Trustees of Port of Bombay Vs. The
Premier Automobiles Ltd. & ANR  INSC 35 (15 February 1974)
SARKARIA, RANJIT SINGH
CITATION: 1974 AIR 923 1974 SCR (3) 397 1974
SCC (4) 710
CITATOR INFO :
F 1975 SC 763 (30) R 1976 SC1111 (12) F 1976
SC1935 (30) R 1977 SC 489 (26) APL 1991 SC 14 (10)
Bombay Port Trust Act 1879--S. 87--If a
shorter period of limitation applies when there is short delivery and the
plaintiffs do not know if the total bundle of goods have actually arrived at
the port of delivery.
The first plaintiff became entitled to claim
a consignment of 53 bundles of mild steel plates dispatched by a Japanese
exporter to be delivered at the port of Bombay. The goods were discharged in
the docks on 12th September 1959, into the custody of the Bombay Port Trust,
the appellant. The goods were insured and the second plaintiff was the insurer.
On September 19, 1959, delivery of the goods
was applied for and was given but only 52 bundles. A week thereafter, the first
plaintiff demanded the missing bundle but was put off from time to time by the
appellant assuring that a search was in progress to trace the goods. From the
Indian Maritime Enterprises, the agents of the Japanese vessel, the plaintiff
came to know on November 7, 1959 that all the 53 bundles had been duly
unloaded. The plaintiff enquired from the appellant again on December 5, 1959
whether the bundle had been landed; but the port authorities still informed
that the missing bundle was still under search. Thereafter, on January 22,
1960, the appellant informed the first plaintiff that the bundle under
reference had been outturned as landed but missing.
Within a week thereafter, the first plaintiff
asked for a non-delivery certificate and the certificate was issued on March 1,
1960 and on May 12, 1960 a statutory notice under s. 87 of the Bombay Port
Trust Act, 1879, was issued and a suit was filed for the missing bundle or its
value by way of damages. The defence put forward by the appellant was, that
since the suit was governed by s. 87 of the Act and the cause of action having
arisen on September 19, 1959, the claim is barred by limitation because 6
months had already passed from the time the first cause of action arose.
The second plaintiff, insurer, having paid
the value of the lost articles to the first plaintiff got itself subrogated to
the later's right, and they together filed the suit before the Court of Small
Causes. That Court held against the appellant but the full Court in appeal
reversed the judgment of the trial court and held in favour of the appellant
holding that the claim was barred by limitation.
The High Court, however, held in favour of
the plaintiff and hence the appeal to this Court.
Section 87 of the Bombay Port Trust Act,
1879, provides that no suit or other proceeding shall be commenced against any
person for anything done or purporting to have been done, in pursuance of this
Act without one month's previous notice, and not after 6 months from the accrual
of the cause of such suit or other proceeding. The question was whether the
suit was for anything done or purporting to have been done in pursuance of this
Act, when the action is for non-delivery of one out of 53 bundles.
Allowing the appeal,
HELD : (1) Where a statute imposes a duty,
the omission to do something that ought to be done in order completely to
perform the duty, or the continuing to have any such duty unperformed, amounts
to an act done or intended to be done within the meaning of a statute which
provides a special period of limitation for such an act. [403 H--404 A]
Halsburys Laws of England, 3rd Ed. Vol. 24 P. 189-190, referred to.
Therefore in the present case, the truncated
limitation prescribed under the Act will apply. [415 E] 13-L 954 SupcI/74 398
(2)Sec. 87 of the Act insists on notice of one month’s This period may
legitimately be tacked on to the six months period mentioned in the section
(vide sec. 15(2) Limitation Act 1963. [422 G-H] (3) The starting point of
limitation is the accrual of the cause of action. Two components of the
"Cause" are Important. The date when the plaintiff came to know or
ought to know with reasonable diligence that the goods had been landed from the
vessel into the port. Two clear indications of when the consignee ought to know
are :-(1) when the bulk of the goods are delivered, there being short delivery
leading to a suit, and (2) 7 days after knowledge of ,he landing of the goods
suggested in Sec. 6lA.
Whichever is the later date ordinarily sets
off the running of limitation. [422 H--423 B] (4) Utters of assurance cannot
enlarge the limitation once the goods have landedand the owner has come to know
of it. [423 B-C] (5) Sec. 87 is attracted not merely when an act is committed
but also when a omission occurs in the course of the performance of the
official duty. [1423C-D] In the present case, applying the above principles,
the case has to be decided against the plaintiffs and the appeal is allowed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 342 of 1972.
Appeal by special leave from the judgment and
order dated the 16th September, 1972 of the High Court of Bombay in Civil
Revision No. 263 of 1967.
F. S. Nariman, Additional Solicitor General
of India, P. C. Bhartari, B. R. Zaiwala and B. S. Bhesania, for the appellant.
Anil B. Divan, K. S. Cooper, Vasant C.
Kotwal, S. C. Agarwal and P. D. Sharma, for the respondents.
The Judgment of the Court was delivered by
KRISHNA IYER, J. A small cause involving a petty claim of Rs. 1147.42 has
sailed slowly into the Supreme Court by special leave. Both sides-The Bombay
Port Trust, appellant, and the New Great Insurance Co. (a nationalised
institution), the contesting respondent-agree before us that while there is
only a short point of law in the case, a large section of the business
community, as well as the Port Trust, are affected by the ambiguity of the
legal situation and an early pronouncement by this Court on the law of
limitation applicable to consignee's actions for short delivery by the Port
Trust is necessary. 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
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
399 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 Justice Lord
Devlin's observations serve as warning for our court system : "If our
business. methods were as antiquated, as our legal methods, we would be a
bankrupt country." The problem that falls for resolution by this Court
turns on the subtle semantics alternatively spun by counsel on both sides out
of the words "anything done, or purporting to have been 'done, in
pursuance of this Act, . . . after six months from. the accrual of the cause of
True to Anglo-Indian forensic tradition, a
profusion of precedential erudition has been placed for our consideration in
the able submissions of the learned advocates on both sides. Intricacy and
refinement have marked the arguments and meticulous judicial attention is
necessitated to discover from the tangled skein of case law the pertinent
principle that accords with the intendment of the statute, the language used,
the commonsense and justice of the situation.
A relevant diary of facts and dates will help
focus attention on the primary legal question. The first plaintiff became
entitled to claim a consignment of 53 bundles of mild steel plates dispatched
by a Japanese exporter to be delivered at the port of Bombay. The goods were
discharged in the docks into the custody of the.
