurities  bailed  to\tthem  unless  there  is\t an  express
\ncontract  to  that effect.  Whereas in respect of the  first
\ncategory  of person mentioned in Section 171 section  itself
\nenables\t them to retain the goods as security in the absence
\nof  a  contract to the contrary but in respect of any  other
\nperson\tto whom goods are bailed the right of retaining them
\nas  securities can be exercised only if there is an  express
\ncontract to that effect.\n<\/p>\n
      The appellants in the present case are contending that
\nthey  are wharfingers and the goods which were imported\t and
\noff  loaded  at\t the  port were with them  as  bailee.\t The
\nsubmission  of\tthe learned counsel for the  appellants\t was
\nthat  in the absence of a contract to the contrary as bailee
\nof  the\t goods now imported, namely, acrylic fibre the\tsaid
\nconsignment  could be retained by the appellants as security
\nfor  the  amount due to them towards wharfage and  demurrage
\ncharges\t in  respect of the earlier consignment\t of  woollen
\nrags.\tWhile  considering this contention we have  also  to
\nexamine\t whether the claim for wharfage and demurrage  could
\nbe  covered  by the expression general balance of  account
\noccurring in Section 171 of the Contract Act.\n<\/p>\n
      Wharf  is\t defined in Jowitts dictionary of  English,
\nSecond\tEdition,  as being  a broad plain place, near  some
\ncreek  or haven, to lay goods and wares on that are  brought
\nto  on\tfrom  the water.  In Webster  dictionary  wharf\t is
\ndefined as  a structure of masonry or timber erected on the
\nshore  of  a  harbor, river, or the  like,  alongside  which
\nvessels\t may  lie to load or unload cargo, passengers  etc.;
\nalso,  any  landing place for vessels, as a pier  or  quay.
\nRamanatha  Aiyars The Law Lexicon, Second Edition,  defines
\nwharf  as a landing stage built especially along the  shore
\nfor  loading or unloading vessels.  The MPT Act contains an
\ninclusive definition of wharf in Section 2 (za) and provides
\nthat  wharf  includes any wall or stage and any part of\t the
\nland  or foreshore that may be used for loading or unloading
\ngoods,\t or  for  the\tembarkation  or\t disembarkation\t  of
\npassengers and any wall enclosing or adjoining the same.\n<\/p>\n
      Wharfinger  is not defined in the Act but in  Jowitts
\ndictionary  of\tEnglish\t Law wharfinger is  defined  as\t the
\noccupier  of wharf and it is further stated that as a rule,
\nwharfingers  have  a general lien for the balance  of  their
\naccount.   In Ramanatha Aiyars The law Lexicon\twharfinger
\nis  defined  as\t meaning the occupier of a wharf  or\ta
\nperson who owns a wharf.\n<\/p>\n
      The  appellants are the owners of the wharf at  Bombay
\nwhere  the consignments of the respondents were\t discharged.
\nThe services which are provided by the appellants in respect
\nthereof as wharfingers are, inter alia, contained in Section
\n42 of the MPT Act which reads as follows:\n<\/p>\n
      42.  Performance of services by Board or other person\n<\/p>\n
–  [1]\tA Board shall have power to undertake the  following
\nservices –\n<\/p>\n
      [a]  landing, shipping or transshipping passengers and
\ngoods  between\tvessels in the port and the wharves,  piers,
\nquays  or  docks  belonging to or in the possession  of\t the
\nBoard;\n<\/p>\n
      [b]  receiving,  removing,   shifting,   transporting,
\nstoring\t or  delivering\t goods brought\twithin\tthe  Boards
\npremises;\n<\/p>\n
      [c]  carrying  passengers\t by rail or by\tother  means
\nwithin the limits of the port or port approaches, subject to
\nsuch  restrictions and conditions as the Central  Government
\nmay think fit to impose;\n<\/p>\n
      [d] receiving and delivering, transporting and booking
\nand despatching goods originating in the vessels in the port
\nand  intended for carriage by the neighbouring railways,  or
\nvice  versa,  as a railway administration under\t the  Indian
\nRailways Act 1890 (9 of 1890);\t(and)<\/p>\n
      [e] piloting, hauling, mooring, remorring, hooking, or
\nmeasuring  of  vessels\tor any other service in\t respect  of
\nvessels.\n<\/p>\n
      [2]  A  Board may, if so requested by the owner,\ttake
\ncharge\tof  the\t goods\tfor the purpose\t of  performing\t the
\nservice or services and shall give a receipt in such form as
\nthe Board may specify.\n<\/p>\n
      [3]   Notwithstanding  anything\tcontained  in\tthis
\nsection,  the  Board may, with the previous sanction of\t the
