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PETITIONER: THE TRUSTEES OF THE PORT OF BOMBAY

       Vs.

RESPONDENT: THE PREMIER AUTOMOBILES LTD.

DATE OF JUDGMENT26/08/1980

BENCH: SHINGAL, P.N. BENCH: SHINGAL, P.N. DESAI, D.A.

CITATION:  1981 AIR 1982            1981 SCR  (1) 532  1981 SCC  (1) 228

ACT:      Bombay Port  Trust Act-Sections 61B and 87 para 2-Scope of-Plaintiff’s machinery  damaged in  transit from  docks to godown-Plaintiffs claimed damages from Board as bailee-Board claimed immunity for tortious acts of employees under para 2 of  section   87-Liability   of   the   Board-Non-contracted bailment-Nature of.

HEADNOTE:      Section 4 of the Bombay Port Trust Act provides for the creation of  a Trust  Board. It  is a  body  corporate  with perpetual succession and can sue and be sued. Section 61A(1) charges  the  Board  with  the  duty  of  carrying  out  the provisions  of  the  Act.  Section  61B  provides  that  the responsibility  of   the  Board  for  loss,  destruction  or deterioration of  goods of  which it has taken charge shall, subject to  the other  provisions of  the Act,  be that of a bailee under  sections 151, 152 and 161 of the Contract Act, 1872 omitting  the words  "in the  absence  of  any  special contract", in  section 151  of the Contract Act. Paragraph 2 of  section   87  provides  that  the  Board  shall  not  be responsible for any misfeasance, malfeasance and nonfeasance of any employee appointed under this Act.      A case  containing machinery imported by the respondent was taken  charge of  by the  Board upon  its landing in the Bombay  Port.   While  being   transported  by  the  Board’s employees on  a four-wheeler  trolly to  one of the sheds in the docks  the case  fell down  and the  machinery was badly damaged.      After carrying out a survey of the damage caused to the machinery, the respondents gave notice to the Board claiming a large  sum as  damages. Invoking the provisions of section 87 of  the Act the Board denied all liability for the damage caused to the machinery.      In  the   course  of   the  trial   of  the  plaintiff- respondent’s suit  the  parties  drew  up  certain  "consent terms" which  formed the  basis of the decision at the trial and appeal. Summarizing the finding of the consent terms the appellate court  stated that (i) the trust Board admitted an element of negligence on the part of its employees; (ii) the employees, who  were with  the trolly  at the  time  of  the accident, were  appointed under  the Act and (iii) while the

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Board merely  claimed  that  the  persons  accompanying  its trolly were  employees, the  respondents claimed  that  they were employees as well as agents of the Board.      The  High   Court  came  to  the  conclusion  that  the liability of  the Board was that of a bailee. As regards the applicability of the provisions of paragraph 2 of section 87 on which the appellant relied the High Court was of the view that this  provision related  to a totally different subject with which section 61B was not concerned and, therefore, the provisions of that section did not 533 afford any  protection to  the Board and that since a master is always  liable for the torts committed by his servants in the course  of the  employment the Board was responsible for the damage  caused to  the machinery by its employees in the course of their employment.      Allowing the Board’s appeal ^      HELD :  (1)(a) Section  61B makes  it  clear  that  the responsibility of the Board was that of a bailee under three sections of  the Contract  Act and  no more.  It was not the case of  the plaintiff that there was a contract of bailment as contemplated  by section  148 of  the Contract Act. Since there was  no such  contract between  the  parties,  neither section 151,  nor section 152 or section 161 would have been attracted as  such: nor  would the  provision in section 61B have been applicable in a case of contractual bailment. Even though there was no contractual bailment, the responsibility of the  Board for  the loss, destruction or deterioration of the goods  was clearly  that of  a  bailee  subject  to  the reservations provided by the section. [539 A-D]      (b) The  essence of  bailment is possession. A bailment may arise even when the owner of the goods has not consented to their possession by the bailee at all. A bailment is not, therefore,  technically   and  essentially  subject  to  the limitations of  an agreement  and the notion of privity need not be  introduced in  an area where it is unnecessary to do so. It  follows  that  a  bailment  may  exist  without  the creation  of   a  contract   between  the   parties  and  it essentially gives  rise to  remedies which cannot be said to be contractual.  That is  why it  is said  that bailment  is predominantly a  tortious relation  and  that  the  two  are fundamentally similar.  Therefore, since  the claim  in  the present case  was not  based upon a mere breach of statutory duty  under  section  61B  but  was  based  on  the  Board’s liability as  bailee, it  was no  other than  by way  of  an action in tort. [539 F-H]      (c) It  may be  that section  61B has  fastened certain obligations on  the Board which in truth are not contractual because they  did not  rest on  an agreement  but  which  by virtue of  the same  section were  to be  treated as if they were so  and were made the subject matter of liability under sections 151,  152 and  162 of  the  Contract  Act.  Such  a relationship may  well be  called as  one arising  out of an implied contract.  But that does not mean that an altogether new cause  of action  arises merely  because a  duty to take charge of the goods is cast on the Board. By the very nature of  that   relationship  it   was  essentially   a  delictal obligation, a  civil wrong for which the remedy is an action in damages  and not  by  way  of  an  action  of  breach  of contract. [540 B-D]      (d) In  casting a  duty on the Board to take charge for the goods  immediately upon  landing, the  Legislature  took care to  lay down  and define  the nature  and extent of the liability which  is set out in terms to be that of a bailee.

