IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.07.2009
CORAM:
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
A.S.No.41 of 2002
Board of Trustees of the
Port of Madras represented by
its Chairman, having his office
at Rajaji Salai, Madras-600 001 .. Appellant/defendant
-vs-
1. M/s Badrchalam Paper Board Ltd.,
having their registered office
at No.106,Sardar Patel Road
Secunderabad-500 003 by their
Power of Attorney Agent
M/s National Insurance Co.,Ltd
represented by its Deputy Manager
C.S.Rao having office at 111 Floor
Magul's Court, Basheer Bagh
Hyderabad
2. Messrs. National Insurance Company Ltd
having registered office at No.3,
Middleton Street, Calcutta-700 071
Regional Office at III floor
Mogul's Court, Basheer Bagh
Hyderabad by its Deputy Manager
C.S.Rao .. Respondents/plaintiffs
This appeal is filed under Section 96 of CPC against the Judgment and Decree dated 19.1.1998 in O.S.No.6203 of 1996 on the file of VI Additional Judge, City Civil Court, Chennai.
For appellant : : Mr.R.Karthikeyan
For respondents : : Mr.Guruswaminathan
for M/s Nageswaran & Narichania
J U D G M E N T
This appeal has been projected by the appellant/defendant as against the Judgment and decree dated 19.1.1998 made in O.S.No.6203 of 1996 on the file of VI Additional Judge, City Civil Court, Chennai in directing the appellant/defendant to pay a sum of Rs.3,61,421/- with interest at the rate of 18% p.a. from the date of the plaint till the date of payment and with costs.
2. The short facts of the respondents/plaintiffs case are as follows:
The first respondent/first plaintiff a Public Limited Company has purchased a consignment of 1250 bales of Bleached Sulphate Kenaf Pulp weighing 250 M.Ts. gross and 244.986 M.Ts. air dry nett from M/s Phonaix Pulp & Paper Co, Ltd Bangkok,Thailand as per invoice bearing No.PP-038/88 dated 2.8.1988 valued C & P US $ 179,207.26. The suit consignment has been shipped on board the vessel “M.V.OSIP PYANTNITSKY” at Bangkok for carriage by sea and delivery at the Port of Madras. The sea carrier acknowledged such entrustment of the said 1250 bales under their clean Bill of Lading bearing No.BMD-801 dated 9.8.1988. The said consignment arrived at the Port of Madras on 26.8.1988 and berthed on 2.9.1988 at West Quay-3 and commenced the discharge operations. The appellant/defendant has taken the custody of 1250 bales as per the details set out below:
Date Shift No of Bales
2.9.88 1st 99 Bales
" 2nd 149 Bales
" 3rd 361 Bales
3.9.88 1st 289 Bales
3.9.88 2nd 352 Bales
------
1250 Bales
------
The delivery of the aforesaid bales to the first respondent/first plaintiff has commenced on 3.9.88. Out of 1250 bales, 720 Bales have been cleared by the first respondent/first plaintiff before 7.9.88. There has been a fire accident on 7.9.88 around 04.30a.m., in the premises of the defendant from Ammonium Per Sulphate which has destroyed/affected the bulp in issue. After the fire accident, 359 bales were found sound and they have been removed. Out of the remaining 171 bales, 39 bales have been in a damaged condition and 132 bales have been totally destroyed and they have been abandoned. The Agent of the first respondent/first plaintiff on 7.9.88 itself has notified the loss and called upon the appellant/defendant to conduct a survey. A claim has been lodged with the appellant/defendant Trust on 9.9.88 . Even on 22.9.88, the appellant Trust has informed about the destruction of 132 bales resulting in a total loss . Because of the fire that has taken place in the appellant’s premises, the first respondent/first plaintiff has incurred a pecuniary loss of Rs.3,61,421/-in all and the same is computed as follows:
C.I.F.Madras US $ 179,207 @ Rs.100/- =
US $ 6.51 as per forward contract Rs.27,52,798.77(A)
Clearing and forwarding charges
in the Port @ Rs.139/- MT for
250 Mts. Rs. 34,750.00(B)
Inland freight and delivery
charges to Mill @ Rs.221/-M.Ts. Rs. 55,250.00(C)
Insurance @ Rs,20/- M.T. Rs. 5,000.00(D)
----------------------
Landed cost of the consignment at the Mill Rs.28,47,798.77
---------------------
Value of the damage
1. Value of 132 bales abandoned
in Madras Port ..(A)+(B)+(D)
----------------x 132
1250
= Rs.2,94,898.15
II. Value of 39 bales moved to
Bhadrachalam in partially
damaged condition = Rs.28,47,798.77
--------------------x 39
1250
= Rs.88,851.32
(-) Realisable salvage on
39 bales + Rs.2,862/M.T. = Rs.22,323.60
- - - - - - - - - -
Loss on 39 Bales =Rs.66,527.72
- - - - - - - - - -
Amount of loss -I & II =Rs.2,94,893.15
= Rs. 66,527.72
------------------
Rs.3,61,420.87
------------------
As a result of the failure on the part of the appellant/defendant’s Trust or employees to take care of the suit consignment, while being in their custody, pending delivery, the first respondent/first plaintiff has suffered a pecuniary loss of Rs.3,61,421/-. The fire ought to have taken place as a result of careless negligent act and/or omission on the part of the defendant Trust/their employees in storing the suit consignment along side Ammonium per sulphate, a highly hazarduous and combustible chemical which has come to the knowledge of the respondents/plaintiffs subsequent to the happenings of the accident. The appellant’s/defendant’s Trust has failed in its statutory obligation and therefore is liable to make good the loss to the first respondent/first plaintiff.
