JUDGMENT Sarkar, J. - This is a suit for the recovery of damages for conversion of goods. The Plaintiff is a merchant. The Defendants are--(1) The Governor-General-of-India in Council as representing the Collector of Customs, Calcutta, (2) The Collector of Customs, Calcutta and (3) The Commissioners for the Port of Calcutta. 2. The claim as laid in the plaint arose in the following circumstances: The Plaintiff had imported thirty-five packages of coaltar dyes from Shanghai. By an order dated December 21, 194), the Collector of Customs, Calcutta, confiscated these goods under certain provisions of the Sea Customs Act and stored the goods with the Commissioners for the Port of Calcutta. Subsequently the Plaintiff paid certain fines, whereupon the goods were released from confiscation. Later on, the Plaintiff paid the customs duty on the said goods and became entitled to receive them. The Plaintiff demanded delivery of the goods, but only sixteen of the packages were delivered to him and the remaining nineteen were not delivered. Hence, the Plaintiff alleges, the Defendants converted his goods and are liable to him for the damages caused thereby. 3. When the suit came up for hearing, the Plaintiff abandoned his case against the Governor-General and the Collector of Customs and the suit has been fought out before me between the Plaintiff and the Commissioners for the Port of Calcutta. 4. The Commissioners for the Port of Calcutta (hereinafter referred to as the Port Commissioners) are a body corporate constituted under the Calcutta Port Act, 1890. The Port Commissioners' case is that they had landed the thirty-five packages from the importing ship and stored them under the provisions of the Calcutta Port Act (which I shall hereinafter refer to as the Port Act). They state that they delivered sixteen of the packages to the Plaintiff and that the latter failed and neglected to take delivery of the remaining nineteen packages, which they had eventually to sell as the goods were deteriorating. At the trial, the Port Commissioners contended that they had offered to deliver the goods to the Plaintiff, but he refused to take them. The Port Commissioners do not admit the other allegations in the plaint and deny that they had converted any goods. They also contend that the suit is barred by the provisions of the Port Act and Section 80 of the Code of Civil Procedure. 5. The Port Commissioners do not admit the other allegations in the plaint and deny that they had converted any goods. They also contend that the suit is barred by the provisions of the Port Act and Section 80 of the Code of Civil Procedure. 5. The following issues were framed: 1.(a) Has notice u/s 80 of the CPC been given to the Port Commissioners? (b) Does the suit fail for want of such notice? 2. Is the suit barred-- (a)under the Limitation Act? (b)under the Calcutta Port Act? 3. Does the plaint disclose any cause of action against the Port Commissioners? 4. Are the Port Commissioners bound in fact or in law to deliver any goods to the Plaintiff? 5. Did the Port Commissioners wrongfully convert the goods? 6. To what damages, if any, is the Plaintiff entitled? 7. Did the Plaintiff refuse or neglect to look for and identify the remaining casks? 8. Did the Port Commissioners sell the goods of the Plaintiff as alleged in para. 6 of the written statement? Issues Nos. 2(a), 4, 7 and 8 may be disposed of at once. The first of these issues, viz., issue No. 2(a), was not pressed. Learned Counsel for the Port Commissioners stated that he had suggested issue No. 4 because of the allegation in the plaint about the confiscation of the goods, but since the Plaintiff's counsel explained in the course of the trial that the real effect of the order of the Collector was not confiscation of the goods, this issue would no longer arise. This issue was also, thereupon, abandoned. Regarding issue No. 7, it need only be said that nothing has been shown to establish that the Plaintiff was under any obligation to look for or identify any goods and it appears from the shed delivery order that he did look for the goods, but, not having found them, was unable to identify any. Issue No. 8 is really irrelevant and should be deleted. The Plaintiff's cause of action is not on any wrongful sale of his goods and if the goods sold were not the Plaintiff's, such sale does not obviously affect any question before me. Issue No. 8 is really irrelevant and should be deleted. The Plaintiff's cause of action is not on any wrongful sale of his goods and if the goods sold were not the Plaintiff's, such sale does not obviously affect any question before me. On the other hand, if it was found that the goods sold belonged to the Plaintiff, that would only be evidence of the fact that the Port Commissioners had the Plaintiff's goods in their possession, which might be useful evidence for deciding whether there had been a conversion or not; but it would not be itself an issue in the suit in any event. 6. The first point taken by the Port Commissioners is that this suit is barred u/s 80 of the Code of Civil Procedure. This is the first issue framed in this suit. It is admitted that no notice under this section was served on the Port Commissioners, which disposes of issue No. 1(a). Further, it has not been contended on behalf of the Plaintiff that this suit is not of the kind contemplated by that section. This sufficiently clears the ground, leaving it only to be decided whether the Port Commissioners are a "public officer" within the meaning of that section. For a correct appreciation of the question, it is necessary to remember that this suit is against the Port Commissioners as a body corporate and not against the individuals constituting that body corporate. What, therefore, has to be decided is whether this body corporate is a "public officer". The expression "public officer" is defined in Section 2(17) of the Code. The Port Commissioners claim to be a "public officer" under Clause (h) of that section as an "officer in the ' "service of the "Crown" or as an "officer remunerated by fees or "commission for the performance of any public duty". Having considered the other clauses of Section 2(17), I have no doubt that the Port Commissioners could not have claimed to be a public officer under any of them; they have not in fact done so. 7. Obviously the Port Commissioners can not be a "public officer" of any kind, including the two kinds mentioned by them, if they are not an officer at all. Are they then an officer? I think not. 7. Obviously the Port Commissioners can not be a "public officer" of any kind, including the two kinds mentioned by them, if they are not an officer at all. Are they then an officer? I think not. The word "officer" inevitably imports the idea of an "office"; the "office" being a situation capable of being occupied and the occupant of that situation being the "officer". According to the Shorter Oxford English Dictionary (1933 Ed.) the word "officer" means one who holds an office, post or place and the word "office", a position to which certain duties are attached, especially a place of trust, authority or service under constituted authority. To be an "officer", therefore, the person claiming must show that there is an office which he holds. The language of Section 80 also shows that this is the sense in which the word "officer" is used, for it speaks of an official capacity, that is to say, a capacity derived from office, a capacity different from the other capacities of the person referred to as the public officer. Capacity derived from office can only mean capacity acquired by reason of holding an office, a capacity not otherwise possessed. What is contemplated, therefore, is an office and an occupant of that office exercising the powers incident to that office. I have not been able to find out any meaning of the word "officer" other than a person holding an office or a servant. 8. Do the Port Commissioners then hold an office? Do they exercise any power or discharge any duty attached to any position? The answer in either case, is clearly, No. The Act constituting the Port Commissioners does not empower, much less require, them to hold any office. Nor do I find it possible to say that they, in fact, hold any office. If one asks what office the Port Commissioners hold, it would be impossible to find an answer. The Port Commissioners of course have large powers, rights and duties, but they have these not by virtue of any office, but as inherent in them, as having been attached to them by the very statute that brought them into being. They have further only one capacity, namely, the statutory capacity. 9. Are the Port Commissioners then an officer as a servant of the Government, that is to say, a person holding the post of service under the Government? They have further only one capacity, namely, the statutory capacity. 9. Are the Port Commissioners then an officer as a servant of the Government, that is to say, a person holding the post of service under the Government? Mr. Surita appearing for the Port Commissioners has placed before me a large number of sections of the Port Act dealing with the relation between the Government and the Port Commissioners and has contended on the basis of these sections, that the Port Commissioners are under complete Government control and hence in its service. He also said that the judgment of Cunningham J. in Shahebzadee Shahunshah Begum v. Fergusson (1881) ILR 7 Cal. 499, supports the view that relations with the Government of the kind specified in the Port Act make the Port Commissioners a Government servant. I am unable to accept these contentions. It is true that some of the acts of the Port Commissioners require Government sanction and their accounts and certain other matters have to be reported to the Government. It is also true that the Government appoints their chairman, fixes his pay and can remove him. It is even true that the Government can take away all the powers of the Port Commissioners and their properties. In spite of all this and all that is in the Port Act, the Port Commissioners are supreme in the exercise of the powers they possess and act altogether independently of the Government. They do not act under the orders of the Government, but at their own discretion. Their acts are not the acts of $he Government, nor their servants and funds, the latter's. The Government cannot direct them to act in a particular way or to exercise their powers in a specified manner, though it can, in the case of the exercise of such of the powers as require previous Government sanction, withhold it and in certain cases, if it is dissatisfied with the