P L D 1962 (W (PLP)

First 7 days Free Next 10 days 15% Next 10 days 50% Thereafter until clearance 75% Note 4‑B to this scale reads as follows:‑ "Note 4‑B.‑In cases where a Customs Detention Certificate Is Issued for part or whole of a consignment, storage charges will be levied at the rate of 15% of wharfage per day on the whole consignment for the period of detention, and three work ing days thereafter, unless in the opinion of the Board there are other reasons which do not justify this concession. This con cessions will not apply to matches and dangerous goods specified under items No. II and III above." It is this detention certificate mentioned in this note which has been described in the pleading as the delay certificate, and the note provides that where such a certificate is not rejected by the Board (Board of Trustees) the storage charges are to he levied at the rate of 15% of wharfage per day on the whole consignment for the period of detention.

6. It was the contention of Mr. Aziz, the learned counsel for the defendants, that the first detention certificate relating to the period 30‑1‑52 to 7‑7‑52 was binding upon the plaintiffs and the charges should have been levied upon that basis. Exh. 40 is that certificate dated 7th July 1952 and it is stated therein that the delay from 30‑1‑52 to 7‑7‑52 was due to misplacement of the first bill of entry. The plaintiffs did not accept this as a good reason for excluding all this period for the levy of normal charges and it appears to me that even if the Customs authorities had adhered to that certificate, which they did not, the rejection thereof could not have been effectively challenged in this suit because in terms of Note 4‑B referred to above it is the opinion of the Board which must prevail. The further contention of Mr. Aziz that the rejec tion in this case was not made by the Board but by the Traffic Manager, is devoid of any force because admittedly the defendants had appealed to the Board agiin3t the rejection of this certificate and that appeal was rejected by the Board. Apart from this it is clear to me that the two certificates Exhs. 39 and 40, having been withdrawn by the Customs authorities who issued two fresh certificates, the earlier certificates must be deemed to be non existent and no claim for reduction of charges could be made by the defendants on their basis. Mr. Aziz remained undaunted and urged that these subsequent certificates were incompetent because the Customs authorities had no power to issue them or to with draw the earlier certificates. I find no substance in this argument. There are large number of defendants' own letters and representa tions on record addressed to the Port Trust Authorities urging them not to enforce the recovery of the sum of Rs. 2,40,917 which was the sum which had been assessed by them after they had rejected one of the two earlier certificates, and pleading that the result of their (defendants') appeal to the Government should be awaited. In their letter dated 8th June 1953 this is what the defendants said:‑ "We hereby undertake to pay up the outstanding dues of the K. P. T. in respect of the storage bill No. 392/83 for Rs..,2,40,917 in case our appeal is rejected." The subsequent certificate by which considerable reduction was made as against the claim of the Karachi Port Trust was issued in consequence of the defendants' appeal. The plaintiffs have pro duced a certified copy of the letter dated 31‑1‑55 from the Collector of Karachi to the Chairman Karachi, Port Trust, Exh. 44, in which he has stated that the Central Board of Revenue had asked him for the report on the case. I admitted this copy because t Mr. Raymond, the Traffic Manager gave evidence to say that he was not able to find the original of this letter. The Collector of Customs, as this letter would show, had gone into the whole question most thoroughly and was able to make out a case for reduction of charges which the plaintiffs were claiming and the subsequent certi ficates Exhs. 41 and 42 dated 8‑7‑55 were issued by him accordingly, and the Collector of Customs was able to persuade the plaintiffs to accept these delay certificates. On general principles it is obvious that if the Customs authorities were competent to issue the earlier certificates they were also entitled to withdraw them and Issue fresh ones. I may further note that the Customs authorities were not a party to the suit and a great deal of arguments which were addressed before me were such which might have been pertinent only in an action between the defendants and the Customs authorities.

7. In view of the conclusion reached by me my finding on issues Nos. 2(a) and (b) is in the affirmative. I further hold that the first delay certificate having been withdrawn and replaced by Exhs. 41 and 42 ceased to have any effect. My finding on issue No. 3 is that the first delay certificate (of the first set) is not effective and binding.

8. The next question which falls for consideration is whether the plaintiffs' suit is barred by time, the subject‑matter of issue No. 7, and along with it I shall also deal with issue No.1

9. The goods in question arrived per s. s. Berkenfels on 22‑12‑51 and they came to be stored in the Karachi Port Trust on 8‑1‑

52. They were cleared on 18‑10‑52 as the defendants had a "Let Pass Deposit Account" with the plaintiffs. The suit was filed on 25‑10‑

57. According to the plaintiffs Article 120 of the Limitation Act which provides for 6 years' limitation applies to the case. If it does the suit would obviously be within time. It was however contended by the learned counsel for the defendants that limitation in this case was governed either by Article 110 or 115 of the Limitation Act which provide 3 years' limitation. If either of these Articles apply the suit would be time‑barred unless it is saved by any written acknowledgment of liability contained in the correspondence between the parties.

