Holding

The Board, as a wharfinger, is entitled to a general lien under Section 171 of the Indian Contract Act to retain goods bailed to it for past wharfage, demurrage and other charges, and the circular issued is valid.

Summary

The Board of Trustees of the Port of Bombay detained a consignment of acrylic fibre belonging to Mis Sriyanesh Knitters, demanding payment of wharfage and demurrage arising from earlier imports of woollen rags. The respondents challenged the Board’s circular, alleging it was ultra‑violet of the Major Port Trusts Act, 1963 and violated constitutional guarantees. The Supreme Court examined whether the Board, as a wharfinger, could rely on Section 171 of the Indian Contract Act to claim a general lien over the goods for past dues, and whether the Major Port Trusts Act barred such a claim. It held that the Act is not exhaustive and must be read with other statutes, and that a wharfinger is statutorily entitled to a general lien covering all amounts constituting the “general balance of account,” including demurrage. Accordingly, the Board’s circular was upheld, the goods could be retained as security, and the High Court’s order was set aside. The appeals were allowed.

Issues considered

Whether the Board of Trustees of the Port of Bombay can claim a general lien under Section 171 of the Indian Contract Act over goods in its possession for past wharfage, demurrage and other charges.
Whether the Major Port Trusts Act, 1963 is a comprehensive code that excludes the applicability of Section 171 of the Indian Contract Act.
Whether the expression “general balance of account” under Section 171 includes demurrage and other charges beyond wharfage.
Whether the Board may sell the detained goods without a court order under the Major Port Trusts Act.
Whether the bailment contract is between the port trust and the consignee under the Bills of Lading Act, 1856.

Legislation cited

Bills of Lading Act, 1856s. 1
Indian Contract Act, 1872s. 151, s. 152, s. 161, s. 171, s. 45
Major Port Trusts Act, 1963s. 126, s. 29(2), s. 2(o), s. 42, s. 43, s. 45, s. 47, s. 48, s. 59, s. 61, s. 68, s. 70, s. 71

Subjects

general lienwharfingerSection 171Major Port Trusts Actwharfagedemurragebailmentbill of ladingport trustcontract lawsale of goodsconstitutional challengeArticle 14Article 19Article 265Article 300A

Judgment

A THE BOARD OF TRUSTEES OF THE PORT OF
BOMBAY AND ORS.
v.
MIS SRIYANESH KNITTERS
- •

JULY 30, 1999
B
[B.N. KIRPAL AND U.C. BANERJEE, J.J.)

Major Port Trusts Act, 1963-Sections 2(o), 29(2),
42,43,45,47,48,59,6J,68,70,71,/26,13/-Board refusing to release goods ._
·C imported by the respondents and demanding payment in respect of wharfage '
and demurrage due from the respondents in respect of earlier consignments
imported by them on the basis of a Circular-Tenability of-Held, fhe,Board
being a wharfinger, can have a general lien under Section 171 of; ihe
Contract Act and retain the goods bailed to it for any amount due in respect
D thereof-Expression "general balance of account" occurring in Section 17 I
cannot be given a restricted meaning to mean only wharfage charges and
not including demurrage-Once the goods are taken charge of by the Board
as a wharfinger, in respect of the services rendered, any amount due and
payable would be regarded as "general balance of account" in respect of
which it has a general lien over the goods bailed to it-Circular issued· by
E the Board, upheld-Indian Contract Act, 1872-Sections 151, 152, 16/, 17/.

Boai-d claiming general lien relying on the provisions of Section I 7 I
.,
of the Contract Act as the Major Port Trusts Act did not provfde for such
general lien-Permissibility of-Held the general lien of the type claimed by
the appellants in respect of the past dues, not being provided for by the
F Major Port Trusts Act, it is permissible for the Board to rely on the provisions
of Section 171-Major Port Trusts Act not being an exhaustive and
comprehensive code, the said Act has to be read .together with other Acts
whenever it is silent in respect of any matter-The enactment of Major Port
Trusts Act does not ipso facto exclude the operation of other laws which may
G be applicable.

