1999 Supreme(SC) 778

1999(6) Supreme 398
Supreme Court of India
(From Bombay High Court)
B.N. Kirpal & U.C. Banerjee, JJ.
The Board of Trustees of the Port of Bombay & Ors. -Appellants
versus
M/s. Sriyanesh Knitters etc. -Respondent
Civil Appeal No. 6185 of 1983
With
C.A. Nos. 6186, 6187, 6188 and 6189 of 1983
Decided on 30-7-1999
Counsel for the Parties :
For the Appearing Parties : R.N. Trivedi, Additional Solicitor Gene­ral, R.F. Nariman, Sr. Advocate, Ms. A.K. Verma, U.J. Makhija, Hemant Shah, B.A. Ranganathan, Advocates for M/s. J.B. Dadachanji & Co., Advocates (M/s. Gagrat & Co.) Advocate, for (N.P), (D.M. Nargolkar) Advocate (NP), Pramod B. Aggarwala, Ms. Praveena Gautam, Ramesh Singh, Ms. Bina Gupta, Ms. Vanita Bhargava, Ms. Jugnu Bagga and Ms. Rakhi Ray, Advocates.

Important points
1. Under Sections 59 and 61 of the Major Port Trust Act, the Port Trust has lien only in respect of amount due qua goods imported and existing there; goods which can be sold in exercise of lien are only those in respect of which amount is due and no general lien is available under Sections 59 and 61.
2. Major Port Trust Act does not oust the applicability of the provisions of Section 171 of the Indian Contract Act; under Section 171 of the Contract Act the Port Trust can claim a right of general lien as a wharfinger in respect of past dues.
3. The Circular dated 2.10.1979 issued by the Bombay Port Trust exercising a lien available u/s 171 of Contract Act for general balance of account in respect of wharfage, crainage, storage, demur­rage and other dues is valid.

Headnote:(i) Major Port Trust Act, 1963-Sections 59 and 61-Lien for rates -Nature of-Only in respect of amount due qua goods imported and existing there, Board has a lien u/s 59-Goods which can be sold in exercise of lien are only those in respect of which amount is due-Provisions of Sections 59 and 60 do not con­template a general lien.

       Held : Plain reading of Section 59 shows that in respect of any goods which are imported the Board has a lien for the amount of all rated leviable under the Act and for the rent due to it and it also has a lien on such goods and the Board may seize and detain the same until such rates are paid. It is clear that it is only in respect of the amount due qua the goods imported and existing there that the Board has a lien under Section 59. Under Section 61(1), in exercise of its lien, the Board is empowered to sell the said goods for realisation of the amount due to it. Reading the two sections together it is clear that the goods which can be sold in exercise of its lien are only those in respect of which amount is due and payable to the Board. The words ‘such goods’ in Section 61(1) has reference to those goods in respect of which rates due to the Board have not been fully paid. (Para 8)

       Coming to the facts of the instant case the amount which was claimed by the appellants was in respect of the consignment of woollen rags. There can be little doubt that in respect of the amount claimed by the Board the provisions of Sections 59 and 61(1) would have been applicable with regard to the said consignment of woollen rags. But the contention now is that it is in respect of the said dues, relata­ble to woollen rags, that the Board has a general lien on the subsequent consignment of acrylic fibre. This contention is clearly untena­ble because, as we have already observed, Sections 59 and 61(1) give a lien on those goods in respect of which amount is claimed or due under Section 59. The Board was not demanding or claiming lien on acrylic fibre on the ground that any amount in respect of acrylic fibre was due. Once it appears that the lien referred to in Sections 59 and 61(1) is only those goods in respect of which amount is due it is clear that the said provisions do not contemplate a general lien as contended by the appellants. The High Court, in our opinion, was right in coming to the conclusion that the lien conferred on the Board under Section 59 of the MPT Act not a general lien but was a lien on specific goods. (Para 9)

       (ii) Major Port Trust Act, 1963-Nature of and scope of Act-Applicability of Contract Act-MPT Act is not an exhaustive and comprehensive code-It has to be read together with other Acts wherever MPT Act is silent in respect of any other matter.