3. The consignment in issue has been insured by the first respondent/first plaintiff with the second respondent/second plaintiff Insurance Company as per the policy bearing No.550300/4302331/88 dated 31.8.88 issued by the Secunderabad Divisional Office. The second respondent/second plaintiff has conducted a survey at the Port premises before the removal of debris through M/s Mehta and Padamsey Surveyors Private Ltd., who has issued a certified report dated 2.11.88.
4. As per the certified report dated 2.11.88 ascertaining the loss suffered, the second respondent/second plaintiff paid a sum of Rs.4,05,656.63 as per terms and conditions of the policy of Insurance and has therefore subrogated to the rights of recovery of the first respondent/first plaintiff by virtue of a letter of subrogation and power of attorney executed by the first plaintiff under Section 79 of the Marine Insurance Act and to overcome in technical defence, the suit is filed by the
respondents/plaintiffs and further that the respondents have no objection for passing of a decree in favour of the second respondent/second plaintiff or in favour of both the respondents/plaintiffs.
5. A statutory notice under Section 120 of the Major Port Trusts Act 1963 has been issued on behalf of the respondents/plaintiffs by their advocate on 16.2.1989 calling upon the appellant to make payment of Rs.3,61,421/- within a period of one month from the date of service of the notice and the appellant/defendant has received the same on 18.2.1989. However, the appellant/defendant has failed and neglected to satisfy the demand of the respondents and therefore, the suit is laid for recovery of a sum of Rs.3,61,421/- being the landed cost of the consignment destroyed by fire though the subrogation amount is Rs.4,05,656.63ps along with interest at 18% p.a and costs.
6.The appellant/defendant has filed an elaborate written statement among other things mentioned that the vessel M.V.”OSIP PYATNISKY” has arrived on 2.9.88 and the appellant has receipted only 123 bales of wood pulp out of the manifested quantity of 1250 bales and out of the receipted quantity 319 bales were discharged by the said vessel in a damaged condition for which due annotations have been made in the tally receipt issued to the steamer agents of the said vessel and M/s Gordon Woodroffe Limited, the clearing agents of the plaintiffs filed import application dated 3.9.88 for the clearance of the wood pulp and cleared 1118 bales of wood pulp leaving 132 bales uncleared and these 132 bales have been abandoned by the consignee by their telex dated 22.9.88 on the basis that the bales have been damaged beyond redemption/recovery and moreover there has been a fire accident on 7.9.88 in the shed where the bales in issue have been stacked on landing and the cause of fire has been due to the consignment of Ammonium Per Sulphate an oxidising substance classified under IMO Class 5.1 which has been discharged in damaged condition ex.vessel M.V.”CELJE” on 6.9.88 during night hours against precaution measures and the landing such cargo during night hours cannot be averted as there has been no prior intimation and more over in the absence of any caution label or any indication on the package warning of hazaruous nature of chemical substance, stacking of the aforesaid consignment in the shed where the wood pulp were also stored cannot be averted either and therefore the fire accident that has taken place due to the failure and negligence of the steamer agent of the vessel M.V.”CELJE”to follow precautionary safety rules etc.,
7. It is the further stand of the appellant/defendant that the wood pulp bales have landed on 3.9.88 and they have been stacked in West Quay III shed prior to the landing of the consignment of ammonium Per Sulphate which has been discharged on 6.9.88. Inasmuch as there has been no advance intimation from the steamer Agents of Vessel M.V.”CELJE” in regard to the landing of oxidising chemicals during night hours. Under the circumstance, the appellant/defendant has acted good faith, received and secured the pallets of ammonium per sulphate including two pallets that have been discharged in damaged conditions and such prudent act done in good faith cannot be attributed to ,nor construed as failure to discharge its obligations as a bailee and added further there is no negligence or carelessness on the part of the appellant/defendant and therefore, the appellant/defendant is not liable to make good the alleged loss. Continuing further, the appellant is neither a party nor a witness to the survey said to have been conducted at the instance of insurer viz., the second respondent/second plaintiff and as such the survey report is not binding on the appellant/defendant.