actions of the Port Commissioners or the exercise by them of their powers, take away all their powers and prevent them from acting at all. It is stated in Halsbury's Laws of England (2nd Ed.), Vol. It is stated in Halsbury's Laws of England (2nd Ed.), Vol. XXII, Article 191, p. 112, that-- Whether or not, in any given case, the relation of master and servant exists is a question of fact; but in all cases the relation imports the existence of power in the employer not only to direct what work the servant is to do, but also the manner in which the work is to be done. 10. None of these powers can the Government exercise over the Port Commissioners. It is as well to state that there is no question of any employment of the Port Commissioners by the Government. What Viscount Haldane said in Metropolitan Meat Industry Board v. Sheedy (1927) A.C. 899, 905, 906 in connection with the question whether the Plaintiff, a statutory body, was a servant and in the service of the Crown, applies squarely to the position of the Port Commissioners and puts it beyond doubt that they are not the servants of the Crown. Viscount Haldane stated-- They are a body with discretionary powers of their own. Even if a Minister of the Crown has power to interfere with them, there is nothing in the statute which makes the acts of administration his as distinguished from theirs. That they are incorporated does not matter. It is also true that the Government appoints their members and can veto certain of their actions. But these provisions, even when taken together, do not outweigh the fact that the Act of 1915 confers on the Appellant Board wide powers which are given to it to be exercised at its own discretion and without consulting the direct representatives of the Crown. Such are the powers of acquiring land, constructing abattoirs and works, selling cattle and meat, either on its own behalf or on behalf of other persons and leasing its property. Nor does the Board pay its receipts into the general revenue of the State and the charges it levies go into its own funds. Under these circumstances, their Lordships think that it ought not to be held that the Appellant Board are acting mainly, if at all, as a servant of the Crown acting in its service. 11. Nor does the Board pay its receipts into the general revenue of the State and the charges it levies go into its own funds. Under these circumstances, their Lordships think that it ought not to be held that the Appellant Board are acting mainly, if at all, as a servant of the Crown acting in its service. 11. As to Shahebzadee Shahunshah Begum's case (supra) it is clear that Cunningham J. there held on a construction of the Official Trustees Act, 1864, that the Official Trustee was an officer remunerated by fees or commission for the performance of a public duty. The present Official Trustees Act is somewhat different from the Act of 1864. Be that as it may, the learned Judge discussed the various provisions of the Act of 1864, which, according to Mr. Surita, show the relationship between the Official Trustee and the Government to be that of master and servant, not for showing that the Official Trustee was a servant of the Government, but to show that the duty imposed by the statute on the Official Trustee was public duty. Indeed, the Act of 1864 contains no reference to the Government and the relation mentioned in the sections referred to by that learned Judge were his relations not with the Government but with the High Court, a body distinct from the executive Government. To show that the Official Trustee was an officer performing public duty it was not necessary for Cunningham J. to prove also that the Official Trustee was a Government servant. Clause (h) of Section 2(17) of the Code contemplates three kinds of public officers, namely, (a) an officer in the service of the Crown, (b) an officer in the pay of the Crown and (c) an officer remunerated by fees and commission for the performance of any public duty and Cunningham J. held the Official Trustee to be an officer of the third kind. If such officer has also to be a Government servant, then he would come under class (a) mentioned above and class (c) would be absolutely redundant. In my view, the framing of Clause (h) makes it clear that the officer contemplated by the third class is a non-Government officer. That the Official Trustee under the Act of 1864 was an officer admits of no doubt. In my view, the framing of Clause (h) makes it clear that the officer contemplated by the third class is a non-Government officer. That the Official Trustee under the Act of 1864 was an officer admits of no doubt. He was required to hold the office of trustee under various trusts and to exercise various powers of a trustee. Further, as under the Act of 1864, the Official Trustee was a corporation sole, that in itself imported the idea of an office, for, a corporation sole is a body politic ... constituted in a single person, "who, in right of some office or function, has a capacity" to do various acts. Halsbury, 2nd Ed., Vol. VIII, Article 2, p. 4. 12. For these reasons, I hold that the Port Commissioners are not a public officer and this suit is maintainable without any notice to them u/s 80 of the Code of Civil Procedure. Issue No. 1(6) is therefore answered in the negative. (1) 13. In this view of the matter it is not necessary for me to discuss the question whether a corporation can be an officer which was the main argument advanced by the Plaintiff against the Port Commissioners claim to be a "public officer". Since, however, the matter has been discussed at length, it is right that I should state my views on it. I think a corporation can be a public officer. u/s 2(17) of the Code, a public officer is a person and by virtue of the General Clauses Act, the word "person" must include a corporation unless such inclusion would be repugnant to the context in which the word is used. I have found nothing in Section 2(17), (h) to lead me to the view that the contemplation of a corporation as an officer mentioned in it would result in any repugnancy. Indeed, as was held in Shahunshah Begum's case (supra), a corporation sole could be an officer within Clause (h). This case was followed in Abdul Lateef v. Doutre (1889) ILR 12 Mad. 250. Again in Cecil Gray v. Cantonment Committee of Poona (1910) ILR 34 Bom. 583, it was held that the Cantonment Committee, a quasi-corporation, could be a public officer. Cecil Gray's case received the approval of Madhavan Nair J. in Vasudeva Rao v. Municipal Committee Anantapur AIR (1930) (Mad.) 844. 250. Again in Cecil Gray v. Cantonment Committee of Poona (1910) ILR 34 Bom. 583, it was held that the Cantonment Committee, a quasi-corporation, could be a public officer. Cecil Gray's case received the approval of Madhavan Nair J. in Vasudeva Rao v. Municipal Committee Anantapur AIR (1930) (Mad.) 844. There is, therefore, ample authority for holding that it is possible for a corporation to be a public officer. I was referred to the case of AIR 1929 70 (Nagpur) , where MacNair A.J.C. dissented from Cecil Gray's case and held that a "committee" could not be an officer on the ground that it would be impossible to discover in any standard work an instance of the use of the common word "officer" to denote an association of individuals. With respect, I am unable to agree. To say that no instance of the use of the word "officer" to denote a corporation can be found is not to say that such use would lead to repugnancy and in the absence of such repugnancy, the definition in the General Clauses Act must be given effect to. Then again, it is not correct to say that no such instance can be found. The Indian Companies Act furnishes an example of an association of individuals being an officer. Under this Act a managing agent of a company is one of its officers and a firm or another company can act as a managing agent. It is further not uncommon to find banks, which are more often than not incorporated bodies, acting as treasurers of public institutions and no objection can be taken to the description of the treasurer of an institution as one of its officers: In re West of England and South Wales District Bank, Ex parte Swansea Friendly Society (1879) 11 Ch. D. 768. In this case, Fry J, held on a construction of a particular statute that the officer contemplated by it had to be an individual and its treasurer, an incorporated bank could not therefore claim to be its officer. If it was inherently impossible for a corporation to be an officer, Fry J. would have said so and there would have been no need for him to base his decision on the construction of the statute. 14. The second question for decision is whether this suit is barred under the provisions of the Port Act: Issue No. 2(b). If it was inherently impossible for a corporation to be an officer, Fry J. would have said so and there would have been no need for him to base his decision on the construction of the statute. 14. The second question for decision is whether this suit is barred under the provisions of the Port Act: Issue No. 2(b). The contention is based on two sections of the Act, namely, Sections 113(2) and 142. 15. Section 113(2) of the Port Act is in the following terms: If any owner, without any default on the part of the Commissioners, fail to remove any goods other than those stored in warehouses licensed u/s 16 of the Sea Customs Act, 1878, from the premises of the Commissioners within three clear working days from the time of landing, such goods shall remain on the premises at the sole risk and expense of the owner. 