Bombay Port Trust (the defendant, and now the
appellant) on September 12, 1959. The goods had been insured and the second
plaintiff is the insurer. Within a week, that is, on September 19,1959,
delivery of the goods was applied for and was given but of only 52 bundles. A
week thereafter, the first plaintiff demanded the missing bundle, but was tentalisingly
put off from time to time by the defendant by letters of September 29, October
10, and December 4, 1959 assuring that a search was in progress to trace the
It is important at this stage to notice that
the plaintiff's letter of September 26, 1959 sought "information regarding
the whereabouts of the above bundle so as to enable us to clear the same at an
early date". The broad implication is that at that time the first
plaintiff had. no idea where the missing bundle was-in the vessel or the port.
It is not unreasonable to infer that he did not then know, for sure, whether
the undelivered item had been landed from the ship at all. None of the three,
letters by the defendant stated firmly that it had been discharged into the
port, and it is quite on the cards that part of the total consignment had not
been discharged into the port, in these anything-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 their 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, 400 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 Indian Maritime Enterprises) that the entire 53
bundles had been landed and desired "to please let us know immediately
whether the bundle has been landed; if landed let the, information regarding
the whereabouts and, if not, kindly confirm the short landings".
Apparently, this was to make assurance doubly sure which could be gained only
when the defendant's officials also confirmed it. Counsel for the plaintiffs,
with sweet reasonableness, urges that the interested ipse dixit of the agents
of the vessel may not by itself be sufficient to impute clear knowledge of the
discharge from the ship into the port of goods of which the Port Trust disclaimed
knowledge of whereabouts. Long later, on January 22, 1960, the Port Trust
informed the first plaintiff "that the bundle under reference had been
out-turned as landed but missing". Within a week thereafter, the first
plaintiff asked for a non-delivery certificate so that he could claim from the
insurers the value of the article lost. Such a certificate was issued on March
1, 1960 and-on May 12, 1960 a statutory notice under S. 87 of the Act was
issued, followed on June 18, 1960 by the suit for the missing bundle or its
value by way of damages. The deadly defence put forward by the defendant and
reiterated before us with great plausibility, was that the suit being governed
by s. 87 of the Act and the cause of action having been born on and limitation
commenced to run from around September 19, 1959, the claim was stale, being
well beyond six months and the statutory notice of a month super-added.
The second plaintiff, insurer, having paid
the value of the lost articles to the first plaintiff got itself subrogated to
the latter's right, and they together laid the suit before the Court of Small
Causes. That Court held on the merits that the defendant had been negligent in
bestowing the basic care which as statutory bailee it was bound to take, and on
the preliminary plea of bar of limitation repelled it, taking the view that
non-delivery of a consignment could not attract the shorter period prescribed
in s. 87 of the Act. The decrees passed was, however, set aside by the Full
Court in appeal which held the claim to fall within the ambit of the lesser
limitation laid down by the Act, and so beyond time. The teetering course of
the case brought success to the plaintiffs in the High Court when a single
Judge upset the 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
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 401 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 fulfillment 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 spring to life before the knowledge of
the landing and loss was brought home to the plaintiff.
How can a party, other than one with uncanny
powers of extra-sensory perception, sue for recovery from a bailee of
compensation for loss of goods at a time when he is ignorant of the key fact
that they have come into the latter's, hands and have been lost? In short, for
a cause of action for non-delivery by the bailee to materialise, scienter that
there has been delivery to the bailee and that it has since become
non-deliverable while in his custody, is a sine qua non. Otherwise, suits for
loss of goods would be some sort of a blind man's buff game.
The Additional Solicitor General, armed with
many decisions, Indian and English, parried the thrust by urging the rival
position that an act includes an omission in circumstances like the present,
that an official may contravene the duty laid under an Act and may yet purport
to act under it, so much so delivery of 52 out of 53 bundles, impliedly
omitting to deliver one item, is in pursuance of the statutory scheme of
accepting the cargo discharged from the vessel, warehousing them and making
them available for delivery to consignees. In his submission, to dissect the
integral course of statutory performance and to pick out a minor component of
'commission' as constituting the infringement of the owner's right which has
given rise to the cause of action, is to misread the purpose and to re-write
the effect of S. 87 and similar provisions in many statutes calculated to
protect public officer and institutions on a special basis He further contends
that even if, theoretically speaking, knowledge of the landing of the goods may
be an ingredient of the cause of action, correspondence between the bailee and
the owner regarding search for the landed goods is no ground to postpone the
accrual of the right to sue, and When in a large consignment the bulk of it is
delivered on a certain date the few undelivered items should also be reasonably
presumed as having been landed and ready to be handed over, thus bringing into
being, on such short delivery, the 'cause' to sue. Likewise, when the rules
specify a week of the landing (vide S. 61A) within which the owner is expected
to take charge of the goods-and the Port Trust is absolved from liability
thereafter-that is indication of the reasonable limit of 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 402 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 projects.
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
"S. 87. No suit or other proceeding
shall be commenced against any person for anything done, or purporting to have
been done, in pursuance of this Act, without giving to such person one month's
previous notice in writing of the intended suit or other proceeding, and of the
cause thereof, nor after six months from the accrual of the cause of such suit
or other proceeding.. ." "S. 61A(1). The Board shall, immediately
upon the landing of any goods, take charge thereof, except as may be otherwise
provided in the bye-laws, and store such as are liable in their opinion to
suffer from exposure in any shed or warehouse belonging to the Board.
(2) If any owner, without any default on the
part of the Board, fails to remove any goods other than those stored in the
warehouses appointed by the Board for the storage of duty paid goods or in
warehouses appointed under section 15, or licenced under section 16 of the Sea
Customs Act, 1878, from the premises of the Board within seven clear days from
the date on which such goods shall have been landed, such goods shall remain on
the premises of the Board at the sole risk and expense of the owner and the
Board shall thereupon be discharged from all liability theretofore incurred by
them in respect of such goods.' "61B. The responsibility of the Board for
the loss, destruction or deterioration of goods of which it has taken charge
shall, subject to the other provisions of this Act and subject also in the case
of goods received for carriage by railways to the provisions of the Indian
Railways Act, 1890 be that of a bailee under section 151, 152 and 161 of the Indian
Contract Act, 1872, omitting the words "in the absence of any special
last-mentioned Act." Let us interpret and apply.
Non-delivery of an article is an omission,
not an act and, in any case. not one in pursuance of the Act, because the
statute does ,not direct the Port Trust not to deliver the goods received from
the 403 ships that Call at the port. This view has found favour with the High
Court. With due difference to the learned judge, we think this approach to be
too literal, narrow and impractical." 'For, inaction has a positive side
as where a driver refuses to move his vehicle from the middle of tile road or
even an operator declines to stop an engine or a surgeon omits to take out a
swab' of cotton after the operation. Omission has an activist, facet "like
commission, more so when there is a duty not to omit.
