TMI Blog1974 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary. Is the period so brief as six months in terms of s. 87 of the Bombay Port Trust Act, 1879 (hereinafter called the Act), and if so, does time begin to run within around a week of the landing of the goods (suggested by s. 6lA) of the Act ? Or, alternatively, does the longer spell allowed by the Limitation Act avail the plaintiff and the terminus a quo start only when the owner has been finally refused delivery ? Although the Court in this case is enquiring whether the little delay alleged legally disentitles the plaintiff to claim the value of the lost goods, it is a bathetic sidelight that the judicial process has limped along for 15 years to decide in this small, single-point commercial cause, whether a little over seven months to come to court was too late. Pope Paul in opening the judicial year of the Second Roman Rota pontificated that delay in dispensing justice is 'in itself an act of injustice'. Systemic slow motion in this area must claim the nation's immediate attention towards basic reformation of the traditional structure and procedure if the Indian Judicature is to sustain the litigative credibility of the community. Indeed, even about British Jus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cards that part of the total consignment had not been discharged into the port, in these any thing-may- happen days of expect the unexpected. Significantly' the first plaintiff inquired of the Indian Maritime Enterprises, the agents of the Japanese vessel, whether the entire consignment of 53 bundles bad been duly landed. The reply received by the first plaintiff is meaningful in that the Indian Maritime Enterprises in there letter dated November 7, 1959, told the first plaintiff that all the 53 bundles had been duly unloaded. It inevitably follows that the earliest date when we can attribute to the plaintiff clear knowledge of the port authorities having come into possession of the missing bundle was November 7, 1959. of course, the inquiry Section of the Alexandra Dock of the defendant indifferently informed the first plaintiff even on December 4, 1959 that the missing bundle was still under search and a definite reply regarding the out-turn of that item could be given only later when loading sheets were fully checked. However, the first plaintiff by letter dated December 5, 1959 wrote to the port authorities that he had been informed by the agents of the vessel (The Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e finding on limitation and directed disposal of the appeal on the merits. The last lap of the litigation has spurred them to this Court where learned counsel have addressed arguments principally on two facets of the plea of limitation. The primary question is whether the present suit is one 'for any thing done, or purporting to have been done, in pursuance of this Act'. The action is for non-delivery of one out of 53 bundles. plaintiffs' counsel argues that an omission to do cannot be 'an act done or purporting to have been done'. Again, the failure to do what the Act mandates the Port Trust to do, viz., to deliver consignments to owners, cannot be 'in pursuance of this Act'. How can the statute direct non-delivery and how can the Port officials reasonably conceive that not delivering the goods committed to their charge is in pursuance of statutory duty? The perverse verdict would then be reached that violation of a law is fulfilment thereof. Embellished by numerous rulings, Shri Cooper strove to convince us of the substance of the further link in the chain of his case that the cause of action for recovery of the value of the lost article could not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for delivery. Limitation begins to run when the goods should reasonably have been delivered, ignoring operations for tracing the missing goods. The absurd result would otherwise be that the right to sue would flicker fitfully as the search for the last bundle is protracting and the Port Trust can indefinitely put off a claimant's suit by persisting in vain searches for the pilfered article and sending soothing letters that efforts trace are 'in progress.' And more sinister is the possibility of owners of considerable consignments, by oblique methods, getting letters of promise of search despatched by Port officials and thus postpone the time for taking delivery, thereby saving immensely on warehousing charges which are heavy in big cities.Corruption spreads where such legal construction protects. The proponents of both views have cited rulings in support but the sound approach of studying for oneself the sense of s. 87 prompts us to set it out together with other cognate sections, get the hang of the statutory scheme and read the plain meaning of the notice and limitation provisions. S. 87. No suit or other proceeding shall be commenced against any person for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a course of conduct is enjoined by a law, the whole process pursuant to that obligation is an act done or purporting to be done under that Act although the components of that comprehensive act may consist of commissions and omissions. A policeman acts or purports to act not only when he uses his lathi but also when he omits to open the lock-up to set the arrested free or omits to produce him before a Magistrate. The ostensible basis of 'the whole conduct colours both doings and defaults and the use of the words' purporting to have been done . in their natural sweep, cover the commission-omission Complex. A, cognate point arises as to whether you can attribute the neglect to comply with a law as something done in pursuance of that law. Here again the fallacy is obvious.If under colour of office. clothed with the rules of authority, a person indulges in conduct not falling under the law he is not acting in accordance with the