16. The evidence in this case establishes that the thirty-five packages were landed by the Port Commissioners from the importing vessel on November 21, 1941 and no attempt to remove them was made by the Plaintiff till March 16th of the next year. In these circumstances the Port Commissioners contend that this case comes directly within Section 113(2) and the goods were lying at the sole risk of the owner and they, therefore, have no liability in respect of the goods at all. 17. It seems to me that the Port Commissioners' contention is misconceived. Clearly this contention is not a plea in bar to the suit, but a defence to the claim, being, in reality, a denial of liability on the strength of a statutory immunity. A realisation of this aspect of the contention helps to understand why the contention is untenable, for, as will appear later on, this defence is no defence to the case actually made, though it may be a good defence if a different case had been made. What Section 113(2) states is that after three days from landing, the goods (subject to certain exceptions which are not relevant for the present purpose and may be left out of consideration) shall lie on the Port Commissioners' premises at the risk of the owner. What Section 113(2) states is that after three days from landing, the goods (subject to certain exceptions which are not relevant for the present purpose and may be left out of consideration) shall lie on the Port Commissioners' premises at the risk of the owner. Obviously it places on the owner the risk as to goods landed by the Port Commissioners and continuing on their premises thereafter for over three days and not the risk as to goods otherwise in the possession of the Port Commissioners. This is made plain enough by the expression "such goods shall "remain on the premises at the sole risk and expense of the owner" occurring at the end of the section. The words "such goods" in the section can only refer to goods landed by the Port Commissioners and to no other goods. The language used is not capable of any other meaning. "What the liability of the Port Commissioners is as to goods coming into their possession otherwise than by landing by them is another matter and the section is not intended to affect such liability in any way. Now the liability of the Port Commissioners that is sought to be made out in this case is the latter kind of liability. The Plaintiff does not allege that the Port Commissioners are liable because they had landed the goods. In fact the plaint does not even mention that the goods had been landed by the Port Commissioners. The Plaintiff's case is that the Port Commissioners came into the possession of the goods as they were stored with them by the Collector of Customs and they are liable by reason of such possession to deliver the goods to him. Whether the Plaintiff's case is true or false or whether the goods had actually been landed by the Port Commissioners, as they state in their written statement, does not matter. The Plaintiff is dominus litis and is free to frame his case on any basis he likes. The case has to be decided on the basis of the plaint and the defence must be to the case made and not to a different case, even though that is the true case. The Plaintiff's case, not being in respect of goods landed by them, the defence u/s 113(2) is not available to the Port Commissioners. The case has to be decided on the basis of the plaint and the defence must be to the case made and not to a different case, even though that is the true case. The Plaintiff's case, not being in respect of goods landed by them, the defence u/s 113(2) is not available to the Port Commissioners. In my view, therefore, Section 113(2) affords no defence to the present suit. 18. In this view of the matter there would be no need for me to deal with the Plaintiff's arguments in answer to the Port Commissioners' contention u/s 113(2). As, however, the Plaintiff's arguments raise questions of considerable importance which have been very fully argued on either side and as a decision on these questions would be necessary if the view that I have taken about the maintainability of the Port Commissioners' contention is wrong, I think it right to deal with these arguments. 19. The Plaintiff's first answer to the Port Commissioners' claim for immunity u/s 113(2) is based on the exception contained in that section in the case of goods stored in a warehouse licensed u/s 16 of the Sea Customs Act. The argument of the Plaintiff is that u/s 113(2) goods stored in such a licensed warehouse do not lie at the sole risk of the owners and the goods in the present case had been so stored. The contention of the Plaintiff, broadly put as it is, is unsustainable as will hereafter be seen, but, quite apart from this, its success ex hypothesi depends on a question of fact, namely, that the goods were actually stored in a warehouse licensed u/s 16 of the Sea Customs Act. It should be mentioned here that it was proved before me that the goods had been landed by the Port Commissioners on one of their landing sheds on November 21, 1941 and lay there till some time about the end of January, 1942, when they were removed to one of their warehouses called the Import Warehouse South. What has to be proved, therefore, is that this warehouse had been licensed u/s 16 of the Sea Customs Act. The only evidence that there is on this point and on which alone the Plaintiff has relied, is a statement made by his witness one Robert Beddoe, an assistant of Cox and Kings, the Plaintiff's clearing agents. What has to be proved, therefore, is that this warehouse had been licensed u/s 16 of the Sea Customs Act. The only evidence that there is on this point and on which alone the Plaintiff has relied, is a statement made by his witness one Robert Beddoe, an assistant of Cox and Kings, the Plaintiff's clearing agents. What Beddoe said, which he did in his examination-in-chief, was that the goods were lying in "the licensed warehouse of the Port Commissioners". This, of course, is not saying that the goods were lying in a warehouse licensed u/s 16 of the Sea Customs Act. This, therefore, is no evidence as to the question of fact on which the applicability of the exception to Section 113(5) depends. What Beddoe, however, said in his cross-examination establishes clearly that the goods were not stored in a warehouse licensed u/s 16 of the Sea Customs Act, for he said that he knew that, since the expiry of three days from their landing, the goods had all along been lying at the sole risk of the owner and this could not have been so if the goods had been at any time lying in a warehouse licensed u/s 16 of the Sea Customs Act. There can be little doubt that in making this statement Beddoe had Section 113(2) of the Port Act in his mind, for, except under that section, the goods could not have been lying at the risk of the owner at all. Obviously, when Beddoe said that the goods were lying in a licensed warehouse, he was trying a little ingenuity. The result, therefore, is that the Plaintiff's attempt to come under the exception to Section 113(5) of the Port Act fails, for the evidence proves that the goods were not in fact stored in a warehouse licensed u/s 16 of the Sea Customs Act. 20. Even if it be held that the warehouse, where the goods were lying, was a warehouse licensed u/s 16 of the Sea Customs Act (hereinafter referred to simply as a licensed warehouse), I think that there are other reasons why, on the facts of this case, the Plaintiff cannot claim that the goods were not lying at his sole risk. These reasons arise out of the constructions of Section 113(2) One reason is this. The section provides that-- if any owner ... These reasons arise out of the constructions of Section 113(2) One reason is this. The section provides that-- if any owner ... fail to remove any goods other than those stored in warehouse licensed u/s 16 of the Sea Customs Act from the premises of the Commissioners within three clear working days from the time of landing a certain consequence shall arise. The failure to remove contemplated, is a failure to remove within the three days and the goods stored in a licensed warehouse are exempted from the consequences of such failure as stated in that section. The exemption, therefore, is from the effect of the failure to remove within the three days and unless the goods have already been stored in a licensed warehouse within those three days no question of exemption from the consequences of non-removal within the three days can arise. If they have not been stored in a licensed warehouse within the three days, there is no scope for the exemption to operate. Now, in this case, the goods were admittedly not stored in a licensed warehouse within three days of their landing and hence, on the plain grammar of Section 113(2), the Plaintiff cannot claim to come within the exemption mentioned in it. 21. The other reason why the Plaintiff's contention, that the goods in this case were stored in a licensed warehouse, is not sustainable turns on the meaning of the expression "stored in warehouses "licensed u/s 16 of the Sea Customs Act," occurring in Section 113(2). I find the greatest difficulty in reading the expression as meaning anyhow stored in a licensed warehouse. It seems to me to be impossible that this could have been the intention of the legislature. Warehouses are licensed u/s 16 of the Sea Customs Act, so that dutiable goods may be deposited therein without payment of the customs duty leviable thereon. A special procedure has been laid down in the Sea Customs Act as to how goods can be stored in a licensed warehouse. Tinder this Act, upon such storage, the owner of the warehouse has to execute a warrant in a statutory form engaging to deliver the goods. Sections 86, 87, 90 to 96 of the Sea Customs Act. A special procedure has been laid down in the Sea Customs Act as to how goods can be stored in a licensed warehouse. Tinder this Act, upon such storage, the owner of the warehouse has to execute a warrant in a statutory form engaging to deliver the goods. Sections 86, 87, 90 to 96 of the Sea Customs Act. The expression "stored in a "licensed warehouse" must, in my view, be read only as meaning so stored in accordance with the special procedure laid down in the Sea Customs Act. To read the words as meaning anyhow stored in a licensed warehouse would lead to astounding results and throw out of gear the entire workings of the Port Commissioners. The rides of construction of statutes require such a reading to be put upon those words which will avoid these results. These rules laid down by great masters like Lords Selborne, Blackburn, Halsbury and others will be found stated in a collective form by Maxwell in his book on Statutes (9th Ed.), p. 20, in the following terms: It is an elementary rule that a thing which is within the letter of a statute will, generally, be construed as not within the statute, unless it also be within the real intention of the legislature and the words, if sufficiently flexible, must be construed in the sense which, if less correct grammatically, is more in harmony with the intention. Where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction and confusion into the system. Language is rarely sc free from ambiguity as to be incapable of being used in more than one sense and to adhere rigidly to its literal and primary meaning in all cases would be to miss its real meaning in many. If a literal meaning had been given to the laws which forbade a layman to "lay hands" on a priest and punished all who drew blood in the street, the layman who wounded a priest with a weapon would not have fallen within the prohibition and a surgeon who bled a person in the street to save his life would have been liable to punishment. 