8. A reply has been sent stating that steamer agents of vessel M.V.”CELJE” are responsible for the fire accident which has taken place on 7.9.88 and inspite of the same, the respondents/plaintiffs are not impleaded the agent as a party to the suit and hence the suit is bad for non joinder of proper party. The suit is also barred by limitation as per Section 120 of the Major Port Trusts Act 1963. Therefore, the suit has to be dismissed with costs.
9. The trial Court has framed all together five issues. Before the trial Court, on the side of the respondents/plaintiffs witnesses P.W.1 and P.W.2 have been examined and Exs A1 to A18 have been marked and on the side of the appellant/defendant, D.W.1 has been examined and Exs B1 to B4 have been marked.
10. On an appreciation of oral and documentary evidence and after scrutinizing the same, the trial Court has ultimately come to the conclusion that the respondents/plaintiffs are entitled to recovery of a sum of Rs.3,61,421/- and accordingly granted the decree in their favour.
11. The points that arise for determination in this appeal are
“1.Whether the Steamer agent of Vessel M.V.”CELJE” viz., M/s A.S.Shipping Agency Private Limited is a necessary and proper party to the suit?
2. Whether the suit is barred by limitation as per Section 120 of the Major Port Trusts Act 1963?
3. Whether the respondent/plaintiffs are entitled to claim the suit amount from the appellant/defendant?
12. This Court has heard the learned counsel appearing for the parties and noticed their rival contentions.
13. Finding on Point No.1 :
The learned counsel for the appellant/defendant contends that the steamer agent of vessel M.V.”CELJE” viz., M/s A.S.Shipping Agency Private Limited is a proper party for the purpose of adjudication of the case and inasmuch as the respondents/plaintiffs have not arrayed it as a proper party the suit as framed is not maintainable in law. Countering the submissions of the learned counsel for the appellant/defendant, the learned counsel for the respondents/plaintiffs submits that the steamer agent of the Vessel M.V”CELJE” viz., M/s. A.S.Shipping Agency Private Limited is not a proper and necessary party because of the fact that the appellant/defendant has taken custody of the suit consignment commencing by means of delivery as per Ex B1 import tally sheet dated 2.9.88 and the delivery has ended on 3.9.88 and therefore if delivery of the consignment, the responsibility in regard to the suit consignment is only that of the appellant/defendant and therefore, the appellant is solely responsible for the fire accident that has taken place on 7.9.88 around 4.30 a.m., and resultantly the suit has been laid claiming a sum of Rs.3,61,421/- only against the appellant/defendant and not against the steamer agent of the vessel M.V”CELJE” viz., M/s A.S.Shipping Agency Private Limited with whom admittedly, there is no privity of contract between the plaintiffs and the vessel agent. It is true that a Court of Law has inherent power to add or strike party at any stage. Though the plaintiffs are dominus litus, the Court has a judicial discretion in directing the plaintiffs to implead a person as a necessary and proper party as defendant. What makes a necessary and proper party is not merely he has relevant evidence to let in on the subject matter of issues involved but the person to be added must be one whose presence is necessary as a party. A necessary party is one without whom no order can be made effectively. But a proper party is one whose absence an effective order can be made but whose presence is necessary for a complete and comprehensive final decision on the questions involved in a proceeding. After taking custody of the import of cargo and when the delivery of the suit consignment has been effected, it is the duty of the appellant/defendant to take proper care in regard to the safety of the consignment that has arrived and since the negligence on the part of the appellant/defendant is pleaded and since no relief is claimed against the agent of vessel and inasmuch as the agent of the vessel is not likely to be affected by the result of the case, this Court is of the considered view that the steamer agent of the vessel M.V.”CELJE” viz., A.S.Shipping Agency Private Limited is neither a necessary nor a proper party for adjudication of the matter in issue and further this Court opines that even without the steamer agent being a party to the case, this Court can effectively and efficaciously decide the disputes in controversy and in that view of the matter, it is held that the steamer agent of the vessel M.V.”CELJE” viz., A.S.Shipping Agency Private Limited is neither a necessary nor a proper party and the point No.1 is answered in favour of the respondents/plaintiffs accordingly.