       Held : The MPT Act is not, in our opinion, an exhaustive and comprehen­sive code and the said Act has to be read together with other acts wherever the MPT Act is silent in respect of any matter. The MPT Act itself refers to other enactments which would clearly indicate that the MPT Act is not a complete code in itself which ousts the applica­bility of other acts. The preamble of the Act does not show that it is a codifying Act so as to exclude the applicability of other laws of the land. Even if it is a codifying Act unless a contrary intention appears it is presumed not to be intended to change the law. (Para 11)

       It is an Act which makes provision for the constitution of port authorities and vests the administrative control and management of such ports in such authorities and provides for matters connected therewith. To the extent provisions of the said Act are applicable, there can be little doubt that any provision which is in conflict therewith contained in any other Act would not apply. The enactment of MPT Act does not ipso facto exclude the operation of other laws which may be applicable. Wherever a departure from the general law has to be made the Act specifically provides for the same. Provisions of Sections 29(2), 47, 68, 70 and 71 of MPT Act clearly show that the said Act is not exhaustive or comprehensive code and it envisages joint reading with other relevant statutes. Whenever any departure has to be made from other laws specific provision to that effect has been made in the MPT Act. (Para 14)

       It is permis­sible to read the provisions of the two Acts (MPT Act and Indian Con­tract Act) together when the same are complementary to each other. In fact some provisions of the MPT Act themselves show that other laws are applicable. (Para 13)

       (iii) Major Port Trust Act, 1963 -Sections 59 and 61-Contract Act, 1882-Circular dated 2-10-1979-Section 171 - Validity of Circular provid­ing lien for general balance-Whether Port Trust Board entitled to avail general lien under Contract Act?-Yes-MPT Act is not an exhaus­tive and comprehensive code-It has to be read with other Acts wher­ever MPT Act is silent in respect of other matters-No general lien available under MPT Act-MPT Act does not oust applicability of provi­sions of Section 171 of Contract Act-Under Section 171 of Contract Act Port Trust Board can claim a right of general lien as a wharfinger in respect of past dues -Added advantage of sale given by Section 61 of MPT Act in respect of current dues cannot whittle down right of general lien contained in Section 171 of Contract Act-Circular dated 2.10.1979 is valid.

       Held : The MPT Act is not, in our opinion, an exhaustive and comprehen­sive code and the said Act has to be read together with other acts wherever the MPT Act is silent in respect of any matter. The MPT Act itself refers to other enactments which would clearly indicate that the MPT Act is not a complete code in itself which ousts the applica­bility of other acts. The preamble of the Act does not show that it is a codifying Act so as to exclude the applicability of other laws of the land. Even if it is a codifying Act unless a contrary intention appears it is presumed not to be intended to change the law. (Para 11)

       It is an Act which makes provision for the constitution of port authorities and vests the administrative control and management of such ports in such authorities and provides for matters connected therewith. To the extent provisions of the said Act are applicable, there can be little doubt that any provision which is in conflict therewith contained in any other Act would not apply. The enactment of MPT Act does not ipso facto exclude the operation of other laws which may be applicable. Wherever a departure from the general law has to be made the Act specifically provides for the same. Provisions of Sections 29(2), 47, 68, 70 and 71 of MPT Act clearly show that the said Act is not exhaustive or comprehensive code and it envisages joint reading with other relevant statutes. Whenever any departure has to be made from other laws specific provision to that effect has been made in the MPT Act. (Para 14)

       It is permis­sible to read the provisions of the two Acts (MPT Act and Indian Con­tract Act) together when the same are complementary to each other. In fact some provisions of the MPT Act themselves show that other laws are applicable. (Para 13)

       The MPT Act and Sections 59 and 61 in particular do not give to the appellants the general lien which it is claiming. In other words it is because the MPT Act does not provide for a general lien that the appellants are relying on the provisions of Section 171 of the Contract Act. This, in our opinion, is permissible. It is not possible to hold that the MPT Act ousts the applicability of the provisions of Section 171 of the Contract Act under which the Board is claiming a right of general lien as a wharfinger. The general lien of the type contemplated by Section 171 in respect of the past dues is not provided for by the MPT Act. (Para 15)

       Section 171 of the Contract Act only enables the retention of goods as security. On the other hand in respect of current dues in respect of existing goods in their possession the Board not only has a lien under Section 59 of the MPT Act but it also has the power to sell the said goods and realise it’s dues by virtue of Section 61 of the MPT Act. The procedure for exercising this power of sale of the goods in respect of which the Board has lien is contained in the said section. Before selling the goods no order of any court or other judicial authority is required. On the other hand the general lien contemplated by Section 171 of the Contract Act only enables the retention of the bailed goods as a security. Their retention does not give any power to sell the goods, unlike the power contained in Section 61 of the MPT Act. If payment is not made by the consignee to the wharfinger, in a case where Section 171 of the Contract Act applies, the wharfinger can only retain the goods bailed as security and will have to take recourse to other proceedings in accordance with law for securing an order which would then enable the goods to be sold for realisation of the amounts due to it. It may in this connection, be necessary for the wharfinger to file a suit for the recovery of the amount due to it and Section 131 of the MPT Act clearly provides that such a remedy of filing a suit is avail­able to the Board. The added advantage of sale given by Section 61 of MPT Act in respect of current dues cannot be regarded as whittling down the right of general lien contained in Section 171 of Contract Act in respect of old dues. (Para 16)