22. 22. An instructive illustration of the operation of this rule of Construction is found in Ex parte Walton In re Levy (1881) 17 Ch. D. 746, 757, where it was held that the provision of the Bankruptcy Act, under which, upon disclaimer by the trustee of a lease, the same is to he deemed to have been surrendered on the date of the adjudication, "must be read as meaning that the property is to "be disclaimed inter se, so as not to interfere with the rights of "third parties." Lush L.J. observed-- If the lease had beer actually surrendered, the lessor would have been deprived of all his rights under it. But the object was to place the trustee in the same position as if the lease had never been vested in him and that is all which is necessary, to carry out the intention of the legislature. Any qualifying words, therefore, which are necessary thus to restrict the operation of the section may be inserted. The object was only to relieve the bankrupt's estate and the trustee from liability and it was not intended to affect the rights and liabilities of other persons further than was necessary to give effect to that object. 23. Now, what was the object of the legislature in enacting Section 113(2) and making provision for storage of goods in a licensed warehouse? The Port Commissioners have a statutory obligation to land all goods from incoming ships (Section 90 Port Act). Having made them bound to land the goods the Port Act went on to specify how they should keep the goods and what liability they are to have in respect of such statutory custody of the goods. Section 113(1) of the Port Act provides that, upon landing, the Port Commissioners shall take charge of the goods and store such as are liable to suffer from exposure in any shed or warehouse belonging to them. It has to be noted that except in the case of a specified class of goods, the Port Commissioners might even leave them all out in the open and incur no liability thereby. Then it has to be observed that the statute does not require the Port Commissioners to store the goods in a licensed warehouse. It has to be noted that except in the case of a specified class of goods, the Port Commissioners might even leave them all out in the open and incur no liability thereby. Then it has to be observed that the statute does not require the Port Commissioners to store the goods in a licensed warehouse. Section 112(1) of the Port Act sets out the responsibility of the Port Commissioners in respect of these goods whilst in their possession and this is made the same as that of an ordinary bailee under Sections 151, 152 and 161 of the Indian Contract Act. The legislature, however, did not think it right that even this liability of the Port Commissioners should extend beyond a period of three days. Section 113(2) of the Port Act. The reason for this apparently was that three days were considered a sufficiently long time in ordinary circumstances to enable the owner of the goods to take them over from the Port Commissioners; any delay beyond this period being, therefore, due to his default, it was thought right to put upon him the risk involved thereby. This then was the object in enacting Section 113(5). But the circumstances might not always be ordinary. The three days provided by Section 113(2) might not, in every case, be a sufficiently long time to enable the owner to take over the goods from the Port Commissioners. This becomes clear when it is remembered that before the owner can receive the goods from the Port Commissioners they have to be passed through the customs, that is to say, the goods have to be assessed for ascertainment of the customs duty leviable thereon and the duty itself paid Sections 86, 87 and 89 of the Sea Customs Act. Before all this is done the owner has no right to receive the goods, for if lie could that, the Customs authorities would find it hard in very many cases to realise the Customs duty. There might obviously be many cases where this process might take some time, e.g., because of the difficulty of assessment, or because the disputes as to assessment necessitated a reference to higher authorities, or because of the pressure of work on the customs authority's assessing staff or even because of the owners not having the money at the moment to pay the duty levied. Unless some protection could be given to the owner in the cases that I have imagined, his goods would have to lie with the Port Commissioners and that at his sole risk by virtue of Section 113(2) of the Port Act, after the three days from the landing had expired. The position of the owner would be intolerable, for his goods would be lying at his sole risk and he could do nothing to protect them, for it will be remembered that there is nothing in the Port Act which gives him the right to have his goods with the Port Commissioners stored in any particular way except to have them kept protected from exposure in certain cases. Section 113(1), Port Act. To relieve this hardship on the owner and to give him certain protection, the legislature made provision by Sections 15 and 16 of the Sea Customs Act for the licensing of warehouses wherein dutiable goods may be deposited without payment of duty on the first importation thereof. Then the legislature went on to make provisions giving the owner the right to have his goods deposited in such warehouses and laid down a procedure for the exercise of this right and also defined the liability of the owner of the warehouse in respect of the goods so deposited. These provisions are contained in Sections 90 to 96 and 123 of the Sea Customs Act. By virtue of Section 96, upon the deposit of the goods in the warehouse in terms of this Act, the owner of the warehouse has to execute a warrant in a statutory form engaging to deliver the goods. From what I have so far said, it is clear that the object of the legislature in providing for the licensed warehouses was to give protection to the owner in certain cases and that, to entitle himself to this protection, the owner has to follow the procedure laid down for the purpose in the Sea Customs Act. This procedure involves an application by the owner for storage in a licensed warehouse after the goods have been assessed to Customs duty. 24. Now, I come to the intention of the legislature in enacting the exception to Section 113(5) of the Port Act. This procedure involves an application by the owner for storage in a licensed warehouse after the goods have been assessed to Customs duty. 24. Now, I come to the intention of the legislature in enacting the exception to Section 113(5) of the Port Act. The first point to note in this connection is that the licensed warehouse mentioned in the section is obviously a warehouse belonging to the Port Commissioners, for, if a warehouse belonging to some one else was meant, by storage in such a warehouse the goods would already have been removed from the Port Commissioners' premises and no question of failure to remove them from such premises could then have arisen. It has also to be noted that the exception to Section 113(5) was not originally there, as there was not when the Act was passed any provision for having any warehouse of the Port Commissioners licensed under the Sea Customs Act. By an Act of 1805 (Ben. Act IV of 1895) the Port Act was amended and a section, viz., 122A, was introduced in it, whereby it was provided that the Port Commissioners' warehouses would be deemed to be private warehouses and be capable of being licensed as such u/s 16 of the Sea Customs Act and all the provisions of that Act relating, to licensed private warehouses were made applicable to the Port Commissioners' warehouses. By virtue of this provision (Section 122A) it became possible that, upon the procedure laid down in the Sea Customs Act for deposit of goods in a licensed warehouse being followed, they might happen to be deposited in a licensed warehouse belonging to the Port Commissioners and as already stated, if this happened, the Port Commissioners, as owners of that warehouse, had to enter into a statutory engagement, as laid down in Section 96 of the Sea Customs Act, to deliver the goods. Indeed by Section 122A(2) of the Port Act a new provision was expressly made enabling the Port Commissioners or some person authorised by them to sign this statutory engagement. Now, if the Port Commissioners entered into this engagement, the goods lying on their premises, e.g., their licensed warehouses, after three days from their landing, could not lie there at the sole risk of the owner. Now, if the Port Commissioners entered into this engagement, the goods lying on their premises, e.g., their licensed warehouses, after three days from their landing, could not lie there at the sole risk of the owner. In such circumstances, a conflict would have arisen between Section 113(5) of the Port Act, as it stood before the amendment and the statutory engagement directed by the Sea Customs Act. To avoid this conflict, the amending Act of 1895 introduced the exception into Section 113(2) of the Port Act and reconciled the two Acts. The object of the legislature in enacting the exception clause in Section 113(5) is thus perfectly clear, namely, that it is to let the provisions of the Sea Customs Act relating to the right of the owner to obtain protection for his goods by requiring them to be deposited in a licensed warehouse, have full effect in respect of the licensed warehouses of the Port Commissioners As already seen, in order that the object of the giving protection to the owner may be fulfilled, he has to have his goods deposited in the licensed warehouse in the manner provided in the Sea Customs Act. It is only then that he gets the warehouse owner's engagement for delivering the goods and the benefit of the responsibility imposed on that owner by the Sea Customs Act. It can make no difference for this purpose whether the owners of the warehouse are the Port Commissioners or some other person. A deposit in a licensed warehouse in any other manner does not give the owner of the goods any protection, for he does not thereby get any engagement from the owner of the warehouse nor the benefit of his statutory responsibility. Indeed as already seen, except by following the procedure laid down in the Sea Customs Act, an owner of goods has no right to have his goods stored in a licensed warehouse or in any particular manner except having them protected from exposure in certain cases Interpreting the exception in Section 113(2) in accordance with the intention of the legislature the expression "stored in a warehouse licensed under "Section 161 of the Sea Customs Act" must mean so stored in accordance with the procedure laid down therefore in the Sea Customs Act. 25. 