THE TRUSTEES OF THE PORT OF BOMBAY versus THE PREMIER AUTOMOBILES LTD.

Citation: [1981] 1 S.C.R. 532 · Decided: 26-08-1980 · Supreme Court of India · Bench: P.N. SHINGAL · Disposal: Appeal(s) allowed

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Judgment (excerpt)

A 
B 
532 
THE TRUSTEES OF THE PORT OF BOMBAY 
v. 
THE PREMIER AUTOMOBILES LTD. 
August 26. 1980 
[P. N. SHINGHAL & D. A. DESAI, JJ.] 
Bombay Port Trust Act- Sections 61B and 87 para 2-Scop~ of-Plaintiff's 
machinery damaged in transit from docks to godown-Plaintifjs claimed 
damages from Board as bailee-Board claimed immunity for tortious acts of 
employees under para 2 of section 87-Liability of the Board-No11-co11tracted 
bailment-Nature of. 
Section 4 of the Bombay Port Trust Act provides for the creation of a 
Trust Board. 
It is a body corporate with perpetual succession and can sue 
and be sued. 
Section 61A(l) charges the Board with the duty of carrying 
D 
out the provisions of the Act. 
Section 6 IB provides that the responsibility 
of the Board for loss, destruction or deterioration of goods of which it has 
taken charge shall, subject to the other provisions of the Act. be that .:if a 
bailee under sections 151, 152 and 161 of the Contract Act, 1872 omitting the 
words "in the absence of any special contract", in section 151 of the Contract 
Act. 
Paragraph 2 of section 87 provides that the Board shall not be re~ponsible 
for any misfeasance, malfeasance and nonfeasance of any employee appointed 
E 
under this Act. 
H 
A case containing machinery imported by the respondent was taken charge 
of by the Board upon its landing in the Bombay Port. 
While being transported 
by the Board's employees on a four-wheeler trolly to one of the sheds in the 
docks the case fell down and the machinery was badly damaged. 
After carrying out a survey of the damage caused to the machinery, the 
respondents gave notice to the Board claiming a large sum as damages. 
'Invok-
ing the provisions of section 87 of the Act the Board denied all liability for 
the damage caused to the machineiy. 
In the course of th(: trial of the plaintiff-respondent's suit the 9arties drew 
up certain "consent terms" which formed the basis of the decision at the trial 
and appeal. 
Summarising the finding of the consent terms the appellate court 
stated that (i) the trust Board admitted an element of negligence on the part 
of its employees; (ii) 1he employees,· who were with the trolly at the time of 
the accident, were: appointed under the Act and (iii) while the Board merely 
claimed that the persons accompanying its trolly were employees. the respondents 
claime~ that they were employees as well as agents of the Board. 
The High Court came to the conclusion that the liability of the Board 
was that of a bailee. 
As regards the applicability of the provisions of para-
graph 2 of section 87 on which the appellant relied the High Court was ot 
the view that this provision related to a totally different subject with which sec-
cion 6IB was not concerned and, therefore, the provisions of that s~ction did not 
T 
TRUSTEES· OF PORT V. PREMIER 'AUTOMOBILES 
533 
afford any protection to the Board and that since a master is always liable for 
the torts committed by his servants in the course of the employment the 
Board was responsible for the damage caused to the machinery by its emJlloyccs 
fo the course of their employment. 
· 
Allowing the Board"s appeal 
HELD: (l)(a) Section 61B ma!ies it clear that the responsibility of the 
Board was that of a bailee under three sections of . the Contract Act and no 
more. 
It was not the case of the plaintiff that there was a contract of bailment 
· 
as contemplated by section 148 of the Contract Act. 
Since there was no such 
contract between the parties, neither .section 151, nor section 152 or section 161 
would have been attracted as such: nor would the provision in section 61B 
nave been applicable in a case of coniractual bailment. 
Ev~n though there 
'was no contractual bailment, the responsibility of the Board for the loss, destruc· 
t:ion or deterioration of the goods was clearly that of a bailee subject to the 
Teservations provided by the section. 
[539 A-DJ 
(b) The essence of bailment is possession. 
A bailment may arise even 
'When· the owner of the goods has not consented to their possession by the bailee 
at all. A bailment is not, therefore, technically and essentially subject to the 
limitations of an agreement and the notion of privily need not be introduced 
in an area where it is unnecessary to do so. 
It follows that a bailment may 
exist without the creation of a contract between the parties and it essentially 
gives rise to remedies which cannot be said to be contractual. 
That is why 
i

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