Chittagong Port

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Chittagong Port Authority Vs. Md. Ishaque and others, 1983, 12

CLC (AD) [7071]

Monday, October 8, 2012

Supreme Court

Appellate Division

(Civil)

Present:

FKMA Munim CJ

Badrul Haider Chowdhury J

Shahabuddin Ahmed J

Chowdhury ATM Masud JSyed Md. Mohsen Ali J

Vs.

. s sss

Judgment

February 13, 1983.

Result:

The appeal is dismissed.

Cases Referred to-

GE Shipping Vs. Co. P.S.M.S. Saheb, AIR 1959 Mad 367; E.I. Rly. Vs. Piyare Lal, AIR 1928 Lah 774;

Barbant Vs. King, 1895 AC 632; Ranson Vs. Platt, 1911 2 KB (CA) 291; Coldman Vs. Hill, 1919 1 KB

(CA) 443.

Lawyers Involved:

Mozammel Huq, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record - For the

appellant.

A.R. Yousuf, Advocate instructed by Syed Sakhawat Ali, Advocate-on-record - For the Respondent

No.2.

M. Hafizullah, Advocate, instructed by A. aset Maumder, Advocate-on-record For the Respondent

Nos. 3 & 4.

Civil Appeal No.140 of 1981.

(From the judgment and decree dated 9.7.80 passed by the High Court Division in F.A. No.25 of

1970).

Judgment

agong Port Authority Vs. Md. Ishaque and others, 1983, 12 CLC (A... http://www.clcbd.org/judgment/print/7

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Badrul Haider Chowdhury J.- This appeal by special leave arises out of Money Suit No.127 of 1965

filed by respondent Nos. 1 and 2 as plaintiff against the appellant for recovery of an amount of Tk.

12,000/- as compensation for non-delivery of six cases of umbrella cloth. The simple case of the plain-

tiffs was that he imported 6 cases of umbrella cloth from Japan. The vessel in question arrived at

Chittagong Port on 15.7.64 and discharged her cargo. The plaintiffs' consignment was not delivered to

him. As such he submitted a claim to the defendants Chittagong Port Authority and a notice under

section 109 of the Chittagong Port Act was served upon the defendant No.3 on 22.4.65.

The consignment was insured with the plaintiff No.2 who satisfied the claim of the plaintiff No.1. It is

the defendant No.3, the Chittagong Port Authority which is the contesting defendant. A number of

issues, namely, that the suit is bad for want of proper notice, that the suit is barred by limitation; that

there had been gross negligence and inordinate delay on the part of the consignees, etc. and the

defendant is not liable for loss were raised.

2. The trial Court noticed that the suit was filed on 20.7.65 that was beyond 6 months from the date

of notice dated 24.9.64 and as such the suit itself was time barred as provided by section 109. In this

view of the matter the suit was dismissed.

3. The matter came before the High Court Division in First Appeal. A Division Bench carefully

considered the issues and came to the conclusion that the second notice was issued on 22.4.65 and

the limitation will run from the said notice and in this view of the matter the suit is not barred. Then

the High Court Division considered Ext. 5(b) wherein the Chittagong Port Authority assured the

plaintiff that the matter of non delivery "is under investigation and a reply will be given immediately

on completion of the enquiry". No reply was ever sent by the Port Authority. The High Court Division

considered that the defendant No.3 not having intimated the result of the enquiry, a fresh case of

action has arisen in favour of the plaintiffs and on the basis of the fresh cause of action the plaintiffs

are entitled to give a second notice under section 109 of the Chittagong Port Act and Ext. 6 is that

notice. It was held that such notice is a valid notice. Next, the learned Judges considered the

contention of the defendant that the plaintiffs did not take delivery of the goods within 5 days from

the landing of the ship, the defendant No.3 had no liability in the matter and reliance was placed on

section 50A. The learned Judges did not find any provision for removal of the goods within 5 days.

Section 50B mentions about removal of goods within 5 days but the defendant No.3 could not takerecourse since the defendant failed to explain the loss of consignment which were in their custody. In

this view of the matter, the High Court Division concluded that 50B(2) has no manner of application.

Further, it was held that the defendant cannot take advantage of section 161 of the Contract Act in

view of the fact that they have not taken proper care of the goods as required by law under section

151 of the Contract Act. In this view, the High Court Division allowed the appeal and set aside the

judgment and order of the trial Court aside and decreed the suit.

4. Leave was granted to consider the correctness of the construction of the aforesaid sections. It

seems the Port Authority in order to absolve themselves from the liability attempted to take all sorts

of defence under the Act and random reliance was placed on sections 50A, 50B and 63 of the

Chittagong Port Act. The High Court Division in an exhaustive manner entered into this enquiry as to

whether section 50A saddled the Authority with liability or section 50B or for that matter section 63. It

seems a hairsplitting argument was advanced by the learned Counsel appearing for the defendants

appellant to establish that the Chittagong Port Authority is not liable. These arguments do not need

serious attention. The plain fact is that the goods were imported by the plaintiff. They were discharged

by the vessel and the Chittagong Port Authority by Ext. 5(b) informed about investigation and then

without further following up the matter raised a plea that the suit is barred by limitation. That the

cause of action arose after the second notice dated 24.4.65. was rightly considered by the High Court

Division.

