Kambli 1 App.747, 749 & 750 of 2005
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
...
APPEAL NO.747 OF 2005
IN
ADMIRALTY SUIT NO.27 OF 1999
…
MV.x.press annapurana & anr. …Appellants
v/s.
Gitanjali Woolens Pvt.ltd. & ors. …Respondents
WITH
APPEAL NO.749 OF 2005
ig IN
ADMIRALTY SUIT NO.27 OF 1999
…
Meridian Shipping Agency Pvt.Ltd. …Appellants
v/s.
Gitanjali Woolens Pvt.ltd. & ors. …Respondents
…
WITH
APPEAL NO.750 OF 2005
IN
ADMIRALTY SUIT NO.27 OF 1999
…
Ignazio Messina & Co. ...Appellants
v/s.
Gitanjali Woolens Pvt.ltd. & ors. ...Respondents
...
Me.Rahul Narichania with Mr.Kunal Shah i/b Bhatt &
Saldhana for Appellant in Appeal No.747/05 (Original
Defendants Nos.1 & 4)
Mr.Ranjit Dharmadhikari i/b Ratnakar Singh for Respondent
No.2 in Appeal No.747/05 & for Appellant in Appeal No.
750/05(Original Defendant No.2)
Mr.Robin Jaisinghani i/b IC Legal for Respondent No. 3 in
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Kambli 2 App.747, 749 & 750 of 2005
Appeal No.747/05 and Appellant in Appeal No.749/05(Original
Defendant No.3)
Mr.Pradip Sacheti with Mr.Ashwin Shankar i/b P.S.Gidwani for
Respondent No.1 .(Original Plaintiff)
CORAM: D.K.Deshmukh &
K.K.TATED, JJ
DATED: 11th March, 2011
JUDGMENT: (PER D.K.DESHMUKH, J.)
1. All these three Appeals challenge the same order
passed by the learned single Judge of this Court. Therefore,
all these Appeals can be conveniently disposed of by a
common order.
2. Admiralty Suit No.27 of 1999 was filed in March,
1999 by Gitanjali Woollens Pvt.Ltd. (hereinafter referred to as
the “Plaintiff”) claiming following reliefs:
(a) That the vessel “X-Press Annapurna” of the
1st Defendant be contemned in the sum of US $
57,860.00 (United States Dollars Fifty SevenThousand Eight Hundred Sixty only) together with
interest on the principal sum of US $ 51,374.10 at
the rate of 18% p.a. and/0r at such other rate as
this Hon’ble Court may deem fit and for a further
sum of US $ 50,000.00 towards damages as per
particulars of claim at Exhibit `F’ to the Plaint;::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 3 App.747, 749 & 750 of 2005
(b) That this Hon’ble Court be pleased to grant
Leave under Order II Rule 2 of the Code of CivilProcedure, 1980;
(c) That this Hon’ble Court be pleased to grant
an order that the Plaintiff is entitled to exercise a
maritime lien on the 1st Defendants vessel alongwith the Hull, Engines, gears, tackles, bankers,
machinery apparel plant, furniture, appurtenances
and paraphernalia for the purpose of securing the
claim of the Plaintiffs in the suit;(d) That this Hon’ble Court be pleased to order
to issue a warrant for arrest of the Defendant No.
1’s vessel with orders for interim Sale to follow, if
necessary;(e) That this Hon’ble Court be pleased to order
that the 1st Defendants vessels be arrested and/ordetained, by and under the orders and direction of
this Hon’ble Court; since there is no other asset of2nd defendant available to the Plaintiff in Italy, or
elsewhere and with no other assets;(f) That by a mandatory order of injunction
restraining the Defendants from in any manner
whatsoever dealing with the 1st Defendants’ vessel
“X-Press Annapurna”, till the due and adequatesecurity is furnished to the satisfaction of this
Hon’ble Court in the sum of the Plaintiffs’ claim in
the suit;3. It was claimed by the Plaintiff that the Plaintiff had
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Kambli 4 App.747, 749 & 750 of 2005entrusted its cargo to Defendant No.3-Meridian Shipping
Agency Pvt.ltd., who was acting as an agent of Defendant No.
