GULAM HUSSAIN AHMEDALI Vs. TRUSTEES OF THE PORT OF TRUST BOMBAY
LAWS(BOM)-1962-3-2
HIGH COURT OF BOMBAY
Decided on March 20,1962

GULAM HUSSAIN AHMEDALI Appellant
VERSUS
TRUSTEES OF THE PORT OF TRUST, BOMBAY Respondents


Referred Judgements :-

ESSOO BHAYAJI V. THE S.S. "SAVITRI" [REFERRED TO]
BOMBAY STEAM NAVIGATION CO. LTD. V. VASUDEV BABURAO [REFERRED TO]
LAKHAJI DOLLAJI AND CO. V. BOORUGU MAHADEO RAJANNA [REFERRED TO]
SHEIKH MAHOMED RAVUTHER V. BRITISH INDIA STEAM NAVIGATION CO. LTD. [REFERRED TO]



Cited Judgements :-

RANADEB CHOUDHURI VS. LAND ACQUISITION JUDGE 24 PARGANAS [LAWS(CAL)-1971-1-14] [REFERRED TO]
TRUSTEES OF THE PORT OF BOMBAY VS. PREMIER AUTOMOBILES LTD [LAWS(BOM)-1970-7-5] [REFERRED TO]


JUDGEMENT

- (1.)THIS suit was filed in the Bombay Small Causes Court for the recovery of Rs. 2,966/- by way of damages. The plaintiffs are a private limited company carrying on business as importers and merchants. The defendants are the Trustees of the Port of Bombay, hereinafter referred to as the Board, a statutory body incorporated under Section 4 of the Bombay Port Trust Act, 1873. The plaintiffs say that they imported four cases of Cellulose Tapes and Bench Dispensers from London, that the four cases arrived at the Bombay docks, that the plaintiffs paid the necessary customs duty on the goods, that the Docks Manager of the Board delivered to the plaintiffs only one of the four cases, and that the remaining three cases were not delivered to the plaintiffs. The plaintiffs say that the three cases were lost when in the custody of the Board, and that they were lost solely due to the acts of negligence, malfeasance and nonfeasance on the part of the Board's administration and also due to want of proper care and caution which the Board were bound in law to take in respect of the said goods. One of the defences raised in the suit was that the Board are not liable for the misconduct or negligence or malfeasance of their servants and that the Board repudiate their liability under Section 87 of the Bombay Port Trust Act. in view of this defence, the plaintiffs applied to this Court for a transfer of the suit under Article 228 of the Constitution on the ground that, in the plaintiffs' submission, Section 87 of the Bombay Port Trust Act is repugnant to the fundamental rights guaranteed under Articles 14 and 19 (1) (f) of the Constitution, and that it was ne-cessary to transfer the suit in order that the constitutional question may be decided by this Court. A bench consisting of the Chief Justice and Chandrachud J. granted the application, and, while doing so, directed that judgments should not be delivered in eight other suits pending in the Bombay Small Causes Court and six suits pending in the City Civil Court wherein the same constitutional question has been raised.
(2.)ON behalf of the plaintiffs, Mr. Amin ar gued before us that the second paragraph of sec tion 87 of the Bombay Port Trust Act is repug nant to Article 14 and to Article 19 (1) (f) and (g) of the Constitution, and is therefore void and of no legal effect. Section 87 is in the following terms: --"87. Limitation of suits, etc.-- 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. The Board shall not be responsible for any misfeasance, malfeasance or non-feasance of any employee appointed under this Act; nor, if they should be appointed by the Central Government, under the Indian Ports Act, 1875, Conservators of the port for any misfeasance, malfeasance or non-feasance of any Deputy Conservator, Master-attendant or Harbour-master, or of any assistant or deputy of any such employee, or of any person acting under the authority or direction of or in subordination to any such officer, assistant or deputy: nor for any damage sustained by any vessel in consequence of any defect in any of the moorings', hawsers or other things belonging to the Board which may be used by such vessel; nor shall the Board, or any of the said employees, be liable in damages for any act bona fide done, or ordered to be done, by them in pursuance of this Act. Mr. Amin's objection was confined only to the second paragraph of the section, which says that the Board (i. e. the present defendants) shall not be responsible for any misfeasance, malfeasance or non-feasance of any employee appointed under this Act.
(3.)IN order to appreciate Mr. Amin's arguments, it is necessary to refer to Sections 61a and 61b of the Act. Sub-section (i) of Section 61a provides, that 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. Sub-section (2) of that section provides, in substance, that if any owner fails to remove any goods other than those stored in the warehouses appointed by the Board within seven clear days from the date on which such goods shall have, been landed, such goods shall remain in the premises of the Board at the sole risk acd expense of the owner, and the Board shall thereupon be discharged from all liability theretofore incurred by them in respect of such goods. Section 61b, which was inserted in the Bombay Port Trust Act by the Port Trusts and Port (Amendment) Act (Act XXXV of 1951), runs as follows :
"61-B. Responsibility of Board for loss, etc. of goods.-- 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 (9 of 1890) be that of a bailee under Sections 151, 152 and 161 of the Indian Contract Act, 1872 (9 of 1872), omitting the words 'in the absence of any special contract' in section 152 of the last-mentioned Act. " section 151 of the Contract Act requires a bailee "to take as much care of the goods bailed to him as a man of ordinary prudence would, under similar circumstances, take of his own goods of the same bulk, quality and value as the goods bailed. "
Under Section 152, the bailee is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in Section 151. Under Section 161, if by the defaut of the bailee the goods are not returned, delivered or tendered at the propei time, the bailee is responsible to the bailor for any loss, destruction or deterioration of the goods from that time. The effect of Section 6ib, therefore, is that after the Board have taken charge of any goods as required by section 61a (1), the Board are required to take the same degree of care of the goods which a bailee is required to take under Section 151 of the Contract Act, but that they are not responsible for the loss, destruction or deterioration of the goods if they have taken that amouit of care,


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