5. As the point of limitation does not deserve any serious consideration for reasons mentioned above,


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it is profitless to consider the provision of section 109 and also as to its scope. Here the Chittagong

Port Authority created an impression upon the mind of the plain tiff that the matter is being investi-

gated and looked into and the plaintiff would be informed about the result of such an enquiry but

nothing of the sort had happened. The Port Authority did not inform the plaintiff nor made any serious

efforts to find as to what happened to the goods that had been delivered. Instead it took a line of

resistance by raising a bar of limitation on artificial interpretation of section 109 that the suit is barred.

Sub-section (2) is the complete answer to the contention of defendant No.3 the appellant which reads:

"(2) Every such suit shall be commenced within six months next after the accrual of the right to

sue and not afterwards."

6. The learned Counsel appearing for the appellant attempted to argue that the notice under section

109 is dated 24.9.64 but the suit was filed on 20.7.65 and thus the suit is barred being beyond six

months but when his attention was drawn that Ext. 5(b) is enough to rob all the contentions of the

defendant for creating the impression in the mind of the plaintiff that investigation is under considera-

tion, which led him to give another notice on 22.4.65 and this notice has given the cause of action and

this is a notice under section 109 of the Act, the learned Counsel had no answer.

7. The next question is the responsibility for the loss. Section 50(A) says, "the responsibility of the

authority for the loss". Goods either for export and import when remain in the possession or under the

control of the Port Authority is saddled with the liability of a bailee under sections 151, 152 and 162 of

the Contract Act. Once this liability is fixed by law there is no scope for contending that the authority

is not responsible as the consignee did not clear the goods within 5 days. Such authority may be liable

for the damage or deterioration by exposure under section 50(B). Section 50B is attracted only when

the goods are removed or stored but here the question is of loss. It is not the question that the goods

have been found and that in spite of notice the goods have not been cleared by the consignee and

failure to do so has absolved the Port Authority. It is a clear case of non-delivery which comes within

section 50A for loss and under the referential provisions of the Contract Act the Port Authority is liable

as a bailee. A bare reading of sections 50, 50A and 63 of the Chittagong Port Act appears to be thus:

When the master of the ship lands the goods and leaves them in charge of the Port Authority, the

legal effect is as if the master representing the Shipping Company had delivered the goods to the

consignee for whom the Port Authority must be deemed to be the agent. The liability of the PortAuthority is that of a bailee under sections 151, 152 (omitting the words "in the absence of any special

contract") and 161 of the Contract Act and they would be liable in the absence of proof that they took

as much as care of the goods taken charge of by them as a man of ordinary prudence would in similar

circumstances take. Reliance may be placed on GE Shipping Vs. Co. P.S.M.S. Saheb AIR 1959

Mad 367.

8. Section 151 of the Contract Act postulated what care is to be taken by bailee. Section 152 lays

down in express terms that in the absence of a special contract a bailee is not responsible for the loss,

destruction or deterioration of the thing bailed if he has taken the amount of care mentioned in 151. It

follows therefore that if there is special contract to the contrary, the bailee may be held responsible for

the loss etc. even though he has taken such care of thing bailed to him as was required of him by law.

In Chittagong Port Act the expression "in the absence of any special contract" in section 152 has bean

omitted but the position remains the same because section 161 is referred to in section 50A, and

section 161 of the Contract Act is in the following terms:

"If, by the default of the bailee, the goods are not returned, delivered or tendered at the proper

time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from

that time."

A suit based on non-delivery is really based on a breach of the duty laid down in that section. Reliance

may be placed on E.I. Rly. Vs. Piyare Lal AIR 1928 Lah 774.The present suit is such suit. There is


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no escape from the liability which is saddled by law. Such statutory liability is based on common law

and reliance may be placed on Barbant Vs. King 1895 A.C. 632where the Government being bailee

under contract was held liable for non-feasance. Again in Ranson Vs. Platt 1911 2 KB (CA) 291the

bailee was held liable to the bailor and could not rely on an order of Magistrate when the bailee failed

to give notice of such order to the bailor. In Coldman Vs. Hill 1919 1 KB (CA) 443 cows were

stolen from the custody of the bailee and he was liable to the bailor since he was negligent in not

informing the police.

Applying these principles, there is no hesitation in saying that the Port Authority is liable for the loss.

The High Court Division rightly decreed the suit though the construction of the sections may not

necessarily be taken as approved.

In the result therefore this appeal is dismissed with costs.

Ed.

This Case is also Reported in:35 DLR (AD) (1983) 364.


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