2-Ignazio Messina & Co. for being carried from a Port in India
to Assab Port, Ethiopia. According to the Plaintiff, the Plaintiff
paid necessary charges for carraige of goods by sea to
Defendant No.3, but the Defendant No.3 despite the
demands made by the Plaintiff did not hand over the bills of
lading to the Plaintiff. With the result, the goods were lost and
the Plaintiff suffered loss. When the Plaintiff filed this suit, only
prayers to be found in the plaint are quoted above. There was
no prayer in the plaint claiming any relief or decree against
other Defendants, except the first Defendant-vessel. The
plaint was amended in January, 2004 and prayer clause (ai)
was introduced, which reads as under:
(ai) that this Hon’ble court be pleased to decree
and order the Defendants No.1 to 4 jointly and/or
severally to pay to the Plaintiff a sum of US $
57,860.00 (United States Dollars Fifty Seven
Thousand Eight Hundred Sixty only) together withinterest on the principal sum of US $ 51,374.10 at
the rate of 18% p.a. and/or at such other rate as
this Hon’ble Court may deem fit and for a further
sum of US $ 50,000.00 towards damages as per
particulars of claim at Exhibit `F’ to the Plaint.::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 5 App.747, 749 & 750 of 2005
4. The case of the Plaintiff in principal is that the
Plaintiff has maritime lien on first Defendant-vessel as the
Defendant No.3 who was acting as an agent of the Defendant
No.2 had wrongfully refused to issue bills of lading relating to
the carriage of the suit consignment. The case made out in
the plaint is that the suit consignment was entrusted to
Defendant No.3 acting as an agent of the Defendant No.2,
the consignment was loaded on Defendant No.1-vessel which
is owned by Defendant No.4 and despite the fact that the
freight for the said consignment was paid to Defendant No.3,
the Bills of lading was not handed over to the Plaintiff. With
the result, the Plaintiff could not realise export proceeds from
their buyers in Ethiopia.
5. The suit was contested by Defendants No.2, 3 & 4
by filing written statement. The principal defence of the
Defendants Nos. 1 & 4 was that there is no privity of contract
between the Defendants Nos. 1 & 4 on one hand and the
Plaintiff on the other hand. It was also claimed that suit in the
admiralty jurisdiction could not have been filed against the
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Kambli 6 App.747, 749 & 750 of 2005Defendant No.1-vessel, when the Defendant No.1-vessel
admittedly is a vessel flying foreign flag and was not in Indian
water. The principal defence of the Defendant No.3 was that
there was an agreement between the Plaintiff and the
Defendant No.3 that the Bills of Lading were to be delivered
to the Plaintiff on the Plaintiff clearing all the liabilities of the
Plaintiff as also its sister concern M/s.Deepak woollen
Limited. This agreement was not abided by the Plaintiff and
therefore the delivery of the Bills of lading was not claimed by
the Plaintiff from the Defendant No.3 and therefore the
Defendant No.3 is not at all liable. It is also claimed by the
Defendant No.3 that the Defendant No.3 was admittedly
acting as an agent of the Defendant No.2 to the knowledge of
the Plaintiff, therefore, as the Defendant No.3 was agent of
the disclosed principal the suit was not maintainable against
the Defendant No.3. The Defendant No.3 also claimed that
the suit as against the Defendant No.3 was barred by the law
of limitation, as for the first time a prayer for decree against
Defendant No.3 was made in the year 2004. The second
Defendant also opposed the suit on the grounds similar to the
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Kambli 7 App.747, 749 & 750 of 2005ones raised by Defendant No.3.
6. On behalf of the Plaintiff two witnesses were
examined and on behalf of the third Defendant one witness
was examined. No oral evidence was led on behalf of the
Defendants No.1, 2 & 4. On the basis of the pleadings and
the documents following issues were framed.
ISSUES
1.Whether the plaintiffs are entitled to receive
a sum of US$ 57860 together with interest @
18% p.a. as per the particulars of claimshown in Exhibit E to the plaint?
2. Whether the plaintiffs have become entitled to
receive a sum of US$ 50,000 as damages?3. Whether Defendant no. 1 and Defendant No.
4 prove that they are third parties to the suit
transaction and that there exists no privityof contract between the plaintiffs and the
Defendant no. 1 and defendant no. 4?4. Whether the Defendant no. 1 and Defendant no. 4 prove that for the vessel to beproceeded against in rem, a claim must just lie
against her owner in personam?5. Whether the defendant no. 1 and Defendant
no. 4 prove that the vessel was given on
charter to Bengal Xpress Container Lines Ltd.,::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 8 App.747, 749 & 750 of 2005who had entered into a further charter with
Shreyas Shipping Ltd., who in turn had a
connecting carrier agreement with the 2ndDefendants?