14. finding on Point No.2:
The learned counsel appearing for the appellant/defendant contends that the suit is barred by limitation as per Section 120 of the Major Port Trusts Act 1963. In support of the said contention, the learned counsel for the appellant/defendant brings it to the notice of this Court that Section 120 of the Major Port Trusts Act 1963 enjoins ‘ no suit or other proceeding shall be commenced against the Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this Act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action’ and further more, he also referred to Section 121 of the Major Port Trusts Act 1963 which refers to protection of acts done in good faith and in and by which ‘no suit or other legal proceeding shall lie(against the Authority a Board or any member) or employee thereof in respect of anything which is in good faith done or intended to be done under this Act or any rule or regulation made thereunder, or for any damage sustained by any vessel in consequence of any defect in any of the moorings, hawsers or other things belonging to or under the control of the Board.’
15. In the instant case, the respondents/plaintiffs have issued a legal notice dated 16.2.1989 addressed to the appellant/defendant wherein they have made a claim for payment of Rs.3,61,421/- towards pecuniary loss sustained by them and the said notice has been received and the Acknowledgment is Ex A16. The cause of action for the respondents/plaintiffs arises until expiration of one month after notice in writing has been issued by the respondents/plaintiffs to the appellant/defendant mentioning the cause of action or after six months after the accrual of the cause of action as envisaged under Section 120 of the Major Port Trusts Act 1963.
16. D.W.1 during his examination has deposed that reply notice
Ex A17 dated 2.8.89 has been issued for the notice Ex A15 and after the issuance of Ex A15 notice dated 16.2.1989, only the respondents/plaintiffs have filed the suit before the Court. After the issuance of notice and before the expiry of one month and after accrual of cause of action, the suit has to be laid within six months and inasmuch as the respondents/plaintiffs have issued a notice Ex A15 within a month they have filed a suit and therefore, the suit projected by the respondents/plaintiffs is a valid and proper one and the same does not suffer from any patent illegality or irregularity and as such this Court inevitably comes to the conclusion that the suit filed by the respondents/plaintiffs is well within the time adumbrated as per Section 120 of the Major Port Trusts Act 1963. The point No.2 is answered accordingly.
17. Finding on Point No.3:
It is the evidence of P.W.1 that the first respondent/first plaintiff has imported the suit consignment as per the purchase order Ex A1 and Ex A2 is invoice issued by the Phoenix Pulp and Paper Company Limited in favour of the first plaintiff stating that 1250 bales of bleached sulphate kenaf pulp and Ex A4 bill of lading and Ex A5 is the bill of entry filed by the foreign and Forwarding Agency and Ex A6 is the Insurance Policy issued by the second respondent/second plaintiff in regard to the suit consignment in favour of the first respondent/first plaintiff and the entire consignment has been discharged with the appellant/defendant and as on 9.5.1988 only 720 bales, out of 1250 bales, have been cleared and the balance of 530 bales have been in the custody of the appellant/defendant in the West Guay-3 and on 7.9.89,530 bales have been involved in a fire accident and Ex A8 is the letter addressed by the first respondent/first plaintiff claiming compensation from the appellant/defendant and a telex message Ex A9 has also been sent to the appellant/defendant for claiming compensation.
18. It is the further evidence of P.W.1 that at the instance of the Insurance Company a survey has been conducted in regard to the ascertainment actually damaged and out of 530 bales ,359 bales have been salvaged in sound condition and 39 bales have been removed in damaged condition and the balance of 132 bales have been totally destroyed and independent survey report is Ex A10 and as per the Insurance policy, the second respondent/second plaintiff as such the claim of the first respondent/first plaintiff and on payment made by the second respondent/second plaintiff, the first respondent/first plaintiff has executed a letter of subrogation and special power of attorney Ex A14 and the loss has occurred due to the negligence on the part of the appellant/defendant and there has been a breach of statutory duty on the part of the appellant/defendant and as such the they are liable to pay the suit amount.