sanction of the statute or in bona fide execution of authority but ostensibly under the cloak of statute. It is the apparel that oft proclaims the man and whether anything is done under, in pursuance of or under colour of a law. merely means that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tort committed in the course of his official duty,; he is charged, as surveyor. with the positive act of leaving the gravel on 'the road, where it had been improperly placed, for, an unreasonable time- On that simple ground, I think it clear that he was entitled to notice. Patterson J. considered the same point a little more at length taking the, view ...... that the charge is not one of mere omissions, but of actually continuing the nuisance. That is a charge of doing something wrong, of keeping the gravel in an improper place. an act continued until the concurrence of the mischief. Is it then an act done in pursuance of the statute ? It is-not denied that the heap of gravel was put there in pursuance of the statute-, it could not be spread at the same moment; the question then would arise, whether the length of time during which it was kept in a heap was reasonable or not. The continuing, therefore, was a thing done in pursuance of the statute.' Wightman J. struck a similar note. The learned Judge observed The defendant is liable only by virtue of his office. lie is charged with' permitting an obstruction to remain, of which permission he is guilty in his char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se said .Here the cause of action is the making the hole, compounded with the not putting up a light. When these are blended, the result is no more than if two positive acts were committed, such as digging the hole and throwing out the dirt; the two would make up one act. Are we not concerned with a blended brew of act and omission, a complex act, a compound act of delivery-cum-non- delivery, pursuant to the statute without which the vinculum juris between the Board and the plaintiff did not exist? Jolliffee v. The Wallasey Local Board((1873) L. R. 62.) is a leading-case, rightly pressed for acceptance of its ratio by the, learned Solicitor General. Kesting, J., after finding for the plaintiff on negligence, focussed attention on the nature of the Act and the need for notice.He observed As a matter of fact, therefore I come to the conclusion that the defendants were guilty of the negligence complained of, and that negligence was the cause of the accident; and, as matter of law, I hold that negligence to give the plaintiffs a cause of action against the local board. But, assuming that to be so, then comes the further question, whether the defendants are not absolved from li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion arose in this case for the first time, it is now settled by authority that an omission to do something that ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of. Parliament, or the continuing to leave any such duty unperformed, amounts to an act done or intended to be done, within the meaning of these clauses requiring notice of action for the protection of public bodies acting in the discharge of public duties under Acts of Parliament. It would seem from these authorities that, where the plaintiff is suing in tort, nonfeasance is to be considered as an act done, within. such clauses as these. Mr. Cooper tried to distinguish Jolliffee's case but having given our close attention to the matter we decline to jettison this weighty judgment. Jolliffee's case was followed by the Privy Council in Queen v. Williams((1884) 9 L. R. 41 8.). The Judicial Committee took the view that an omission to do something which ought to be done in order to the complete performance of a duty imposed upon a public body under an Act of Parliament, or the continuing to leave any such duty unperformed, amounts to an act done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation v. Myers([1916] 1 A. C. 242.) on which considerable reliance was placed by Shri Cooper and also in several decisions which took the opposite point of view. We need make no comments on that decision except to state that for exceedingly excellent reasons the Judicial Committee has put that ruling out of the way. Shri Cooper brought to our notice the circumstance that Public Authorities Protection Act, 1893, brought in 'neglect and default', which became necessary only because any act done in pursuance.... of any Act of Parliament. would not otherwise comprehend omissions and defaults. We are not impressed with this submission and decline to speculate why a change of language was made if the law packed omission into act . Gill v. The King (supra), just referred to, affirms the careful analysis of the authorities by Varadachariar, J., in Hori Ram Singh v. The Crown([1939] F. C. R. 159.) and also the ratio in Huntley's ([1944] F. C. R. 252.) case. In Hori Ram's case, which related to the construction of S. 197 of the Criminal Procedure Code and s. 270(1) of the Government of India Act, Varadachariar, J., brought out the true meaning of the words act don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ench proceeded to set out the following propositions which meet with our approval: (a) I order to apply the bar under sec. 142 of the Calcutta Port Act, it is first to be determined whether the act which is complained of in the suit in question can be said to come within the scope of the official duty of the person or persons who are sought to be made liable. This question can be answered in the affirmative where there is a reasonable connection between the act and the discharge of the official duty. (b) Once the scope of the official duty is determined, sec. 142 will protect the defendants not only from a claim based on breach of the duty but also from a claim based upon an omission to perform such duty. (c) The protection of sec. 142 cannot be held to be confined to acts done in the exercise of a statutory power but also extends to acts done within the scope, of an official duty. The case dealt with was also one of short delivery and consequent loss of a part of the goods, and the suit was dismissed for being beyond the short period of limitation prescribed under the special Act. Again, in District Board of Manbhum v. Shyamapada Sarkar(A. I. R. 1955 Pat. 432.) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing to act in pursuance of the statute' and observed Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which it hot done in pursuance, of the statute may nevertheless be accorded its protection, if the work professes or purports to be done in pursuance of the statute. The whole issue is clinched in our view by the final pronouncement of this Court in Public Prosecutor Madras ;v.- R. Raju(A. I. R. 1972 S. C. 2504). the, interpretation of s.40(2) of the Central Excis' and Salt Act, 1944 and the antithesis argued between 'act' and 'omission' provoked a panoramic survey of the Indian statute book. Reference was made to Pritam Singh's ([1971] 1 S.C.C 653.) case where absence from duty at the time of the roll call was held to be something done under the provisions of the Police Act. Maulad Ahmadabad'S([1963] Supp, 2 S. C. A. 38.), case Was relied an as fortifying this view, for there too a Head Constable who made false entries in a General Diary of the Police Station *as held entitled to.invoke the 3 months limitation under s. 42 of the Police Act since the act complained of was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1948, by an occupier of a factory who had violated the duties cast on him, Hidayatullah, J. (as he then was) observed But the critical words are any thing done or intended to he done under the Act. The protection conferred can only be claimed by a person who can plead that he was required to do or omit to do something under the Act or that he intended to comply with any of its provisions, It cannot confer immunity in respect of actions which are not done under the Act but are done contrary to it. Even assuming that an act includes an omission as stated in the General Clauses Act, the omission also must be one which is enjoined by the Act. It is not sufficient to say that the act was honest. That would bring it only within the words good faith . It is necessary further to establish that what is complained of is something which the Act requires should be done or should be omitted to be done. There must be a compliance or an intended compliance with a provision of the Act, before the protection can be claimed. The section cannot cover a case of a breach or an intended breach of the Act however honest the conduct otherwise. In this connection it is necessary to point out, as was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public servant or a person duly authorised under the Act. It has no application where something is done not under the Act even though it has been done by a public servant who has been entrusted with duties of carrying out improvement schemes under the above mentioned Act. The impugned acts of the appellants in the present case were not in discharge of their duties under the above mentioned Act but in obvious breach and flagrant disregard of their duties. Not only they did no rectification work for the Bundh which was a part of the improvement scheme, they also misappropriated the amount which had been entrusted to them for the purpose of rectification. How slippery and specious law and logic can be unless the Court is vigilant is evident from this kind of defence Here is a case not of performing or omitting to perform an official act in the course of which an offence is committed. On the contrary, an independent excursion into crime using the opportunity of office without any nexus with discharge of official function is what we have, in that case. The Court significantly highlights the fact that 'not only they did no rectification work for the Bundh they also misappropriated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board as well as its officers will be burdened by suits, and prosecutions on top of the pressure of handling goods worth crores daily. Public bodies and officers will suffer irremediably in such vulnerable circumstances unless actions are brought when evidence is fresh and before delinquency fades; and so it makes sense to provide, as in many other cases of public institutions and servants, a reasonably short period of time within which the legal proceedings should be started. This is nothing unusual in the jurisprudence of India or England and is constitutionally sound. Section 87 is illumined by the protective purpose which will be ill-served if the shield of a short limitation operates in cases of misfeasance and malfeasance but not nonfeasance. The object, stripped of legalese and viewed through the glasses of simple sense, is that remedial process against official action showing up as wrong doing or non-doing which inflicts injury on a citizen should not be delayed too long to obliterate the probative material for honest defence. The dichotomy between act and omission, however, logical or legal, has no relevance in this context. So the intendment of the statute certainly takes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lain sense. The logical conclusion of the legal study is that the short delivery of one bundle or rather the act of under-delivery in purported discharge of the bailee's obligation under S. 61B of the Act is covered by s. 87 and the truncated limitation prescribed thereunder will apply. Of course, the statutory notice under S. 83 is a condition precedent to, although not a constituent of, the cause of action And there is some authority for the position that the period of one month may also be tacked on under s. 15(2) of the Limitation Act. In the view we take