[Cites 17, Cited by 0]
Gujarat High Court
Board Of Trustees Of The Portof Kandla vs Prestonjee Bhicajee (Kutch) on 18 March, 2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 60 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
✔
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BOARD OF TRUSTEES OF THE PORTOF KANDLA
Versus
PRESTONJEE BHICAJEE (KUTCH) & ORS.
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Appearance:
MR MK VAKHARIA(1483) for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Defendant(s) No. 4
MR CJ VIN(978) for the Defendant(s) No. 1,1.2
NANAVATI ASSOCIATES(1375) for the Defendant(s) No. 2
NOTICE SERVED BY DS for the Defendant(s) No. 1.1,1.3,1.4
NOTICE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 18/03/2026
JUDGMENT
1. The present Appeal is filed under Section 96 of the Code of
Civil Procedure, 1908 by the appellant - original plaintiff
challenging the judgment and decree dated 30.11.1999 passed in
Special Civil Suit No. 17 of 1983 by learned 2 nd Joint Civil Judge
(SD), Jamnagar.
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2. Heard learned advocate Mr. M.K. Vakharia for the plaintiff,
learned advocate Mr. C.J. Vin for defendant No. 1 and learned
advocate Mr. Rohan Lavkumar for Nanavati Associates for
defendant No. 2.
For the sake of convenience, the parties are referred to as
per their original status in the suit.
3. The brief facts of the case are as follows:
3.1 It is the case of the plaintiff that plaintiff is a body
corporate, constituted under the Major Port Trusts Act, 1963,
having an installation at Vadinar Port which is known as off-
shore Oil Terminal, where facilities are provided for
discharging the cargo of crude oil brought in tankers. It is
further the case of plaintiff that M/s. Indian Oil Corporation -
defendant No. 4, had chartered the vessel named M.T.
IRINIO to bring Oil from foreign country and the same was to
be unloaded at the off-shore Oil Terminal at Vadinar. The
plaintiff was informed by defendant No. 1 that the vessel is
expected to arrive on 11 th February, 1982 at 15:45 hours and
was to anchore at the anchorage at Vadinar Port at or about
04:36 hours on 12th February, 1982. Defendant No. 1 paid an
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advance deposit of Rs. 2,00,000/- on 14.02.1982 towards
charges and dues of plaintiff for various services. Defendant
No. 3 is the Master, who submitted the Arrival Report. As per
the Arrival Report, all charges shall be paid by defendant No.
1. Plaintiff claimed Rs.12,12,921/- towards various charges
and dues from defendants. Defendant No. 1 acknowledged
its liability and promised to deposit the amount. The quantity
of bunker was to be supplied to the vessel by defendant No.
1. Defendant No. 3 sailed away the vessel on the night of
16/17th March 1982 without obtaining port clearance
certificate and without paying the dues of the plaintiff. An
invoice was raised in respect of various services rendered by
plaintiff to the said vessel. As per the case of plaintiff,
defendant No. 1 is liable to pay an amount of
Rs.14,12,921.10 paisa. The net amount after deducting an
amount of Rs.2,00,000/- out of the total sum of
Rs.14,12,921.10 paisa, comes to Rs.12,12,921.10 paisa.
The plaintiff, therefore, was constrained to file a suit for
recovery of an amount of Rs.14,13,066.10 paisa including
interest at the rate of 18% per annum from 16.02.1982 from
all defendants jointly / severally. The summons of the suit
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was duly served to defendants. Defendant No. 1 filed written
statement at Exhibit - 13. Defendant No. 2 filed written
statement at Exhibit - 33. Defendant No. 3 remained absent
and the suit was proceeded ex-parte against defendant No.
3. Defendant No. 4 - Indian Oil Corporation was not joined at
the initial stage of the suit but was joined as defendant No. 4,
during the pendency of the suit. Defendant No. 4 filed written
statement at Exhibit - 43. The defendants denied their
liability. Defendant No. 4 raised the contention of limitation.
On the basis of pleadings, the learned Court below framed
following issues at Exhibit - 62:
"(1) Whether the Plaintiff's suit is not maintainable as
it is filed without authority.
(2) Whether the plaintiff's suit is bad for misjoinder of
parties and causes of action as contended by the
deft. no. 1?