Again, 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 the act is done in
apparent, though not real, cover of the statute. Broadly understood, can the
official when challenged fall back, in justification, on his official
trappings? A revenue officer distraining goods wrongfully or a municipal
officer receiving license fee from a non-licensee is violating the law but
purports to act under, it. On the other hand, a police officer who collects
water cess or a municipal officer who takes another into custody, is not by any
stretch of language acting in pursuance of or under the relevant Act that gives
him power. And certainly not an act of taking bribe or committing rape. Such is
the sense of the words we are called upon to construe. The true meaning of such
and similar words used in like statutes has been set out In, Halsbury correctly
and concisely :
"An act may be done in Pursuance of or
in the execution of the powers granted by a statue, although that act is
prohibited by the statute. A person acting under statutory powers may
erroneously exceed the powers given, or inadequately discharge the duties
imposed, by a statute, vet if he acts bona fide in order to execute such powers
Pr to discharge such duties. he is considered as acting in pursuance of the
statute. Where a statute imposes a duty, the omissions to do something that
ought to be done in order completely to Perform the duty, on the continuing to
leave any such duty unperformed, amounts to an act done or 404 intended to be
done, within the meaning of a statute which provides a special period of
limitation for such an act." (3rd edn., vol.
A selective reference to the rulings cited at
the bar may now be made. and. although in this blurred area conflicting
pronouncements have made for confusion, a systematised presentation will yield
the clear inference we have reached without reference to the citations.
In one of the earliest cases under the
Highway Act, the defendant. surveyor of the perish of T., was charged with
failure to remove the gravel from the highway which obstructed and caused
nuisance to the public and overturned the plaintiff's carriage. It was proved
that the defended was guilty of want to care in leaving the gravel there, and
the questions arose whether under s. 109 of the Highway Act he was entitled to
notice. Lord Denman, C.J., disposed ofthe matter tersely :
"It is clear that the defendant is
charged with 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 character of an officer described in
the Act of Parliament. He is, therefore, under sec 109, entitled to a notice,
in order to enable him to tender amends." This decision rendered around
130 years ago has a modern freshness and it is remarkable that the language of
the statute construed by the Judges there has a likeness to the one we are
concerned with here, namely, "anything done in pursuance of or under the
authority" of statute.
405 Still earlier rulings may be referred to;
for instance Palmer V. Tile Grana Junction Railway Company(1) where the same
point was ruled. but where Baron Parke said :
"If the action was brought against the
railway company for the omission of some duty imposed upon them by the Act.
this notice would be required." In another old decision, Poulsum v.
Thirst(2) the construction of the expression, acts "done or intended to be
done under the powers of the Metropolitan Board of Works, and fell for
decision. Byles, J. relied on Newton v.
Ellia(3) where also a similar set of words
had to be interpreted and "omitted to be done" was absent. In the
case decided by Byles, J., the defendant stopped up the sewer, and neglected to
drain it, thereby causing injury.
'The learned Judge belt] that the defendant's
conduct must be looked at as a whole, and that he was entitled to notice of
action. The other two Judges took the same view.
Newton v. Ellis(4) decided in 1855 under S.
139 of the Public Health Act, 1848, for injury caused by digging a holeon the
road without placing a light or signal there, turned on the need for notice
before summons. Earlier cases like Davis v. Curling(5) were referred to and the
conclusion reached that though the gravamen of the charge against the defendant
was the omission to place a light in the spot of danger it attracted the
formula "anything done or intended to be done under the provisions of this
Act" comparable to the phraseology of the Act which came under the
judicial lens in. Davis v. Curling 'things done in pursuance of or under the
authority' of the Act. Coleridge, J. observed with felicitous precisions
"This is not a case of not doing; t e defendant does something, omitting
to secure protection for the public. He is not sued for not putting up a light,
but for the complex act." Erle J. likewise 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-nondelivery, pursuant
to the statute without which the vinculum juris between the Board and the
plaintiff did not exist? Jolliffee v. The Wallasey Local Board(6) 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 atten(1) 4 M. & W. 749.
(3) 5 E. & B. 115; 24 L. J. (Q. B.) 337.
(5) 8 Q. D. 286.
(2) (1867) 2 L. R. 449.
(4) 119 E. R. 424.
(6) (1873) L. R. 62.
406 tion 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
But, assuming that to be so, then comes the
further question, whether the defendants are not absolved from liability in
this action, by reason of the absence of a notice of action.
For myself, I must express my regret that
this case should be decided upon such a point; but my opinion is that the
defendants were entitled to notice. This question depends upon the construction
of the several Acts of Parliament which have been placed before us."
"Now the local board was originally constituted under the Public Health
and it is not denied that, for anything done
or intended to be done under that Act, they would be entitled to a notice of
action under s. 139." "That. however, does not dispose of the matter;
a further question arises, viz., whether the acts complained of here are acts
which could be done by the local board under the provisions of the Act of
Parliament, so as to entitle them to a notice of action." "It has
been suggested that protection is not intended to be given by clauses of this
description in cases of nonfeasance.
so, is clear, from the cases of Davis v. Curling,
Newton v. Ellis, Wilson v. Mayor, & C., of Halifax, and Salmes v. Judge,
all of which seem to me to establish that a case of what appears to be
nonfeasance may be within the protection of the Act." Brett, J, expressed
himself equally unminicingly:
"Now.. two objections were urged by Mr. Aspinnal.
In the first place, he says the thing complained of here is a mere nonfeasance,
and therefore not "an act done." If I rightly understand the
judgments in former cases, the rule is this,where a man is sued in tort for the
breach of some positive duty imposed upon him by an Act of Parliament, or for
the omission to perform some such duty, either may be an act done or intended
to be done under the authority of the Act, and if so done or intended to; be
done, the defendant is entitled to a notice of action." "In Wilson v.
Mayor, & c. of Halifax(1), Kelly, C.B., states the proposition in those
terms: It has been urged on the part of the plaintiff that the charge against
the defendants is not of any act done or intended to be done, but of an
omission to erect or cause to be erected a fence between the footpath and the
goit, and that the omission to do an act is not (1) Law Rep. 3 Ex. 114.
407 an act done or intended to be (lone,'
Some authorities have been cited on both sides: but we think that, whatever may
be the construction which might be put upon the words of the statute if the
question 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 (1). 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 or intended to be' done" within the meaning of a clause
requiring a notice of action." A case which went up to the Privy Council
from India under the Calcutta Port Act, 1890, was decided on similar lines by
the Judicial Committee in Commissioner for the Port of Calcutta v. Corporation
of Calcutta(2). Lord Alness observed "Reliance was placed by the
respondents on the case of the Bradford Corporation v. Myers [(1916) I. A.C.