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It  is   well  settled   that  non-contractual  bailment  is predominantly a tortious action. [541 A-B]      In the  instant case  the plaintiff’s claim was founded not upon  a breach of statutory duty under section 61B apart from tort but on negligence, malfeasance and nonfeasance and the acts  of misconduct  on the  part of  its employees.  In short the  claim was  based  on  careless  handling  by  the appellants when the case slipped and fell while it was being removed by them as bailees. [541C]      2(a) The  words "any  person" in section 87 include the Board. The benefit of the limitation prescribed in paragraph 1 of  this section is available to other "persons" also. But unlike paragraph 1, the protection of paragraph 2 is not 534 extended to cover "any person" but is confined to the Board. Yet another  and more  serious restriction is that the Board is made  responsible for  the  misfeasance,  malfeasance  or nonfeasance of only those of its employees who have not been "appointed under  this Act"  which means that the protection does not extend to any tortious act if it has been committed by an  employee who  has not  been appointed  under the Act. [542 A-D]      (b) Section  21 empowers the Board to appoint employees whom it  deems necessary  and proper  to  maintain  for  the purposes of the Act. But that could not possibly include all the employees  like artisans,  porters, labourers  etc., who under the  proviso to the section "shall not be deemed to be within the  meaning of  this section."  The protection which the Board  enjoys is therefore confined to the tortious acts of the  employees appointed  under the  Act. Therefore,  the loss, destruction  or deterioration  of goods  of which  the Board has  taken charge  would clearly amount to the Board’s responsibility under section 61B. But section 87 paragraph 2 has its  resonance in  section 61B  and vice versa. Both the sections are  interconnected and have to be read together as a whole. [542 E-H]      (c) The  view of  the High Court that the provisions of paragraph 2  of section  87 are  upon  a  totally  different subject with which section 61B is not at all concerned, runs counter to  the clear provisions of the two sections if read together and  is wholly  unsustainable. It  is  section  61B which makes the responsibility of the Board for the goods of which  it   has  taken   possession  subject  to  the  other provisions of the Act. There is no occasion or justification for reading the clause regarding the subjection to the other provisions of  the Act  so as to exclude section 87 as if it were outside the Act. [543 B-E]      (d) When the High Court, while interpreting the consent terms stated  that it  was admitted  that those employees at whose hands  the machinery  suffered damage in the course of transport "were appointed under the said Act" it was a short and inevitable  step for  it to  hold  that  the  Board  was entitled to  be absolved  of its  liability for  the acts of those employees by virtue of paragraph 2 of section 87. [543 H]      (e) The  liability of  the master  for the  acts of his servants would  not possibly  arise  in  a  case  where  the statute intervenes  and provides  in express  terms that the master would  not be responsible for any act of misfeasance, malfeasance or  non-feasance committed by a special class of its employees. The omission on the part of the High Court to appreciate this  aspect of the matter arose because it based its  findings   on  the  mistaken  impression  that  it  was concerned with  the act of an ordinary employee of the Board and not  a special  category  of  employee  referred  to  in

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paragraph 2  of section  87. The  High Court  also failed to notice that paragraph 2 of section 87 related essentially to acts of  misfeasance, malfeasance  and nonfeasance  of  only those employees  who had  been appointed under the Act, and, as such  employees were  very few,  the restriction  on  the Board’s   liability   was   limited   and   confined   quite substantially. [544D-F; 545 D]      3. Moreover,  the  so  called  statutory  duty  is  not unequivocal and  even assuming that it took the case outside the purview  of the  law of  torts and made it an innominate obligation,  that  would  not  take  the  case  out  of  the exception provided by paragraph 2 of section 87. Section 61B and section 87 are parts of the same statute. [546 B-C]      Gulam Hussain  Ahmedali &  Co. Pvt. Ltd. v. Trustees of the Port of Bombay, 64 Bombay L.R. 670 overruled. 535