6. Whether the plaintiffs prove that under
the letter of credit, shipment was required to
be effected on or before 20th April 1998?7. Whether the Defendant no. 1 and Defendant
no. 4 prove that by reason of the Mate
receipt dated 1st April 1998 having been
issued by the 3rd Defendants, the plaintiffscause of action can only lie against the 3rd
Defendants and/or the 2nd Defendants?8. Whether the plaintiffs prove that it was
the obligation of the Defendants to issue tothe plaintiffs a Bills of Lading?
9. Whether the 2nd Defendants prove that the
3rd defendants acted on their own and withoutany prior consent, permission or instructions
from 2nd Defendants in the matter ofshipment of the cargo?
10. Whether the 2nd defendants prove that
the plaintiffs were in arrears for payment
of freight?11. Whether the plaintiffs prove that the sum of
Rs. 1,52,770/- was paid in respect of freightfor the suit consignment?
12. Whether the 2nd Defendants prove that the
3rd Defendants acted on their own accord and
their acts/omissions were not binding upon
the second defendants?::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 9 App.747, 749 & 750 of 2005
13. Whether the 2nd Defendants prove that
the third Defendants on their own adopted ways
and means for recovery of the arrears?14. Whether this Hon’ble Court has jurisdiction to
try the suit?
15. Whether the suit is barred by limitation?
16. Whether the plaintiff discloses any cause of action against the 3rd Defendants when admittedly the 3rd defendants were acting as agents of a disclosed principal.17. Whether the plaintiff proves that the
plaintiff paid the freight in respect of
ig the
suit consignment to the 3rd defendants?18. Whether the plaintiff proves that the 3rd
Defendants have contravened the provisions of
the Carriage of Goods by Sea Act or the Bills
of Lading Act as alleged in paragraph 9 of the
Plaint?19. Whether the Plaintiff proves that the 3rd Defendants in any manner acted in collusion with Defendant nos. 1 and 2 or committed acts of malafide, malfeasance, non-feasance or tortious acts resulting in conversion of the suit consignments to theirbenefit and loss to the Plaintiff as alleged in
paragraphs 9 and 11 of the plaint.20. Whether the Plaintiff proves that the
3rd Defendants are in any manner liable to pay
any amounts as claimed in the suit?21. Whether the 3rd Defendants prove that the
suit consignment were accepted and carried
on the basis of the understanding set::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 10 App.747, 749 & 750 of 2005out in paragraphs 4 to 7 of the written
statement?22. Whether the 3rd Defendants prove that
they were acting within authority as agents ofthe 2nd Defendants.
23. Whether the 3rd defendants prove their
claim in the counter claim filed bythe 3rd Defendants.
24. What orders?
7. The learned single Judge decided the suit by his
judgment dated 9th August, 2005. The learned single Judge
decreed the suit in terms of prayer clauses (ai) and (c). He
held that the Plaintiff is entitled to recover all the claims as
decreed by him by enforcing the security furnished pursuant
to the interim order dated 19-4-1999 to the Prothonotary &
Sr.Master of this Court. He also saddled costs on Defendant
No.3.
8. These three Appeals have been filed challenging
that judgment by the Defendants. Appeal No.747 of 2005 is
filed by Defendants Nos. 1 & 4, Appeal No.749 of 2005 is filed
by Defendant No.3 and Appeal No.750 of 2005 is filed by
Defendant No.2. We have heard the learned Counsel
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Kambli 11 App.747, 749 & 750 of 2005appearing for the parties in detail. We have also perused the
record carefully.
9. From the perusal of the record and hearing of the
submissions made by the learned Counsel appearing for the
parties, we find that the very basis of the Plaintiff’s claim
against the Defendants is that the Plaintiff demanded the
delivery of the Bills of lading from the Defendant No.3, but it
was not given, therefore the buyer of the goods could not take
delivery of the goods, as a result the Plaintiff suffered loss.
For the purpose of deciding this controversy we can take
following as admitted or established position.
(i) The Plaintiff entrusted his corgo to the Defendant No.3,
who to the knowledge of the Plaintiff was working as
agent of the Defendant No.2
(ii) that cargo was loaded on the Defendant No.1-vessel.
(iii)The Defendant No.1-vessel carried the cargo to the
Port of destination and discharged it there.
(iv)The letter of credit that was opened by the buyer of the
cargo in favour of the Plaintiff with Bank of Ethopia was
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Kambli 12 App.747, 749 & 750 of 2005admittedly valid till 5th August, 1998.