242]. Now, inasmuch as that case related to the construction of the Public
Authorities Protection Act (1893), which contains language not to be found in
the Indian statute, and which omits language to be found in the latter,
manifestly the decision falls to be handled with c are. In particular, the
English Act does not contain the word is "purporting or professing"
to act in pursuance of the statute. Their Lordships regard these words as of
Their presence in the statute appears to
postulate that work which is not 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 English Act was properly treated by
the, House in the Bradford case as one from which the words "profession or
purporting" were omitted, and the observations of the House must, of
course, be construed secundum subjectam materiem." (2)  64IA 363;
(1) (1884) 9 L. R. 41 8.
408 In a different context though, the Privy
Council had to deal with a similar provision, namely, s. 197 of the Criminal
Procedure Code, in the well-known case of Gill v. The King(1). Lord Simonds,
speaking for the Board, explained the position of law thus :
"A public servant can only be said to
act or to purport to act in the discharge of his official duty, if his act is
such as to lie within the scope of his official duty. Thus, a judge neither
acts nor purports to act as a judge in receiving a bribe, though the judgment
which he delivers may be such an act:
nor does a Government medical officer act or
purport to act as a public servant in picking the pocket of a patient whom he
is examining, though the examination itself may be such an act. The test may
well be whether the public servant, if challenged, can reasonably claim that, what
he does, he does in virtue of his office." It may be mentioned even here
that the Judicial Committee had distinguished Bradford Corporation v. Myers(2)
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(3) and also the ratio in Huntley's (4) 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 done or purporting to be
done in the execution of his duty". The learned Judge observed :
"Apart from the principle that, for the
purposes of the criminal law, acts and illegal omissions stand very much on the
same footing, the conduct of the appellant in maintaining the accounts, which
it was his duty to keep, has to be dealt with as a whole and the particular
omission cannot of itself be treated as an offence except as a step in the
appellant's conduct in relation to the maintenance of the register which it was
his duty correctly to maintain." Stress was laid rightly by the learned
Judge on the relevance of public interest in protecting a public servant and in
restrictions being placed on an aggrieved citizen seeking redress in a court of
law, to point out (1)  75 I. A. 41; 59-60.
(3)  F. C. R. 159.
(2)  1 A. C. 242.
(4)  F. C. R. 252.
409 that acts which have no reference to
official duty should not come within the protective umbrella of these statutory
provisions. The learned Judge insisted that "an act is not less one done
or purporting to be done in execution of a duty because the officer concerned
does it negligently." The true test, if we may say so with great respect,
is whether the conduct of the public servant or public body, viewed as a whole,
including as it may 'omissions' also, be attributed to the exercise of office.
Sri Cooper reinforced his contrary argument
by reliance on the case of Revati Mohan Das v. Jatindra Mohan Ghosh(1) which
dealt with s. 80 of the Civil Procedure Code. That decision, however, is
distinguishable and relates to an optional act or omission of a public officer
where it could not be designated that the failure to pay the debt by a manager
was an 'illegal omission' constituting an 'act' under s. 3 of the General Clauses
A decision of the Calcutta High Court
(Commissioner for the Court of Calcutta v. Abdul Rahim Osman & Co.(2),
turning on the construction of a similar provision (s. 142 of the Calcutta Port
Act) covers the various decisions, Indian and English, and after pointed
reference to Amrik Singh's case reaches the conclusion :
"There must be a reasonable connection
between the act and the discharge of official duty;
the act must bear such relation to the duty
that the accused could lay a reasonable, but not a pretended or fanciful claim,
that he did it in the course of the performance of his duty." The Bench
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
(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(3) the Bihar Local Self-Government Act containing a provision
analogous to (1)  61 I. A. 171. (2) 68 Cal. Weekly Notes 814.
(3) A. I. R. 1955 Pat. 432.
410 what we are, concerned with here was
construed by a bench of that Court reading the words "anything done under
this Act" to include "anything Omitted to be done under the
Act", and further that anything done tinder this Act' necessarily and
logically embraces anything wrongfully done or wrongfully omitted to be done.
In Gorakh Fulji Mahala v. State(1), Chandrachud,
J., as he then was, made an elaborate study of a comparable provision in the
Bombay Police Act (s. 161) and followed the Federal Court decisions already
referred to by us, as well as this Court's decision in Shreekantiah Ramayya
kunipalli v. State of Bombay(2). The learned Judge summed up the law thus
"The decisions cited above have uniformly taken the view that in an act
cannot be said to be done under colour of office or under colour of duty or in
the Purported execution of official duties unless there is a reasonable
connection between the act and the office. A view has also been taken in these
decisions that one of the tests for determining whether an act has been done in
the purported discharge of official duties is whether the public servant can defend
his act by reference, to the nature of the duties of his office if he is
challenged while doing the act." A few more decisions, apart from what has
already been referred to by us, specifically dealing with similar causes of
action under similar statutes, viz., the Calcutta Port Act and the Madras Port
Trust Act, have discussed the problem before us. In Madras Port v. Home
(3), a Division Bench of the Madras High
Court adopted the wider view and held "The services which the Board has to
perform and could perform statutorily under the statutory powers and duties
cannot be dissociated from its omissions and failures in relation to the goods.
Any action Which is called for will properly be covered by the Words 'anything
done or purporting to be done in pursuance of this Act. Under the Madras
General Clauses Act, 1891 words which refer to. the acts done extend also to
illegal omissions." Natesan, J., relied on Calcutta Port Commissioner v.
Corporation of Calcutta(4), where the
Judicial Committee had stressed the ampler sense of 'purporting or professing
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." (1) I. L. R.  Bom. 61.
(3) A. I. R. 1970 Mad. 48; 57-58.
(2)  1 S. C. R. 1177.
(4) A. I. R. 1937 P. C. 306.
411 The whole issue is clinched in our view
by the final pronouncement of this Court in Public Prosecutor Madras ;v.R.
Raju(1). 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 (2) 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(3),
case Was relied on 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 the non-discharge of duty in keeping a regular diary. Even filing false
returns by a sales tax assessee was held in Sitaram v. State of Madhya
Pradesh(4) as an act done under the Berar Sales Tax Act whereunder a
prosecution for such an. act had to be brought in three months. The ratio
decidendi is set out by Ray, J. (as he then was) thus :
"25. These decisions in the light of the
definition of the word 'act' in the General Clauses Act establish that
non-compliance with the provisions of the statute by omitting to do *hat the
act enjoins will be anything done or ordered to be, done under the Act. The
complaint against the respondents was that they wanted to evade payment of
duty. Evasion was by using and affixing cut and torn banderols. Books of accounts
were not correctly maintained There was shortage of banderol in stock.