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1282 of 1971.      From the  Judgment and  Order dated  17-7-1978  of  the Bombay High Court in Appeal No. 40/65.      Dr. Y.  S. Chitale, J. B. Dadachanji and K. J. John for the Appellant.      Anil B. Diwan, Rameshwar Nath and Ravinder Nath for the Respondent.      The Judgment of the Court was delivered by      SHINGHAL, J.-This  appeal by  certificate  is  directed against the judgment of the Bombay High Court dated July 17, 1970, by  which it  upheld the  judgment of  the trial court dated March  3, 1965,  decreeing the suit of the plaintiffs- respondents for Rs. 35,000 and interest with a part of their costs. It so happened that although there was initially much controversy  about  the  facts,  the  parties  realised  the futility of  disputing some glaring facts and agreed to take a decision,  even in  the trial  court, on  what  they  once described as "interim consent terms", but to which they have stuck all  through. We shall refer to them in a while, after stating some  of the  facts on  which both the trial and the appellate courts  have placed  reliance. That will bring out the significance  of the  "consent terms" and make them more intelligible.      The Premier Automobiles Ltd, hereinafter referred to as the plaintiffs,  imported 13  cases of machinery from Italy. Case No. 249, which is the subject-matter of the controversy before us,  contained an  internal grinding machine weighing over 3 tonnes. It arrived in Bombay on February 21, 1960, by S. S. Jalsilton Hall. The "Board", constituted under section 4 of the Bombay Port Trust Act, 1879. for short the Act, was a body  corporate with  a perpetual  succession and a common seal. It was called "the Trustees of the Port of Bombay" and could sue and be sued by that name. We shall, however, refer to it as "the Board" for that is how it has been referred to in the  Act and  the impugned  judgment. Since the Board was charged with  the duty of carrying out the provisions of the Act, and  had, in particular, the duty, under section 61A(1) of the  Act, to  take charge immediately upon the landing of any goods,  it took  charge of  case No.  249  also  on  its landing in  Bombay on  February 21,  1960. The  Board has in fact filed  document Ex.  K to  prove that the case was in a damaged condition  when it  landed on February 21, 1960, and that attention to that fact was drawn of the handling agents M/s Scindia  Steam Navigation  Co. Ltd.  It purports to be a

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contemporaneous 536 document. The  case was  placed on a four-wheeler trolly and was being  carried to  one of the sheds in the docks when it fell down  and the  machine contained  in  it  was  severely damaged. Several  employees of  the Board  were in charge of the case and the trolly at that time.      It is  said that a survey of the damage was carried out at the instance of the plaintiffs, who then took delivery on February 29,  1960. They  carried the  case to their factory and had  the machinery  examined by  another firm. That firm valued the  machinery at  Rs. 65,000  and the  damage at Rs. 55,000. The plaintiffs gave a notice claiming Rs. 65,774.10. The Board  denied the  claim in their reply and alleged that the machinery  was in  a broken condition at the time of the landing and  it was due to the damaged condition of the case that it  slipped and fell from the trolly accidentally. They relied on  the aforesaid  report Ex. K and pleaded, further, that they  were not liable because of section 87 and certain bye-laws of the Board.      The controversy led to the suit which was instituted on August 19,  1960. We  shall refer  to the pleadings in their proper context  to the  extent they  bear on the controversy before us. Issues were framed and the parties went to trial. They led  "considerable" evidence,  but during the course of the trial they drew up certain "consent terms" on October 7, 1964 and  limited the trial to them. Those terms have formed the basis of the decision at the trial and in the appeal. It seems there  was some  controversy regarding  the admissions contained in  the consent  terms, and  we have  accepted the interpretation concurrently  placed on  them by both courts. The appellate court has summarised its findings on paragraph II(b) of the consent terms as follows,-           "The contents  of this  paragraph leave much to be      desired. But three things are clear from this paragraph      (1) that in deciding issue No. 1 (we are concerned with      issue No. 2 now) the Court had to assume that there had      been some  misfeasance or malfeasance (there is no case      of  non-feasance  anywhere  pleaded)  on  the  part  of      persons handling  the case No. 249, that is to say, the      employees of  the  Port  Trust.  In  other  words,  the      element of  negligence on  the part of the employees of      the Port  Trust was  admitted. (2)  It is also admitted      that those employees were appointed under the said Act.      (3)  The  defendants  merely  alleged  that  they  were      employees while  the plaintiffs  alleged that they were      employees as  well as  the agents of the Trust and that      this side issue will have to be decided." The High  Court has  given its  interpretation of  paragraph II(c) also  in regard to the applicability of bye-law No. 82 to the benefit of the 537 Board, but  it does  not really  matter in  the view we have taken of  the case  in other  respects. The  High Court took note of  the fact  that the  loss or damage to the goods was not pointed  out by  the plaintiffs  or acknowledged  by the Docks Manager before the removal of the goods from the docks with reference to bye-law No. 98. That court however noticed the fact  that both  parties had agreed that if damages were to be  awarded, the  amount thereof should be Rs. 35,000. As regards evidence, it was agreed that, except as indicated in the preceding terms of consent, no other evidence "hitherto" recorded would  be taken  into consideration  in the  future proceedings in  the suit  or for  decision of  the remaining issues. That  led the High Court to observe that the parties