25. Now, what would be the result, if the expression "stored in a "warehouse licensed u/s 16 of the Sea Customs Act" was taken in a literal sense and was to include storing anyhow in such a warehouse? Since, as already seen, the owner could not require the goods to be kept in a licensed warehouse except in accordance with the procedure laid down in the Sea Customs Act, a storage in a licensed warehouse other than in accordance with that procedure must be one done at the instance of the Port Commissioners themselves, as they have the sole custody of the goods. Now, if such storage comes within the exception, the goods would no longer be at the risk of owner, but the statutory liability of the Port Commissioners u/s 112(7) of the Port Act in respect of them would continue with the result that the owner gets an additional advantage for no merit on his part and paying no consideration therefore and the Port Commissioners would, for no fault on their part, incur a liability from which the Port Act intended to release them. The owner would thus be getting something for nothing, which would be illogical and unreasonable. An illustration or two would make the matter clearer. Take a case where the goods had been landed on a landing shed of the Port Commissioners and had been lying there as they could perfectly legitimately do u/s 113(2) of the Port Act. Later on, because of fresh landings to be made from a newly arrived ship it became necessary to clear the landing shed and the only space at the moment available was a licensed warehouse of the Port Commissioners to which thereupon the goods were taken. To hold that, by so taking the goods to a licensed warehouse, the Port Commissioners took upon themselves a liability for the goods which they otherwise did not have would be to prevent the smooth working of the Port Commissioners' duties under the Port Act and to make the rights of the owner spring out of an accident. To hold that, by so taking the goods to a licensed warehouse, the Port Commissioners took upon themselves a liability for the goods which they otherwise did not have would be to prevent the smooth working of the Port Commissioners' duties under the Port Act and to make the rights of the owner spring out of an accident. Take another case, suppose at a certain time one of the licensed warehouses of the Port Commissioners happened to be largely vacant and they found certain goods in their landing shed which were particularly fragile or were more than ordinarily valuable and the Port Commissioners removed them to the vacant licensed warehouse with the sole intention of giving them better protection, a protection to which the owner was not entitled. Is it in such a case to be said that by an act done from a purely altruistic motive the Port Commissioners put themselves under a liability? I am unable to agree that such was the intention of the legislature. For these reasons I feel bound to cut down the literal meaning of the expression "stored in a warehouse licensed u/s 16 of the "Sea Customs Act" and to interpret it in a restrictive sense so as to carry out what I conceive to have been the real intention of the legislature in using them. I, therefore, hold that the expression means stored in a licensed warehouse in accordance with the special procedure laid down for such storage in the Sea Customs Act and for the purposes of the licence. I think it right also to say that the intimate connection between the Port Act and the Sea Customs Act also prompts an interpretation of the expressions of the first mentioned Act in the sense they are used in the second of these Acts. I have already shown this in discussing the intention of the legislature. There are other things also which show this connection. For example, the Port Act does not mention any liability of the Port Commissioners to deliver the goods Section 112(7). It is only in the Sea Customs Act that one finds the right of the owner to the delivery of the goods. There are other things also which show this connection. For example, the Port Act does not mention any liability of the Port Commissioners to deliver the goods Section 112(7). It is only in the Sea Customs Act that one finds the right of the owner to the delivery of the goods. (Section 89.) The responsibility of bailee u/s 160 of the Indian Contract Act was deliberately omitted from Section 112A of the Port Act, because the right of the owner to the delivery of the goods arises only after he has paid the customs duty thereon and all matters relating to the payment of customs duty and delivery of the goods are controlled not by the Port Act but by the Sea Customs Act. Then again, the licensing of warehouses is itself done under the latter Act and the Port Act has no-provision with regard to it or indeed for storage in such a warehouse. 26. Having ascertained the correct interpretation of the exception to Section 113(5), it only remains to consider whether the goods were stored in a licensed warehouse in accordance with that interpretation. There is no difficulty on this question, for, admittedly, the goods were stored in the Import Warehouse South (which I assume-for the present argument to have been a licensed warehouse), by the Port Commissioners according to their routine and not on the application of the Plaintiff, nor in accordance with the special procedure laid down in the Sea Customs Act, nor for the purposes of the license. Indeed, at the time of such storage, the goods had not even been assessed to the customs duty. Hence the Plaintiff's claim to come within the exception of Section 113(5) fails, even if the goods were actually lying in a licensed warehouse. 27. The Plaintiff's next answer to the Port Commissioner's claim for release from all liability u/s 113 of the Calcutta Port Act is based on Section 114 of that Act. He says that the Port Commissioners are not entitled to the benefit of Section 113, unless they give the notice prescribed u/s 114, the service of this notice being a conditions precedent to the claim of any privilege u/s 113 or, in other words, that Section 114 was a "delimitation", as it was put, of Section 113. In the case of Puma Chandra Kundoo v. Port Commissioners of Calcutta (1918) ILR 46 Cal. In the case of Puma Chandra Kundoo v. Port Commissioners of Calcutta (1918) ILR 46 Cal. 56 Greaves J. held that the Port Commissioners were entitled to the benefit of Section 113, even though the notice contemplated by Section 114 had not been given. Mr. Bachawut appearing for the Plaintiff asked me to disagree with this decision and said that in this case the argument advanced by him was not urged. I am not sure that in this Mr. Bachawat is correct, for the report shows that learned Counsel for the owner of the goods in that case argued that "the sections must be construed "strictly against the Port Commissioners" and that, in substance, is what Mr. Bachawat is asking me to do. Apart, however, from the authority of the judgment of Greaves J., I am unable to accept Mr. Bachawat's argument, as Section 114 has not been expressly made a condition precedent to the claim of the benefit u/s 113. It is difficult to see why, if it was intended that it should be a condition precedent, it should not have been expressly made so. Mr. Bachawat, however, contends, on the authority of Avanzo v. Mudie (1854) 10 Ex. 203 : 156 E.R. 416, cited in Maxwell on Statutes (9th Ed.), p. 374, that, as a matter of construction, the claim to the benefit of Section 113 must be held to be subject to compliance with Section 114. It was held in Aranzo's case that the Engraving Copyright Act, 1734, gave to the designers of prints the copyright in such prints "for the term "of fourteen years to commence from the day of the first publication thereof, which shall be truly engraved with the name of the "proprietor, on each plate and printed on every such print or "prints" and that the neglect to comply with this provision was fatal to the copyright. Maxwell cited Avanzo's case (1854) 10 Ex. 203 : 156 E.R. 416 in his book to illustrate the following principle of construction of statutes: Where powers, rights or immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the legislature. 28. 28. It is, therefore, all a question of the intention of the legislature and I find it impossible in this case to hold that the intention was as Mr. Buchawat contends. The immunity conferred by Section 113(5) arises on the expiry of the three days mentioned. The notice u/s 114 has to be given after these three days, so that the notice is to be given after the immunity has been acquired and that being so, it could not have been intended that the giving of the notice would be a condition, the performance of which alone would give rise to the immunity. Further, the notice u/s 114 has to mention that the liability of the Port Commissioners has ceased, that is to say, that the Port Commissioners have already acquired the immunity. Then it is also to be considered that Section 114 does not say how long after the expiry of the three days the notice should be given. A notice given within a reasonable time of the expiry of the three days would, therefore, be sufficient compliance with the section. This makes the Plaintiff's argument all the more untenable. On this basis, the immunity may have been acquired for some time before the notice is given and there would thus be still less reason to hold that the giving of the notice is a condition precedent to the acquisition of the immunity u/s 113(5). This argument of the Plaintiff to get out of Section 113(2), therefore, also fails. 