Unbanderolled matche's were found. These are all infraction of the provisions
in respect of things done or ordered to be done under the Act.
26. In Amalgamated Electricity Co. v. Municipal
Committee, Ajmer [(1969) 1 S.C.R.
430] the meaning of 'omission' of a statutory
duty was explained by this Court. Hegde, J., speaking for the Court said
"The omission in question must have a positive content in it.
In other words, the non-discharge of that
duty must amount to An illegality". The positive aspect of omission in the
present case in evasion of payment of duty. The provisions of the Act require
proper affixing of banderols.
Cut or turn banderols were used. Unbandderolled
match boxes were found.
These proisions about use of banderols are
for collection and payment of excise duty. The respondents did not pay the
lawful dues which are acts to be done or ordered to be done under the
Act." We readily concede that it is oversimplfication to state that no
court has taken the contrary view, both on the question of act not including an
omission and action contrary to the behest of the statute not being done
pursuant to or under the statute. An exhaustive consideration of these twin
propositions is found in Zila Parishad v. Shanti Devi(5).
(1) A. I. R. 1972 S. C. 2504. (2)  1
(3)  Supp, 2 S. C. A. 38. (4) 
Supp. 3 S. C.
(5)  1 S. C. R. 430.
412 Seemingly substantial support for Shri
Cooper's contention is derived from observations in State-of Gujarat v. Kansara
Manilal Bhikhala(1), where, rejecting a plea of protection under S. 117 of the Factories
Act, 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 done in the Nagpur case above
referred to, that the occupier and manager are exempted from liability in certain
cases mentioned in S.
101. Where an occupier or a manager is
charged with an offence he is entitled to make a complaint in his own turn
against any person When actual the actual offender and on proof of the
commission of the offence by such person the occupier or the manager is
absolved from liability. This shows that compliance with the peremptory
provisions of the Act is essential and unless the occupier or the manager
brings the real offender to book he must bear the responsibility. Such a
provision largely excludes the operation of S.
117 in respect of per-sons guilty of a breach
of the provisions of the Act. It is not necessary that mens rea must always be
established as has been said in some of the cases above referred to. The
responsibility exists without a guilty mind. An adequate safeguard, however,
exists in S. 1 0 1 analysed above and the occupier and manager can save
themselves if they prove that they are not the real offenders but who, in fact
It is obvious that this ruling can hardly
help, once we understand the setting and the scheme, of the statute and the
purpose 'of protection of workers ensured by casting an absolute obligation on
occupiers to observe certain conditions. The context is the thing and not
In a recent ruling of this Court in Khandu
Sonu Dhobi v. State of Maharashtra(2), Khanna, J., while repelling a plea of
immunity from (1)  1 I. L. R. All. 783.
(2)  3 S. C. R. 510.
413 prosecution put forward by the accused on
the score of limitation and the case being "in respect of anything done or
intended to be done under this Act" (The Bombay Land Improvement Scheme
Act, 1942) said:
"This contention, in our opinion, is
devoid of force. Subsection (2) refers to suit or prosecution against a public
servant or person duly authorised under the Act in respect of anything done or
intended to be done under the Bombay Land Improvement Schemes Act. It cannot be
said that the acts of the accused appellants in preparing false documents and
in committing criminal breach of trust in respect of the amount of Rs. 309.07
as also their act of criminal misconduct were done under the Bombay Land
Improvement Schemes Act. Subsection (2) of section 23 deals with anything done
or intended to be done under. the above mentioned Act by a 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 the amount entrusted to them for the purpose of
rectification.' We hope no policeman can shelter himself after a rape of an
arrested *Oman or shooting of his own wife on the pretext of acting under the
Immunity cannot be confused with
toxicity-disastrous in law as in medicine. Nor can functions of office be
equated with opportunities of office, without being guilty of obtuseness.
This chapter of our discussion yields the
conclusion that an act includes an omission (regardless of the General Clauses
Act, which does not apply to antecedent statutes)-not under all circumstances
but in legislations like the Act we are construing. Again, what is done under
purported exercise of statutory functions, even if in excess of or contrary to
its provisions, is done pursuant to or under the Act so long as there is a legitimate
link between the offending act and the official role. Judged thus the defence
by the Board fills the bill.
The Scheme of the statute is simple. When
cargo ships call at the port, the Board constituted under the Act shall take
charge of the goods landed from the vessel and store them properly (S. 61 (A)(
1) ). The 14-L954SupCI/74 414 Board cannot keep goods indefinitely,
hard-pressed as any modern port is for space and facing as it does intractable
problems of protection of goods. When the goods have landed the owner has to be
on the alert and get ready to remove them within 7 days, after which the
statutory bailee, the Board, is discharged from liability-subject, of course,
to any default on the part of the Board in the matter of making the goods deliverable
(s. 61A(2)). The span of statutory custody of the Board is short but during
that time its obligations are those of a bailee under ss. 151, 152 and 161 of
the Indian Contract Act, 1872, omitting the words "in the absence of any
special contract" in S. 152 of the Contract Act (S. 61B).
If the person entitled to the goods defaults
in removing them within one month of the Board coming into custody, special
powers of disposal by public auction are given by S.
64A. The Act charges, the Port authorities
with a wealth of functions and duties and necessarily legal proceedings follow
upon the defects, defaults and other consequences of abuse of power. Even so, a
public body undertaking work of the sort which a Port carries out will be
exposed to an explosive amount of litigation and the 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 in its broad embrace all official action,
positive and negative, which is the operative cause of the grievance. Although
the Act, in the present case, uses only the expression 'act' and omits 'neglect
or default or omission, the meaning does not suffer and if other statutes have
used all these words it is more the draftsman's anxiety to avoid taking risks
in court, not an addition to the semantic scope of the word 'act'. Of course,
this is the compulsion of the statutory context and it may well be that other
enactments, dealing with different subject-matter, may exclude from an 'act' an
This possibility is reduced a great deal by
the definition of 'act' in the various General Clauses Acts, as including
'illegal omissions'. The leading ,case of Jolliffee v. The Wallesey Local
Board(1) decided nearly a century ago has stood the test of time and still
cunent coin, and (1) (1873) 9 L. R. 62.
415 Stroud (Stroud's Judicial Dictionary; 3rd
edn. Vol. 1; page 877) has extracted its ratio thus :
"An omission to do something which ought
to be done in order to 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 a clause requiring a notice of action (Joliffe v. Wallesey, L.R.