19. It is pertinent to refer to the deposition of P.W.1 in cross examination to the effect that as per the survey report , fire accident has taken place on 7.9.88 at 4.30 a.m and the same has been extinguished by 6.00 a.m., on the same day. P.W.2 as licensed surveyor in his evidence has deposed that out of 1250 bales being the suit consignment ,720 bales have been removed by the first plaintiff and the balance 359 bales have been removed in good condition and 39 bales have already been removed in badly damaged condition and the remaining 132 bales in severally damaged condition has been kept in the Port itself and he has conducted survey after making visit to the first plaintiff’s factory and his report
Ex A10. P.W.2 in his cross examination has categorically stated that he has wrongly mentioned in Ex A10 at page 5 in last paragraph as 540 instead of 530. A perusal of Ex A10 report shows that the loss has been rounded to Rs.3,61,421/- and per centage of loss is arrived at 12.69% and further the expenses including outstation allowance Rs.1771 and fees charges at Rs5,000/- totalling Rs.6,771/-. Continuing further in Ex A10 report, it is inter alia mentioned that . . . . . . . . .359 bales did not have any discolouration and that these would be treated as sound and moved to their mill accordingly and 39 bales (38 firm and 1 in loose condition) were affected with black speck on the surface and colour tarnished and remaining 132 bales in very badly charred condition were uneconomical to carry out guillotining were abandoned by the insured on 22nd September 1988. It is also mentioned that after examining the various input going to the mixed waste the realisable salvage was ascertained at Rs.2,862/MT for 39 partially damaged bales.
20. D.W.1(Traffic Department Superintendent) during his examination has deposed that from 3.9.88 281 bales have landed and in the second shift 347 bales have landed and Ex B2 is the import application dated 3.9.88 and on 7.9.88 near the suit consignment labels fire accident has taken place and since the chemical ammonium per sulphate related products have been placed near the suit consignment labels, fire accident had taken place and in Ex B4 the Mechanical Engineer’s report pertaining to the fire accident, it is mentioned that the accident has not taken place due to any leakage of electricity and that the steamer agent, who unloaded Ammonium per sulphate products is responsible towards the suit claim.
21.It is relevant to point out the evidence of D.W1 in his cross examination that Ammonium Per Sulphate products have been kept at a distance of 100 feet from the place where the suit consignment has been kept and in what manner the consignment has to be properly safeguarded the entire responsibility of the appellant/defendant and further that Shed Master will issue direction as to the place where the unloaded consignments will have to be kept after determining the consignment category to which they belong and in the suit consignment there has been no marking and therefore, the Shed Master has not in a position to know the nature and character of the consignment labels and in the import tally sheet Ex B1, there is a column which refers to consignment details and that he is not aware of detail of IMC -51 marking. D.W1 in his further cross examination has stated that in Ex B2, the consignment status will be definitely mentioned and that he does not know about the status when the Ammonium Per Sulphate have been unloaded and that as against Ammonium Per Sulphate near no products or no notice claiming compensation has been issued.
22. Section 42(2) of Major Port Trusts Act 1963 specifies that ‘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 and further as per Sub Clause (7) of Section 42′ After any goods have been taken charge of and a receipt given for them under this Section, no liability for any loss or damage which may occur too them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or transhipped’ and therefore it is the contention of the learned counsel for the respondents/plaintiffs that the appellant is squarely responsible for the pecuniary loss sustained by the respondents/plaintiffs and it is not open to the appellant/defendant to take a plea of Act of God.
23. Per contra, the learned counsel for the appellant cites the decision of the Hon’ble Supreme Court in The Trustees of the Port of Bombay-v-The Premier Automobiles Ltd(AIR 1981 Supreme Court 1982) to the effect that’ Even though there was no contractual bailment either according to the pleadings of the parties, or on the wordings of Section 61-B, the responsibility of the Board was of the nature aforesaid, as the bailee of the consignment by virtue of that section. In other words, in so far as the ”responsibility” of the Board for the loss, destruction or deterioration of the goods of which it had taken charge was concerned, it was clearly that of a bailee, subject of course to the reservations provided by the section. It is well settled that the essence of bailment is possession It is equally well settled that a bailment may arise, as in this case, even when the owner of the goods has not consented to their possession by the bailee at all’ and submits that for the admitted cause to the goods by acts of employees , the appellant/defendant is not liable to pay the suit amount as claimed by the respondents/plaintiffs.