lien-Specific and General-Differentiation in-Held, with regard to
the current dues in respect of existing goods in their possession, the Board
not only has a lien under the Major Port Trusts Act but it also has the power
to sell the said goods and realise its dues-Before selling the goods as
H provided for, no order of any Court or other judicial authority is required-
1238
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS 1239
On the other hand, the general lien contemplated under the Contract Act A
only enables the retention the retention of the bailed goods as security and
does not give any power to sell the goods-The wharfinger in such a case
will have to take recourse to other proceedings in accordance with law for
securing an order which would then enable the goods to be soldfor realisation
of the amounts due to it.
B
Bailor and bailee-Relationship of-The contract in a bill of lading
being between the Port Trust and the holder of bill of lading (i.e), the
consignee in this case, it is the consignee which is the bailor and the Port
Trust the bailee-High Court erred in holding that the contract in a bill of
lading was between the ship owner and the Port Trust-Port of Bombay C
(Responsibility of Goods) Regulations, 1975-Bill of Lading Act, 1856-
Section 1.

Words and Phrases-Wharfinger-Meaning of

Respondents were the importers who imported various goods from time D
to time. They imported various consignments of woollen rags over a period
of time. After the arrival of these consignments at the port, a dispute arose
between the respondents and the customs authorities. During this period, the
imported goods remained at the docks till the order of confiscation was
·- passed and goods confiscated by the Customs authorities. In respect of the
period during which the goods remained at the docks, the appellant issued E
notices to the respondents demanding demurrage charges, which liability
was denied by the respondents.

Subsequently, acrylic fibre was imported by the respondents. However,
these goods were not released by the Port Trust as it demanded payment in F
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. Such refusal to release the goods was on the basis of a Circular
issued by the appellant.

The respondents then filed a writ petition in the High Court seeking G
a declaration that the aforesaid Circular was ultra vires of the Major Port
Trusts Act, 1963 and was violative of Articles 14,19,265 and 300A of the
Constitution of India. During the pend ency of the writ petition, 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. The said writ petition was allowed by H
1240 SUPREME COURT REPORTS [l 999] 3 S.C.R.
'
A the Single Judge thereby holding that the appellants could not in law claim
general lien under Section 171 of the Contract Act and directed them to
withdraw or cancel the impugned Circular. The order of the Single Judge
was challenged unsuccessfully by way of Letters Patent Appeal before a
Division Bench of High Court. Hence the present appeal. Other appeals
B raising similar question regarding existence of general lien of the appellant
over the consignments imported by the importers at the port, for their dues
in respect of the past imports made by the said importers, were also heard
together.

On behalf of the appellants, it was contended that the appellants were
C wharfingers and the goods which were imported and off loaded at the port
were with them as bailee; 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 charge in respect of the
earlier consignments of woollen rags under Section 171 of the Contract Act;
D that the High Court erred in coming to the conclusion that the Major Port
Trusts Act was a complete code in itself and that Section 171 of the Contract
Act was not applicable.

On behalf of the respondents, it was contended that under Section 171
E of the Contract Act the lien was available only in the absence of a contract
to the contrary; that Chapter VI of the Major Port Trusts Act was a contract
to the contrary between the parties and hence no lien was available to the
appellants under Section 171 of the Contract Act; that even if Section 171
of the Contract Act applies, the appellants can ·exercise their lien under
Section 171 of the Contract Act for recovery of their dues for the services
F rendered by them as wharfingers only and not for any other services provided
by them as detailed in the Major Port Trusts Act; that once the appellant
takes charge 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,
G at best, can be claimed only for wharfage charges.
.,
Allowing the appeals, this Court

HELD : 1. The appellant could retain the goods, under Section 171 of
.the Contract Act, which were in their possession as bailees, as security for
H realisation of the amount ofwharfage, demurrage and other charges which
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS 1241
were due to them and the Circular issued in this regard is valid. The first A
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 said Sections enables these five categories to retain as
security the goods bailed,to them in respect of"general balance of account"
of the amount legally due. The appellants come in the category ofwarthfinger B
, namely, the owners of the wharf. The services which are undertaken by
them have to be paid for and any amount due in respect thereof will be
regarded as "general balance of account". Once goods are taken charge of
by the appellants as a wharfinger, then in respect of the services rendered,
any amount due and payable to it would be regarded as "general balance of
account" in respect of which it has general lien over the goods bailed to it. C
[1258-C-F]
2.1. The Major Port Trusts Act is not an exhaustive and comprehensive
code and the said Act has to be read together with other Acts wherever the
Major Port Trusts Acts is silent in respect of any matter. It is permissible
to read the provisions of the two Acts together when the same are D
complementary to each other. The Major Port Trusts Act itself refers to
other enactments which clearly indicates that the said 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. E
[1247-H; 1248-A]
J.K. Steel Limited v. Union of India, [1969)2 SCR 481; B.C. Shukla v.
1