(v) On the date on which the suit was filed in March, 1999,
the Defendant No.1-vessel was not within the maritime
jurisdiction of this court.
(vi) Till the amendment in the plaint was granted by the
order made by the Division Bench of this Court in the
year 2004, there was no decree claimed by the Plaintiff
against the Defendants Nos. 2 & 3.
10. There are three points of fact which are hotly
disputed (i) According to the Plaintiff, it demanded from the
Defendant No.3 the Bills of Lading , but the Defendant No.3
did not hand over the Bills of Lading to the Plaintiff. As a
result of which, according to the Plaintiff, the buyer could not
take delivery of the goods and the Plaintiff suffered loss. (ii)
According to the Plaintiff, the Defendant No.3 demanded from
the Plaintiff the carriage charges of the cargo in question and
the previous Bill of the Plaintiff that was due to the Defendant
No.3 and the Plaintiff paid those charges. iii) According to
the Defendant No.3, the Plaintiff had agreed to pay to the
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Kambli 13 App.747, 749 & 750 of 2005Defendant No.3 the carriage charges of the cargo in question
as well as the previous balance dues of the Plaintiff as well as
its sister concern M/s.Deepak Woollen Ltd. , but the Plaintiff
though promised did not clear these dues. The Plaintiff did not
also ask for delivery of the Bills of Lading because of its
failure to pay the charges as agreed and therefore, the
Plaintiff has no cause of action against the Defendants.
11. In
our opinion, following points arise for
consideration:
(i) Whether the Plaintiff demanded the Bills of Lading from
the Defendant No.3, after the cargo reached its
destination (For deciding this question, the question
whether on behalf of the Plaintiff any assurance was
given to the Defendant No.3 to clear all the dues of the
Plaintiff as well as its sister concern M/s.Deepak Wollen
Ltd. will have to be decided.)
(ii) Whether the claim made against Defendants Nos. 2 & 3
by amendment in the year 2004 was within the period of
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Kambli 14 App.747, 749 & 750 of 2005limitation and therefore could not be decreed.
(iii)Whether in the absence of any particulars given either
in the plaint or in the oral evidence of the claim for
damages, the learned Judge was justified in passing a
decree for payment of damages)
(iv)As admittedly on the date on which the plaint was
presented in this court, the Defendant No.1 vessel was
not within the maritime jurisdiction of this court. The suit
was not maintainable. (For deciding this point, we will
have to consider the question whether the defect in
filling the suit in the Admiralty Jurisdiction, when the
Defendant No.1-Vessel which is a foreign vessel was
not within the Admiralty Jurisdiction of this Court, can be
cured by the vessel entering the maritime jurisdiction of
this court at a subsequent date.)
(v) Whether, a suit in the Admiralty jurisdiction of this court
against the Defendant No.4 was maintainable, without
the Plaintif having any privity of contract with the
Defendant No.4.
(vi)As admittedly the third Defendant was agent of the
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Kambli 15 App.747, 749 & 750 of 2005disclosed principal namely the Defendant No.2, the suit
was maintainable for a decree against the third
Defendant.
12. Of these points, if the first point is decided against
the Plaintiff the entire suit has to be dismissed, because the
entire cause of action of the Plaintiff as pleaded in the plaint is
based on the alleged non-delivery of the Bills of Lading by the
third Defendant to the Plaintiff.
13. So far as the first point is concerned, averments
in paragraph 7 of the plaint are relevant. It reads as under:-
“7. The clearing agent on behalf of
the plaintiffs, accordingly, approached the third
defendants for exchange and release of the Billsof Lading covering the shipment of the two
containers per the first defendant vessel. Two
bankers’ cheques for Rs.4,53,560 being the
outstanding freight in respect of earlier bills of
lading which were issued by the third defendantsin respect of earlier shipments and which freight
was payable on credit in terms and arrangement
between the plaintiffs and the third defendants and
Rs.1,52,700 being the freight that was payable in
respect of the shipment that was effected per the
first defendant vessel in respect of the two subject
suit containers as stated above for carraige of::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 16 App.747, 749 & 750 of 2005the containers from Port Bombay to Assab Port.
