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PETITIONER:

THE BOARD OF TRUSTEES OF THE PORT OF BOMBAY AND ORS.

Vs.

RESPONDENT:

M/S SRIYANESH KNITTERS

DATE OF JUDGMENT: 30/07/1999

BENCH:

U.CBanerjee, B.N.Kripal

JUDGMENT:

KIRPAL, J.

The common question involved in these appeals is

whether the appellant - Board of Trustees of the Port Trust

constituted under the Major Port Trusts Act, 1963 (for short

the MPT Act) have a general lien for their dues over the

present or future consignments imported by the importers at

the Bombay Port when the said dues are in respect of the

past imports made by the said importers.

The respondents in these appeals are importers who had

imported various consignments of woollen rags from time to

time. After the arrival of these consignments at the Bombay

Port a dispute arose between the respondents and the custom

authorities as to whether the imported goods were woollen

rags or woollen garments. After considerable period of time

the imported goods were confiscated by the custom

authorities but the importers secured orders to get the

goods released on payment of fine. During this period the

imported goods remained at the docks till the order of

confiscation was passed.

In respect of the period during which the goods

remained at the docks the appellants issued notices to the

respondents demanding demurrage charges. With the exporters

denying the liability the Port Trust authorities instituted

various suits to recover wharfage and demurrage charges. We

are in these appeals not concerned with the suits.

After the aforesaid suits had been instituted acrylic

fibre was imported by the respondents. When the consignment

arrived in Bombay Port the respondents filed bills of entry

for clearance of the goods for home consumption. When

necessary permission was granted by the custom authorities

the appellant Board was called upon to release the goods.

These goods were not released by the appellant as it

demanded payment in respect of wharfage and demurrage which

was due from these respondents in respect of earlier

consignments of woollen rags which had been imported by

them. This refusal of the appellants to allow the removal

of the goods was based on a circular dated 2nd October 1979

which had been issued by the appellants. The said circular,

inter alia, stated as follows:

The Board of Trustees of the Port of Bombay have

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been advised that under Section 171 of the Indian Contract

Act, 1872, they have a general lien which they can exercise

on the goods which came into their custody of importers,

exporters, owners, consignee who have for any reason

whatsoever not paid the Port Trust charges such as wharfage,

crainage, storage demurrage or any other dues in respect of

any earlier consignment/s imported/exported or sought to be

exported by them.

In the circumstances this department will exercise a

lien for General Balance of account in respect of wharfage,

crainage, storage, demurrage and other dues of the Board of

Trustees of the Port of Bombay against the

importers/exporters, owners of consignees of the goods taken

charge of by the Board of the Trustees.

The respondents then filed writ petitions under

Article 226 of the Constitution of India in Bombay High

Court seeking a declaration that the aforesaid circular was

ultra virus of MPT Act and was violative of Articles 14, 19,

265 and 300A of the Constitution of India. The relief which

was sought was that the appellants herein should withdraw or

cancel the circular and deliver the consignments of goods

imported by the respondents and detained under the Circular.

During the pendency of the writ petition a single judge of

the High Court, by an interim order, directed the release of

the consignments of acrylic fibre on the undertaking of the

respondents to give a bank guarantee for an amount due which

may be claimed by the appellants in respect of the suits

filed in the court.

The contention of the respondents before the High

Court was that the appellants were not entitled to claim

general lien under Section 171 of the Contract Act, inter

alia, for the reason that there was no existing contractual

relationship between the appellants and the respondents.

They also contended that the MPT Act was a complete code in

itself and it was not permissible for the appellants to rely

on the provisions of the Contract Act so as to claim a

general lien. The appellants herein contended that they

were entitled to exercise general lien as provided by

Section 171 of the Contract Act as they were wharfingers to

whom acrylic fibre had been bailed.

The single judge by judgment dated 24th November, 1982

allowed the writ petition and granted the relief sought for.