Khubchand, [1964)6 SCR 129; State of Madras v. V. Iyer, [1958) SCR 580;
Mannan Lal v. Mst. Chhotaka Bibi, [1971) lSCR 253 and V.R. She/at v.
Pran/a/, [1975)1 SCR 534, relied. F
Pioneer Aggregate (U.K.) Ltd. v. Secretary of State for the Environment
and Others, (1984)2 All.E.R 358, referred to.

Bennion 's Statutory Interpreation, 2nd edition, page 444, referred to.
G
2.2. The Major Port Trusts Act and Sections 59 to 61 in particular do
- . not-give to the appellants the general lien which it is claiming. The lien
conferred on the ,Bo,ard under Section 59 of the Act is not a general lien but
is a lien on specific goods. In other words, it is because the Major Port Trust
Act does not provide for a general lien that the appellants are relying on the
provisions of Section 171 of the Contract Act. This is permissible. The H
'
1242 SUPREME COURT REPORTS [1999] 3 S.C.R.

A Major Port Trusts 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
contemplated by Section 171, namely, amounts due in respect of earlier
consignments for which payment has not been made. The Major Port Trusts
Act nowhere provides that the general lien under Section 171 of the Contract
B Act would not be available to the wharfingers in case where the Major Port
Trusts Act is applicable. [1250-B-C]
2.3. Section 171 of the Contract Act only enables the retention of
bailed 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 Major Port Trusts Act but it also has the power to
C sell the said goods and realise its dues by virtue of Section 61 of the Major
Port Trusts Act. Before selling the goods no order of any court or other
judicial authority is required. Whereas, 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 agd
D will have to take recourse to other proceeding 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 Major Port Trusts Act clearly provides that such a remedy of
E filing a suit is available to the Board. The added advantage of sale given by
Section 61 of the Major Port Trusts Act in respect of current dues cannot
be regarded as whittling down the right of general lien contained in Section.
171 of the Contract Act in respect of the old dues. [1250-D-G)

3. Section 171 of the contract Act is in two parts. The first part gives
statutory right of lien to four categories, namely bankers, factors,
F 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 the 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 the goods bailed to them as securities unless there is an express
G contract to that effect. [1251-C-D]

4. 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. The relationship of bailor and
-
bailee comes into existence when the appellant-Board is required to store the
H imported goods. The contract in a bill of lading is between the Port Trust
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1243

and the holder of'bill of lading which, in this case would be the consignee. A
It is the consignee which is the bailor with the Port Trust being the bailee.
The consignee of the goods named in the bill of lading or every endorsee of
the bill of lading, for the purpose of the Major Port Trusts 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 Major Port Trusts Act in respect of B
_.. the said goods. [1255-E-H; 1257-B-CJ

Sun Export Corporation and Anr. v. Board of Trustees of the Port of
Bombay, (1998}1 SCC 142, relied on.

The Trustees of the Port of Madras by its Chairman v. KP. V. Sheik
Mohamed Rowther & Co. and Ors., [1963) Supp. 2 SCR 915, held inapplicable. C
Jowitt's diciionary of English, Second Edition; Webster dictionary;
Ramana"tha Aiyar 's The law of Lexicon, Second Edition, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6185 of
1983 etc. D
From the Judgment and Order dated 11/12.8.82 of the Bombay High
Court in A.No. No. 78 of I 982.

RN. Trivedi, Additional Solicitor General, R.F.Nariman, Ms. A.K. Venna,
U.J. Makhija, Hemant Shah, B.A.Ranganathan for Mis. J.B.Dadachanji & Co. E
(Mis. Gagrat & Co.) for (N.P.), (D.M.Nargolkar) (NP), Pramod B Aggarwala,
Ms. Praveena Gautam, Ramesh Singh, Ms. Bina Gupta, Ms. Vanita Bhargava.
Ms. Jugnu Bagga and Ms. Rakhi Ray for the appearing parties.