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somewhat narrowed  down the  controversy by  confining it to the points  of law, and the learned Single Judge decided the case only upon those points of law which were referred to in the judgment.      The High  Court, in  appeal, took  the  view  that  the principal and substantial point before it was the true scope and effect  of section  61B and paragraph 2 of section 87 of the  Act.  It  arrived  at  a  number  of  conclusions  with reference to  those provisions,  namely, that the plaintiffs founded their  claim upon the breach of statutory duty under section 61B  also, that  the provision  of  paragraph  2  of section 87  was upon  a totally different subject with which section 61B  was not at all concerned, that the liability of the Board  was that  of a  bailee, that a master or employer was always  liable for  all torts  committed by  the servant provided it was in the course of his employment and that any other view  of paragraph  2 of  section 87  would render the provision  of   section  61B   nugatory.  In   reaching  its conclusions the  High Court  relied heavily  on its Division Bench decision  in Gulam Hussain Ahmedadi & Co. Pvt. Ltd. v. Trustees of the Port of Bombay.      We shall  examine whether these conclusions of the High Court are  correct and whether it was justified in upholding the judgment  and decree  of the  trial court and dismissing the appeal.      The first  point for  consideration is whether the High Court was  right in  taking the  view that  "apart from  the claim in tort, the plaintiffs also claimed for the breach of the Trusts’  statutory  liability  under  section  61B."  In reaching that  conclusion the High Court noticed the obvious facts that in paragraph II(b) of the consent terms the trial court  was   required  to   assume  that   there  was   some misfeasance, malfeasance  or  non-feasance  of  the  persons handling case  No. 249.  The High Court also noticed the two further facts (i) that there were 538 three clear heads under which torts could be classified, and by using  them in paragraph 2 of section 87 of the Act, "the Legislature provided  for immunity  of the  Port Trust  from torts committed  by its  employees", and (ii) that in so far as the  plaintiffs’ claim  in tort was concerned there could be no  doubt  that  "it  would  fall  within  the  ambit  of paragraph 2  of section  87 because misfeasance, malfeasance or  nonfeasance   (was)  specifically   admitted".  We  have therefore to  examine whether  the plaintiffs in fact, or in substance, founded  their claim on the alleged breach of the statutory duty  under section  61B and,  if so,  what is its bearing on the suit.      A reference  to the plaint (paragraph 4) shows that the plaintiffs  pleaded  that  case  No.  249  arrived  by  S.S. Jalsilton Hall  and that  the Board  took charge  of it  "in accordance with the provisions of the Bombay Port Trust Act, 1879 and  the dock  bye-laws framed  there-under." Then  (in paragraph 5) the plaintiffs pleaded that after taking charge of the  case, the  defendants placed  it  on  a  trolly  for removing it to their open shed, and that, while it was being so  removed,   "on  account  of  careless  handling  by  the defendants, the case slipped from the trolly and fell on the ground" and  its machine was "entirely broken". While making that assertion,  the plaintiffs  categorically assorted that "the defendants  moved the  said case  as aforesaid in their capacity as  bailees thereof." This reference to the Board’s responsibility was pleaded because section 61B provided that that would  be the nature of the liability of the Board. The section clearly states as follows,-