on the ultimate issue this question is immaterial. Even so, the decisive date on which the decree turns and time runs has to be settled. if the Limitation Act applies, the suit, by any reckoning, is not barred but since it does not apply the critical issue is as to when time begins to run. Brushing aside technicalities and guided by the analogy of art. 120 of the Limitation Act, we think it night to ]told that the cause of action for short delivery comes into being only when the consignee comes to know that the bailment has come into existence. You cannot claim delivery from a statutory bailee till you know of the bailment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edgoods cannot be added for fixing the terminus a quo of limitation. Assuming for arguments sake all these in favour of the appellant, one critical issue claims precedence over them. When does the statutory bailment take place and can the time for delivery to the owner of the goods arise before he knows or at least has good grounds to know that the bailment has in law come into being ? The owner must ordinarily take delivery in a week's time after landing since thereafter the Board will cease to be liable for loss, etc., save, of course, when the latter defaults in giving delivery as for instance the goods are irremovably located or, physical obstruction to removal is offered by striking workers or natural calamities. Here the 7 days ended on September 19, 1959 when actually 52 out of the 53 bundles were delivered. And if the due date for delivery of the missing bundle had arisen then the suit is admittedly time-barred. However, the learned Solicitor General rightly agrees that 7 days of unloading is no rigid, wooden event to ignite limitation and it depends on other factors which condition the reasonable time when delivery ought to be made. If a tidal bore has inhibited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use' of suit. The bailee is bound to return, deliver or tender. If he defaults in this duty the ,cause' of action arises. While destruction or deterioration may need inspection by the owner, it may be proper to import scienter as integral to the 'cause' or grievance. But loss flows from sheer non- delivery, with nothing super-added. _Loss is the direct result. viewed through the owner's eyes, of non-return, non- delivery or non-tender by the bailee-the act/omission which completes the 'cause, (vide ;. 161 Contract Act). What is complained of is the nondelivery, the resultant damage being the loss of goods. We must keel)' the breach of duty which is the cause distinct from the loss which is the conse- quence. The judicial interpretation cannot take liberties with the language of the law beyond the strict needs of natural justice. So we hold that awareness of the factum of loss of goods is not a sine qua non of the 'cause'. In a stroke of skilful advocacy it was urged that when the bailee fails to return the goods it is like a suit for wrongful detention and the cause of action is a continuing one. This is an action in detention and its impact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant date. On the other hand, if the right to sue or the accrual of the cause of action is based on the infringement by non-delivery the knowledge must be the knowledge of the factum of bailment which takes place on the unloading from the vessel and the taking charge by the Board. That is to say, it is preposterous to postulate the running of limitation from a date anterior to when the plaintiff has come to know that his missing goods have been landed on the port. Mohammad Yunus v. Syed Unnisa(A.I.R. 1961 S.C. 808.) is authority for the rule that there can be no right to sue (under art. 120) until there is an accrual of the right asserted-which as we have shown, involves awareness of the bailment. It meets with reason and justice to state that the cause in S. 87 cannot arise until the consignee gains knowledge that his goods have come into the hands of the Board. The Railways Act has spanned cases where courts have laid down legal tests for determining the commencement of limitation. Views ran on rival lines till in Bootamal's case([1963] 1 S.C.R. 70, 76, 79.) this Court settled the conflict and gave the correct lead which has been heavily relied on by the Solicitor G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arriage of the, goods from the place of despatch to the place of destinations. The ratio is twofold, viz. (1) not when the final refusal to deliver but when the reasonable time for delivery has elapsed does limitation start; (2) correspondence stating that efforts are being made to trace the goods cannot postpone the triggering of limitation. Of course, 'reasonable' time is a relative factor and representation by the Railway inducing the plaintiff not to sue may amount to estoppel or waiver in special circumstances. We are inclined to confine, Bootamal to the specific words of art. 39. The discussion discloses the influence of the words in columns 1 and 3 on the conclusion, rendering it risky to expand its operation. Section 87 speaks only of the accrual of the cause. The cause is the grievance which is generated by nondelivery. But can it be said that it is unreasonable not to be aggrieved by non-delivery if the Board credibly holds out that delivery will shortly be made and vigorous search for the goods is being made amidst the enormous miscellany of consignments lying pell mell within the Port? Do you put yourself in peril of losing your right by behaving reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the vessel has discharged the goods into the port by, looking into the tally sheet or other relevant documents prescribed in the bye-laws. This part of the tracing cannot take long although it is regrettable and negligent for the Bombay Port officials to have taken undue time to give the plaintiffs even this information. On