10. Article 110 of the Limitation Act governs the case of arrears of rent and is clearly intended to apply to cases where the relationship between the parties is that of a landlord and a tenant. This is not the case here and as I shall presently show the defen dants' liability to pay the Port Trust's dues is clearly a statutory liability. The charges levied by the Karachi Port Trust cannot be said to be arrears of rent within the meaning of Articles

110. The rent contemplated in this Article is one which accrues under a lease as defined by section 105 of the Transfer of Property Act. The Karachi Port Trust does not lease out any land to the Importers whose goods are landed on its property. It does not merely store the goods. It is also responsible for its safe keeping until it is cleared in due course. The possession of the land and the yard where the goods are stored always remains with the Port Trust and is never transferred to the importers. Where is then any lease or any question of arrears of rent or lease money ? A reference to some of the provisions of the Karachi Port Trust Act would on the contrary clearly show that the liability of the defendants of the dues claimed by the Karachi Port Trust is a statutory one. Chapter V of the Act deals with the powers and duties of the Board. Section 29 gives a long list of the works to be constructed and carried out by the Board. Sub‑clause (1) of section 29 provides for wharves, quays, stages, jetties, piers, docks, and landing places etc. and sub‑clause (2) provides for warehouses and sheds for receiving and storing goods which are landed. Section 32 deals with the provision and maintenance of wharves, warehouses, sheds etc. for the expedi tious shipment and landing of goods in and from sea‑going vessels and for the storing of such goods. Section 43 empowers the Board to frame and from time to time alter scale of rates and charges for the storing and keeping of any goods stored in any premises belonging to the 9oard. Under section 43‑B the scale of charges framed by the Board have to be submitted to Government for sanc tion and when so sanctioned and published in the Official Gazette they have the force of law. Section 53‑A empowers the Board to recover Its dues such as the one which is in dispute by means of a suit which is a remedy in addition to other methods of recovery such as sale of goods stored. Section 84 provides another remedy for recovery by the Board of its charges and dues in a summary proceeding before a Magistrate in the manner provided in the Code of Criminal Procedure for the recovery of fines. These provisions clearly show that the right of the Board of the Port. Trust to claim and recover its dues and charges is a statutory right and the rate charges have statutory sanction. The liability of the' defendants must, therefore, be held to be a statutory liability.

11. Let me now turn to Article 115 which, it was contended on behalf of the defendants, applied to this case if Article 110 did not apply. It may be useful to reproduce this Article: "For compensation for the breach of any contract express or implied not in writing registered and not herein specially provided for, the limitation is 3 years from the time when the contract is broken." I cannot see how the present claim can be said to be one for compensation for breach of a contract. The liability in the present case is clearly under statute and the elements of contract are clearly wanting here. It is the obligation of the Port Trust under the statute to receive the goods which are landed by ships and to store them and allow them to be cleared after the compliance with Customs formalities. The scale of charges itself has a statutory sanction. How then can it be said that a claim like the one in suit is for compensation for the breach of an express or an implied contract ? Therefore, neither Article 110 nor 115 is applicable. The fact that in Note I to Table III the rates in the table are said to be "for rent on goods" makes no difference to the real nature of the claim which cannot be said to be one for arrears of rent as provided for by Article 110.

12. The next question which falls for consideration is whether Article 120 applies to this case which is what the plaintiffs have stated in the plaint. This is a residuary Article and is applicable to suits for which no period of limitation is Provided elsewhere In the Schedule. I have held that neither Article 110 nor 115 applies to this case, and it was conceded by Mr. Aziz, and rightly so, that if these two Articles did not apply then Article 120 would apply because there is no other Article which would govern this case. Let me now examine the case law on the point.

13. The question came up for consideration before a Full Bench of the Calcutta High Court in the case of The Secretary of State for India‑in‑Council v. Abdul Bart and others (I L R 20 Cal. 51) The appeal arose out of a suit for the residue of the sale proceeds of an estate sold under the provisions of Act XI of 1859 against the Secretary of State for India‑in‑Council and a defence was raised that the suit was barred by limitation on the ground that Article 62 applied to the case. The Full Bench repelled this contention and observed as follows: "The Limitation Act does not prescribe any period of limitation for money due under a statutory liability to pay it, so the suit is. I think, within Article 120, in other words, the period of limitation is six years, which begin to run from the time when a demand for the money is made bbl persons who could give the receipts required by the section."