(3) Whether the defendant no. 1 proves that the
plaintiff is guilty of negligency or contributory
negligence as contended in written statement Para
3?
(4) Whether the plaintiff proves that the defendant
no. 1 is liable to pay the port charges for the vessel
M.T.IRINIO?
(5) Whether the Plaintiff proves that they are entitled
to recover Rs.12,12,921.10 ps as port charges? If
yes, from whom?
(6) Whether the defendant no. 2 proves that it is not
liable for the plaintiff's dues, as there is no privity of
contract between them and the plaintiff?
(7) Whether the defendant NO. 4 proves that plaintiff
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is estopped from claiminging the suit amount against
it?
(8) Whether the plaintiff is entitled to claim interest on
its outstanding dues as claimed in the suit?
(9) Whether the plaintiff Is entitled to a decree for
Rs.14,13,006/- as prayed for?
(9-A) Whether the suit against the defendant No. 4 is
within Limitation
(10) What order and decree?"
Plaintiff examined two witnesses namely, Ashokkumar
Zaverilal Shah and Balchandran Damodaran vide Exhibits -
133 and 178 respectively. Defendant No.1 examined witness
at Exhibit - 191. After considering the oral as well
documentary evidence and material placed on record,
learned Trial Court vide order dated 30.11.1999 dismissed
the suit of plaintiff with costs.
3.2 Being aggrieved and dissatisfied with the impugned
judgment and decree, the appellant - plaintiff is before this
Court by way of the present appeal.
4. Learned advocate for the plaintiff contended that a Charter
Agreement was executed between the Ship owner and defendant
No. 4. It is contended that from the terms and conditions of the
Agreement, it is clear that dues and other charges levied upon the
Vessel, even when assessed on the quantity of the cargo loaded
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or discharged shall be paid by the owners. An Agreement was
made between the Master of the Vessel i.e. defendant No. 3 and
Indian Oil Corporation i.e. defendant No. 4 on 15.02.1982 wherein
the defendant no. 3 has clearly stated that I agree that all pull back
charges for the tug from the time of berthing on 12.02.1982 till the
ship is ready to discharge at SBM on 16.02.1982 will be Owner's
account. Since defendant Nos. 1 and 2 are acting as agents of
Ship owner they are liable to clear the outstanding dues of the
plaintiff. defendant No. 1 had paid as advance deposit a sum of
Rs.2,00,000/- on 14.02.1982 towards various charges and dues for
the services rendered by the plaintiff to the Vessel being M.T.
IRINIO. It is further submitted that on 16.02.1982, plaintiff wrote a
letter to defendant No. 1, wherein it is stated that a provisional
assessment of Rs.14,93,000/- was given by the plaintiff to
defendant No. 1 after taking all the factors into consideration and
the same includes the charges for the pilotage for inward and
outward, Stream dues, Port dues, Mooring fee, Tug attendance for
the mooring and de-mooring operations, pilot attendance charges
including the charges for the attendance of the harbor master, tug
hire charges for transportation of personnel, ship provisions,
towing of bunker, wharfage for supply of bunker and ship
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provisions, port dues for the bunker barge charges for the supply
of fresh water and charges for the pull back operations of the ship
from the time of mooring till the commencement of the discharge of
the cargo. It was informed that out of the above assessed amount
of Rs.14,93,000/-, defendant No. 1 had deposited only a sum of
Rs.2,00,000/- and, therefore, the balance amount of
Rs.12,93,000/- may be deposited immediately. The defendant No.
1 replied to the plaintiff vide letter dated 17.02.1982 and
acknowledged the provisional assessment for a sum of Rs.14.93
Lakhs and they agreed to deposit the same with the plaintiff prior
to obtaining the Port no objection. On 03.03.1982 defendant No. 1
wrote a letter to the plaintiff stating that they have received a
message from their principal agents M/s Shaw Wallace & Co.
Bombay stating that the break-up of the total disbursement to the
port may please be intimated to them in order to enable them to
make necessary arrangements for an early disbursement.
