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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.