\nCentral\t Government, authorise any person to perform any  of
\nthe  services mentioned in sub-section (1) on such terms and
\nconditions as may be agreed upon.\n<\/p>\n
      [4]  No person authorised under sub-section (3)  shall
\ncharge\tor recover for such service any sum in excess of the
\namount\t{specified by the Authority, by notification in\t the
\nOfficial Gazette}.\n<\/p>\n
      [5]  Any\tsuch  person shall, if so  required  by\t the
\nowner,\tperform in respect of goods any of the said services
\nand  for  that purpose take charge of the goods and  give  a
\nreceipt in such form as the Board may specify.\n<\/p>\n
      [6]  The\tresponsibility\tof any such person  for\t the
\nloss,  destruction or deterioration of goods of which he has
\ntaken  charge shall, subject to the other provisions of this
\nAct,  be that of a bailee under sections 151, 152 and 161 of
\nthe Indian Contract Act, 1872 (9 of 1872).\n<\/p>\n
      [7]  After  any goods have been taken charge of and  a
\nreceipt\t given for them under this section, no liability for
\nany  loss or damage which may occur to them shall attach  to
\nany person to whom a receipt has been given or to the master
\nor owner of the vessel from which the goods have been landed
\nor transhipped.\n<\/p>\n
      Reading  of  the\taforesaid  section  shows  that\t the
\nservices  required to be performed by the Board is not\tonly
\nof loading and unloading of the cargo but would also include
\nstoring\t and delivering of goods.  Under sub-section (2)  if
\nthe  Board  is requested by the owner to take charge of\t the
\ngoods  then it is required to give a receipt in such form as
\nthe  Board may specify.\t Sub-section (6), inter alia, states
\nthat  responsibility of any such person who takes charge  of
\nsuch goods shall be that of a bailee under Sections 151, 152
\nand  161 of the Contract Act.  Sub-section (7) absolves\t the
\nperson\tto  whom receipt is given of any liability  for\t any
\nloss   or  damage  which  may\toccur  to  the\tgoods.\t The
\nresponsibility\tof  the\t Board\tfor the\t loss  of  goods  is
\nprovided  for  in Section 43 of the MPT Act which  reads  as
\nfollows:\n<\/p>\n
      43.  Responsibility of Board for loss, etc.  of goods\n<\/p>\n
–   [1]\t Subject  to  the   provisions\tof  this  Act,\t the
\nresponsibility\tof  any Board for the loss,  destruction  or
\ndeterioration of goods of which it has taken charge shall, –\n<\/p>\n
      (i)  in  the  case of goods received for\tcarriage  by
\nrailway,  be  governed\tby  the\t provisions  of\t the  Indian
\nRailways Act, 1890 (9 of 1890);\t and (ii) in other cases, be
\nthat  of  a  bailee under sections 151, 152 and 161  of\t the
\nIndian\tContract  Act, 1872 (9 of 1872), omitting the  words
\nin  the absence of any special contract in section 152\tof
\nthat Act;\n<\/p>\n
      {Provided\t that  no responsibility under this  section
\nshall attach to the Board –\n<\/p>\n
      (a)  until  a receipt mentioned in sub-section (2)  of
\nsection 42 is given by the Board;  and<\/p>\n
      (b)  after  the  expiry  of  such\t period\t as  may  be
\nprescribed  by regulations from the date of taking charge of
\nsuch goods by the Board.}<\/p>\n
      [2]  A  Board shall not be in any way responsible\t for
\nthe  loss,  destruction or deterioration of, or\t damage\t to,
\ngoods  of  which it has taken charge, unless notice of\tsuch
\nloss  or damage has been given within such period as may  be
\nprescribed by regulations made in this behalf {from the date
\nof  taking  charge  of\tsuch   goods  by  the  Board}  under
\nsub-section (2) of section 42.\n<\/p>\n
      Section 45 stipulates that all rates and other charges
\npayable\t under\tthe  MPT Act for storage of goods  shall  be
\npayable\t to the Board or to such person or persons appointed
\nby  the\t Board.\t Section 48 enables the authority  to  issue
\nnotification,  from  time to time, providing for  scales  of
\nrates  for  services performed by Board or other person\t and
\nthe same reads as follows:\n<\/p>\n
      48.  Scales of rates for services performed by Boards
\nor  other  person  – {[1] The Authority shall from  time  to
\ntime, by notification in the Official Gazette, frame a scale
\nof  rates  at  which, and a statement  of  conditions  under
\nwhich,\tany  of\t the services specified hereunder  shall  be
\nperformed  by  a Board or any other person authorised  under
\nSection\t 42 at or in relation to the port or port approaches\n<\/p>\n