5. It is further contended by learned advocate for the plaintiff
that from the bare perusal of the pilot memo/arrival report prepared
by the master of the vessel it is made clear at Clause 30 that the
agent namely, M/s Pestonjee Bhicajee i.e. defendant No. 1 will pay
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steamer's bill and, therefore, also defendant No. 1 is liable to clear
the outstanding payments of the plaintiff. Learned advocate for the
plaintiff submitted that in spite of the fact that the charges were not
paid and despite there being clear instructions not to give
clearance to the said Vessel, the Vessel surreptitiously sailed
away on the night on 16/17.03.1982 without the port clearance.
6. It is submitted that even otherwise, the liability for payment of
port dues and charges would accrue to the account of the agent
i.e. defendant No. 1 as a contract of bailment between defendant
No. 1 and the plaintiff can be said to come into existence under
Section 42(2) and Section 43(1)(ii) of the Major Port Trust Act,
1963. Defendant No. 1 is personally responsible for payment of the
dues and charges in respect of the services rendered because
owners of the said Vessel M.T. IRINIO on whose behalf the
defendant No. 1 is purported to have acted were undisclosed
foreign principal. The address and particulars of the owners of the
Vessel were not disclosed to the plaintiffs. It is pertinent to note
that defendant No. 1 failed to give any details about the foreign
principal and had merely mentioned that the Vessel belong to an
American Company at New York and therefore the defendant No.
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1 is responsible for payment of the port charges. No other
submissions were canvassed by learned advocate for the plaintiff.
7. Per contra, learned advocate for defendant No. 1 contended
that defendant No. 1 has no privity of contract with the plaintiff and
hence he has no right to file any claim against defendant No. 1. In
absence of any contractual relationship, no liability can be
fastened upon the defendant. It is submitted that the defendant No.
1 was the sub-agent of defendant No. 2. Defendant No. 2 was the
agent of the ship owner whose ship was booked to transmit crude
oil from Venezuela to Vadinar Port. The owner of the ship is not
joined as party to the proceedings. In the absence of principal no
liability can be fixed on the agent, much less, sub-agent and hence
the appeal of the plaintiff deserves to be dismissed with costs.
8. It is further submitted that no cause of action is demonstrated
to have arisen against the present defendant No. 1 to make a
claim against him. Merely because the present defendant is
impleaded as a party defendant, he cannot be saddled with any
liability. Defendant No. 1 had a limited role to play. This was also in
relation to his contract as sub-agent of defendant No. 2. Moreover,
the defendant had no control over the functions. Plaintiff has
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attempted to fasten the liability of the defendant No. 1 by
producing the arrival reports, time sheets, pilot memos, and
correspondences to establish the delay on account of the
defendant. It is submitted that all these were not on account of the
defendant but were on account of statutory authorities or other
defendants. The defendant took an objection that the Charterer
was not joined as a party. Charterer Indian Oil Corporation was
joined as a party on 07.10.1986 which was beyond limitation.
Hence when the suit is hit by limitation against the Indian Oil
Corporation no cause, even if it is available to the plaintiff, the suit
deserved to be dismissed.
9. It is contended that the plaintiff has failed to substantiate and
justify the claim made. The bills relied upon by the plaintiff to
support his claim are unilateral, unsupported by any contractual
entitlement against defendant No. 1 and hence they are
unenforceable. Except above, no other submissions were
canvassed by learned advocate for defendant No. 1.
10. Learned advocate for defendant No. 2 contended that
defendant No. 1 was acting as the local shipping agent in respect
of the said vessel at Vadinar Port. Defendant No. 2 is a steamship
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agent on behalf of the foreign owners of the vessel M.T. IRINIO
and had no privity with the plaintiff. Defendant No. 3 is the Master
of the vessel. The owners of the Vessel M.T. IRINIO, M/s Duchess
Shipping Co. were never made a party to the Suit. Defendant No.
4 -- Indian Oil Corporation was the demised charterer of the vessel
for the relevant voyage for transportation of crude oil to Vadinar
Port. As a voyage charterer, all responsibility of the vessel
including dues belonged to defendant No. 4.
11. It is further submitted that no documents are produced to
show that defendant No. 2 had entered into any Agreement with
the plaintiff or that defendant No. 2 had acknowledged, accepted
or assumed liability for the alleged port dues. None of the bills /
invoices relied upon by the plaintiff are addressed to defendant No.