       Section 171 of Contract Act is in two parts. The first part gives statutory right of lien to four categories only, namely, bankers, factors, wharfingers and attorneys of High Court and policy-brokers subject to their con­tracting out of Section 171. The second part of Section 171 applies to persons other than aforesaid five categories and to them Section 171 does not give a statutory right of lien. It provides that they will have no right to retain as securities bailed to them unless there is an express contract to that effect. Whereas in respect of the first category of person mentioned in Section 171 section itself enables them to retain the goods as security in the absence of a contract to the contrary but in respect of any other person to whom goods are bailed the right of retaining them as securities can be exercised only if there is an express contract to that effect. (Para 17)

       Board of Trustees of Port Trust are wharfingers who not only provide space at the port for the loading and unloading of the goods but also provide for the storage of the goods till the same are re­moved. We may here notice that in exercise of the powers conferred by Section 126 read with Sections 42 and 43 of the MPT Act the Central Government issued a notification dated 1st February 1975 notifying the Port of Bombay (Responsibility for Goods) Regulations, 1975. The said regulations, inter alia, provide that a receipt referred to in sub-section (2) of Section 42 shall be given in the form annexed to the said regulations. The said form, which is a receipt contemplated by Section 42(2), given particulars of the goods which are unloaded and stored in a shed or open area of berth or a warehouse. Whether the issuance of such a receipt would amount to an agree­ment or concluded contract coming into being between the appellants and the respondents is wholly immaterial because the receipt evidences the goods coming into the possession of the appellants and under Section 42(6) the appellants would be regarded as a bailee thereof to whom the provisions of Sections 151, 152 and 161 of the Contract Act become applicable. It is because of this the relationship of bailor and bailee comes into existence when the Board is required to store the imported goods. (Paras 22 & 23)

       The provisions 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 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. (Para 25)

       As has already been held earlier the general lien contained in Section 171 of the Contract Act is not covered by the provisions of Chapter VI of the MPT Act. The MPT Act no doubt deals with lien in respect, inter alia, of the goods imported but it does not deal with the general lien of the type we are concerned with in this case, namely, amounts due in respect of earlier consignments for which payment has not been made. The contract to the contrary as envisaged in Section 171 of the Contract Act has to be specific. The MPT Act including Chapter VI no where provides that the general lien under Section 171 of the Contract Act would not be avail­able to the wharfingers in case where the MPT Act is applicable. (Para 27)

       The contention that once the appellant takes charges of the goods from the ship owner it does not act as a wharfinger but acts in another capacity which may be that of warehouse owner, bailee etc. and, therefore, lien cannot be claim­ed in respect of demurrage etc. but, at best, can be claimed only for wharfage charges, does not take into account the fact that Section 171 of the Contract Act enables these five categories to retain as security the goods bailed to them in respect of “general balance of account.” The first part of Section 171 of the Contract Act identifies five categories of persons who can have a general lien and retain the goods bailed to them. The general balance of account has to be of the amount legally due to bankers, factors, wharfingers, attorneys and policy brokers. The appellants come in the category of wharfingers, namely, the owners of the wharf. The duties which they are required to perform are provided in the statute itself, namely, Section 42 of the MPT Act. In other words the services which are undertaken under Section 42 have to be paid for and any amount due in respect thereof will be regarded as “general balance of ac­count”. There is no reason to give a restricted meaning to the expres­sion “general balance of account” to mean only wharfage charges which, according to the respondents, would imply the charges for loading or unloading of goods, and would not include demurrage. Once goods are taken charge of by the appellants as a wharfingers then in respect of the services rendered, as contemplated by Section 42, if there is any amount which is due and payable to it the same would be regarded as `general balance of account’ in respect of which it has a general lien over the goods bailed to it. (Paras 28 & 29)

       Held : Consequently the circular dated 2nd October, 1979 issued by the appellants, Board of Trustees of the Bombay Port Trust, was valid and the appellants could retain the goods which were in their possession as bailees as security for realisation of the amount of wharfage, demurrage and other charges which were due to them. (Para 30)