The appellants were directed to withdraw or cancel the

circular dated 2nd October, 1979 and it was, inter alia,

held that the appellants herein could not in law claim

general lien under Section 171 of the Contract Act. The

appellants then filed LPA before the High Court, but without

any success. The Division Bench held as under:

(a) There is no right of general lien in favour of the

Port Trust under the provisions of the Port Trust Act.

(b) The Port Trust does not have a right of general

lien under Section 171 of the Indian Contract Act.

(c) The right of the Port Trust flows only from the

provisions of the Port Trust Act and thus the claim for a

general lien by reason of a possessory bailment has been

negatived by the Learned Judges.

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(d) The general lien in favour of the Port Trust is

excluded by the provisions of the Port Trust Act which is a

complete code itself and is comprehensive in respect of

collection and recovery of charges.

The learned Additional Solicitor General first

contended that the appellants had a general lien under the

provisions of the MPT Act on the acrylic fibre which had

been imported in respect of the earlier dues. For this

submission reliance was sought to be placed primarily on

Sections 59 and 61 of the MPT Act. Section 59 and

sub-section (1) of Section 61, which are relevant, read as

follows:

59. Boards lien for rates - [1] For the amount of

all rates (leviable under this Act) in respect of any goods,

and for the rent due to the Board for any buildings,

plinths, stacking areas, or other premises on or in which

any goods may have been placed, the Board shall have a lien

on such goods and may seize and detain the same until such

rates and rents are fully paid.

[2] Such lien shall have priority over all other liens

and claims, except for general average and for the

ship-owners lien upon the said goods for freight and other

charges where such lien exists and has been preserved in the

manner provided in sub-section (1) of Section 60, and for

money payable to the Central Government (under any law for

the time being in force relating to customs, other than by

way of penalty or fine.]

61. Sale of goods after two months if rates or rent

are not paid or lien for freight is not discharged - [1] A

Board may, after the expiry of two months from the time when

any goods have passed into its custody, or in the case of

animals and perishable or hazardous goods after the expiry

of such shorter period not being less than twenty-four hours

after the landing of the animals or goods as the Board may

think fit, sell by public auction (or in such case as the

Board considers it necessary so to do, for reasons to be

recorded in writing, sell by tender, private agreement or in

any other manner], such goods or so much thereof as, in the

opinion of the Board, may be necessary -

(a) if any rates payable to the Board in respect of

such goods have not been paid, or

(b) if any rent payable to the Board in respect of any

place on or in which such goods have been stored has not

been paid, or

( c) if any lien of any ship-owner for freight or

other charges of which notice has been given has not been

discharged and if the person claiming such lien for freight

or other charge has made to the Board an application for

such sale.

Plain reading of Section 59 shows that in respect of

any goods which are imported the Board has a lien for the

amount of all rates leviable under the Act and for the rent

due to it and it also has a lien on such goods and the Board

may seize and detain the same until such rates are paid. It

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is clear that it is only in respect of the amount due qua

the goods imported and existing there that the Board has

alien under Section 59. Under Section 61 (1), in exercise

of its lien, the Board is empowered to sell the said goods

for realisation of the amount due to it. Reading the two

sections together it is clear that the goods which can be

sold in exercise of its lien are only those in respect of

which amount is due and payable to the Board. The words

such goods in Section 61 (1) has reference to those goods

in respect of which rates due to the Board have not been

fully paid.

Coming to the facts of the instant case the amount

which was claimed by the appellants was in respect of the

consignment of woollen rags. There can be little doubt that

in respect of the amount claimed by the Board the provisions

of Sections 59 and 61 (1) would have been applicable with

regard to the said consignment of woollen rags. But the

contention now is that it is in respect of the said dues,

relatable to woollen rags, that the Board has a general lien

on the subsequent consignment of acrylic fibre. This

contention is clearly untenable because, as we have already

observed, Sections 59 and 61(1) give a lien on those goods

in respect of which amount is claimed or due under Section

59. The Board was not demanding or claiming lien on acrylic

fibre on the ground that any amount in respect of acrylic

fibre was due. Once it appears that the lien referred to in

Sections 59 and 61(1) is only those goods in respect of

which amount is due it is clear that the said provisions do

not contemplate a general lien as contended by the

appellants. The High Court, in our opinion, was right in

coming to the conclusion that the lien conferred on the

Board under Section 59 of the MPT Act was not a general lien

but was a lien on specific goods.