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         "61B. The  responsibility of  the  Board  for  the      loss, destruction or deterioration of goods of which it      has taken charge shall, subject to the other provisions      of this  Act and  subject also  in the  case  of  goods      received for  carriage by railways to the provisions of      the Indian  Railways Act,  1890, be  that of  a  bailee      under sections  151, 152 and 161 of the Indian Contract      Act, 1872,  omitting the  words ‘in  the absence of any      special contract’  in section 152 of the last mentioned      Act." So if  there was  any loss,  destruction or deterioration of the goods within the charge of the Board, its responsibility was that  of a  bailee under  the three specific sections of the Contract  Act, excepting of course the further provision about the  omission of  the words meant to exclude a special contract to  the contrary in section 152 of the Contract Act and the relevant provisions of the Railways Act. The section thus makes  it clear that, for purposes of the present case, the responsibility  of the  Board was that of a bailee under the three sections of the Contract Act, and no more. 539      It has  to be  appreciated that  the subject-matter  of contractual bailment  has been  dealt with  in chapter IX of the Contract Act, and section 148 defines "bailment" to mean the delivery  of goods "upon a contract". As it was nobody’s case that there was any such contract between the plaintiffs and the  Board in  this case, section 151 (regarding care to be taken  by the bailee), section 152 (regarding the absence of that responsibility after taking the necessary care), and section 161  (regarding responsibility  when goods  were not duly returned),  would not  have been attracted as such. Nor would the  provision  in  section  61B  that  the  aforesaid responsibility of  the Board  shall be "subject to the other provisions of  this Act",  have been applicable in a case of contractual bailment.      So even though there was no contractual bailment either according to  the  pleadings  of  the  parties.  or  on  the wordings of section 61B, the responsibility of the Board was of the nature aforesaid, as the bailee of the consignment by virtue of  that section.  In other  words, in  so far as the "responsibility" of  the Board  for the loss, destruction or deterioration of  the goods of which it had taken charge was concerned, it  was clearly  that of  a  bailee,  subject  of course to  the reservations  provided by  the section.  What then is  the nature  of a bailment? It may be mentioned that we  have   gone  through  the  pleadings  and  there  is  no justification for  the view  that the plaintiffs based their claim on  the breach  of a  mere statutory duty of the Board under section 61B.      It is  well settled  that the  essence of  bailment  is possession. It  is equally  well settled that a bailment may arise, as in this case, even when the owner of the goods has not consented  to their  possession by  the bailee  at all : Palmer on  Bailment, 1979 edition, page 2. There may thus be bailment  when   a  wharfinger  takes  possession  of  goods unloaded at the quay side : (1970)2 All E.R. 826. A bailment is not  therefore technically and essentially subject to the limitations of  an agreement, and the notion of privity need not be  introduced in  an area  where it is unnecessary, for bailment, as  we have  said, arises  out of  possession, and essentially connotes  the relationship  between a person and the thing in his charge. It is sufficient if that possession is within  the knowledge of the person concerned. It follows that a  bailment may very well exist without the creation of a contract between the parties and it essentially gives rise

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to remedies which, in truth and substance, cannot be said to be contractual.  That is  why Palmer  has made the assertion that "bailment  is predominantly  a tortious relation" (page 36), and the two are fundamentally similar.      It follows, therefore, that as the claim in the present case was  not based  upon a  mere breach  of statutory  duty under section 61B of the 540 Act, and  was based  on the  Board’s liability as bailee, it was no other than by way of an action in tort.      It may  be  that,  as  in  the  present  case,  certain obligations were  fastened on the Board under section 61B of the Act  which were  not in  truth contractual in as much as they did  not rest on agreement, but which, by virtue of the same section,  were to  be treated  as if  they were so, and were  made  the  subject-matter  of  liability  under  three sections (sections  151, 152  and 162)  of the Contract Act. Such a relationship may well be called as one arising out of an implied  contract. But  that does not justify the view of the High  Court that an altogether new cause of action arose merely because a duty to take charge of the landed goods was cast on  the Board  under section  61A(1)  and  the  Board’s responsibility for  them was  defined in section 61B. By the very nature  of that  relationship, which admittedly did not arise  out   of  agreement   between  the  parties,  it  was essentially a delictal obligation. It was a civil wrong, for which the  remedy was an action in damages and not by way of an action  for breach  of contract,  as it is no body’s case that there was any such relationship between the parties. It may be that the obligation of the Board was of the nature of a quasi-contract,  but that  also would not justify the view that it  arose merely  because of  the words of sections 61A and 61B,  as a  statutory obligation  quite apart  from  the sources of  origin of  obligations defined  by  Salmond  (on Jurisprudence), twelfth  edition, page  452 as  contractual, delictal,  quasi-contractual  and  innominate.  In  fact  as Halsbury has put it (third edition, Vol. 37, page 111) while dealing with  the  nature  and  elements  of  liability  the position is as follows,-           "Those civil  rights of action which are available      under  English   common  law   for  the   recovery   of      unliquidated damages  by  persons  who  have  sustained      injury or  loss from  acts, statements  or omissions of      others in  breach of  duty or  contravention  of  right      imposed and  conferred by  law rather than by agreement      are rights of action in tort."                                          (Emphasis supplied) Reference may  also  be  made  to  Street  on  Torts,  sixth edition, page  5, that  an action  for breach of a statutory duty is  an action  in tort. As has further been pointed out on page  6, there  is no  fixed catalogue  of  circumstances which alone  and for  all time  mark the  limit of  what are torts. Speaking  simply and  generally the  law of  torts is concerned with  those situations  where the  conduct of  one party causes or threatens harm to the interests of the other party. As  in this  case a  duty was cast on the Board under section 61A to take charge of 541 the goods  immediately upon  landing, the  Legislature  took care to  lay down  and define  the nature  and the extent of that liability,  which was set out, in terms to be that of a bailee. Palmer  has ably  brought out the nature of bailment vis-a-vis tort  and has  rightly reached the conclusion that non-contractual bailment is predominantly a tortious action.      It would  thus appear  that it  was not the case of the