2 nor do they contain any endorsement, acceptance or
acknowledgment attributable to defendant No. 2. Invoices, which
formed the basis of a substantial portion of the claim, are only a
photocopy with neither the original nor any office copy produced
on record.
12. It is further contended that the plaintiff has not established
the contents of the bill, Exhibit - 179. Mere exhibiting a document
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does not dispense with the requirement of proving the contents of
the doc. The plaintiff's witness, in his oral deposition, has stated
that he has no personal knowledge regarding preparation of
Exhibit - 179. Learned advocate for the defendant No. 2 has
placed reliance upon the decision in the case of "Om Prakash
Berlia v. Unit Trust of India", 1982 SCC OnLine Bom 148
affirmed in Narbada Devi Gupta v. Birendra Kumar Jaiswal,
(2003) 8 SCC 745 : 2003 SCC OnLine SC 1204.
13. It is further contended that it is a settled position of law that
where an agent acts for and on behalf of a disclosed principal, the
agent does not incur any personal liability in respect of the acts
done within the scope of such authority. The contractual
relationship, in such cases, is strictly between the third party and
the principal and the agent merely facilitates the transaction in a
representative capacity.
14. Learned advocate for defendant No. 2 has relied upon
decisions in the case of Prem Nath Motors Ltd. vs. Anurag
Mittal reported in (2009) 16 SCC 274. The Hon'ble Apex Court
has referred the case of Vivek Automobiles Ltd. v. Indian Inc.,
(2009) 17 SCC 657.
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A reliance has been placed upon Sections 230, 231 and 236
of the Indian Contract Act, 1872 which are reproduced hereunder:
"230. Agent cannot personally enforce, nor be
bound by, contracts on behalf of principal.--In
the absence of any contract to that effect, an agent
cannot personally enforce contracts entered into by
him on behalf of his principal, nor is he personally
bound by them.
Presumption of contract to contrary--Such a
contract shall be presumed to exist in the following
cases:--
(1) where the contract is made by an agent for the
sale or purchase of goods for a merchant resident
abroad;
(2) where the agent does not disclose the name of
his principal;
(3) where the principal, though disclosed, cannot be
sued."
"231. Rights of parties to a contract made by
agent not disclosed.-- If an agent makes a contract
with a person who neither knows, nor has reason to
suspect, that he is an agent, his principal may require
the performance of the contract; but the other
contracting party has, as against the principal, the
same rights as he would have had as against the
agent if the agent had been principal.
If the principal discloses himself before the
contract is completed, the other contracting party
may refuse to fulfill the contract, if he can show that,
if he had known who was the principal in the
contract, or if he had known that the agent was not a
principal, he would not have entered into the
contract."
"236. Person falsely contracting as agent not
entitled to performance.--A person with whom a
contract has been entered into in the character of
agent, is not entitled to require the performance of it,
if he was in reality acting, not as agent, but on his
own account."
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15. It is contended that the identity of the principal was fully
disclosed to the plaintiff at all relevant times. The vessel M.T.
IRINIO was owned by foreign owners, and the voyage was
undertaken pursuant to a charter in favour of Indian Oil
Corporation Ltd. The plaintiff was fully aware that defendant No. 2
was acting, if at all, only in the capacity of an agent and never in its
personal capacity. It is submitted that the attempt to bypass the
settled doctrine of agency by fastening liability upon defendant No.
2 is legally untenable.
16. It is further submitted that the plaintiff having failed to make
the owner of the vessel party to the suit, cannot now seek to
impose a liability solely on the agents. At the relevant time, the
plaintiff had not even made the demised charterer a party to the
suit. By the time defendant No. 4 charterer was made a party to
the suit, the cause of action against the said defendant had
already become time barred. Reliance to the Section 64 of the Act
is also misplaced since it pertains to the recovery of dues by Arrest
of a vessel. The present suit is not an admiralty suit for arrest of a
vessel. In this circumstances, Section 64 of the Act has no
applicability whatsoever. Except above, no other submissions were
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made by learned advocate for defendant No. 2.