– }<\/p>\n
      (a)  transhipping\t of  passengers\t  or  goods  between
\nvessels\t in  the port or port approaches;  (b)\tlanding\t and
\nshipping  of passengers or goods from or to such vessels  to
\nor  from any wharf, quay, jetty, pier, dock, berth, mooring,
\nstage  or  erection, land or building in the  possession  or
\noccupation of the Board or at any place within the limits of
\nthe  port  or  port approaches;\t (c) cranage or\t portage  of
\ngoods or any such place;  (d) wharfage, storage or demurrage
\nof  goods  on  any  such place;\t (e) any  other\t service  in
\nrespect of vessels, passengers or goods,<\/p>\n
      [2]  Different scales and conditions may be framed for
\ndifferent classes of goods and vessels.\n<\/p>\n
      For  the use of property belonging to Board  including
\nfor  leasing of land or sheds by owners of goods imported or
\nintended  for export or for any other use of land,  building
\netc.   Section 49 enables the authority to fix the scale  of
\nrates in respect thereof.\n<\/p>\n
      Reading  the aforesaid and other provisions of the MPT
\nAct  it\t is  abundantly\t clear\t that  the  appellants\t are
\nwharfingers  who not only provide space at the port for\t the
\nloading\t and unloading of the goods but also provide for the
\nstorage of the goods till the same are removed.\t We may here
\nnotice\tthat in exercise of the powers conferred by  Section
\n126  read with Sections 42 and 43 of the MPT Act the Central
\nGovernment  issued  a notification dated 1st  February\t1975
\nnotifying  the\tPort  of Bombay (Responsibility\t for  Goods)
\nRegulations,  1975.   The  said\t  regulations,\tinter  alia,
\nprovide\t that  a receipt referred to in sub-section  (2)  of
\nSection\t 42  shall be given in the form annexed to the\tsaid
\nregulations.  The said form, which is a receipt contemplated
\nby  Section 42 (2), gives particulars of the goods which are
\nunloaded  and  stored in a shed or open area of berth  or  a
\nwarehouse.\n<\/p>\n
      Whether the issuance of such a receipt would amount to
\nan agreement or concluded contract coming into being between
\nthe  appellants\t and  the respondents is  wholly  immaterial
\nbecause\t the  receipt  evidences the goods coming  into\t the
\npossession  of\tthe appellants and under Section 42 (6)\t the
\nappellants would be regarded as a bailee thereof to whom the
\nprovisions  of Sections 151, 152 and 161 of the Contract Act
\nbecome\tapplicable.  It is because of this the\trelationship
\nof  bailor and bailee comes into existence when the Board is
\nrequired to store the imported goods.\n<\/p>\n
      At  this\tjuncture it is appropriate to deal with\t the
\nconclusion  of\tthe High Court to the effect that  with\t the
\nissuance  of the receipt under Section 42 (2) the  contract,
\nif any, is between the ship owner and the port trust and not
\nbetween\t the  consignee who is true owner of the goods\tand
\nthe Port Trust.\t In coming to this conclusion the High Court
\nhas  placed  reliance on the decision of this Court  in\t The
\nTrustees  of the Port of Madras by its Chairman Vs.   K.P.V.
\nSheik  Mohamed Rowther & Co.  and Ors.\t([1963] Supp.  2 SCR\n<\/p>\n
915).\tIn that case the question which arose was as to\t who
\nwas  responsible  for  idle   labour  charges.\t Labour\t was
\nsupplied  by  the Port Trust authorities but their  services
\nwere not fully utilised and the question arose as to whether
\nit was the consignee or the ship owner who was liable to pay
\nthe  said charges.  This Court held that the Port Trust took
\ncharge\tof the goods on behalf of the ship owner and not  on
\nbehalf of the consignee and whatever services were performed
\nat the time of landing of the goods or on their removal were
\nrendered  to the ship owner and, therefore, the charges were
\nrightly\t leviable  not on the consignee but on the  streamer
\nagents.\t  The  service of providing the labour was, in\tthat
\ncase,  therefore,  to the owners of the streamer and not  to
\nthe  consignee\tand it is for that reason the liability\t was
\nheld  not  to be that of the latter.  This decision  has  no
\nrelevance  to the point in issue which has to be decided  in
\nthe present case.\n<\/p>\n
      Section  2 (o) contains the definition of owner.\tIn
\nrelation  to  goods  the said section states that  the\tword
\nowner  includes any consignor, consignee, shipper or agent
\nfor  the sale, custody, loading or unloading of such  goods.