9 C.P. 62)." We regret the prolixity of the judgment because we appreciate
brevity but it is the judicial price or tribute to the learning and length of the
arguments presenting a panoramic view of Anglo-Indian judicial thought for
which we are obliged to both counsel. Indeed, the plethora of rulings cited has
been skipped here and there by a process of calculated ricochet, without
omitting the more salient cases. And we are re-assured, at the end of this
pilgrimage through precedents, that the soundness of the view we have taken is
attested by pronouncements of vigorous judges twice three score and ten years
ago, in words which 'age cannot wither nor custom stale'. Law is a practical
instrument, a working tool in a workaday world and where, as here, the effected
fraction of the community is the common official the commercial man and
ordinary folk, the wiser rule of construction follows commonsense, not casuistry,
context, not strictness and not subtle nuance but plain 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 there under 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, which under the Act arises only on the
vessel discharging the goods into the port-certainly not before. In this
species of actions, the right to sue postulates knowledge of the right. Till
then it is embryonic, unborn.
A vital point, then, is as to when the first
plaintiff came to know of the goods in question having landed. The defendant
says that when the bulk of the consignment is delivered 'on a Particular date,
it must be presumed, unless a contrary inference on special circumstances is
made out, that the undelivered Dart was deliverable on that date so 416 much so
that limitation began to run from then on. Any further representation by the
bailee that he was trying to trace the missing bundle would not affect the
cause of action and therefore the commencement of limitation.
How can a claim be barred without being born
?'When, then, did the right to sue arise ? It depends on what right was
infringed or duty breached. Which leads us to the enquiry as to what is the
statutory responsibility cast on the Board and what is the violation alleged to
create the 'cause' of action. The bundle of facts constitutive of the right to
sue certainly includes the breach of bailee's duties.
Section 61B of the Act saddles the Board with
the, obligations of a bailee under ss. 151, 152 and 161 of the Contract Act in
regard to loss, destruction or deterioration of goods of which it takes charge.
The degree of care is fixed by s. 151 the absolvatory circumstances are
indicated by s. 152 and the responsibility for loss is fastened by S.
162 if, by the fault of the bailee, the goods
are not delivered or tendered at the proper time to the bailor. The proper time
for delivery is as soon as the time for which the goods were bailed has expired
or the purpose of the bailment has been accomplished-Sec. 160, although not in
terms woven into the Port Trust Act, is impliedly incorporated, because s. 161
inevitably brings it into play.
Even so, when does the time for which the
goods are bailed expire ? The answer is, according to the Solicitor General,
when the week after landing of the goods expires if s. 61A(2) betokens anything
on this point. He urges that when the bulk of a consignment is delivered by the
bailee the time for delivery of the short-delivered part must be reasonably held
to have come. Finally, he submits that the time consumed by search for the
landed goods 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
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 approach to the
port it is a futile law which insists on delivery date having arrived and
therefore limitation having been set in motion. The key question is, according
to counsel, when ought the goods have been put in a deliverable state by the
Board ?. If, having regard to reasonable circum417 stances, the Port Trust did
not tender delivery, the right of action for non-delivery, subject to statutory
notice, arose and the calendar would begin to count the six months in S. 87. We
are inclined to assent to this stand for legal and pragmatic reasons.
In Madras Port Trust case where action for
loss of goods was laid, two extreme contentions competed for acceptance. The
Board argued that the goods once landed, time ran inflexibly and an absolute
span of one month having expired before statutory notice was given the suit was
barred. This was over-ruled by the Court (M/s. Swastik Agency v. Madras Port
Trust) (1). But the opposite plea, equally extravagant, commended itself to the
Court, erroneously in our view. The plea was that till the plaintiff knew of
the loss, destruction or deterioration time stood still even if many months
might have rolled on after the vessel had discharged the goods. It is true that
s. 87 speaks of '6 months from the accrual of the cause of such suit'. What is
cause of the suit? Loss, destruction or deterioration ? If so, as Ramamurti,
J., has held :
"It stands to common sense that the
owner cannot be expected to file a suit before he is given access to the goods
and also an effective opportunity to examine the goods and he becomes aware of
the loss or damage which had occurred to the goods. To hold that the period of
one month specified in s.40(2) would, commence to run even before the owner of
the goods became aware, of the loss or damage would result in absurd and
startling results." The legal confusion issues from the clubbing together
of the triple categories of damage. Cause of suit being destruction or
deterioration while the goods are in the custody of the bailee it is correct to
read as this Court did in a different situation under the Land Acquisition Act
in Harish Chandra v. Deputy Land Acquisition Officer(2), knowledge of the
damage by the affected party as an essential requirement of fair play and
natural justice. The error stems from visualising loss as the 'cause' 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 nondelivery, with nothing super-added. _Loss is the direct result. viewed
through the owner's eyes, of non-return, nondelivery 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 consequence. 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'.
(1) A. I. R. 1966 Mad. 130. (2) A.I.R. 1961
418 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 on limitation must be recognised, was the
contention, strengthened by Dhian Singh Sabha Singh v. Union of India(1) and
certain passages from Clerk & Lindsell on Torts (11th Edition, pages 441
and 442; paras 720 & 721). The flaw in the argument is that we are
concerned with a statutory bailment, statutory action for loss due to
non-delivery and not a contractual breach and suit in damages or for value of
the goods bailed.
Another fascinating,line of thought was
suggested to extricate the plaintiff from the coils of brief limitation.
When the defendant holds goods as bailee, the
plaintiff may found his cause of action on a breach of the defendant's duty as
bailee of the goods by refusal to deliver them upon request. Gopal Chandra Bose
v. Surendra Nath Dutt(2), Laddo Begam v. Jamal-ud-din(3) and Kupruswami
Mudaliar v. Pannalal Sawcar(4) were cited in support. Other rulings striking a
similar note were also relied on. But we need not express any opinion on the
soundness of that position for here we are dealing with a statutory liability where
the plenary liabilities of a bailee cannot be imported.
Counsel for the respondents also urged that
the analogy of art. 120 of the Limitation Act entitles him to reckon time from
when he came to know of the facts making up the right to sue. In Annamalai
Chettiar v. Muthukarappan Chattiar(5), the Judicial Committee had observed:
"In their Lordships' View the case falls
under art. 120, under which the time begins to run when the right to sue
accrues. In a recent decision of their Lordship's Board, delivered by Sir Binod
Mitter, it is stated, in reference to art. 120 : There can be no 'right to sue'
until there is an accrual of the right asserted in the suit and its
infringement or at least a clear and unequivocal threat to infringe that right
by the defendant against whom the suit is instituted" : Bala v. Koklan(6).
