Judgment

SHINGHAL, J.:- This appeal by certificate is directed against the judgment of the Bombay High Court dated July 17, 1970, by which it upheld the judgment of the trial Court dated March 3, 1965, decreeing the suit of the plaintiffs-respondents for Rupees 35,000 and interest with a part of their costs. It so happened that although there was initially much controversy about the facts, the parties realised the futility of disputing some glaring facts and agreed to take a decision, even in the trial Court, on what they once described as "interim consent terms", but to which they have stuck all through. We shall refer to them in a while, after stating some of the facts on which both the trial and the appellate Courts have placed reliance. That will bring out the significance of the "consent terms" and make them more intelligible.

2. The Premier Automobiles Ltd., hereinafter referred to as the plaintiffs, imported 13 cases of machinery from Italy. Case No. 249, which is the subject-matter of the controversy before us, contained an internal grinding machine weighing over 3 tonnes. It arrived in Bombay on February 21, 1960, by S. S. Jalsilton Hall The "Board", constituted under Section 4 of the Bombay Port Trust Act, 1879, for short the Act, was a body corporate with a perpetual succession and a common seal. It was called "the Trustees of the Port of Bombay" and could sue and be sued by that name. We shall, however, refer to it as "the Board" for that is how it has been referred to in the Act and the impugned judgment. Since the Board was charged with the duty of carrying out the provisions of the Act, and had, in particular, the duty, under Section 61-A (1) of the Act, to take charge immediately upon the landing of any goods, it took charge of Case No. 249 also on its landing in Bombay on February 21, 1960. The Board has in fact filed document Ex. K to prove that the case was in a damaged condition when it landed on Feb. 21, 1960, and that attention to that fact was drawn of the handling agents M/s. Scindia Steam Navigation Co. Ltd. It purports to be a contemporaneous document. The case was placed on a four-wheeler trolly and was being carried to one of the sheds in the docks when it fell down and the machine contained in it was severely damaged. Several employees of the Board were in charge of the case and the trolley at that time.

3. It is said that a survey of the damage was carried out at the instance of the plaintiffs, who then took delivery on February 29, 1960. They carried the case to their factory and had the machinery examined by another firm. That firm valued the machinery at Rs. 65,000 and the damage at Rs. 55,000. The plaintiffs gave a notice claiming Rupees 65,774.10. The Board denied the claim in their reply and alleged that the machinery was in a broken condition at the time of the landing and it was due to the damaged condition of the case that it slipped and fell from the trolley accidentally. They relied on the aforesaid report Ex. K and pleaded, further, that they were not liable because of Section 87 and certain bye-laws of the Board.

4. The controversy led to the suit which was instituted on August 19, 1960. We shall refer to the pleadings in their proper context to the extent they bear on the controversy before us. Issues were framed and the parties went to trial. They led "considerable" evidence, but during the course of the trial they drew up certain "consent terms" on October 7, 1964 and limited the trial to them. Those terms have formed the basis of the decision at the trial and in the appeal. It seems there was some controversy regarding the admissions contained in the consent terms, and we have accepted the interpretation concurrently placed on them by both Courts. The appellate Court has summarised its findings on paragraph II (b) of the consent terms as follows,-

"The content of this paragraph leave much to be desired. But three things are clear from this paragraph (1) that in deciding Issue No. 1 (we