29. I come now to the Plaintiff's last answer to the Port Commissioners' claim for immunity u/s 113(2). This turns on the meaning of the word "risk" occurring in that section. The Plaintiff contends that the word "risk" means risk arising from the loss of the goods not due to any wrongful act on the part of the Port Commissioners. It is said that the effect of the section is not to make the goods res nullius so that the Port Commissioners could do whatever they liked with the goods with impunity. Thus, it is said, that if the Port Commissioners misappropriated the goods or deliberately set fire to them or threw them into the river they could not claim to be protected u/s 113(2) for the loss occasioned by such wrongful conduct. Thus, it is said, that if the Port Commissioners misappropriated the goods or deliberately set fire to them or threw them into the river they could not claim to be protected u/s 113(2) for the loss occasioned by such wrongful conduct. Therefore, it is contended that before the Port Commissioners can claim the benefit of Section 113(2) they must prove as a fact that the non-delivery of the goods was due to a risk contemplated by the section, that is to say, a risk not arising from their own default. It cannot be disputed, on the facts of this case, that the Port Commissioners have not proved the cause of the loss of the goods and for the purpose of the present argument, u/s 113(2) the loss of the goods has to be presumed. In my view the Plaintiff's argument is unsound. The argument really is one of onus of proof. The only liability that the Port Commissioners have in respect of the goods under their statute is to take reasonable care of the goods. Section 112(7), Port Act. The effect of Section 113(2) is to absolve them of this liability after the prescribed period of three days has expired, so that they have thereafter no statutory liability for the goods, and to get this release from liability, all that they have to prove is that the three days have expired and that there has been no default on their part preventing the removal of the goods. It is true that, in spite of Section 113(2), they would be liable for any tortious or wrongful act done by them in respect of the goods, but different considerations arise in respect of such liability. The argument of the Plaintiff mixes up the two kinds of liabilities of the Port Commissioners, viz., the statutory liability u/s 112(2) of the Port Act and the liability in conversion purely as a tort, independent of the statute. It is only in respect of the first kind of liability that Section 113(5) provides the Port Commissioners with a defence and then it is enough for them to prove that the three days have expired and there has been no default on their part preventing the removal of the goods. It is only in respect of the first kind of liability that Section 113(5) provides the Port Commissioners with a defence and then it is enough for them to prove that the three days have expired and there has been no default on their part preventing the removal of the goods. With regard to the second kind of liability, Section 113(2) would not be a defence, for truly it does not make the goods res nullius so that anybody committing a tort in respect of them would be liable in spite of the section. In such a case, the Plaintiff must prove the tort first and it would not be for the Defendant to prove in this first instance that he has not committed the tort. This brings me back to what I have already said that the present case, being one of conversion independently of Section 112(2), Section 113(2) has no application and no question of any onus of proof under that section arises. I, however, like to say that, in my view, for the reasons already indicated in the cases to which Section 113(2) does apply it is not necessary for the Port Commissioners to prove that the goods were not lost through their wrongful act before they can claim the benefit of Section 113(2). 30. I will now consider whether this suit is barred u/s 142 of the Port Act which is in the following terms: No suit shall be brought against any person for anything done, or purporting or professing to be done in pursuance of this Act, after the expiration of three months from the day on which the cause of action in such suit shall have arisen. 31. This suit, as already seen, is on conversion: The conversion alleged was by demand for delivery and refusal to deliver. The demand and refusal alleged happened in March, 1942. This suit having been filed on August 26, 1944, was, therefore, filed much more than three months after the cause of action had arisen. It only remains to consider if this suit is in respect of "anything done "or purporting or professing to be done in pursuance" of the Calcutta Port Act. This suit having been filed on August 26, 1944, was, therefore, filed much more than three months after the cause of action had arisen. It only remains to consider if this suit is in respect of "anything done "or purporting or professing to be done in pursuance" of the Calcutta Port Act. It has not been argued that Section 142 relates only to things done and not to omissions and that the present suit is in respect of non-delivery, an omission and hence it is not within the section. Had it been so argued, I would not at all have been sure that this case related to an omission, for the cause of action is refusal, an act. In any event, this argument has been finally rejected by the Privy Council in Calcutta Port Commissioners v. Corporation of Calcutta ILR (1938) 1 Cal. 440 (448-448) : L.R. 64 IndAp 363 (371-372) and by the Federal Court in Dr. Hori Bam Sing v. The Grown (1939) F.C.R. 159. The only point argued by the Plaintiff with regard to Section 142 was that this suit is not in respect of anything done or purporting or professing to be done under the Act. The way the argument was put was that the suit is in respect of conversion and as the statute, i.e., the Port Act, does not sanction conversion, the suit is not in respect of anything done or purporting or professing to be done under the Act. The fallacy of this argument is that it assumes that, before an act can be done or purported or professed to be done under the statute, it must be sanctioned by it. This argument ignores the words "purporting "or professing to be done in pursuance of the statute". If the act complained of was sanctioned by the statute, it would be done under it and not purported or professed to be done in pursuance of it. This matter is put beyond doubt by what the Judicial Committee said in Calcutta Port Commissioners v. Corporation of Calcutta (supra). Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which is not done in pursuance of the Statute may nevertheless be accorded its protection if the work professes or purports to be done in pursuance of the statute. 32. Their Lordships regard these words as of pivotal importance. Their presence in the statute appears to postulate that work which is not done in pursuance of the Statute may nevertheless be accorded its protection if the work professes or purports to be done in pursuance of the statute. 32. If the Plaintiff's argument was correct, the section would not apply to any wrongful act, for it would then apply only to acts sanctioned by the statute and no act so sanctioned could ever be wrongful. The section is meant to protect the Port Commissioners against certain of their actions and if these actions were not wrongful, the Port Commissioners would not stand in any need of protection against a suit brought in respect of them, for the suit; must ex hypothesis fail. In Hori Ram's case it was held that even a criminal act, namely, a fraudulent falsification of books of account, which it was the duty of the accused to have properly kept, was an act done or purporting to be done in execution of a duty as a servant of the Crown. In the present case, the Port Commissioners got possession of the goods in their statutory capacity and when demand was made of the Port Commissioners for delivery of the goods they were in fact being requested to act in the same capacity. I, therefore, hold that this suit is barred u/s 142 of the Calcutta Port Act. 33. The next issue that has to be dealt with is whether the plaint discloses any cause of action. The cause of action in this suit is conversion by demand for delivery of the goods and refusal to deliver them. No other method of conversion has been alleged and the Plaintiff is, therefore, confined to this particular mode of conversion. Now, the plaint does not state that any demand for delivery was made on the Port Commissioners and in my view, it, therefore, fails to disclose a cause of action. In the earlier paragraphs of the plaint, certain demands for delivery have been alleged, but these are clearly demands on the Collector of Customs and not on the Port Commissioners. Mr. Bachawat argued that demand is only evidence of conversion and need not be pleaded. He has referred me to Halsbury's Laws of England (2nd Ed.), Vol. In the earlier paragraphs of the plaint, certain demands for delivery have been alleged, but these are clearly demands on the Collector of Customs and not on the Port Commissioners. Mr. Bachawat argued that demand is only evidence of conversion and need not be pleaded. He has referred me to Halsbury's Laws of England (2nd Ed.), Vol. XXXIII, Article 91, p. 56 and Bigelow on Torts (8th Ed.), p. 409, as authorities for this proposition, but I have not been able to find anything in either of these books to support him. On the other hand it was held by the Court of appeal in England in Clayton v. he Roy (1911) 2 K.B. 1031, 1052 that there is no conversion by demand and refusal without a demand before action having been made. A demand, therefore, is part of such a cause of action and must necessarily be pleaded. It is true that it has been said that a refusal to deliver up property upon demand is not in itself a convertion but is evidence of it. Morris v. Pugh (1761) 3 Burr. 1241 (1243) : 97 E.R. 811. The reason for this is that demand and refusal are facts from which the intention to detain the goods adversely to the owner, i.e., wrongfully, can be inferred, (Salmond on Torts, 10th Ed., p. 291) and in an action for detenue or trover the proof that the detention is wrongful forms the gist of the action, so that a mere withholding is not enough. See Clayton v. Le Roy (supra). Hence this is evidence only in the sense that the demand and refusal are facts which, if proved, lead to an inference of a conversion having taken place, ft is not evidence of the kind which is not required to be pleaded, that is to say, evidence by which facts pleaded are to be proved: Evidence of this kind means-- all legal means, exclusive of mere argument, which tend to prove or disprove any alleged matter of fact, the existence of which is submitted to judicial investigation. 34. Powell on Evidence, 10th Ed., p. 1. In a suit for conversion demand and refusal do not tend to prove any other fact alleged. On the contrary, they have themselves to be proved to give rise to in inference of a conversion. 