It was then contended on behalf of the appellants that

as wharfingers they are entitled to a general lien under

Section 171 of the Contract Act. In this connection it was

submitted that the High Court erred in coming to the

conclusion that the MPT Act was a complete code in itself

and that Section 171 of the Contract Act was not applicable.

The MPT Act is not, in our opinion, an exhaustive and

comprehensive code and the said Act has to be read together

with other acts wherever the MPT Act is silent in respect of

any matter. The MPT Act itself refers to other enactments

which would clearly indicate that the MPT Act is not a

complete code in itself which ousts the applicability of

other acts. The preamble of the Act does not show that it

is a codifying Act so as to exclude the applicability of

other laws of the land. Even if it is a codifying Act

unless a contrary intention appears it is presumed not to be

intended to change the law. [See Bennions Statutory

Interpretation, Second Edition page 444] Furthermore where

codifying statute is silent on a point then it is

permissible to look at other laws. In this connection it

will be useful to refer to the following observation of the

House of Lords in Pioneer Aggregates (UK) Ltd. Vs.

Secretary of State for the Environment and others [(1984)] 2

All ER 358 at page 363]:

Planning law, though a comprehensive code imposed in

the public interest, is, of course, based on land law.

Where the code is silent or ambiguous, resort to the

principles of private law (especially property and contract

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law) may be necessary so that the courts may resolve

difficulties by application of common law or equitable

principles. But such cases will be exceptional. And, if

the statute law covers the situation, it will be an

impermissible exercise of the judicial function to go beyond

the statutory provision by applying such principles merely

because they may appear to achieve a fairer solution to the

problem being considered. As ever in the field of statute

law it is the duty of the courts to give effect to the

intention of Parliament as evinced by the statute, or

statutory code, considered as a whole.

In J.K. Steel Ltd. Vs. Union of India ([1969] 2 SCR

481 ) it was held that cognate and pari -materia legislation

should be read together as forming one system and as

interpreting and enforcing each other. In B.C. Shukla vs.

Khubchand ([1964] 6 SCR 129} it was held that Code of Civil

Procedure has to be read along with the Limitation Act. In

State of Madras Vs. V. Iyer ( 1958 SCR 580) at page 590 it

was held that Prevention of Corruption Act should be read

along with the Evidence Act. In Mannan Lal Vs. Mst.

Chhotaka Bibi ([1971] 1 SCR 253) it was held that the Code

of Civil Procedure has to be read along with the Court Fees

Act. In V.R. Shelat Vs. Pranlal ([1975) 1 SCR 534) this

Court observed that the Companies Act should be read along

with the Transfer of Property Act.

From the aforesaid decisions it clearly follows that

it is permissible to read the provisions of the two Acts

together when the same are complementary to each other. In

fact some provisions of the MPT Act themselves show that

other laws are applicable.

It is an Act which makes provision for the

constitution of port authorities and vests the

administrative control and management of such ports in such

authorities and provides for matters connected therewith.

To the extent provisions of the said Act are applicable,

there can be little doubt that any provision which is in

conflict therewith contained in any other Act would not

apply. The enactment of MPT Act does not ipso facto exclude

the operation of other laws which may be applicable.

Wherever a departure from the general law has to be made the

Act specifically provides for the same. This is evident

from the following provisions:

{a} Section 29 (2) provides that the provisions of the

Industrial Act 1947 or any other law for the time being in

force will not apply to the claim for compensation made by

an employee whose services are transferred to the Board.