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plaintiffs in  their pleadings  that their claim was founded merely upon  the breach  of the statutory duty under section 61B of the Act, apart from tort. On the other hand. in their notice before  the suit,  the plaintiffs’  case was based on negligence, malfeasance  and non-feasance on the part of the Board’s administration  at the  docks  and/or  the  acts  of misconduct on the part of its employees. As has been pointed out, in  the plaint the claim was based on careless handling by the  defendants when  the case  slipped and fell while it was being removed by them as bailees      So when  the action was by way of tort, and was, at any rate, rested  on section  61B, it was necessary for the High Court to give full meaning to what that section provided and to give  effect to  paragraph 2  of section  87 if  it had a bearing on  that section  as was  canvassed  at  length  all through the litigation.      We have  extracted section  61B. It  will  appear  that while it  prescribes the responsibility of the Board for the loss, destruction  (as in  this case)  and deterioration  of goods of  which it  has taken charge, it expressly provides, further, that  that responsibility  shall be "subject to the other provisions"  of the  Act. The  "other  provisions"  on which reliance  was placed  by the Board, was section 87. It will be  enough to  read the  first two  paragraphs of  that section, for  the arguments  before us have been confined to paragraph 2. The two paragraphs read as follows,-           "87.  No   suit  or   other  proceeding  shall  be      commenced against  any person  for any  thing done,  or      purporting to have been done, in pursuance of this Act,      without giving  to such  person  one  month’s  previous      notice  in  writing  of  the  intended  suit  or  other      proceeding, and  of the  cause thereof,  nor after  six      months from  the accrual  of the  cause of such suit or      other proceeding.           The  Board   shall  not  be  responsible  for  any      misfeasance,  malfeasance   or  non-feasance   of   any      employee appointed under this Act."      It is  not in  dispute before  us that  the words  "any person"  at  the  opening  of  section  87  prohibiting  the commencement of a suit 542 or other  proceeding against it (or him), include the Board. Section 4  of the  Act in  fact expressly  provides that the Board  shall   be  a   body  corporate  and  have  perpetual succession and  a common  seal, and shall sue and be sued by its long  name mentioned  in the  section. The term "person" within has  been defined  in  the  General  Clauses  Act  to include any  company or  association or body of individuals, whether incorporated  or not.  So the  Board was  a "person" within the  meaning of  section 87  and it  was entitled  to notice and  the benefit  of  the  limitation  prescribed  in paragraph  1.   But  that  benefit  is  available  to  other "persons" also.  Then comes  paragraph  2,  which  expressly provides that  the Board  shall not  be responsible  for any misfeasance, malfeasance  or non-feasance  of  any  employee appointed under  the Act.  It has  to be  noted that, unlike paragraph 1,  the protection  of paragraph 2 is not extended to cover  "any person"  and is  confined to  the Board. Then there is  another, and  a more  serious restriction, namely, that the  Board shall  be responsible  as aforesaid  for the misfeasance, malfeasance  or non-feasance  of only  those of its employees  who have not been "appointed under this Act". It does  not therefore extend to any such tortious act if it has been committed by an employee who has not been appointed under the Act.

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    Not all  the Board’s  employees are appointed under the Act. Thus  a cross-reference to section 21, which deals with officers and  servants of the Board, shows that the Board is required to  prepare and sanction a schedule of the staff of employees whom  they shall  deem it  necessary and proper to maintain for  purposes of  the Act.  That could not possibly include all  the employees  of the Board, for the proviso to the section  states that artisans, porters and labourers and mukadams of  porters and  laborers etc.,  and  a  person  in temporary employment  other than those who are in receipt of the specified  monthly salary,  "shall not  be deemed  to be within the  meaning of  this section".  The protection which the Board  enjoys is  thus confined  to the tortious acts of the employees  appointed under  the Act,  while the Board is answerable for  any such  act committed by the vast majority of its  lesser employees  who do  the main  work of actually handling, loading,  transporting, storing  etc. of the goods handled on  behalf of  the Board  in  the  exercise  of  its statutory powers.  The protection  is  therefore  very  much restricted, in  so far  as the Board is concerned, and there is no  reason why  it should  be denied  to it  where it  is otherwise available  by a  direct and  emphatic provision in the Act.  The section  is clear and categorical in providing that if  any misfeasance,  malfeasance  or  non-feasance  is committed by any employee appointed under the Act, the Board shall not  be responsible  for it. Thus loss, destruction or deterioration of goods of which the 543 Board has taken charge, falling in one or the other of those three categories according to the facts and circumstances of each offending  act, would  clearly amount  to  the  Board’s responsibility under  section 61B, but section 87 (paragraph 2) has  its reasonance  in section  61B, and  vice versa, so that the  sections are  inter-connected and  have to be read together and as a whole.      The  High   Court,  however,  went  to  the  extent  of observing that  the provisions of section 87 paragraph 2 are upon "a  totally different subject with which section 61B is not at all concerned" and that was why it took the view that they could  not possibly be held to control section 61B. The High Court  went on  to hold that in its opinion one and the same act may give rise to two liabilities, one for breach of statutory duties and the other for the commission of a civil wrong or  a tort and that while section 61B provides for the former, paragraph  2 of  section 87  provides for the latter and the two provisions do not overlap. No justifiable reason has been  given for  this view  and,  if  we  may  say  with respect,  we   find  that  it  runs  counter  to  the  clear provisions of  the two  sections if  they are read together, and is  wholly unsustainable.  It is section 61B which deals with and  prescribes the  responsibility of  the  Board  for goods of  which ’it has taken possession under the statutory duty’ under  section 61A,  and it  is that  section, namely, section 61B, which makes that responsibility "subject to the other provisions  of (that)  Act". There  is no  occasion or justification  for   reading  the   clause   regarding   the subjection to  the other  provisions of  the Act  so  as  to exclude section 87 as if it were outside the Act.      So if  it could  be shown that the acts of misfeasance, malfeasance and non-feasance compendiously used at the trial and in  the consent  terms, were  committed by  any employee appointed under  the Act,  there is  no reason why the Board should not invoke paragraph 2 of section 87 and successfully claim that it was not responsible for them.      A reference  to paragraph  II(b) of  the consent  terms

