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TMI Blog1989 (4) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... for the goods as the same were not traceable in the transit stage. Thereafter again on December 16, 1966, and January 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 January, 1967 by a letter the defendant enclosed a wharf rent bill dated 16th January, 1967 in respect of the said goods so landed. This letter was received by the plaintiff on 27th January, 1967. Thereafter by another letter dated 25th January, 1967 the Port Trust authorities intimated the plaintiff-appellant I.T.C. Ltd. that the goods in question were lying in the lockfast of the Port Trust authorities. Inasmuch as the said goods were lying in a broken condition on 27th January, 1967 the plaintiff-appellant requested for survey of the said goods. On the 4th February, 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 dated 6th February, 1967 where it had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4. The learned Judge after discussion of various facts and the law concerned had come to the conclusion that the plaintiff appellant s right to take delivery arose immediately on 27th January, 1967 but the defendant could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioners as that of a bailee under the sections as mentioned in the Contract Act. Section 151 of the Contract Act provides as follows: In all cases of bailment the bailee is bound 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. Similarly Section 152 provides that the bailee, in the absence of any special contract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it as described in Section 151. In the instant case it is nobody s case that there was any special contract. Under the ordinary circumstances the Port Commissioners, as the bailee of the goods while the goods were still in their possession, were under an obligation to take such care of the bailed goods as a person of ordinary prudence would under similar circumstances have taken. The admitted fact that when the particular machinery so imported from Liverpool had been pilfered while still in the custody of the Port Commissioners does not indicate that they had taken such care as an ordinary man of prude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect of acknowledgment in writing in the manner following : Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. This is inclusive of Sections 4 to 24. Under the circumstances, under the present Act of Limitation the acknowledgment will extend the period of limitation. Apart from that the learned lawyer for the appellant relied on a case reported in AIR 1979 SC 1144 (Madras Port Trust v. Hymanshu International) where the learned Judges of the Supreme Court while considering a claim for refund of the amount of wharfage, demurrage and transit charges claimed by the appellant refused to hear the appeal and adjudicate upon the plea of the appellant, that is, the Madras Port Trust that the claim was barred by the laws of limitation under Section 110 of the Madras Port Trust Act with the following obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself, such plea could not be taken by the appellant/plaintiff. Further he submitted that in view of Section 142 of the Calcutta Port Act not only the remedy but the right of the plaintiff-appellant to institute the suit against the Port authorities does not lie inasmuch as Section 142 of the Calcutta Port Trust Act, 1890 provides that no suit shall be brought against any person for anything done or purporting to or professing to be done in pursuance of this Act after the expiration of three months from the date on which the cause of action in such suit shall have arisen. It is true after the lapse of three months from the date of the cause of action not only the remedy but also the right to institute the suit lapses. Hence, the question which falls for consideration in the instant case under the present facts and circumstances is as to when such cause of action had arisen in favour of the plaintiff-appellant. As indicated earlier there is a definite finding by the learned Court below from which the Port Trust authorities have not preferred any appeal, nor had filed any cross-objection. The definite finding of the Court below is that such cause of action or the right of the plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery leading to a suit; (ii) 7 days after knowledge of the landing of the goods suggested in Section 61A. Whichever is the later date ordinarily sets off the running of the limitation. (3) Letters or assurances that the missing packages are being searched for cannot enlarge limitation, once the goods have landed and the owner has come to know of it. To rely on such an unstable date as the termination of the search by the bailee is apt to make the law uncertain, the limitation liable to manipulation and abuses of other types to seep into the system. (4) Section 87 is attracted not merely when an act is committed but also when an omission occurs in the official duty. The act-omission complex, if it has a nexus to the official functions of the Board and its officers, attracts limitation under Section 87." 9. The learned Judges while formulating such conclusions were of the view that the starting point of limitation is the accrual of the cause of action. Two components of the cause are important. The date when the plaintiff came to know or ought to come to know with reasonable diligence that the goods had been landed from the vessel into the port. Two clear, though not conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Counsel relied on the observations of the learned Judges at Page 136 in the manner following: The State under our Constitution undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for, the State s interest is to meet honest claims, indicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity." Very rightly commented by the learned lawyer on behalf of the respondent-authorities that by no stretch of imagination a multinational company like I.T.C. could be considered a weaker party over which the Port Trust Authorities tried to overreach or take an undue advantage. But the fact remains that the claim admittedly was not an unfair claim or it is not honest. Admittedly, the goods so consigned had been pilfered. 12. Considering that it was only a claim for Rs. 28,257.22 this Court feels that although the Court all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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