TaxTMI 
TaxTMI 
TaxTMI 
1999 (7) TMI 127
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....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. 3. 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. 4. 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 ....
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....lso 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. 7. 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 ....
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....n 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 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. 9. Coming to the facts of the instant case the amount which ....
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....of the House of Lords in Pioneer Aggregates ((UK)) Ltd. v. Secretary of State for the Environment and Others [(1984) J 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 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 coarts to give effect to the intention of Parliament as evinced by the statute, or statutory code, considered as a whole." 12. In J.K. Steel Ltd. v. Union of India [1978 (2) E.L.T. (J 355) (S.C.) = 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 enfo....
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....ng 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. 15. 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 provis....
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....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 cate- gories and to them Section 171 does not give a statutory right of lien. It pro- vides 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 cate- gory 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 ....
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....he 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 transhipping 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 Board's 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 ....
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....ods 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.....
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....or a warehouse. 23. 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 bailer and bailee comes into existence when the: Board is required to store the imported goods. 24. 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 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 v. K.P.V. Sheik Mohammed Rowther & Co. and Ors. [1996 (82) E.L.T. 174 (S.C.) = (1963) Supp. 2 SCR 915]. In that case the question which arose was as to ....
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....t, 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 of the bill of lading, which, in this case, would be the consignee. It is the consignee which is the bailer with the Port Trust being the consignee. 26. 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 wharf....