the contrary, search for the missing but landed goods in the warehouses and sheds and open spaces can be a wild goose chase honestly or as long as the consignee or port officials with dishonestly. Reasonable diligence will readily give the consignee information of landing, of his goods. In the major port cities warehousing facilities are expensive and difficult to procure so that a consignee of considerable goods may manage to get free warehousing space within the port for as long as he wants by inducing, for illicit consideration, the port officials to issue letters that the goods are being traced out. This is a vice which adds to the sinister uncertainty of the terminus a quo if we accept the plea that every letter from the port authorities that the missing goods are being traced out has the effect of postponing limitation. We wish to make it clear howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the normal course, subject to the fact of discharge from the ship to the port of the relevant goods and the knowledge about that fact by the consignee. In Union of India v. Jutharam(A.I.R. 1968 Pat. 35.) a single Judge of that High Court took the view that when part of the goods sent in one consignment was not delivered it is right to hold that it should have reasonably been delivered on the same day the delivery of the other part took place. The date of delivery of part of the consignment must be deemed to be the starting point of limitation. This approach has our broad approval. In Union of India v. Vithalsa Kisansa Co.( A.I.R. 1968 Pat. 35.) a single Judge of Bombay High Court, while emphasizing that what is reasonable time for delivery may depend upon the circumstances of each case, the point was made if the correspondence between the bailee and the consignee disclosed anything which may amount to an acknowledgment of the liability of the carrier that would give a fresh starting point of limitation. even as. if the correspondence discloses material which may throw light on the question of determining the reasonable time for delivery, the Court may take into account that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tember 19, 1959 and more than seven months had passed after that before the institution of the suit. Of course, a later date, namely, November 7, 1959 (Ext. 'A') clearly brings to the ken of the plaintiff the fact that the missing bundle has been duly landed in the port. It is true that the enquiry section of the Bombay Port Trust Docks did not even, as late as December 4, 1959, give a definite reply about the outturn for this item. On December 5, 1959, the first plaintiff brought to the notice of the Board that the above mentioned bundle has been landed and they (agents of the vessel) hold receipt from you (the Board) . The plaintiffs made an enquiry Whether the bundle has been landed, if landed, let the information regarding the whereabouts and, if not, confirm the short- landings. Further reminders by the plaintiffs proved fruitless till ;It last on January 22. 1960,, the port officer concerned wrote : I beg to inform you that the bundle under reference has been outturned as Landed but missing. It was contended that the plaintiffs, for certain, came to know of the landing of the missing bundle only on January 22, 1960. We are unable to accept this plea beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties but has a social facet, being the symptom of a social legion. We consider that the Government and the public must be alerted about the unsatisfactory functioning of the ports so 'that delinquent officials may be proceeded against for dubious default in the discharge of their duties. It is not enough that diligence is shown in pleading limitation when honest citizens aggrieved by- loss' of their goods entrusted to public bodies come to court. The responsibility of these institutions to do their utmost to prevent pilferage is implied in the legislative policy of prescribing a short period of' limitation. Another important circumstance we wish to emphasize is that ambiguity in language leading to possibilities of different constructions should not be left to the painfully long and expensive process of being ,settled decades later by the highest court in the land. The alternative and quicker process in a democracy of rectification by legislative amendment should be resorted to so that private citizens are not subjected to inordinate expense and delay because the legalese in a legislation reads abstruse or ambiguous. The very length of this judgment, and of this liti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this litigation proves that the fine but decisive point of law enmeshed in a conflict of precedents found each court reversing the one next below it, almost hopefully appetising the losing party to appeal to the higher forum. The real beneficiary is the business community which now knows finally the norm of limitation they must obey. Is it fair in these circumstances that one party, albeit the vanquished one, should bear the burden of costs throughout for providing the occasion--not provocation-for laying down the correct law in a controversial situation. Faced with, a similar moral-legal issue, Lord Reid observed : I think we must consider separately costs in this House and costs in the Court of Appeal. Cases can only come before this House with leave, and leave is generally given because some general question of law is involved. In this case it enabled the whole vexed matter of non est factum to be re-examined. This seems to me a typical case where the costs of the successful respondent should come out of public funds. ( Gallie v. Lee.). The Evershed Committee on Supreme Court Practice and Procedure had suggested in England that the Attorney-General should be empowered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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