14. In the case of Rajah of Vizianagaram v Dindi China (A I R 1937 Mad. 217) the Full Bench of the Madras High Court dealing with a suit for recovery of cess from intermediate land‑holder under section 88, Madras Local Board Act repelled the contention that the 3 years rule of limitation was applicable. Their Lordships held that the suit was not one for rent nor was it based on any contract express or implied. It was a suit to enforce a liability created by statute and was governed by Article

120. The Madras case was relied upon in an Allahabad case in District Board, Dehra Dun v. Babu Ram (A I R 1941 All. 152). This was a case for the recovery of certain amount as tax on circumstances and property by the District Board and it was held that Article 120 applied to such a case. The Full Bench case of the Calcutta High Court was followed by the Nagpur High Court in Kamruddin Kadibhai & Co. v. The Municipal Committee, Anjangaon (A I R 1951 Nag. 148), and it was held that the liability of a buyer for reasonable charges for care and custody of the goods arises under section 44, Sale of Goods Act and the Article applicable to such a case is the residuary Article 120.

16. In a case decided by the Lahore High Court in Mst. Amar Kaur v. Secretary of State (A I R 1939 Lah. 583) which was in respect of a claim for compensation upon the allegation that the S. D. O., Canals had removed earth from the land of the plaintiff for which he had promised to ay compensation which he had failed to do, a preliminary objection was taken on behalf of the defendant that the suit was barred by time. This was over ruled on the ground that the act of the S. D. O. was performed under the powers of a statute and the cause of action arose on the failure of the Secretary of State to allot the statutory com pensation. It was held that the Article 120 applied to the case.

17. Mr. Aziz, the learned counsel for the defendants drew my attention to two cases. The first case is of the Lahore High Court In Municipal Committee, Amritsar v. Kanshi Ram (A I R 1938 Lah. 267). That was a case in which a compensation had been claimed by various landowners of land upon which the Municipal Committee had been holding a fair for a number of years. It was held that Article 115 applied to the case and not Article

120. This case is clearly distinguishable on the short ground that this was a claim for damages or compensation and not to enforce any statutory liability. The second case m Mritunjay Parsad Sitala Prasad v. District Council, Hoshanga bad (A I R 1947 Nag. 153) which was relied upon by Mr. Aziz related to the claim of a member of a District Council for a travelling allowance. The Manual of the District Council contained a rule being rule 79 which said: "A District Council may pay etc." Upon these facts it was held that there was no statutory obligation upon the Council to pay the allowance and the claim was really upon an implied contract. This case therefore is clearly distinguishable.

18. With the view expressed in the two Full Bench cases referred to above I am in respectful agreement. A suit to enforce a statutory liability such as .the one before me is governed by Article 120 of the Limitation Act, and since the suit was brought well within 6 years of the accrual of the liability I must hold that it is not barred by limitation. My finding on issue No. 7 is therefore in the negative.

19. From what I have held above and considering the various provisions of the Karachi Port Trust Act I hold that the position of the defendants comes well within the description of a statutory bailee. My finding on issue No. 1 is, therefore, in the affirmative.

20. In view of my finding on issue No. 7, I find it un necessary to go into the questions which are subject‑matter of issues Nos. 4 and 5.

21. On the question as to what is the amount due to the plaintiffs there is the evidence of P. W. 1 Mir Abdul Rashid, an employee of the plaintiffs and P. W. 2 Mr. M. Raymond, the Traffic Manager of the Karachi Port Trust. Mr. Abdul Rashid stated that the amount of charges in respect of the consignment in question according to the Schedule of Charges came to Rs. 2,91,181; that an allowance of Rs. 150,264 was given to the defendants upon the acceptance of one of the two delay certificates which had been issued by the Customs authorities in the first instance. This had left the balance to be Rs. 2,40,

917. It was this amount that the Karachi Port Trust was claiming from the defendants and which the defendants had undertaken to pay by their letter dated 8‑6‑53 if their appeal was rejected. Mr. Abdul Rashid has stated that in consequence of the defendants' appeal to the 6nverriment the Custom, authorities reviewed the position and issued two fresh certificates which having been accepted by the Karachi Port Trust entitled the defendants to an allowance of Rs. 1,32,

903. The plaintiff's' claim was thus reduced to Rs. 1,58,278 which is the amount claimed in tire suit. The witness further stated that even if the first two certificates had been accepted by the Port Trust there would still have been due from the defendants a sum of Rs. 1,04,

609. The correctness of these figures was not questioned in cross‑examination. The evidence of Mr. Abdul Rashid is supported by the Traffic Manager P. W. 2, and I accept it. In fact, throughout the correspondence the correctness of these figures was never questioned by the defendants. What was being contended was that the defendants were not responsible for the delay which had been caused by the Customs authorities. I, therefore, hold that the plaintiffs are entitled to the sum of Rs. 1,58,278.

22. In the result I decree the plaintiffs' suit against the defendants for Rs. 1,58,278 with costs. The defendants shall also pay interest at 6% on the principal sum from the date of the decree until payment. K. M. A. Suit decreed.