24.However, the learned counsel for the respondents/plaintiffs relies on the decision of this Court in Board of Trustees of the Madras Port Trust, rep. By its Chairman, -v- Vinod Selvextracts Pvt.Ltd.(2003-1 L.W.437 at page 438)wherein it is held that the responsibility of the Board under Section 42(2) of the Major Port Trusts Act 1963 is that of a bailee under Ss.151,152,161 of Contract Act, to take such care of the goods as a man of ordinary prudence would take of his own goods and further the plea that the suit filed by the Insurance Company claiming to be subrogated are not maintainable and the same is rejected and contends that the said decision is squarely applicable to the facts of the present case in and before this Court and therefore, the appellant/defendant is duty bound to pay the suit amount since the negligence act of the appellant/defendant is responsible for the pecuniary loss sustained by the respondents/plaintiffs in regard to the damages caused to the goods due to fire.
25. It is an axiomatic fact in law that it is for the claimant to prove that he has suffered an injury/sustained a pecuniary loss as the feasible result of employer’s breach of duty. The three essentials of law are(1)Duty (2) Breach (3) causation and the existence of a duty remains to the test of foreseeability, proximity, fairness, justice and reasonableness that apply in the realm of Law of Torts in the considered opinion of this Court.
26.In view of the specific evidence of D.W.1 to the effect that near the suit consignment labels, Ammonium Per Sulphate consignments have been unloaded as per the direction/instruction of the Shed master and fact that the fire accident has taken place on 7.9.1988 and inasmuch as the respondents/plaintiffs have sustained a pecuniary loss because of the negligent act of the appellant/defendant and also not taken proper and adequate care(though it owes a duty) in regard to the manner of storing the suit consignment near the place of the Ammonium Per Sulphate consignment(a combustible chemical and hazarduous) and therefore it is a clear case of the occurrence speaks for itself and as such the plea of Viz Major is not accepted by this Court. Equally, the plea taken by the appellant/defendant that there is no caution or absence of any warning label of hazardous nature of chemical substance is untenable since the appellant is aware of the nature of the suit consignment.
27. Ex A6 is the policy dated 31.8.1988 issued by the second respondent/second plaintiff Insurance Company in favour of the assures first respondent/first plaintiff for insured 1250 bales -250.00 MT from Thailand to Badrachalam viz., Madras in OSI PYATNITSKIY vessel Ex A14 dated 27.2.1989 is the letter of subrogation and special power of attorney executed by the first respondent/first plaintiff addressed to the second respondent/second plaintiff mentioning that in consideration of second respondent/insurance company paying the first respondent/first plaintiff a sum of Rs.4,05,656.63ps in respect of loss/damage to the goods, the first respondent/first plaintiff assign, transfer and abandon all its actionable rights, title and interest etc., in favour of second respondent/second plaintiff insurance company. But Ex A15 advocates’ notice dated 16.2.1989 issued by the first respondent/first plaintiff to the appellant/defendant is for a claim of Rs.3,61,421/-.
28. In short, on an over all assessment of the facts and circumstances and on an appreciation of available both oral and documentary evidence in a cumulative manner, it is quite evident that the appellant/defendant is solely and squarely responsible for the suit amount because of the simple fact that they have taken custody of the import of cargo and has taken delivery of the consignments and once when the delivery has been effected and taken care, then the responsibility of the bailee comes into operative play and hence duty bound to answer when there is a breach of statutory duty which float on the surface in the present case and viewed in that perspective the liability of the appellant/defendant is very much attracted and accordingly it is held that the appellant/defendant is liable to pay the suit amount to the respondents/plaintiffs and the point is answered accordingly. In short, looking at from any point of view, the Judgment and decree of the Trial Court are proper and valid one requiring no interference in the hands of this Court and consequently the appeal fails.
29. In the result, the appeal fails and the same is dismissed. The Judgment and decree of the trial Court are affirmed by this Court for the reasons assigned in this appeal. Considering the facts and circumstances of the case, there shall be no order as to costs.
sg
To
VI Additional Judge, City Civil Court,
Chennai