Counsel for the appellants admitted that he was unable to specify any date at
which the claim to an account here in suit was denied by the appellants. Accordingly
this contention fails." The reference to Sir Binod Mitter's observations
relates. to the ruling in Bala v. Koklan. The proposition is impeccable but is
inapplicable if it is urged that the knowledge of the loss marks the 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 (1)  S.C.R. 781. (2) 12 C.W.N. 1010.
(3)  I.L.R. 42 All 45. (4) (1942) Mad.
(5) 58 I.A. 18. (6) (1930) L.R. 57 I.A. 325.
419 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(1) 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(2) this Court
settled the conflict and gave the correct lead which has been heavily relied on
by the Solicitor General. Sri Cooper contested the application of the principle
in Bootamal on the score that art. 31, Limitation Act, 1908, which fell for
construction there, used the words 'when the goods ought to be delivered"
and covers both delayed delivery and nondelivery, which were absent in s.87,
and argued that even otherwise it did not run counter to the contention of the
respondent. Anyway, the Court held there as follows:
"Reading the words in their plain
grammatical meaning, they are in our opinion capable of only one
interpretation, namely, that they contemplate that the time would begin to run
after a reasonable period has elapsed on the expiry of which the delivery ought
to have been made. The words "when the goods ought to be delivered"
can only mean the reasonable time taken (in the absence of any term in the
contract from which the time can be inferred expressly or impliedly) in the
carriage of the goods from the place of dispatch to the place of destination.
Take the case, where the cause of action is based on delay in delivering the
goods. In such a case the goods have been delivered and the claim is based on
the delay caused in the delivery.
Obviously the question of delay can only be
decided on the basis of what would be the reasonable time for the arriage of
goods from the place of despatch to the place of destination. Any time taken
over and above that would be a else of delay. Therefore, when we consider the
interpretation of these words in the third column with respect to the case of
non-delivery, they must mean the same thing, namely, the reasonable time taken
for the carriage of goods from the place of dispatch to the place of
destination. The view therefore taken by some of the High Courts that the time
begins from the date when the railway finally refuses to deliver cannot be
correct, for the words in the third column of art. 31 are incapable of being
interpreted as meaning the final refusal of the carrier to deliver." (1)
A.I.R. 1961 S.C. 808. (2)  1 S.C.R. 70, 76, 79.
420 "With respect, it is rather
difficult to understand how the subsequent correspondence between the railway
and the consignor or the consignee can make any difference to the starting
point of limitation, when that correspondence only showed that the railway was
trying to trace the goods. The period that might be taken in tracing the goods
can have no relevance in determining the reasonable time that is required for
the, carriage 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
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
reasonably and believing the Board to be a responsible body ? We think not. We
are not impressed by the argument based on Bootamal and the train of decisions
following it, under the Railways Act. The rulings of this Court in Union of
India v. Amar Singh,(1), Governor General in Council v. Musaddi Lal(2) and
Jetumull Bhojrai v. The Darjeeling Himalayan Railway Co.(3) relate to the
Limitation Act and the Railways Act;' and, while public carriers and Port
authorities may in many respect bear similar responsibility, the limitation law
applicable is different.
May be,-some uniformity is desirable in this
area of law.
But we have to go by the language of S. 87
and not be deflected by analogy drawn from the Railways Act or Limitation Act
with noticeable variations. Never-the-less, one of the legal lines harshly but
neatly drawn in Bootamal lends some certainty to the 'from when' of limitation,
by eliminating an impertinence letters informing that search for the goods is
under way. The snag is in linking this proffer of search to the vital
ingredient in the 'accrual of the cause'. If, as Bootamal has correctly
highlighted, the tracing process is after the 'cause' is complete it is
irrelevant to procrastinate limitation. This is the wider contribution of thatdecision
to this blurred branch of the law. So much so, sheafs of letters from the Port
officials that the landed goods are being tracted out or searched for are
impotent to alter the date from when the crucial sixmonths' race with time
be-gins. Once limitation starts, nothing-not the most tragic eventscan
interrupt it; for 'the moving hand writes, and having writ (1)  2 S.C.R.
75. (2)  3 S.C.R. 647.
(3)  2 S.C.E. 832.
421 moves on; not all thy tears nor piety can
lure it back to cancel half a line'. This implacable start is after 'the
accrual of the cause', which is when non-delivery or nontender takes place.
That event is fixed with reference to reasonable lapse of time after the
unloading of the goods.
Thus, if the search is to find out whether
the goods have landed at all, it is integral and anterior, to the 'cause';
but if it be to trace what has definitely
been discharged into the port it is de-linked from the, 'cause'a la Bootamal.
Such an approach reduces the variables and
stops the evils of fluctuation of limitation. It is easy to fix when 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 however that the
event which is relevant being the discharge of the goods from the ship into the
port, the bailment begins when the Board takes charge of the goods and a
necessary component of the "cause" in S. 87 of the Act is the
knowledge of the owner that the goods have landed.
One small but significant argument of the
Solicitor General remains to be noticed. In the search for what 'is the
reasonable time for delivery by the bailee a pragmatic or working rules is
suggested by him which we think merits consideration. When a large consignment
is entrusted with the Board and the bulk of it is delivered on a particular
date it ordinarily follows that the reasonble time for the delivery of the
missing part of the consignment also fell on that date. There may be
exceptional circumstances whereby some items in the consignment might not have
been unloaded from the ship by mistake or might be stored by error in a wrong
shed mixed up with other goods so that they are not deliverable readily, or a
substantial part of the goods has been taken delivery of and by the time the
balance is sought to be removed a bandh or strike or other physical obstruction
prevents taking delivery. Apart from these recondite possibilities which
require to be specially proved by him who claims that limitation has not
started, it is safe to conclude that the date for delivery of the 422
non-delivered part of the consignment is the same as that when a good part of
it was actually delivered.
The ruling in Trustees of the Port of Mad?-as
v. Union of India, cited by Shri Cooper in this context, is good in parts. The
learned judges were dealing with the short delivery by the Madras Port Trust.
While pointing out that attempts made by the Port Trust to locate the goods
would be no answer to the claim for delivery made by the consignee, the Court
held that the date when limitation starts in such cases is when a certificate
that the missing packages are not available (Shedmaster's certificate 'C') is
While it is correct to say that alleged
attempts by the Port officials to locate the goods which have definitely landed
has no bearing on the "cause", it is equally incorrect to hold that
till the certificate that the non-delivered package is not forthcoming
limitation does not begin. The true test, as we have earlier pointed out, is to
find out when delivery should have been made in 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(1) 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.(2) 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 correspondence but not subsequent letters relating only to the tracing of
the goods. This statement of law although made in the context of a public
carrier's liability applies also to the Port Trust. In short, there is force in
the plea that normally the date for delivery of the missing packages should be
deemed to be the same as the date when another part of the consignment was
We thus come to the end of the case and may
formulate our conclusions, as clearly as the complex of facts permits.
