PADMA KHASTGIR, J. - (1.) The present appeal filed by the LT.C. Ltd. arises out of the judgment delivered by Pratibha Bonnerjea, J. (as she then was). The LT.C. Ltd. filed a suit against the Board of the Trustees for the Port of Calcutta being suit No. 930 of 1967 under the following facts and circumstances:-
(2.) On 9th Sept., 1966 Reliegh Investment Company Ltd. shipped the cigarette manufacturing machine from the Port of Liverpool for carriage to the Port of Calcutta by M.V. `Vishva Kalyan' belonging to the Shipping Corporation of India Limited, the carrier. On 18th Nov., 1966 the goods landed at the Port of Calcutta as recorded in the tally sheet issued by the Port Trust authorities.
(3.) It was the case of the plaintiff that by various letters dt. 6th Dec. 1966, 8th Dec. 1966 and 16th Dec. 1966 the plaintiff requested not only the Port Trust authorities but also the stevedores to search for the goods as the same were not traceable in the transit stage. Thereafter again on Dec. 16, 1966, and Jan. 3, 1967, the appellant, through various letters, requested the Port Trust authorities as also the stevedores to search for the goods so discharged by the said vessel. Then on 21st Jan. 1967 by a letter the defendant enclosed a wharf rent bill dt. 16th Jan. 1967 in respect of the said goods so landed. This letter was received by the plaintiff on 27th Jan. 1967. Thereafter by another letter dt. 25th Jan. 1967 the Port Turst authorities intimated the plaintiff appellant LT.C. Ltd. that the goods in question were lying in the lock fast of the Port Trust authorities. Inasmuch as the said goods were lying in a broken condition on 27th Jan. 1967 the plaintiff appellant requested for survey of the said goods. On the 4th Feb. 1967 it transpired that the case so received from the lock-fast was in an empty condition i.e., although the container was there in a broken condition but the machinery contained in such container was found missing. Such fact had been admitted by the respondent authorities by letter dt. 6th Feb. 1967 where it had been recorded that the case in question was pilfered from the shed belonging to the Port Trust authorities. The question which calls for determination in the instant appeal is as to whether the appellant's claim was barred by the law of limitation. While considering the question of limitation, the section which calls for construction of tile Calcutta Port Act are :- S.113, sub-sec. (1) and sub-sec. (2). Sub-sec. (1) of S.113 provides that the Commissioner shall immediately upon the landing of any goods take charge thereof and store such as are liable to suffer from exposure in any shed or warehouse belonging to the Commissioner. Sub-sec. (2) of S.113 of the Calcutta Port Act provides, if the owner without any fault on the part of the Commissioner fails to remove any goods (other than those stored in warehouses licenced under S.16 of the Sea Customs Act, 1973) from the premises of the Commissioner within five clear working days from the time of landing or such goods shall remain on the premises at the sole risk and expenses of the owner. From sub-sec. (1) of S.113 of the said Act it clearly indicates that as soon as the goods are discharged by a vessel it is the duty of the Commissioner to take charge of the same immediately and the duty and/or responsibility that had been cast on the owner of the goods so delivered by the shipping agency is to remove the said goods from the premises of the Commissioners within five clear working days from the time of the landing of the goods. Thereafter they will remain on the premises of the Port Commissioners at the sole risk and expenses of the owner. By the clear unambiguous language as provided in the section itself it indicates that the liability of the owner to remove the goods within five clear working days from the time of landing could only be applicable in the ordinary circumstances when the goods are landed. But such provision has no application in the facts and circumstances of the case where it is not possible for the owner to remove the goods due to any fault on the part of the Port Commissioner. The language of sub-sec. (2) of S.113 clearly indicates that such liability of the owner to remove the goods within five clear working days would only arise in a case where there is no fault on the part of the Port Commissioners. From the facts as indicated above and from the series of correspondence that have been relied upon both by the appellant and also by respondents it indicated that in various letters and/or correspondence the Port Trust Authorities had clearly admitted that when the goods were landed it had the bearing of the mark `T' indicating that the goods while landed by the shipping agency were not in an intact condition inasmuch as it was in broken condition. It further transpired from the various correspondence as disclosed by the parties that not only it was landed in a broken condition but it also indicated that the said consignment bearing the No. C 279 was untraceable for a considerable period of time and even after when the said case No. C 279 was finally located it was found that the entire goods, that is the machinery so imported, had been pilfered and/or removed from the container. It was only the container which was lying ready for delivery to be taken by the appellant in the instant appeal.;