\nBy  referring  to this sub-section this Court in Sun  Export
\nCorporation  and Anr.  Vs.  Board of Trustees of the Port of
\nBombay\t([1998] 1 SCC 142) held that in the case of  imports
\nthe  liability\tto pay demurrage, on the  endorsement  being
\nmade  on the bill of lading, would be that of the consignee.
\nThis  is  in consonance with the provisions of the Bills  of
\nLading Act, 1856.  The preamble of this Act provides that by
\ncustom\tof  merchants  a  bill\tof  lading  of\tgoods  being
\ntransferable  by endorsement, the property in the goods\t may
\nthereby pass to the endorsee, but nevertheless all rights in
\nrespect\t of  the  contract contained in the bill  of  lading
\ncontinue in the original shipper or owner and, therefore, it
\nis  expedient that such rights should pass with a  property.
\nSection\t 1  of the Bills of Lading Act provides that  rights
\nunder  bills of lading vest in the consignee or endorsee and
\nreads as under:\n<\/p>\n
      1.  Rights under bills of lading to vest in consignee
\nor  endorsee  – Every consignee of goods named in a bill  of
\nlading\tand  every endorsee of a bill of lading to whom\t the
\nproperty  in the goods herein mentioned shall pass, upon  or
\nby  reason  of such consignment or endorsement,\t shall\thave
\ntransferred  to and vested in him all rights of suit, and be
\nsubject\t to the same liabilities in respect of such goods as
\nif  the\t contract contained in the bill of lading  had\tbeen
\nmade with himself.\n<\/p>\n
      The  provisions  of  Section  2 (o)  of  the  MPT\t Act
\nregards,  in  relation to goods, the consignee as the  owner
\nthereof.   Reading  the same along with the Bills of  Lading
\nAct  the consignee of the goods named in the bill of  lading
\nor  every endorsee of the bill of lading, for the purpose of
\nMPT Act is regarded as the owner of the goods and it is from
\nthat owner that the appellant is entitled to recover charges
\nunder  the  MPT Act in respect of the said goods.  The\tHigh
\nCourt was not right in holding that the contract was between
\nthe  ship owner and the Port Trust.  The correct position is
\nthat  the contract is between the Port Trust and the  holder
\nof  the\t bill  of lading which, in this case, would  be\t the
\nconsignee.  It is the consignee which is the bailor with the
\nPort Trust being the consignee.\n<\/p>\n
      It  was then argued by Sh.  Pramod Aggarwal that under
\nSection\t 171 of the Contract Act the lien is available\tonly
\nin  the absence of a contract to the contrary.\tHe contended
\nthat  the  MPT Act was a special statute which provides\t not
\nonly the services of wharfingers to be provided by the Board
\nbut  also  for various other services to be provided by\t it.
\nIn respect of these services the Board is entitled to impose
\nand  recover  rates\/charges  for   the\tservices   rendered.
