TMI Blog1999 (7) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... e in their possession as bailees as security for realisation of the amount of wharfage, demurrage and other charges which were due to them. Appeal allowed of assessee. - 6185 of 1983 , 6186, 6187, 6188 , 6189/83 - - - Dated:- 30-7-1999 - B.N. Kirpal and U.C. Banerjee, JJ. REPRESENTED BY : S/Shri 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 (N.P.), Pramod B. Aggarwala, Ms. Praveena Gautam, Ramesh Singh, Ms. Bina Gupta, Ms. Vanita Bhargava, Ms. Jugnu Bagga and Ms. Rakhi Ray, Advocates with them, for the appearing parties. [Judgment per : Kirpal, J.]. The common question involved in these appeals is whether the appellant - Board of Trustees of the Port Trust constituted under the Major Port Trusts Act, 1963 (for short `the MPT Act ) have a general lien for their dues over the present or future consignments imported by the importers at the Bombay Port when the said dues are in respect of the past imports made by the said importers. 2. The respondents in these ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/exporters, owners of consignees of the goods taken charge of by the Board of the Trustees." 5. The respondents then filed writ petitions under Article 226 of the Constitution of India in Bombay High Court seeking a declaration that the aforesaid circular was ultra vires of MPT Act and was violative of Articles 14, 19, 265 and 300A of the Constitution of India. The relief which was sought was that the appellants herein should withdraw or cancel the circular and deliver the consignments of goods imported by the respondents and detained under the Circular. During the pendency of the writ petition a single judge of the High Court, by an interim order, directed the release of the consignments of acrylic fibre on the undertaking of the respondents to give a bank guarantee for an amount due which may be claimed by the appellants in respect of the suits filed in the court. 6. The contention of the respondents before the High Court was that the appellants were not entitled to claim general lien under Section 171 of the Contract Act, inter alia, for the reason that there was no existing contractual relationship between the appellants and the respondents. They also contended that the MP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xists and has been preserved in the manner provided in sub-section (1) of Section 60, and for money payable to the Central Government (under any law for the time being in force relating to customs, other than by way of penalty or fine.) 61. Sale of goods after two months if rates or rent are not paid or lien for freight is not discharged. - (1) A Board may, after the expiry of two months from the time when any goods have passed into its custody, or in the case of animals and perishable or hazardous goods after the expiry of such shorter period not being less than twenty-four hours after the landing of the animals or goods as the Board may think fit, sell by public auction (or in such case as the Board considers it necessary so to do, for reasons to be recorded in writing, sell by tender, private agreement or in any other manner], such goods or so much thereof as, in the opinion of the Board, may be necessary - (a) if any rates payable to the Board in respect of such goods have not been paid, or (b) if any rent payable to the Board in respect of any place on or in which such goods have been stored has not been paid, or (c) if any lien of any ship-owner for freight or other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to a general lien under Section 171 of the Contract Act. In this connection it was submitted that the High Court erred in coming to the conclusion that the MPT Act was a complete code in itself and that Section 171 of the Contract Act was not applicable. 11. 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. [See Bennion s Statutory Interpretation, Second Edition page 444]. Furthermore where codifying statute is silent on a point then it is permissible to look at other laws. In this connection it will be useful to refer to the following observation of the House of Lords in Pioneer Aggregates ((UK)) Ltd. v. Secretary of State for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude 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. This is evident from the following provisions : (a) Section 29 (2) provides that the provisions of the Industrial Act, 1947 or any other law for the time being in force will not apply to the claim for compensation made by an employee whose services are transferred to the Board. (b) Section 47 of the MPT Act provides for compensation payable in certain cases where use of any private wharf etc. is rendered unlawful. Sub-section (3) provides for the manner in which the compensation is to be determined and in the absence of agreement arbitration is contemplated. Clause (i) of Section 47(3), however, specifically states that the Arbitration and Conciliation Act, 1996 shall not apply to the arbitrations under the said section. The said provision makes the general law of arbitration contained in the Arbitration and Conciliation Act inapplicable. (c) Section 68 of the MPT Act is important as it provides that notwithstanding the provisions contained in Section 45 of the Indian Contract Act, 1872 in case of Port