{b} Section 47 of the MPT Act provides for

compensation payable in certain cases where use of any

private wharf etc. is rendered unlawful. Sub-section (3)

provides for the manner in which the compensation is to be

determined and in the absence of agreement arbitration is

contemplated. Clause (i) of Section 47(3), however,

specifically states that the Arbitration and Conciliation

Act, 1996 shall not apply to the arbitrations under the said

section. The said provision makes the general law of

arbitration contained in the Arbitration and Conciliation

Act inapplicable.

{c } Section 68 of the MPT Act is important as it

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provides that notwithstanding the provisions contained in

Section 45 of the Indian Contract Act, 1872 in case of Port

Trust security payment would be made to joint promise in

accordance with the provisions contained in Section 68 of

the MPT Act and not in accordance with Section 45 of the

Indian Contract Act. Thus Section 68 makes a specific

departure from the provisions of Section 45 of the Indian

Contract Act.

{d} Sections 70 and 71 of the MPT Act make specific

departure of the provisions contained in the Negotiable

Instruments Act, 1881 regarding endorsements to be made on

Port Trust security and the effect thereof.

The aforesaid sections of the MPT Act clearly show

that the said Act is not exhaustive or comprehensive code

and it envisages joint reading with other relevant statutes.

Whenever any departure has to be made from other laws

specific provision to that effect has been made in the MPT

Act.

The High Court has rightly come to the conclusion that

the MPT Act and Sections 59 and 61 in particular do not give

to the appellants the general lien which it is claiming. In

other words it is because the MPT Act does not provide for a

general lien that the appellants are relying on the

provisions of Section 171 of the Contract Act. This, in our

opinion, is permissible. It is not possible to hold that

the MPT Act ousts the applicability of the provisions of

Section 171 of the Contract Act under which the Board is

claiming a right of general lien as a wharfinger. The

general lien of the type contemplated by Section 171 in

respect of the past dues is not provided for by the MPT Act.

There is another aspect which is relevant. Section

171 of the Contract Act only enables the retention of goods

as security. On the other hand in respect of current dues

in respect of existing goods in their possession the Board

not only has a lien under Section 59 of the MPT Act but it

also has the power to sell the said goods and realise its

dues by virtue of Section 61 of the MPT Act. The procedure

for exercising this power of sale of the goods in respect of

which the Board has lien is contained in the said section.

Before selling the goods no order of any court or other

judicial authority is required. On the other hand the

general lien contemplated by Section 171 of the Contract Act

only enables the retention of the bailed goods as a

security. Their retention does not give any power to sell

the goods, unlike the power contained in Section 61 of the

MPT Act. If payment is not made by the consignee to the

wharfinger, in a case where Section 171 of the Contract Act

applies, the wharfinger can only retain the goods bailed as

security and will have to take recourse to other proceedings

in accordance with law for securing an order which would

then enable the goods to be sold for realisation of the

amounts due to it. It may in this connection, be necessary

for the wharfinger to file a suit for the recovery of the

amount due to it and Section 131 of the MPT Act clearly

provides that such a remedy of filing a suit is available to

the Board. The added advantage of sale given by Section 61

of MPT Act in respect of current dues cannot be regarded as

whittling down the right of general lien contained in

Section 171 of Contract Act in respect of old dues.

Having come to the conclusion that the MPT Act does

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not oust the provisions of Section 171 of the Contract Act

what we have now to see is whether the appellants can claim

any relief or benefit under the said section. Section 171

of the Indian Contract Act, 1872, reads as follows:

171 General lien of bankers, factors, wharfingers,

attorneys, and policy-brokers - Bankers, factors,

wharfingers, attorneys of a High Court and policy-brokers

may, in the absence of a contract to the contrary, retain as

a security for a general balance of account, any goods

bailed to them; but no other persons have a right to

retain, as a security for such balance, goods bailed to

them, unless there is an express contract to that effect.