\nChapter\t VI provides for the scale of rates and the  matters
\nconnected  therewith including the exercise by the Board for
\nits  lien and for recovery of the charges due to it by\tsale
\nof  goods.  In this context it was submitted that Chapter VI
\nof  the\t MPT Act is a contract to the contrary\tbetween\t the
\nparties.\n<\/p>\n
      We  are  unable  to accept this  submission.   As\t has
\nalready\t been  held  earlier the general lien  contained  in
\nSection\t 171  of  the  Contract Act is not  covered  by\t the
\nprovisions  of\tChapter VI of the MPT Act.  The MPT  Act  no
\ndoubt  deals with lien in respect, inter alia, of the  goods
\nimported  but it does not deal with the general lien of\t the
\ntype we are concerned with in this case, namely, amounts due
\nin respect of earlier consignments for which payment has not
\nbeen  made.   The contract to the contrary as  envisaged  in
\nSection 171 of the Contract Act has to be specific.  The MPT
\nAct  including Chapter VI no where provides that the general
\nlien  under  Section  171 of the Contract Act would  not  be
\navailable  to  the wharfingers in case where the MPT Act  is
\napplicable.   It  was  also  contended\t on  behalf  of\t the
\nrespondents  that  even if Section 171 of the  Contract\t Act
\napplies the appellants can exercise their lien under Section
\n171  of the Contract Act for the recovery of their dues\t for
\nthe  services  rendered by them as wharfingers only and\t not
\nfor  any other services provided by them as detailed in\t the
\nMPT  Act.  It was contended that wharfage is the money\tpaid
\nfor  landing  goods  at a wharf or for shipping\t and  taking
\ngoods  into a boat or barge.  The general lien of wharfinger
\nas  understood\tunder Section 171 of the Contract Act  would
\nlimit  to  the charges due to a wharfinger for the  services
\nrendered as a wharfinger and not otherwise.  On this premise
\nit  was\t submitted that once the appellant takes charges  of
\nthe  goods  from  the  ship  owner it  does  not  act  as  a
\nwharfinger but acts in another capacity which may be that of
\nwarehouse owner, bailee etc.  and, therefore, lien cannot be
\nclaimed\t in respect of demurrage etc.  but, at best, can  be
\nclaimed only for wharfage charges.\n<\/p>\n
      Attractive  as it may appear, we do not find any merit
\nin  the aforesaid submission.  The first part of Section 171
\nof  the\t Contract Act identifies five categories of  persons
\nwho  can have a general lien and retain the goods bailed  to
\nthem.\tWharfinger  is one of them.  The submission  of\t the
\nlearned\t counsel  for  the respondents does  not  take\tinto
\naccount\t the  fact  that  Section 171 of  the  Contract\t Act
\nenables\t these\tfive  categories to retain as  security\t the
\ngoods  bailed  to  them in respect of  general\tbalance\t of
\naccount.  The  general balance of account has to be of\tthe
\namount\tlegally\t due  to   bankers,  factors,\twharfingers,
\nattorneys  and\tpolicy brokers.\t The appellants come in\t the
\ncategory  of  wharfingers, namely, the owners of the  wharf.
\nThe  duties which they are required to perform are  provided
\nin  the\t statute itself, namely, Section 42 of the MPT\tAct.
\nIn  other  words  the services which  are  undertaken  under
\nSection 42 have to be paid for and any amount due in respect
\nthereof\t will  be regarded as general balance  of  account
\nThere  is  no  reason to give a restricted  meaning  to\t the
\nexpression  general  balance  of   account  to\tmean  only
\nwharfage  charges which, according to the respondents, would
\nimply  the  charges for loading or unloading of\t goods,\t and
\nwould not include demurrage.  Once goods are taken charge of
\nby  the\t appellants as a wharfingers then in respect of\t the
\nservices  rendered, as contemplated by Section 42, if  there
\nis  any amount which is due and payable to it the same would
\nbe  regarded  as general balance of account in respect\tof
\nwhich it has a general lien over the goods bailed to it.\n<\/p>\n
      In  our  opinion the circular dated 2nd October,\t1979
\nissued\tby the appellants was valid and the appellants could
\nretain\tthe goods which were in their possession as  bailees
\nas  security  for  realisation of the  amount  of  wharfage,
\ndemurrage  and\tother  charges which were due to  them.\t  We
\naccordingly  allow these appeals and set aside the  judgment
\nof  the\t High Court with the result that the writ  petitions
\nfiled  by the respondents in the High Court stand dismissed.
\nThe appeals are allowed with costs throughout.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India The Board Of Trustees Of The Port Of … vs M\/S Sriyanesh Knitters on 30 July, 1999 Author: Kirpal Bench: U.Cbanerjee, B.N.Kripal PETITIONER: THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY AND ORS. Vs. RESPONDENT: M\/S SRIYANESH KNITTERS DATE OF JUDGMENT: 30\/07\/1999 BENCH: U.CBanerjee, B.N.Kripal JUDGMENT: KIRPAL, J. The common […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-153165","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThe Board Of Trustees Of The Port Of ... vs M\/S Sriyanesh Knitters on 30 July, 1999 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-board-of-trustees-of-the-port-of-vs-ms-sriyanesh-knitters-on-30-july-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Board Of Trustees Of The Port Of ... vs M\/S Sriyanesh Knitters on 30 July, 1999 - 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