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clearly shows that issues Nos. 1 and 2, which related to the liability of  the Board  by  reason  of  the  provisions  of section 87,  were to be decided on the assumption that there was some  misfeasance, malfeasance  or non-feasance  of  the persons who  handled the  case in question and who according to the  defendants were their "employees appointed under the Act"  whilst  who  according  to  the  plaintiffs  were  the employees and  the "agents"  of the  defendants. As  we have mentioned earlier,  the contents of this part of the consent terms has  been interpreted  by the  High Court to mean that while negligence  on the  part of the Board was admitted "it was also  admitted that these employees were appointed under the said  Act". When  the High  Court clearly  reached  that conclusion, it  was a  short and  inevitable step  for it to hold, 544 further,  that  the  Board  was  therefore  entitled  to  be absolved of its liability for the acts of these employees by virtue of  paragraph 2 of section 87. So here again the High Court fell  into an  error for  which its judgment cannot be sustained.      The High  Court has  tried to  interpret paragraph 2 of section 87  with reference to the law which was in operation prior to  the enactment  of section 87 by an Act of 1879 for till then  the ordinary  law was in operation, and reference in that  connection was  made to  Barwick v.  English  Joint Stock Bank.(1) There the law was stated as follows:           "The general rule is that the master is answerable      for every  such wrong  of the  servant or  agent as  is      committed in  the course  of the  service and  for  the      master’s benefit,  though no express command or privity      of the master be proved." Reference has also been made by the High Court to Salmond on Jurisprudence that  actual benefit to the master need not be shown in  such cases.  But  what  the  High  Court  did  not properly  appreciate   was  that   such   a   liability   or responsibility of  the master  could not possibly arise in a case where  the statute intervenes, and provides, in express terms, that  the master shall not be responsible for any act of misfeasance,  malfeasance or  non-feasance committed by a special class  of its  employees. This  omission of the High Court  to   appreciate  the   correct  legal  position  with reference to  the decision  in Barwick  (supra) and the text book relied  upon by  it, arose because it based its finding on the  mistaken impression  that it  was concerned with the act of an ordinary employee of the Board and not the special category of  employee referred  to in paragraph 2 of section 87 of  the Act,  namely, the  "employee appointed  under the Act". This  mistake runs  through the  entire  judgment  and occurs at  a dozen  places where  the question  of  tortious liability has  been examined  in regard  to the action of an ordinary employee  and the  master’s vicarious liability for the same.      Then the  High Court went on to examine its decision in Gulam Hussain’s  case (supra)  and, while  disagreeing  with that portion  of that  judgment where the Division Bench had stated  that  the  "scope  and  the  effect  of  the  second paragraph of  section  87  is  to  protect  the  Board  from vicarious liability which they might have otherwise incurred for the  torts committed by their employees in the course of employment", the  High Court  chose to follow the view taken in that  judgment that  the  responsibility  for  the  loss, destruction  or  deterioration  of  goods,  which  had  been referred to  in section  61B of  the  Act,  was  the  direct responsibility of the Board itself and not that of any