The said agents handed over to the third
defendants the said two Banker’s cheques as alsothe mate receipt which was issued by the first
defendant vessel in respect of the said twocontainers. The plaintiffs crave leaves to refer to
and rely upon their letter dated 13th April 1998
addressed to the third defendants recording the
payment of the said two Banker’s cheques andrequesting for issue of the Bills of Lading, when
produced. The third defendants refused to issue
the bills of lading in respect of the said two
containers on the ground that there was some
outstanding due and payable. This was based onno prior warning, and it involved two completely
separate transactions. Therefore, the plaintiffsapproached the third defendants on several
occasions because, in the absence of the bills of
lading, there was no possibility for the plaintiffs tofulfill with the terms contained in the letter of credit
and consequently, the plaintiffs would not be in a
position to realise the value of the consignments.
The third defendants were accordingly addressedin the matter by the plaintiffs through
correspondence. “(emphasis supplied)14. Thus, according to the Plaintiff, delivery of the Bills
of Lading was sought by the clearing agent of the Plaintiff,
payment of the carriage charges was made, but the third
Defendant did not deliver the Bills of Lading. The Plaintiff
relies on a letter dated 13th April, 1998 in paragraph 7 to claim
that the delivery of the Bills of Lading was sought. The Plaintiff
also refers to other correspondence between the Plaintiff and
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Kambli 17 App.747, 749 & 750 of 2005the Defendant on this question. In paragraph 8, the Plaintiff
states thus:
“8. Accordingly, by a notice dated
th
24 July 1998, a demand was made upon the
third defendants since by then, the validity of the
letter of credit had expired and the whereabouts of
the goods were also not known although the firstdefendant vessel had carried the goods but had
not fulfilled has obligations by issuing the relevant
bills of lading as required having assumed the
responsibility of the contract of
affreightment……….”15. Thus, according to the Plaintiff, on 24th July, 1998,
the Plaintiff claimed damages, obviously therefore the Plaintiff
gave up the demand for delivery of the Bills of Lading on or
before that date.
16. So far as oral evidence on this point is concerned,
there is only one witness examined on behalf of the Plaintiff
namely Mr.Surendra Goel. What is stated in paragraphs 8, 9
& 10 of the examination-in-chief is relevant. It reads as
under:
8. I state that the Plaintiffs thereafter attempted
to procure from the Third Defendants, Bills
of Lading, on the basis of the Mate Receipt,::: Downloaded on – 09/06/2013 17:05:12 :::
Kambli 18 App.747, 749 & 750 of 2005which Bills of Lading were to be forwarded to
Asfeha, alongwith the documentation
elucidated in paragraph 6 of this Affidavit. IIstate that when the Plaintiffs approached the
Third Defendants, they were informed thatthere was outstanding freight due and
payable, in respect of consignments
previously shipped by the Plaintiffs through
the Third Defendants and consequently theThird Defendants would not issue the Bills of
Lading until these outstandings were settled.
Vide a facsimile transmission, dated 1st April
1998, addressed to the Plaintiffs, the Third
Defendants quantified these outstandingsums at Rs.4,63,560. By a subsequent
facsimile correspondence, dated 8th April1998, the Third Defendants informed the
Plaintiffs that Freight amounting to Rs.
1,52,770.00 was payable in respect of thepresent consignment shipped on board the
First Defendant Vessel, for carriage to port
Assab, Ethopia. I state that in accordance
with the amounts quantified in thesefacsimile intimations, the Plaintiffs issued
two bankers cheques, both dated 13th April1998, bearing numbers 055975 and 055974
in the sums of Rs.4,63,560/- and Rs.
1,52,770/- respectively. These chequeswere, under cover of a letter bearing number
GWPL/98-99/13 dated 13th April, 1998,
addressed by the Plaintiffs to the Third
Defendants, handed over to Jupiter, who
was entrusted with the task of forwardingthese cheques to the Third Defendants and
obtaining the Bills of Lading in accordance
with the Mate Receipt.9. I state that Jupiter forwarded the Bankers
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Kambli 19 App.747, 749 & 750 of 2005covering letter to the Third Defendants, who
accepted these cheques without any
qualification and assured Jupiter that theywould issue the Bills of Lading expeditiously.
Moreover, the Third Defendants depositedthese cheques and realised amounts under
them, which realisation has been certified by
the issuing Bank, vide a certificate dated 6th
August, 1998.10. I state that even after payment was made
to them by the Plaintiffs, in accordance with
their own quantification and inspite of beingrepeatedly called upon to do so by Jupiter,
the Third Defendants refused to issue theBills of Lading on the pretext that there were
amounts still outstanding and due to them
from Deepak Wollen Ltd. This allegedoutstanding was clearly not of the Plaintiff’s
company. I state that prior to this time, the
Third Defendants had never claimed any
amounts, other than the amounts reflected inthe facsimile transmissions dated 1st April
and 8th April 1998, as being due and payableto them by the Plaintiffs. The events which
transpired between Jupiter and the Third
Defendants, culminating in the refusal on thepart of the Third Defendants to issue the
Bills of Lading, citing patently false and
untenable reasons, were recorded in a
correspondence dated 5th October, 1998,
bearing number JSA/GEN/98/6523addressed by Jupiter to the Plaintiffs.