34. Powell on Evidence, 10th Ed., p. 1. In a suit for conversion demand and refusal do not tend to prove any other fact alleged. On the contrary, they have themselves to be proved to give rise to in inference of a conversion. It has also to be noted that, in the case of a conversion by a bailee, the demand and refusal constitute a substantive cause of action: Wilkinson v. Verity (1871) L.R. 6 C.P. 206, 210, 211. It is right to mention here that in some of the reported cases it has been said that demand and refusal is not merely evidence, but actual conversion. See Baldwin v. Cole 6 Mod. Rep. 212 : 87 E.R. 964. In Salmond's Torts, 10th Ed., p. 284, a strong plea has been made to acknowledge frankly that demand and refusal is itself a conversion now, as the reason why it was previously looked upon merely as evidence of conversion, viz. to permit the use of trover instead of detenue no longer exists, the old form of action being abolished. The result, therefore, is that whether demand and refusal be itself conversion or merely evidence of it, which it can be only in the sense mentioned, the demand is an essential part of the cause of action and must be pleaded. 35. This omission to plead a demand is however, a small matter easily capable of being remedied by an amendment, particularly as the fact of a demand for delivery having been made upon them is admitted in this case by the Port Commissioners themselves. There is, however, another reason why the plaint does not disclose a cause of action and it is that it does not state either that the Port Commissioners were bailees of the goods for the Plaintiff or that they had possession of the goods at the date of the demand and yet refused to deliver. As I apprehend the law on the subject, except in the case of a bailee, a demand for delivery of property and a refusal to comply with such demand does not prove a conversion unless, at the date of the demand, the Defendant had the possession or control over the property. As I apprehend the law on the subject, except in the case of a bailee, a demand for delivery of property and a refusal to comply with such demand does not prove a conversion unless, at the date of the demand, the Defendant had the possession or control over the property. This is what was held by Willes J., in Wilkinson v. Verity (supra) when he said: Upon a like reasoning, it seems to follow on the one hand that, where the action of detenue is founded upon a wrongful conversion of the property only, as it needs must where there is a bare taking and withholding of the property of another, without any circumstances to show a trust for the owner or to found an option to sue either for the wrong or for the breach of the original terms, the statute [of limitation] would run from the time at which the property was first wrongfully dealt with. 36. Conversion, as is well-known, is the act of willfully interfering with any chattel, without lawful justification, whereby any person entitled thereto is deprived of the possession of it: Salmond on Torts, 10th Ed., p. 286. See also Bigelow, 8th Ed., p. 391. It is thereupon said to be converted to the use of some one else. It is common knowledge that conversion takes various forms, such as, wrongful taking, wrongful destruction, wrongful disposition, wrongful detention, etc. In every case, the particular variety of conversion complained of has to be alleged and proved. Now, the conversion alleged in this case, if any, is by wrongful detention. This kind of conversion arises when the detention is adverse to the person entitled to the possession of the thing detained and the refusal by the Defendant to deliver upon demand is, as already seen, proof of the detention being adverse. It follows that a refusal to deliver up property on demand cannot be a conversion, i.e., cannot show an intention to hold them adversely to the owner, if it is no longer in the power or possession of the Defendant. It follows that a refusal to deliver up property on demand cannot be a conversion, i.e., cannot show an intention to hold them adversely to the owner, if it is no longer in the power or possession of the Defendant. So it is said that-- no one can convert a chattel by refusing to give it up when he no longer has it and this is so even if it is due to his own act or default that delivery is no longer possible, though he may be liable for some prior act of conversion. 37. Salmond on Torts, 10th Ed., p. 292; Smith v. Young (1808) 1 Camp. 439 : 170 E.R. 1014; Feather-stonhaugh v. Johnston (1818) 8 Taunt. 237 : 129 E.R. 374. To make a demand and refusal sufficient evidence of conversion, the party who refuses must at the time of the demand have it in his power to deliver up or detain the article demanded in the condition in which delivery is demanded. 38. Halsbury's Laws of England, 2nd Ed., Vol. XXXIII, Article 91, p. 57. The ordinary way of showing a coversion by unlawful retention of property is to prove that the Defendant having it in his possession refused to give it up on demand made by the party entitled. It is necessary that at the time of the demand made the Defendant should be so far in a position to return the property, that he has it in his custody or under his control. If he has been in possession but has previously destroyed it or parted with it voluntarily, such dealing may amount to a conversion but the Plaintiff cannot establish his case by evidence of a demand and refusal. 39. Clerk and Lindsell on Torts, 9th Ed., p. 319. To make a demand and refusal evidence of conversion, the Defendant must, at the date of the demand, therefore, be in possession of the goods, that is to say, such possession is an essential part of the cause of action in such a case and must, therefore, be pleaded. In the absence of such pleading, the plaint would not disclose a cause of action. 40. In the absence of such pleading, the plaint would not disclose a cause of action. 40. Though learned Counsel for the Plaintiff all along contended that the plaint fully disclosed a cause of action, yet he made an application for amendment of the plaint to avoid the objections to it mentioned above without giving up his contention about the sufficiency of the plaint. This of course involved him in contradiction. Moreover, the application was made at a very late stage of the proceedings in spite of the point being taken on behalf of the Port Commissioners at the beginning of the case as is apparent from the fact that an issue was framed on it. In fact the application was not made till learned Counsel for the Port Commissioners had finished their arguments and the arguments on the Plaintiff's side were almost drawing to a close. There is no excuse for this inordinate delay. I would be justified in dismissing the application on the ground of the delay and the inconsistent position taken with regard to the necessity for the amendment, but there are stronger grounds for refusing it. The amendment that as finally proposed (being somewhat different from what was originally sought) only effected a remodelling of para. 10 of the plaint by certain additions to it. The proposed para. 10 reads as follows, the additions being underlined: 10. The Defendant Commissioners for the Port of Calcutta having possession of the said goods wrongfully failed and refused to give delivery of the said 19 packages of goods to the Plaintiff in spite of demands. 41. Learned Counsel for the Plaintiff contended that this amendment would not require any new evidence to be taken and there would be no hardship or surprise occasioned thereby to the Port Commissioners. This contention perhaps is justified. It will be noticed that the proposed amendment seeks to introduce the indispensable allegation of fact previously missing, namely, the possession of the goods by the Port Commissioners at the date of the demand. This, however, is a fact which the Plaintiff's only witness Beddoe has denied. This contention perhaps is justified. It will be noticed that the proposed amendment seeks to introduce the indispensable allegation of fact previously missing, namely, the possession of the goods by the Port Commissioners at the date of the demand. This, however, is a fact which the Plaintiff's only witness Beddoe has denied. Further, the application for delivery, viz., the shed delivery order dated March 16, 1942, which is the demand for delivery in this case, contains an endorsement by another clerk of the Plaintiff's clearing agents called Kundu, to the effect that on that date the nineteen packages undelivered could not be found. Below this endorsement appears the word "accepted" over the signature of a clerk of the Port Commissioners. In the correspondence that has been disclosed in this case, the Plaintiff has maintained the position that, on the date of the demand for delivery and all along thereafter, the nineteen packages could not be traced. The evidence, therefore, that the Plaintiff led in this case has been to show that, on March 16, 1942, that is, on the date of the demand, the goods were not in the possession of the Port Commissioners. Indeed the Plaintiff has all along run his case on the basis that, at the date of the demand, the goods were not in the possession of the Port Commissioners and has relied on the aforesaid documentary evidence to show that the Port Commissioners' case that it had the goods all along and offered delivery thereof to the Plaintiff was entirely false. To allow the amendment, therefore, would be to permit the Plaintiff to take a complete somersault with regard to an important question of fact involved in the case. Moreover, the amendment even if allowed would be of no use to him, for the evidence given on his side would itself disprove the allegation which he by the amendment seeks to introduce and to prove. Neither would the evidence given by the Port Commissioners to prove that they were in possession of the goods all along be of any use to the Plaintiff if he wishes to rely on them, for this evidence at the same time proves* that the Port Commissioners had offered delivery of these very goods to the Plaintiff, so that, on that basis, there would be no conversion at all. It is clear, therefore, that the proposed amendment would, on the evidence as it stands, be absolutely fruitless. I, therefore, reject the application for amendment, with the result that the plaint remains open to the same objection as it was before, viz., that it does not disclose a cause of action. 42. I now come to the case of conversion by a bailee. 43. As I have already stated, in the case of a bailee it is not necessary to constitute a conversion by him that he should be in possession of the goods at the date of the demand and it is enough in such a case to prove demand and refusal only. The distinction between conversion by a bailee by refusing to deliver on demand and that by other persons by a similar refusal clearly appears from the following quotation made in Clerk and Lindsell on Torts, 9th Ed., pp. 332-3 from an old authority: If a man comes into possession by a bailment then he is answerable by virtue of the bailment and if he bails the goods over, or they are taken from his possession, still he is answerable to the bailor by virtue of the bailment. But otherwise, if a man comes by goods by finding, for he is only answerable by reason of his possession and if, without wrongful act (loialment), he is out of possession before he who has the right has brought his action, he is not answerable. 