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545 of its  employees, But  we are  constrained to  say that  in Gulam Hussain’s  case(1) also,  the High Court referred only to the  "employees of  the Board  and the torts committed by them in the course of their employment, but failed to notice that even  though a duty was cast on the Board under section 61B for  the loss,  destruction or deterioration of goods of which it  had taken charge, that responsibility was "subject to the  other provisions  of the  Act", namely,  section 87, paragraph 2  to which  reference has been made by us at some length,  and   which  expressly   absolved  the  Board  from responsibility for  any  misfeasance,  malfeasance  or  non- feasance of  any employee  appointed under  the  Act.  Gulam Hussain’s case  (supra) was  therefore not decided correctly and as  the High  Court, in  the impugned judgment, took the view that  the conclusion  reached in  Gulam Hussain’s  case (supra) was  binding  on  it,  it  naturally  arrived  at  a decision with  which we  are unable to agree. The High Court failed to  notice that  paragraph 2  of section  87  related essentially to  acts of  misfeasance, malfeasance  and  non- feasance of  only those  employees who  had  been  appointed under the  Act, and  as such  employees were  very few,  the restriction  on   the  Board’s  liability  was  limited  and confined quite  substantially. The  High Court went further, and brought  in the  question and  concept  of  the  Board’s "agents" even  though it was quite foreign to paragraph 2 of section 87 and no evidence was relied upon to establish that it were  the Board’s  "agents" who  were responsible for the damage to  the consignment. In fact, in Gulam Hussain’s case (supra) the  High Court  presumed  that  if  the  Board  was responsible for  the loss,  destruction or  deterioration of the goods,  the cause  of action  must be the failure of the Board to  take the  requisite degree  of care  by itself  or through its  agents, and  not merely  a tort committed by an employee  for   which  the  Board  was  sought  to  be  held vicariously liable.  With respect, we are unable to find any justification for  such a view. Gulam Hussain’s case (supra) was therefore  not decided  on a  proper appreciation of the provisions of  section 61B  and paragraph 2 of section 87 of the Act.  One of  the Judges  who decided  that case was the Judge who  tried the present case, and he naturally followed his own earlier judgment in Gulam Hussain’s case (supra). As the Division  Bench, which  gave the present judgment (under appeal before us) in that very case held that the conclusion reached in Gulam Hussain’s case (supra) was binding upon it, it fell  into the  error which  had  crept  in  the  initial decision in  Gulam Hussain’s  case (supra).  Gulam Hussain’s case  (supra)   is  therefore  no  authority  or  basis  for upholding the impugned judgment.      It has  to be  appreciated and  remembered all through. that section  61B which  imposes the  responsibility on  the Board for loss. 546 destruction or  deterioration of goods of which it has taken charge, and states that that responsibility shall be that of a bailee  under the  three sections  of  the  Contract  Act, states further  that the responsibility shall be "subject to the  other  provisions  of  (the)  Act".  So  the  so-called statutory duty  is not  unequivocal, and  even  if  it  were assumed that it took the case outside the purview of the law of torts  and made  it what  Salmond has  classified  as  an "innominate obligation", that would not take the case out of the  exception  provided  by  paragraph  2  of  section  87. Sections 61B  and 87 are both parts of the same statute, and must be  read together-particularly  when that  is the clear

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direction of  section 61B.  By virtue  of that  section, the liability of  the Board  is no  more than  that of  a bailee under sections  151, 152  and 161 of the Contract Act. As we have pointed  out,  bailment  is  a  concept  correlated  to possession, and  when that is admittedly not contradicted in this case,  it is  really a  liability in  tort and  the so- called liability  under section 61B of the Act means no more and no less than this.      The High  Court has  observed that any other view would "virtually render  the provisions  of  section  61B  largely nugatory". But  the very  next sentence gives out the reason for that  view, for  the High  Court has  gone on to observe that that  would be  so if  paragraph 2  of  section  87  is construed  otherwise,   namely,  that  "for  any  and  every misfeasance, malfeasance  or non-feasance  of its  employee, the Board is given complete immunity." That, however, is not what section  61B and paragraph 2 of section 87 provide for, as we  have pointed  out earlier,  only a  very few  of  the Board’s employees  are appointed  under the Act and all that the paragraph  provides is  that  the  Board  shall  not  be responsible for any misfeasance, malfeasance or non-feasance on the part of only those employees. They may, for aught one knows, be responsible personally for what they do, but it is not a  correct proposition of law to say that the view which has  found   favour  with  us  would  virtually  render  the provisions of section 61B "largely nugatory".      In the  view we  have taken, it is not necessary for so to examine  the validity  of the bye-laws to which reference has been  made by  the High Court. They were produced before us towards  the close  of the  hearing,  for  the  arguments proceeded  and   were  based   on  the   true  meaning   and construction of sections 61B and 87 (paragraph 2) and it was agreed that  our decision  thereon would  govern the fate of this  case.  We  should  not  therefore  be  taken  to  have expressed any  opinion about the validity of the bye-laws in question. It  will be  sufficient for  us to  say  that  the decision here or below will not be conclusive of 547 their validity  or invalidity  for purposes  of the  present case or like controversy.      In the  result, the appeal succeeds and is allowed. The judgment and  decree of the High Court are set aside and the suit is  dismissed. In  the circumstances  of the  case, the parties shall pay and bear their own costs throughout. P.B.R.                                       Appeal allowed. 548