17. I have heard learned advocates for the parties and perused
record and proceedings. The plaintiff is providing facilities for
discharging the cargo of crude oil brought in tankers and for that
plaintiff is having an installation at Vadinar Port, which is known as
offshore oil terminal as per the statutory regulations framed by the
plaintiff Board. Plaintiff is charging for the various facilities and
services being rendered by plaintiff. Defendant No. 4 - Indian oil
Corporation chartered a vessel named M.T. IRINIO to bring oil
from foreign country and the vessel was to be unloaded at offshore
oil terminal at Vadinar.
18. The plaintiff does not deal with the ship owners directly for
the purpose of providing different services like pilotage, birthing,
tug, pull back and other services. These services are provided to
the ship owner or a charter through the agents. Bill in connection
with these charges is reached upon the agents. Defendant No. 1
and 2 acted as an agent in connection with the vessel entering the
port. Defendant No. 1 had agreed and acknowledged the liability to
clear the dues of plaintiff. Moreover, Exhibit - 91, which is an
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Arrival Report, contains that the steamer's bill shall be borne by
defendant No. 1. The bill raised by plaintiff, Exhibit - 180, contains
various heads. One of the head is pull back charges which
amounts to Rs.10,80,000/-.
19. Exhibit - 88 is a communication dated 08.02.1982,
addressed to the Superintending Engineer, Kandla Port Trust
Vadinar by defendant No. 1 inter alia stating that the vessel is
expected to arrive at the port on 09.02.1982. As per the
communication dated 08.02.1982 (Exhibit - 89), which is a
communication addressed by defendant No. 1 to the Kandla Port
Trust intimating the plaintiff that tug pull back charges will be borne
by M/s Indian Oil Corporation - defendant No. 4 as per the terms
and conditions of the charter party. The discharge of cargo was
delayed due to lack of adequate bunkers. On 16.02.1982, vide
Exhibit - 109, defendant No. 1 intimated the Superintendent of
Customs, Jamnagar, that the tanker has completely been
discharged of its cargo of crude oil in bulk and an account of the
completion of discharge cargo, the plaintiff has levied an amount of
Rs.14,93,000/-. It was also intimated that in past the tanker had
sailed away from Vadinar Anchorage without obtaining a valid port
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clearance. Request was made to port officer on board of the
vessel that until the port clearance is granted by plaintiff, vessel
may not be permitted to sail away. The plaintiff, in return, intimated
the Navel officer in charge by communication dated 17.02.1982 to
keep a watch about the movement of the ship to prevent the
vessel sailing away from Vadinar Port. However, the record
indicates that on 16/17.02.1982, the vessel sailed away without
port clearance. The plaintiff, resultantly, raised a demand of
Rs.10,80,000/-, Exhibit - 179, against defendant No. 1. Defendant
No. 1, on 03.03.1982, asked the breakup of the total amount
claimed and further requested to intimate defendant No. 1 for
necessary arrangement for early disbursement. Exhibit - 180
purports to be the breakups given by plaintiff. At this stage, a
reference of Exhibit - 143 cannot be overlooked. The said
communication of defendant No. 4 - Indian Oil Corporation is
addressed to the plaintiff Trust regarding acceptance of the
payment of pullback charges for the tanker in addition to wharfage
and overtime. Defendant No. 4 accepted the liability of payment of
pullback charges in addition to wharfage and overtime. It would not
be out of place to refer a fact that defendant No. 4 was not initially
impleaded as defendant and was subsequently impleaded as
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defendant No. 4 on 07.10.1986. The limitation to claim the amount
as mentioned in Exhibit - 180 against defendant No. 4 had already
expired when defendant No. 4 was impleaded in the suit. The
question that remains for consideration is whether defendant No. 1
being the agent of defendant No. 2 and defendant No. 2 being the
agent of defendant No. 3 can be saddled with the liability to clear
the amount which is claimed in Exhibit - 180. Learned advocate
for the plaintiff contented that as per the Arrival Report, the liability
to pay steamer bill is upon defendant No. 1, and therefore
defendant No. 1 is liable to make good the plaintiff for the
outstanding amount as mentioned in Exhibit - 180. As against this,
the contention of learned advocate for defendant No. 1 is that the
Arrival Report is signed by Master of the vessel and, the name of
the owner was clearly disclosed in the Arrival Report. The owner is
M/s Duchess Shipping Co. Ltd., a company incorporated under the
Laws of Republic of Liberia. Therefore, the evidence on record
establishes the fact that the identity of the owner of the vessel is
disclosed to the plaintiff. The owner - M/s Duchess Shipping Co.
