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HIGH COURT OF CALCUTTA
P. B. Mukharji, S. A. Masud
COMMISSIONERS FOR THE PORT OF CALCUTTA - Appellant
Versus
KHAITAN SONS AND CO. (TEA CHEST) LTD. - Respondent
A. F. O. O. 46 Of 1962
Decided On : MAY 14, 1965
CALCUTTA PORT ACT - SECTION 142 - LIMITATION - FAILURE TO DELIVER GOODS - CAUSE OF ACTION - INTERPRETATION OF 'ANY PERSON' - IMMUNITY OF PORT COMMISSIONERS - ACKNOWLEDGMENT - EFFECT ON LIMITATION.
Fact of the Case:
The plaintiff, claiming to be the owner of 51 metal containers of tinplate waste shipped from New York to Calcutta, sued the Port Commissioners for failure to deliver 11 containers. The containers were landed at the Port of Calcutta but could not be found by the plaintiff's clearing agents on the expected date of delivery. Some of the containers were found and delivered in installments, leaving a balance of 11 containers undelivered. The plaintiff filed suit for the value of the undelivered containers more than three months after the date on which the Port Commissioners informed the consignee that no 'b' form certificate would be issued as the entire quantity had been landed.
Finding of the Court:
The court held that the suit was barred by the special limitation period of three months under Section 142 of the Calcutta Port Act. The cause of action arose on or about the date when the plaintiff knew that 11 containers were undelivered, which was either on the date of the Import Delivery Chalan showing the balance due or on the date of the letter from the Shipping Agents stating that the Port Commissioners' Out-turn showed full landing. The court rejected the plaintiff's argument that the omission to deliver the goods was not covered by Section 142, holding that the failure to deliver was closely connected with the statutory duty of the Port Commissioners to deliver the goods received by them. The court also rejected the argument that the expression 'any person' in Section 142 did not include the Commissioners for the Port of Calcutta as a body corporate, relying on a Privy Council decision and a Division Bench decision of the Calcutta High Court.
Issues: 1. Whether the suit was barred by the special limitation period of three months under Section 142 of the Calcutta Port Act? 2. When did the cause of action arise in this case? 3. Whether the failure to deliver the goods was covered by Section 142? 4. Whether the expression 'any person' in Section 142 included the Commissioners for the Port of Calcutta as a body corporate?
Ratio Decidendi: 1. The cause of action arose on or about the date when the plaintiff knew that 11 containers were undelivered, which was either on the date of the Import Delivery Chalan showing the balance due or on the date of the letter from the Shipping Agents stating that the Port Commissioners' Out-turn showed full landing. 2. The failure to deliver the goods was closely connected with the statutory duty of the Port Commissioners to deliver the goods received by them, and therefore, it was covered by Section 142. 3. The expression 'any person' in Section 142 included the Commissioners for the Port of Calcutta as a body corporate.
Final Decision: The appeal was allowed, the judgment and decree of the trial court were set aside, and the suit was held to be barred by limitation under Section 142 of the Calcutta Port Act. The appellant was awarded the costs of the appeal, while each party was directed to bear its own costs in the trial court.
( 1 ) THIS is an appeal from the judgment and decree of A, N. Ray, J. , decreeing the suit for the sum of Rs. 8415 in favour of the plaintiff against the Port Commissioners, Calcutta with interest and costs. The only point involved is a point of limitation arising on Section 142 of the Calcutta Port Act.
( 2 ) THE facts briefly are as follows: On the 14th January, 1957 an American Company called Steel Merchant of New York, shipped 51 metal containers tinplate Waste by Steamship 'city of Birmingham' owned by Ellerman and Bucknall Associated Lines, a shipping company of New York. The Shipping Company issued to the shipper a bill of lading No. 30 dated 14th January, 1957 in relation to the said cargo. The plaintiff claims to be at all material times and still is the owner of the said goods and the endorsee or the holder of the said bill of lading, The vessel arrived at the Port of Calcutta on the 24th March, 1957. She started discharging her cargo on or about the 8th April, 1957, at No. 4 G. R. Jetty in the Port of Calcutta into the care and custody of the defendant, the Commissioners for the Port of Calcutta.
( 3 ) ON the 9th April, 1957, the plaintiffs clearing agents wanted to clear the cargo but the same could not be found by the defendant on that date and accordingly a 'not found' remark was duly recorded on behalf of the plaintiff. Thereafter some of these goods were found by several instalments in the months of April and May, 1957, the defendant delivered to the plaintiff and/or its agents a total quantity of 40 containers out of the said cargo leaving a balance of 11 containers. It is the failure of the Port Commissioners to deliver this balance of 11 containers for which the suit has been filed and the damage claimed for the same was Rs. 8415 being the value of the said 11 containers. It is alleged in the plaint that the defendant is also liable us a bailee.
( 4 ) IT is not necessary to discuss the different defences in the Written Statement because the only point now before us is whether this claim of the plaintiff is barred by the Special. Limitation under Section 142 of the Calcutta Port Act.
( 5 ) A few more dates and facts may be relevant and should be stated now. The letter dated the 28th August, 1957 written to the original consignee M/". Wooma and Co. proves that the Out-turn of the Port Commissioners received by the shipping agents showed that there was no shortage. In other words, this shows that all the 51 containers were landed at the Port of Calcutta. What appears to have happened that 11 out of them were found missing and cannot be traced. The most important document is the Cash Import Delivery Challan of the Port Commissioners. It bears the inscription "please deliver to the bearer, who is authorised to grant receipt on behalf of the under mentioned goods consigned to Messrs. Wooma and Co, Ex. S. S. C/o Birmingham covered by B/entry No. 1980 of 6-4-57. " It is followed by the consignee's signature for Wooma and Co. The consignee's signature is dated the 6th April, 1957, This document is certified to be correct and it also certified that complete import delivery documents were surrendered on the date 8th April, 1957. It shows clearly under the column 'description and Contents' 5l bundles. It shows also under date that 40 containers were delivered. This document under the column 'balance Due' clearly shows that 11 containers were due to be delivered. That is dated the 20th April, 1957. Therefore, it was quite clear that the Port Commissioners failed to deliver the balance of 11 containers out of the 51 containers landed. There was some correspondence about 'b' form and short landing certificate which followed. There was, however, no question of any short landing as the containers had been landed in full quantity. There was a report of the Port Commissioners to the Police on the 3rd August, 1957, where these 11 containers were reported to be found missing, or pilfered or mislaid as fou
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