This section is in two parts. The first part gives

statutory right of lien to four categories only, namely,

bankers, factors, wharfingers and attorneys of High Court

and policy-brokers subject to their contracting out of

Section 171. The second part of Section 171 applies to

persons other than aforesaid five categories and to them

Section 171 does not give a statutory right of lien. It

provides that they will have no right to retain as

securities bailed to them unless there is an express

contract to that effect. Whereas in respect of the first

category of person mentioned in Section 171 section itself

enables them to retain the goods as security in the absence

of a contract to the contrary but in respect of any other

person to whom goods are bailed the right of retaining them

as securities can be exercised only if there is an express

contract to that effect.

The appellants in the present case are contending that

they are wharfingers and the goods which were imported and

off loaded at the port were with them as bailee. The

submission of the learned counsel for the appellants was

that in the absence of a contract to the contrary as bailee

of the goods now imported, namely, acrylic fibre the said

consignment could be retained by the appellants as security

for the amount due to them towards wharfage and demurrage

charges in respect of the earlier consignment of woollen

rags. While considering this contention we have also to

examine whether the claim for wharfage and demurrage could

be covered by the expression general balance of account

occurring in Section 171 of the Contract Act.

Wharf is defined in Jowitts dictionary of English,

Second Edition, as being a broad plain place, near some

creek or haven, to lay goods and wares on that are brought

to on from the water. In Webster dictionary wharf is

defined as a structure of masonry or timber erected on the

shore of a harbor, river, or the like, alongside which

vessels may lie to load or unload cargo, passengers etc.;

also, any landing place for vessels, as a pier or quay.

Ramanatha Aiyars The Law Lexicon, Second Edition, defines

wharf as a landing stage built especially along the shore

for loading or unloading vessels. The MPT Act contains an

inclusive definition of wharf in Section 2 (za) and provides

that wharf includes any wall or stage and any part of the

land or foreshore that may be used for loading or unloading

goods, or for the embarkation or disembarkation of

passengers and any wall enclosing or adjoining the same.

Wharfinger is not defined in the Act but in Jowitts

dictionary of English Law wharfinger is defined as the

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occupier of wharf and it is further stated that as a rule,

wharfingers have a general lien for the balance of their

account. In Ramanatha Aiyars The law Lexicon wharfinger

is defined as meaning the occupier of a wharf or a

person who owns a wharf.

The appellants are the owners of the wharf at Bombay

where the consignments of the respondents were discharged.

The services which are provided by the appellants in respect

thereof as wharfingers are, inter alia, contained in Section

42 of the MPT Act which reads as follows:

42. Performance of services by Board or other person

- [1] A Board shall have power to undertake the following

services -

[a] landing, shipping or transshipping passengers and

goods between vessels in the port and the wharves, piers,

quays or docks belonging to or in the possession of the

Board;

[b] receiving, removing, shifting, transporting,

storing or delivering goods brought within the Boards

premises;

[c] carrying passengers by rail or by other means

within the limits of the port or port approaches, subject to

such restrictions and conditions as the Central Government

may think fit to impose;

[d] receiving and delivering, transporting and booking

and despatching goods originating in the vessels in the port

and intended for carriage by the neighbouring railways, or

vice versa, as a railway administration under the Indian

Railways Act 1890 (9 of 1890); (and)

[e] piloting, hauling, mooring, remorring, hooking, or

measuring of vessels or any other service in respect of

vessels.

[2] A Board may, if so requested by the owner, take

charge of the goods for the purpose of performing the

service or services and shall give a receipt in such form as

the Board may specify.

[3] Notwithstanding anything contained in this

section, the Board may, with the previous sanction of the

Central Government, authorise any person to perform any of

the services mentioned in sub-section (1) on such terms and

conditions as may be agreed upon.

[4] No person authorised under sub-section (3) shall

charge or recover for such service any sum in excess of the

amount {specified by the Authority, by notification in the

Official Gazette}.