Ltd. was a necessary and proper party in the suit proceedings.
However, the same is not impleaded in the suit as a defendant.
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20. There is sufficient material on record which establishes the
fact that the identity of the principal is disclosed and the plaintiff
was in full knowledge regarding the identity of the principal.
21. The plaintiff has failed to establish any privity of contract
between itself and defendant No. 2, which is a sine qua non for
fastening civil liability. Mere description of defendant No. 2 as an
"agent" does not, in law, create binding liability in the absence of a
contract or undertaking. The agency by itself does not give rise to
personal liability, unless the agent has expressly or impliedly
agreed to be bound. The evidence on record unequivocally
suggests that defendant No. 2 acted as an agent of a disclosed
principal.
22. Section 230 speaks that an agent cannot personally enforce
nor by contracts on behalf of a principal.
23. Section 231 discusses the rights of parties to a contract
made by agent not disclosed. If an agent makes a contract with a
person who neither knows nor has reason to believe that he is an
agent, his principal may require the performance of the contract,
but the other contracting party has, as against the principal, the
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same rights as he would have had as against the agent if the
agent had been principal.
In the case of Premnath Motors Ltd. (Supra), the Hon'ble
Apex Court has observed that under Section 230 of the Contract
Act, an agent is not liable for the acts of a disclosed principal
subject to a contract to the contrary. No such contract to the
contrary has been pleaded. In the present case also, in the entire
plaint as well as in the oral deposition of the plaintiff, no such
pleading is found that defendants - agents are liable for the acts of
an undisclosed principal. Though an averment is made in the plaint
by plaintiff that there was a specific contract between plaintiff and
defendant No. 1 under which defendant No. 1 had agreed to be
personally liable to make payment of Port dues and charges in
respect of various services rendered by the plaintiff to the vessel,
plaintiff has miserably failed to establish any specific contract
having been entered into between plaintiff and defendant No. 1,
accepting and promising to make payment of Port dues and
charges to the plaintiff. There is no evidence on record whereby,
the defendant No. 1 can be held personally liable for the Port dues
and charges in respect of services rendered by plaintiff to the
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vessel M.T. IRINIO.
24. Section 235 talks about the liability of a pretended agent. If
the per employer does not confirm his activities, a person falsely,
portraying himself as an authorised agent of another and enticing
third party to deal with him as an agent is bound to compensate
the other for any loss or harm.
25. Section 236 discusses that if a person falsely contracting as
an agent is not entitled to performance, a person who entered into
a contract in the capacity of an agent is not allowed to demand its
fulfillment if he was acting on his own behalf.
26. An agent is not personally accountable for the contracts he
enters into on behalf of his principal because an agent is only a
conduit between his principal and the third party, he cannot,
personally enforce contracts entered into on his principal's behalf,
nor can he be held personally accountable for such contracts in
absence of a written agreement to the contrary. When an agent
acts within their authority and discloses, both the existence and
identity of their principal, the agent is generally not personally
liable on the contract. Liability rests solely with the principal. A
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disclosed principal is when a party receives notice that there is an
agent who is acting for the principal and has been given notice of
the principal's identity. The principle's existence and identity are
made known to the third party through words or performance of an
authorised act.
27. Defendant No. 4, being a charterer of the vessel, had
undertaken the liability of payment of tug charges, as can be
evidence from Exhibit - 189. There is no debate on the factual
aspect that defendant No. 4 was subsequently impleaded in the
suit. When defendant No. 4 four was impleaded the period of
limitation to clean the amount had already expired. The learned
Trial Court rightly observed that when the claim against defendant
No. 4 is bad in law of limitation, there is no question of imposing a
liability on defendant Nos. 1 and 2 for the suit amount. Moreover,
defendant No. 1, in clear terms, demanded breakups from plaintiff
which the plaintiff has failed to provide. The evidence of the
plaintiff's witness is not sufficient in establishing that plaintiff has
proved contents of Exhibit - 180. The entries mentioned in Exhibit
- 180 is not supported by any evidence. The plaintiff's witness in
his oral deposition has admitted that he has no personal
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knowledge as to from which available material, Exhibit - 180 was
prepared. I am in complete agreement with the submission of
learned advocate for respondent that mere exhibiting a document
without any proof of contents of the document cannot be termed as
a proved document. In the case of Om Prakash (Supra), the
Hon'ble Apex Court has held that the truth of what the document
states must be separately established. Merely because document
is admitted in the evidence, that does not mean that the contents
of the documents are proved.