Trust security p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 line contained in Section 171 of Contract Act in respect of old dues. 17. Having come to the conclusion that the MPT Act does not oust the provisions of Section 171 of the Contract Act what we have now to see is whether the appellants can claim any relief or benefit under the said section. Section 171 of the Indian Contract Act, 1872, reads as follows : 171. General lien of bankers, factors, wharfingers, attorneys, and policy-brokers. - Bankers, factors, wharfingers, attorneys of a High Court and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Law Lexicon, Second Edition, defines wharf as a landing stage built especially along the shore for loading or unloading vessels . The MPT Act contains an inclusive definition of wharf in Section 2(za) and provides that wharf includes any wall or stage and any part of the land or foreshore that may be used for loading or unloading goods, or for the embarkation or disembarkation of passengers and any wall enclosing or adjoining the same. 20. Wharfinger is not defined in the Act but in jowitt s dictionary of English Law wharfinger is defined as the occupier of wharf and it is further stated that as a rule, wharfingers have a general lien for the balance of their account . In Ramanatha Aiyar s The law Lexicon wharfinger is defined as meaning the occupier of a wharf or a person who owns a wharf . 21. The appellants are the owners of the wharf at Bombay where the consignments of the respondents were discharged. The services which are provided by the appellants in respect thereof as wharfingers are, inter alia, contained in Section 42 of the MPT Act which reads as follows : 42. Performance of services by Board or other person. - (1)A Board shall have power to undertake the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services required to be performed by the Board is not only of loading and unloading of the cargo but would also include storing and delivering of goods. Under sub-section (2) if the Board is requested by the owner to take charge of the goods then it is required to give a receipt in such form as the Board may specify. Sub-section (6) inter alia, states that responsibility of any such person who takes charge of such goods shall be that of a bailee under Sections 151, 152 and 161 of the Contract Act. Sub-section (7) absolves the person to whom receipt is given of any liability for any loss or damage which may occur to the goods. The responsibility of the Board for the loss of goods is provided for in Section 43 of the MPT Act which reads as follows : 43. Responsibility of Board for loss, etc. of goods. - (1) Subject to the provisions of this Act, the responsibility of any Board for the loss, destruction or deterioration of goods of which it has taken charge shall, - (i) in the case of goods received for carriage by railway, be governed by the provisions of the Indian Railways Act, 1890 (9 of 1890); and (ii) in other cases, be that of a bailee under sections 151, 152 and 161 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land, building etc. Section 49 enables the authority to fix the scale of rates in respect thereof. 22. Reading the aforesaid and other provisions of the MPT Act it is abundantly clear that the appellants 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), gives particulars of the goods which are unloaded and stored in a shed or open area of berth or a warehouse. 23. 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signee. This is in consonance with the provisions of the Bills of Lading Act, 1836. The preamble of this Act provides that by custom of merchants a bill of lading of goods being transferable by endorsement, the property in the goods may thereby pass to the endorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner and, therefore, it is expedient that such rights should pass with a property. Section 1 of the Bills of Lading Act provides that rights under bills of lading vest in the consignee or endorsee and reads as under : 1. Rights under bills of lading to vest in consignee or endorsee. - Every consignee of goods named in a bill of lading and every endorsee of a bill of lading to whom the property in the goods herein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself. The provisions of Section 2(o) of the MPT Act regards, in relation to goods, the consignee as the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act for the recovery of their dues for the services rendered by them as wharfingers only and not for any other services provided by them as detailed in the MPT Act. It was contended that wharfage is the money paid for landing goods at a wharf or for shipping and taking goods into a boat or barge. The general lien of wharfinger as understood under Section 171 of the Contract Act would limit to the charges due to a wharfinger for the services rendered as a wharfinger and not otherwise. On this premise it was submitted 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. 29. Attractive as it may appear, we do not find any merit in the aforesaid submission. 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. Wharfinger is one of them. The submission of the learned Counsel for the respondents does not take into account the fact that Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