44. The reason for the distinction, also appears in Clerk and Lindsell's book on the page mentioned above: It is the duty of a bailee for reward to take all reasonable precautions for the safety of the goods bailed to him. Therefore a bailee of goods who fails to give the bailor notice of legal proceedings hostile to his title, or an agister of cattle who does not warn the owner or the police of the disappearance of the animals is liable in detenue sur bailment even though he no longer has the possession of the property. But there is no such duty in the case of a Defendant who is a mere stranger. 45. This distinction was explicit in the old forms of declarations in England when an action in detenue against a finder was called detenue sur trover, while a similar action against a bailee was called detenue sur bailment. But there is no such duty in the case of a Defendant who is a mere stranger. 45. This distinction was explicit in the old forms of declarations in England when an action in detenue against a finder was called detenue sur trover, while a similar action against a bailee was called detenue sur bailment. Though these distinct forms of actions to fit the different cases were abolished by statute, yet the principle for the distinction is vital and still remains. To quote Clerk and Lindsell (ibid) again,-- In truth, however, though the two kinds of detenue were thus confused, the distinction between detenue where there had been a bailment and detenue where there had not was a fundamental one. The former was essentially an action in contract, the latter essentially in tort. 46. This is also what Willies J. said in Wilkinson v. Verity (supra): On the other hand, if the action of detenue is resorted to, as it may be (Com. Dig. Detenue A.), for the purpose of asserting against a person intrusted for safe custody a breach of his duty as bailee, by detention after demand, independent of any other act of conversion, such as would make him liable in an action of trover, it should seem that the owner is entitled to sue, at election, either for a wrongful parting with the property (if he discovers and can prove it), or to wait until there is a breach of the bailee's duty in the ordinary course by refusal to deliver up on request and that, in the latter case, it is no answer for the bailee to say that he has by his own misconduct incapacitated himself from complying with the lawful demand of the bailor. 47. So Lord Lyndhurst said in Gledstane v. Hewitt (1831) 1 CLJ. 565. (569) : 148 E.R. 1540 (1549) when dealing with a declaration in detenue upon a bailment: The general bailment laid in the declaration pledges the Plaintiff to proof of nothing, except that his goods were in the Defendant's hands and were wrongfully detained. 48. See also Reeve v. Palmer (1858) 5 C.B. (N.S.) 84 : 141 E.R. 33. 49. The point of all these observations is that in the case of a bailee a mere demand and refusal can be said to amount to a conversion. To produce this result the bailment must be alleged and proved. 48. See also Reeve v. Palmer (1858) 5 C.B. (N.S.) 84 : 141 E.R. 33. 49. The point of all these observations is that in the case of a bailee a mere demand and refusal can be said to amount to a conversion. To produce this result the bailment must be alleged and proved. 50. On this basis the plaint would be unobjectionable if the Port Commissioners were sued as a bailee of the goods for the Plaintiff or in circumstances which cast upon them the duty to take care of the goods. This, however, they were not for before the Port Commissioners could be said to be bailees, for the Plaintiff there had to be a contract of bailment with them and this has not been alleged nor any circumstances which put them under any duty to take care of the goods. All that the plaint alleges is a bailment to the Port Commissioners by the Collector of Customs. This does not make the Port Commissioners a bailee for the Plaintiff. According to the statement in the plaint the Port Commissioners at some point of time got possession of the goods from the Collector and the Plaintiff subsequently became entitled to possession of these goods. This, however, is not pleading that the Port Commissioners were a "bailee for the Plaintiff." Nor does this circumstance make them one. Neither does it show that the Port Commissioners owed any duty of care of the goods to the Plaintiff of Featherstonehaugh v. Johnston (supra). On the plaint as it stands, therefore, the Plaintiff cannot proceed on the basis that the Port Commissioners are a bailee for him or a person owing to him a duty to take care of the goods and that being so the plaint cannot be said to disclose a cause of action in the absence of an allegation that, at the date of the demand, the Port Commissioners were in possession of the goods. Issue No. 3 must, therefore, be answered in the negative. 51. I now pass on to the fifth issue, namely, whether the Port Commissioners converted the goods. In view of the finding that no sufficient averment of conversion has been made it is impossible to decide that there has been any conversion. Assuming, however, that a conversion has been pleaded, clearly that conversion was by demand and refusal. 51. I now pass on to the fifth issue, namely, whether the Port Commissioners converted the goods. In view of the finding that no sufficient averment of conversion has been made it is impossible to decide that there has been any conversion. Assuming, however, that a conversion has been pleaded, clearly that conversion was by demand and refusal. If the Port Commissioners were not bailees of the goods for the Plaintiff, before it can be held that they had converted the goods by refusal to deliver on demand it has to be shown, as already seen, that they had possession of the goods at the date of the demand. Again, as already seen, the Plaintiff has not given any evidence of such possession. On the contrary, the effect of the evidence adduced by the Plaintiff is that, on the material date, the Port Commissioners were not in possession of the goods. If the evidence given by the Port Commissioners is accepted, the result would be that they had possession of the goods and had in fact offered to deliver them to the Plaintiff so that there is no refusal to deliver. On either point of view, therefore, there can have been no conversion. Assume again in the Plaintiff's favour that the facts alleged amounted to a bailment of the goods to the Port Commissioners by the Plaintiff, so that a mere demand and refusal establishes conversion by them without proof of possession of the goods at the date of demand. Now, the initial difficulty of the Plaintiff on this basis is that he has not given any evidence of any custody of the goods being placed by the Collector with the Port Commissioners. That, of course, is the end of the contention that the Port Commissioners were the Plaintiff's bailee. I wish also to state that, on the evidence before me, I have no doubt that there was no entrustment of the custody of the goods by the Collector with the Port Commissioners, but the real fact was that the letter came into possession of the goods having landed them in performance of their statutory duty. But assuming again in favour of the Plaintiff that the entrustment was proved, another difficulty faces the Plaintiff, namely, that no terms of the entrustment or bailment have been proved or alleged. But assuming again in favour of the Plaintiff that the entrustment was proved, another difficulty faces the Plaintiff, namely, that no terms of the entrustment or bailment have been proved or alleged. Hence, it would follow that even if the Port Commissioners were the Plaintiff's bailee, they were an ordinary bailee having only the duty to take reasonable care of the goods u/s 151 of the Indian Contract Act. They would have also the same liability as an ordinary bailee u/s 112(1) of the Port Act if their possession of the goods was due to the fact of their having landed them. As Gibbs C.J. said in Broadwater v. Blot (1817) Holt 547 (548) : 171 E.K. 336, discussing the liability of an ordinary bailee,-- All the Defendant is obliged to observe is reasonable care. He does not insure; and is not answerable for the wantonness or mischief of others. If the horse had been taken from his premises, or had been lost by accident which he could not guard against, he would not be responsible. 52. In Coldman v. Hill (1919) 1 K.B. 443, 449, the Defendant, an agister of cattle, had been sued in detenue for non-delivery of the cows delivered to him. Bankes L.J. said in discussing his liability,-- I think the law still is that if a bailee is sued in detenue only, it is good answer for him to say that the goods were stolen without any default on his part. 53. The authorities, therefore, clearly establish that in an action in detenue only against an ordinary bailee, as the present case would be, on the assumption that the Port Commissioners are a bailee, it is good defence if it is established by the bailee that he discharged the only duty that the law imposed on him, viz., to take reasonable care of the goods. On the evidence before me in this case, I am satisfied that the Port Commissioners took all reasonable care of the goods. Indeed, it was never suggested in the cross-examination of the Port Commissioners' witnesses that they did not. It appeared in evidence that the goods were kept in a warehouse, which used to be locked up and kept under police guard at night. Indeed, it was never suggested in the cross-examination of the Port Commissioners' witnesses that they did not. It appeared in evidence that the goods were kept in a warehouse, which used to be locked up and kept under police guard at night. The evidence also showed the multifarious checks that the Port Commissioners exercised to prevent any unauthorised or wrongful removal of the goods from their premises or any misdelivery thereof. I do not think the law required them to do more than they did--whether their liability be examined as that an ordinary contractual bailee or as having the same responsibility u/s 112(2) of the Port Act. The result, therefore, is that, even if it be assumed that they failed to deliver to the Plaintiff his goods, they have a complete defence to the Plaintiff's claim and cannot, on the evidence before me, be said to have converted the Plaintiff's goods.