The party who produces document is not relieved of his
obligation to prove the execution of document and contents thereof
merely by giving exhibit to the document, more so, when the
opposite party is seriously disputing the evidential value of a
document. In the present case, as observed above, the witness of
the plaintiff has no personal knowledge with regard to the contents
of the bill and on such evidence, a decree, as prayed for, cannot
be passed and the learned Trial Court, in my view has not
committed any error in interpreting the evidence placed on record.
28. The plaintiff has filed a composite claim against multiple
defendants without distinguishing the nature of liability attributable
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to each. The bill, Exhibit - 180, contains that certain charges
pertain to the charterer, while others are sought to be fastened
upon agents. In the absence of the vessel owner, the plaintiff has
failed to establish a coherent cause of action against the remaining
defendants, including defendant No. 2.
The contention which has been raised by the learned
advocate for the appellant with regard to applicability of Section
42(2) and Section 43(1)(ii) of the Major Port Trusts Act, 1963 is
concerned, it would be apposite to reproduce Section 42(2) of the
Act, which is reproduced hereunder:
"42. Performance of services by Board or other
person. -
(1) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(2) A board may, if so requested by the owner, take
charge of the goods for the purpose of performing
the service or services and shall give a receipt in
such form as the Board may specify."
Section 43(1)(ii) of the Act is reproduced hereunder:
"43. Responsibility of Board for loss, etc., of
goods. -
(1) Subject to the provisions of this Act, the
responsibility of any Board for the loss, destruction,
or deterioration of goods of which it has taken charge
shall, -
(i) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(ii) in other cases, 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
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contract" in section 152 of that Act:
(provided that no responsibility under this section
shall attach to the Board -
(a) until a receipt mentioned in sub-section (2) of
section 42 is given by the Board; and
(b) after the expiry of such period as may be
prescribed by regulations from the date of taking
charge of such goods by the Board."
On plain reading of Section 42, it deals with the performance
of services by Board. Sub-Section (2) of Section 42 mandates that
upon request of the owner, a Board may take charge of the goods
for the purpose of performing the service or services and shall give
a receipt in such form as the Board may specify. In the present
case, it is not the case of the plaintiff that the owner requested the
Board to take charge of the goods for the performance service.
The plaintiff is claiming charges of port dues and charges in
respect of various services rendered by plaintiff to the vessel.
Section 43(1)(ii) of the Act is pertaining to responsibility of Board
for the loss, destruction or deterioration of goods and no
responsibility shall be attached to the Board until a receipt
mentioned in Sub-Section (2) of Section 42 of the Act is given by
the Board and the Board shall not be held responsible after the
expiry of such period as may be prescribed by regulations from the
date of taking charge of such goods by the Board. In nutshell, the
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provisions contained in Section 42 and 43 deal with the position
where the Board has taken charge of the goods for the purpose of
performing service or services. The case of the plaintiff is not that
the Board upon request of the owner took charge of the goods for
the purpose of performing service or services. Therefore, there is
no applicability of the aforesaid provisions in the context of the
facts pleaded by the plaintiff.
29. Learned Trial Court has considered entire evidence and
thereafter, dismissed the suit. The Appellate Court, if finds that the
learned Trial Court has appreciated the evidence in its true and
later spirit, merely because a second / alternate view is possible on
the appreciation of same evidence, the Appellate Court should not
substitute the view taken by the learned Trial Court. In view of the
above facts and circumstances, the present First Appeal deserves
to be dismissed and the same is hereby dismissed. No orders as
to costs. Record and Proceedings to be sent back to the
concerned Court / Tribunal forthwith.
(D. M. DESAI,J)
MUSKAN