The Judgment of the Court was delivered by
F
/
KIRP AL, 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 G
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 H
'
'1244 SUPREME COURT REPORTS [1999] 3 S.C.R.

A were woollen rags or woollen gannents. 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. ·

B 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.
c After the aforesaid suits had been instituted acrylic fibre was imported
by the respondents. When the consignment arrived ill 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
·D goods'. tere 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. · -
E The said circular, inter alia, stated as follows:

"The Board of Trustees of the Port of Bombay have 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
F 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
G Balance of account in respect ofwharfage, 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
H Constitution of India in Bombay High Court seeking a declaration that the
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1245
,. aforesaid circular was ultra virus of MPT Act and was violative of Articles A
14, 19, 265 and 300A of the Constitution oflndia. 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 B
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 C
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 D
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
t
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 E
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.
F
(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 G
Judges.

(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". H
1246 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 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
B relevant, read as follows:

"59. Board's lien for rates-[ I] 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
C 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-owner's lien upon the said goods
for freight and other charges where .such lien exists and has been
D 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
E lien for freight is not discharged-[l] 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
F
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 -

G
(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 doard 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
H person claiming such lien for freight or other charge has made
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1247
to the Board an application for such sale." A
Plain reading of Section 59 shows that in respect of any goods which
- are imported the Board has a lien for the amount of all rates leviable under
the Act and for the rent due to it and it also has a lien on such goods and
the Board may seize and detain the same until such rates are paid. It is clear
that it is only in respect of the amount due qua the goods imported and B
existing there that the Board has a lien 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 C
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 D
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 E
under Section 59. The Board was not demanding or claiming lien on acrylic
fibre on the ground that any amount in respee<t 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, F
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 G
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 H
1248 SUPREME COURT REPORTS [1999) 3 S.C.R.

A 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
B Bennion's 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. v.
Secretary ofState for the Environment and others, (1984) 2 All ER 358 at page
c 363.

"Planning law, though a comprehensive code imposed in the public
interest, is, of course, based on land law. Where the code is silent or
ambiguous, resort to the principles of private law (especially property
and contract law) may he necessary so that the courts may resolve
D 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
E 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 v. Union of India, [ 1969] 2 SCR 481, it was held that
cognate and pari-materia legislation should be read together as forming one
F system and as interpreting and enforcing each other. In B.C. Shukla v.
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 v. 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 v. Mst. Chhotaka Bibi,
[1971] 1SCR253, it was held that the Code of Civil Procedure has to be read
G along with the Court Fees Act. In V.R. She/at v. Pranla/, [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 follO\ys that it is permissible to
-
read the provisions of the two Acts together when the same are complementary
H to each other. In fact some provisions of the MPT Act themselves show that
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1249
,1ther laws are applicable. A

- It is an Act which makes provision for the constitution of port authorities
~Od 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 B
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 C
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 D
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 E
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 provides that
notwithstanding the provisions contained in Section 45 of the
Indian Contract Act, 1872 in case of Port Trust security payment F
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.
G
(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 tnat the said Act H
1250 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 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
B 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
C 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
D 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 it's 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.
E 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 wharfinget can only retain the goods bailed as security and will
F 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 ciearly provides that such a remedy of filing a suit is available to
G 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 not oust the
provisions of Section 171 of the Contract Act what we have now to see is
H whether the appellants can claim any relief or benefit under the said section.
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1251
Section 171 of the Indian Contract Act, 1872, reads as follows: A
"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; ~ut no other persons have a right to retain, as B
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 C
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 D
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 E
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 F
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.
G
Wharf is defined in Jowitt 's dictionary of English, Seco11d Edition, as
being "a broad plain place, near some creek or haven, to lay goods and
wares on the · are brought to on from the water". 1n Webster dictionary
wharf is defined as "a structure of masonry or timber erected on the shore
of a harbour, 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 H
1252 SUPREME COURT REPORTS [1999) 3 S.C.R.