[5] Any such person shall, if so required by the

owner, perform in respect of goods any of the said services

and for that purpose take charge of the goods and give a

receipt in such form as the Board may specify.

[6] The responsibility of any such person for the

loss, destruction or deterioration of goods of which he has

taken charge shall, subject to the other provisions of this

Act, be that of a bailee under sections 151, 152 and 161 of

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the Indian Contract Act, 1872 (9 of 1872).

[7] After any goods have been taken charge of and a

receipt given for them under this section, no liability for

any loss or damage which may occur to them shall attach to

any person to whom a receipt has been given or to the master

or owner of the vessel from which the goods have been landed

or transhipped.

Reading of the aforesaid section shows that the

services required to be performed by the Board is not only

of loading and unloading of the cargo but would also include

storing and delivering of goods. Under sub-section (2) if

the Board is requested by the owner to take charge of the

goods then it is required to give a receipt in such form as

the Board may specify. Sub-section (6), inter alia, states

that responsibility of any such person who takes charge of

such goods shall be that of a bailee under Sections 151, 152

and 161 of the Contract Act. Sub-section (7) absolves the

person to whom receipt is given of any liability for any

loss or damage which may occur to the goods. The

responsibility of the Board for the loss of goods is

provided for in Section 43 of the MPT Act which reads as

follows:

43. Responsibility of Board for loss, etc. of goods

- [1] Subject to the provisions of this Act, the

responsibility of any Board for the loss, destruction or

deterioration of goods of which it has taken charge shall, -

(i) in the case of goods received for carriage by

railway, be governed by the provisions of the Indian

Railways Act, 1890 (9 of 1890); and (ii) in other cases, 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

that Act;

{Provided that no responsibility under this section

shall attach to the Board -

(a) until a receipt mentioned in sub-section (2) of

section 42 is given by the Board; and

(b) after the expiry of such period as may be

prescribed by regulations from the date of taking charge of

such goods by the Board.}

[2] A Board shall not be in any way responsible for

the loss, destruction or deterioration of, or damage to,

goods of which it has taken charge, unless notice of such

loss or damage has been given within such period as may be

prescribed by regulations made in this behalf {from the date

of taking charge of such goods by the Board} under

sub-section (2) of section 42.

Section 45 stipulates that all rates and other charges

payable under the MPT Act for storage of goods shall be

payable to the Board or to such person or persons appointed

by the Board. Section 48 enables the authority to issue

notification, from time to time, providing for scales of

rates for services performed by Board or other person and

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the same reads as follows:

48. Scales of rates for services performed by Boards

or other person - {[1] The Authority shall from time to

time, by notification in the Official Gazette, frame a scale

of rates at which, and a statement of conditions under

which, any of the services specified hereunder shall be

performed by a Board or any other person authorised under

Section 42 at or in relation to the port or port approaches

- }

(a) transhipping of passengers or goods between

vessels in the port or port approaches; (b) landing and

shipping of passengers or goods from or to such vessels to

or from any wharf, quay, jetty, pier, dock, berth, mooring,

stage or erection, land or building in the possession or

occupation of the Board or at any place within the limits of

the port or port approaches; (c) cranage or portage of

goods or any such place; (d) wharfage, storage or demurrage

of goods on any such place; (e) any other service in

respect of vessels, passengers or goods,

[2] Different scales and conditions may be framed for

different classes of goods and vessels.

For the use of property belonging to Board including

for leasing of land or sheds by owners of goods imported or

intended for export or for any other use of land, building

etc. Section 49 enables the authority to fix the scale of

rates in respect thereof.