(1) Section 87 of the Acts insists on notice
of one month.
This period may legitimately be tacked on to
the six month period mentioned in the section (vide Sec. 15(2) Limitation Act,
(2) The starting point of limitation is the
accrual of the cause of action. Two components of the "cause" are
important. The date (1) A.I.R. 1968 Pat. 35.
(2) A.I.R. 1971 Bom. 172.
423 when the plaintiff came to know or ought
to know with reasonable diligence that the goods had been landed from the
vessel into the port. Two clear, though not conclusive indications of when the
consignee ought to know are (1) when the bulk of the goods are delivered, there
being short delivery leading to a suit (ii) 7 days after knowledge of the
landing of the goods suggested in Sec. 61A. Whichever is the later date
ordinarily sets off the running of Limitation.
(3) Letters or assurances that the missing
packages are being searched for cannot enlarge limitation, once the goods have
landed and the owner has come to know of it. To rely on such an unstable date
as the termination of the search by the bailee is apt to make the law
uncertain, the limitation liable to manipulation and abuses of other types to
seep into the system.
(4) Section 87 is attracted not merely when
an act is committed: but also when an omission occurs in the course of the
performance of the official duty. The act-omission complex, if it has a nexus
to the official functions of the Board and its officers, attracts limitation
under s. 87.
Judged by these working rules, the present
case has to be decided against the plaintiffs. For one thing, the short
delivery of one bundle of steel plates is an integral part of the delivery of
the consignment by the port authorities to the consignee in the discharge of
their official functions as statutory bailee. Section 87 of the Act, therefore,
applies. The delivery of the bulk of the consignment took place on September
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
because the first plaintiff had already got the information, as early as
November 7,'1959, about the due landing of the missing item from the Indian
Maritime Enterprises. Nothing has been suggested before us as to why this
knowledge of the plaintiff should be discarded. The subsequent correspondence
between the port officers and the plaintiffs was more for getting requisite
424 to follow up legal proceedings against
the insurer by the consignee. In this view, the starting point of limitation
arose on November 7, 1959 and the suit was instituted on June 18, 1960, a
little over 10 days beyond the period of limitation. The plaintiffs thus missed
the bus and we regret to decide on this technical point that the suit is liable
to be dismissed but we must.
A faint plea that the Board is not a 'person'
falling within s. 87 was suggested by Sri Cooper but its fate, if urged, is what
overtook a similar contention before a Bench of the Madras High Court in
Trustees of the Port of Madras v. Home Insurance Co.(1)-dismissal without a
It is surprising that a public body like the
Port Trust should have shown remissne in handling the goods of consignees and
in taking effective action for tracing the goods. It is seen that while there
is ,a special police station inside the port, called the Yellow Gate Police
Station, with six or seven officers and 200 policemen for duty by day and with
about 400 policemen for duty by night, the port authorities ,did not care to
report to the police till December 16, 1959. Three months is far too inordinate
and inexcusable a delay for reporting about the pilferage of a vital and
valuable item, namely, a bundle of ,steel plates imported from Japan by an
automobile manufacturing company.
While we dismiss this suit, we feel that it
is not enough that the State instal police stations inside the ports; it must
ensure diligent action by the officials, and if there is delinquency or default
in discharging their duties promptly and smartly, disciplinary action should be
taken against those concerned. In this country our major harbours are acquiring
a different reputation for harbouring smugglers :and pilferers and an
impression has gained currency that port officials ,connive at these operations
for consideration. Every case is an event and an index, projects a conflict of
rights between two entities 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
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 litigation, is
eloquent testimony to the need (1) A.I.R. 1970 Mad. 48.
425 for prompt corrective legislation on such
small matters as have cropped up in the present case. Moreover, some uniformity
in regard to. statutory bailee's responsibilities, whether they be public
carriers like the Railways, or strategic institutions like Ports, will give the
community a sense of certainty and clarity about their rights and the duties.
of public bodies in charge of their goods.
Counsel had drawn attention to the
difficulties of the community where conflicting judicial currents aided by
tricky words have made law chancy, and the need for this Court to clear the
ground and give. the lead. We are aware, with justice Jackson of the U.S.
Supreme Court, that 'the judicial decree, however, broadly worded, actually
binds in most instances, only the parties to the case. As to others,. it is
merely a weather vane showing which way the judicial wind is blowing'. The
direction of the wind. in this branch of law, is as we have projected.
We are of the view, in reiteration of earlier
expression on the same lines, that public bodies should resist the temptation
to take technical pleas or defeat honest claims by legally permissible but
marginally unjust contentions, including narrow limitation. In this and similar
cases, where a public carrier dissuades private parties from suing by its
promises of search for lost articles and finally pleads helplessness,, it is
doubtful morality to non-suit solely on grounds of limitation, a plaintiff who
is taken in by seemingly responsible representation only to find himself fooled
by his credibility. Public institutions convict themselves of untrustworthiness
out of their own mouth by resorting to such defences.
What should be the proper direction for.
costs ? Both the parties arc public sector bodies. But the principle which must
guide us has to be of general application. Here is a small claim which is
usually associated with the little man and when, as in this test action, the
litigation escalates to the final court wafted by a legal nicety, his financial
back is broken in a bona-fide endeavour to secure a declaration of the law that
binds all courts in the country for the obvious benefit of the whole community.
The fact that the case has gained special leave under art. 136 is prima facie
proof of the general public importance of the legal issue.
The course 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 426 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."(1).
"The Evershed Committee on Supreme Court
Practice and Procedure had suggested in England that the Attorney-General
should be empowered to issue a certificate for the use of public funds in
appeals to the House of Lords where issues of outstanding public importance are
Maybe, a scheme for a suitor's fund to
indemnify for costs as recommended by a Sub-Committee of Justice is the answer,
but these are matters for the consideration of the Legislature and the
Executive. We mention them to show that the law in this branch cannot be rigid.
We have to make a compromise between pragmatism and equity and modify the
loser-pays-all doctrine by exercise of a flexible discretion. The respondent in
this case need not be a martyr for the cause of the, certainty of law under S.
87 of the Act, particularly when the appellant wins on a point of limitation.
(The trial court had even held the appellant guilty of negligence). In these
circumstances we direct that the parties do, bear their costs throughout.
Subject to this, we allow the appeal.
(1) Gallie v. Lee.
(2)  A.C. 1039,1048.