A or quay." Ramanatha Aiyar's 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 whar(includes any wall or stage and any
part of the land or foreshore that may be used for loading or unloading goods,
B 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 Jowitt's dictionary of
English Law wharfinger is defined as the occupier of wharf and it is further
stated that "as a rule, wharfingers have a general lien for the balance of their
C account". In Ramanatha Aiyar's 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,
D contained in Section 42 of the MPT Act which reads as follows:

"42. Performance of services by Board or other person-[l] A Board
shall have power to undertake the following services -

[a] landing, shipping or transhipping passengers and goods between
vessels in the port and the wharves, piers, quays or docks
E belonging to or in the possession of the Board;
[b] receiving, removing, shifting, transporting, storing or delivering
goods brought within the Board's premises;
[c] carrying passengers by rail or by other means within the limits
of the p01t or port approaches, subject to such restrictions and
F
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
G
(9of1890); (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
H goods for the purpose of performing the service or services and shall
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1253
give a receipt in such fonn as the Board may specify. A
[3] Notwithstanding ~~hing contained in this section, the Board
may, with the previous sanction of the Central Government, authorise
any person to perfonn any of the services mentioned in sub-section
(1) on such tenns and conditions as may be agreed upon.
B
[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 C
charge of the goods and give a receipt in such fonn 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 D
151, 152 and 161 of the Indian Contract Act, 1872 (9of1872).

[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· ~r to the master or owner of the vessel from which the E
goods have been landed or transhipped."

Reading of the aforesaid section shows that the services required to be
perfonned 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 F
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. G
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 ofBoard for loss, etc. ofgoods-[ l] 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 H
1254 SUPREME COURT REPORTS [1999] 3 S.C.R.

A 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 "-
(it) in other cases, be that of a bailee under Sections 151, 152 and
B 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 -
c
(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 dafe of taking charge of such goods by the
D Board.)

[2] A Board shall not be in any way responsible for the Joss, 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
E 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
F 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 the same reads as follows:

"48. Scales ofrates for services performed by Boards or other person--
[ l] The Authority shall from time to time, by notification in the Official
G 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
H port or port approaches;
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1255

(b) landing and shipping of passengers or goods from or to such A
-- 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; B
(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."
c
For the use of property belonging to 1;3oard 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. D
Reading the aforesaid and other prov1s1ons 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 unjoading 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 E
and 43 of the MPT Act the Central Government issued a notification dated
.... lst 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 F
·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
G
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. H
1256 SUPREME COURT REPORTS [I 999) 3 S.C.R.

·A At this juncture it is appropriate to deal with the conclusion of the Bigh
Court to the effect that with the issuance of the receipt under Section 42 (2)
the contract, if any, is between the ship owner and the port trust and not
between the consignee who is true owner of the goods" and the Port Trust.
·In coming to· this conclusion the High Court has placed reliance on the
B decision of this Court in The Trustees of the Port of Madras by its Chairman
v ..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
Jabour 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 consign_ee or the ship owner who was liable to pay the said charges. This
C 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 Jeviable
not. on the consignee but on the streamer agents. The service of providing
D the Jabour 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 ...
E 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.. v. 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
-
F 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 ladiitg continue in the original shipper or owner and,
G 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
H of a bill of lading to whom the property in the goods herein mentioned
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.J 1257
shall pass, upon or by reason of such consignment or endorsement, A
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 B
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 C
between the ship owner and the Port Trust. The correct position is that the
contract is between the Port Trust and the holder of the bill of lading which,
in this case, would be the consignee. It is the consignee which is the bailor
with the Port Trust being the consignee.

It was then argued by Sh. Pramod Aggarwal that under Section 171 of D
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 pr0v;ded by the Board but also
for various other services to be provided by it. 1n respect of these services
the Board is entitled to impose and recover rates/charges for the services E

-
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 F
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 G
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 >\ct
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 H
1258 SUPREME COURT REPORTS [l 999] 3 S.C.R.

A 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
B 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 claime~l,in rre.ct of demurrage etc. but, at best, can be claimed
C onJy for wharfage c~arges ·

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
D 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
E of wharfingers, namely, the owners of the wharf. The duties which they are
required to perform are provided .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
F 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
G amount which is due and payable to it the same would be regarded as 'general
balance of ~ccount' 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
H in their possession as bailees as security for realisation of the amount of

r
BOARD OF TRUSTEES OF THE PORT OF BOMBAY v. S. KNITTERS [KIRPAL, J.] 1259
....-• wharfage, demurrage and other charges which were due to them. We A
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.

MP. Appeals allowed.
B