Reading the aforesaid and other provisions of the MPT

Act it is abundantly clear that the appellants are

wharfingers who not only provide space at the port for the

loading and unloading of the goods but also provide for the

storage of the goods till the same are removed. We may here

notice that in exercise of the powers conferred by Section

126 read with Sections 42 and 43 of the MPT Act the Central

Government issued a notification dated 1st February 1975

notifying the Port of Bombay (Responsibility for Goods)

Regulations, 1975. The said regulations, inter alia,

provide that a receipt referred to in sub-section (2) of

Section 42 shall be given in the form annexed to the said

regulations. The said form, which is a receipt contemplated

by Section 42 (2), gives particulars of the goods which are

unloaded and stored in a shed or open area of berth or a

warehouse.

Whether the issuance of such a receipt would amount to

an agreement or concluded contract coming into being between

the appellants and the respondents is wholly immaterial

because the receipt evidences the goods coming into the

possession of the appellants and under Section 42 (6) the

appellants would be regarded as a bailee thereof to whom the

provisions of Sections 151, 152 and 161 of the Contract Act

become applicable. It is because of this the relationship

of bailor and bailee comes into existence when the Board is

required to store the imported goods.

At this juncture it is appropriate to deal with the

conclusion of the High Court to the effect that with the

issuance of the receipt under Section 42 (2) the contract,

if any, is between the ship owner and the port trust and not

between the consignee who is true owner of the goods and

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the Port Trust. In coming to this conclusion the High Court

has placed reliance on the decision of this Court in The

Trustees of the Port of Madras by its Chairman Vs. K.P.V.

Sheik Mohamed Rowther & Co. and Ors. ([1963] Supp. 2 SCR

915). In that case the question which arose was as to who

was responsible for idle labour charges. Labour was

supplied by the Port Trust authorities but their services

were not fully utilised and the question arose as to whether

it was the consignee or the ship owner who was liable to pay

the said charges. This Court held that the Port Trust took

charge of the goods on behalf of the ship owner and not on

behalf of the consignee and whatever services were performed

at the time of landing of the goods or on their removal were

rendered to the ship owner and, therefore, the charges were

rightly leviable not on the consignee but on the streamer

agents. The service of providing the labour was, in that

case, therefore, to the owners of the streamer and not to

the consignee and it is for that reason the liability was

held not to be that of the latter. This decision has no

relevance to the point in issue which has to be decided in

the present case.

Section 2 (o) contains the definition of owner. In

relation to goods the said section states that the word

owner includes any consignor, consignee, shipper or agent

for the sale, custody, loading or unloading of such goods.

By referring to this sub-section this Court in Sun Export

Corporation and Anr. Vs. Board of Trustees of the Port of

Bombay ([1998] 1 SCC 142) held that in the case of imports

the liability to pay demurrage, on the endorsement being

made on the bill of lading, would be that of the consignee.

This is in consonance with the provisions of the Bills of

Lading Act, 1856. The preamble of this Act provides that by

custom of merchants a bill of lading of goods being

transferable by endorsement, the property in the goods may

thereby pass to the endorsee, but nevertheless all rights in

respect of the contract contained in the bill of lading

continue in the original shipper or owner and, therefore, it

is expedient that such rights should pass with a property.

Section 1 of the Bills of Lading Act provides that rights

under bills of lading vest in the consignee or endorsee and

reads as under:

1. Rights under bills of lading to vest in consignee

or endorsee - Every consignee of goods named in a bill of

lading and every endorsee of a bill of lading to whom the

property in the goods herein mentioned shall pass, upon or

by reason of such consignment or endorsement, shall have

transferred to and vested in him all rights of suit, and be

subject to the same liabilities in respect of such goods as

if the contract contained in the bill of lading had been

made with himself.

The provisions of Section 2 (o) of the MPT Act

regards, in relation to goods, the consignee as the owner

thereof. Reading the same along with the Bills of Lading

Act the consignee of the goods named in the bill of lading

or every endorsee of the bill of lading, for the purpose of

MPT Act is regarded as the owner of the goods and it is from

that owner that the appellant is entitled to recover charges

under the MPT Act in respect of the said goods. The High

Court was not right in holding that the contract was between

the ship owner and the Port Trust. The correct position is

that the contract is between the Port Trust and the holder

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of the bill of lading which, in this case, would be the

consignee. It is the consignee which is the bailor with the

Port Trust being the consignee.

It was then argued by Sh. Pramod Aggarwal that under

Section 171 of the Contract Act the lien is available only

in the absence of a contract to the contrary. He contended

that the MPT Act was a special statute which provides not

only the services of wharfingers to be provided by the Board

but also for various other services to be provided by it.

In respect of these services the Board is entitled to impose

and recover rates/charges for the services rendered.

Chapter VI provides for the scale of rates and the matters

connected therewith including the exercise by the Board for

its lien and for recovery of the charges due to it by sale

of goods. In this context it was submitted that Chapter VI

of the MPT Act is a contract to the contrary between the

parties.

We are unable to accept this submission. As has

already been held earlier the general lien contained in

Section 171 of the Contract Act is not covered by the

provisions of Chapter VI of the MPT Act. The MPT Act no

doubt deals with lien in respect, inter alia, of the goods

imported but it does not deal with the general lien of the

type we are concerned with in this case, namely, amounts due

in respect of earlier consignments for which payment has not

been made. The contract to the contrary as envisaged in

Section 171 of the Contract Act has to be specific. The MPT

Act including Chapter VI no where provides that the general

lien under Section 171 of the Contract Act would not be

available to the wharfingers in case where the MPT Act is

applicable. It was also contended on behalf of the

respondents that even if Section 171 of the Contract Act

applies the appellants can exercise their lien under Section

171 of the Contract Act for the recovery of their dues for

the services rendered by them as wharfingers only and not

for any other services provided by them as detailed in the

MPT Act. It was contended that wharfage is the money paid

for landing goods at a wharf or for shipping and taking

goods into a boat or barge. The general lien of wharfinger

as understood under Section 171 of the Contract Act would

limit to the charges due to a wharfinger for the services

rendered as a wharfinger and not otherwise. On this premise

it was submitted that once the appellant takes charges of

the goods from the ship owner it does not act as a

wharfinger but acts in another capacity which may be that of

warehouse owner, bailee etc. and, therefore, lien cannot be

claimed in respect of demurrage etc. but, at best, can be

claimed only for wharfage charges.

Attractive as it may appear, we do not find any merit

in the aforesaid submission. The first part of Section 171

of the Contract Act identifies five categories of persons

who can have a general lien and retain the goods bailed to

them. Wharfinger is one of them. The submission of the

learned counsel for the respondents does not take into

account the fact that Section 171 of the Contract Act

enables these five categories to retain as security the

goods bailed to them in respect of general balance of

account. The general balance of account has to be of the

amount legally due to bankers, factors, wharfingers,

attorneys and policy brokers. The appellants come in the

category of wharfingers, namely, the owners of the wharf.

The duties which they are required to perform are provided

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in the statute itself, namely, Section 42 of the MPT Act.

In other words the services which are undertaken under

Section 42 have to be paid for and any amount due in respect

thereof will be regarded as general balance of account

There is no reason to give a restricted meaning to the

expression general balance of account to mean only

wharfage charges which, according to the respondents, would

imply the charges for loading or unloading of goods, and

would not include demurrage. Once goods are taken charge of

by the appellants as a wharfingers then in respect of the

services rendered, as contemplated by Section 42, if there

is any amount which is due and payable to it the same would

be regarded as general balance of account in respect of

which it has a general lien over the goods bailed to it.

In our opinion the circular dated 2nd October, 1979

issued by the appellants was valid and the appellants could

retain the goods which were in their possession as bailees

as security for realisation of the amount of wharfage,

demurrage and other charges which were due to them. We

accordingly allow these appeals and set aside the judgment

of the High Court with the result that the writ petitions

filed by the respondents in the High Court stand dismissed.

The appeals are allowed with costs throughout.