(emphasis supplied)17. According to the Plaintiff’s witness, thus, the third
Defendant demanded from the Plaintiff a sum of Rs.
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Kambli 20 App.747, 749 & 750 of 2005 4,63,560/- and Rs.1,52,770/- as the amount of carriagecharges for the consignment in question and previous
transaction. According to the Plaintiff, both these amounts
were paid on 13th April, 1998 by cheques. But still the third
Defendant did hand over the Bills of Lading on the ground
that the amounts payable to the third Defendant by
M/s.Deepak wollen Ltd. has not been paid. What is pertinent
to be noted is that though in the plaint reference is made to
other correspondence for claiming that delivery of Bills of
Lading was sought from the third Defendant, in the
examination in chief there is no reference to any such
correspondence. According to the plaintiff’s witness the Bills
of Lading was demanded by jupiter repeatedly. Therefore, it
was necessary for the plaintiff either to produce any
communication from jupiter to the 3rd Defendant demanding
the delivery of the Bills of Lading or to examine a witness
from jupiter to prove that repeatedly delivery of Bills of Lading
was demanded by somebody from Jupiter. It is to be noted
that Jupiter was admittedly the agent appointed by the
Plaintiff. So far as the judgment is concerned, following
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Kambli 21 App.747, 749 & 750 of 2005portion from paragraphs 34 & 35 is relevant:
34……. The learned counsel has further contended
by relying upon the judgment of the Privy Council
in the case of Canada and Dominion SugarCompany Limited and Canddian National (West
Indies) Steamships Limited reported in 1947 Privy
Council page 46 that in the present case there is
no liability of the 3rd defendant to issue the Bills ofLading because the plaintiff has not demanded for
the same. This contention is required to be
rejected because the evidence in the present case
indicate that the plaintiff has by a letter dated
23.6.1998 Exhibit P-22 and in para. I thereforehave expressly stated as under:-
“we have been regularly following up with
you to issue us the B/L and you arewithholding the same for no valid reasons.”
35.There is no cross-examination whatsoever in
respect of the aforesaid statement contained in
the said letter dated 23-6-1998. The said evidenceforms part of the record. In view thereof, it is not
possible to hold that the plaintiff did not demand
the Bills of Lading and, therefore, the defendantNo. 1 was absolved from the liability of issuing one.
18. The learned Judge has thus relied on statement in
letter dated 23-6-1998 Exh.P-22 and absence of cross-
examination of the Plaintiff’s witness on this point. Now, so far
as the plaint is concerned, so far as the demand of Bills of
Lading is concerned, the letter dated 23-6-1998 is not relied
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Kambli 22 App.747, 749 & 750 of 2005
on or even referred to. So far as examination in chief is
concerned, the letter dated 23-6-1998 is referred to
paragraph 12. It reads as under:-
“12. I state that a communication dated 23rd
June, 1998 was addressed by the Plaintiffs to the
Third Defendants, wherein the Plaintiffs recorded
the illegal, untenable and malafide actions of the
Third Defendants, which resulted in loss being
occasioned to the Plaintiff. Consequently, theThird Defendants were called upon to pay to the
Plaintiffs, a sum of US$ 45,065.40, equivalent toINR 19,25,193 (@ US1= INR 42.75), being the
FOB value of the consignment which was lost on
account of breaches committed by theDefendants. Vide the same communication, the
Plaintiffs demanded further sums of Rs.2,65,707,
being the duty drawback which the Plaintiffs would
have enjoyed on the export and Rs.75,631.00towards interest.
19. Though the learned Judge has observed that the
paragraph in the letter which says that the Bills of Lading was
demanded repeatedly, there is no cross-examination, perusal
of the cross-examination of the only witness of the Plaintiff
shows that this witness has been specifically cross-examined
on this letter. That reads as under:
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Kambli 23 App.747, 749 & 750 of 2005
(Shown Exhibit P-22)
Q) Is it correct that by this letter, you repudiated
the contract, which the Plaintiffs entered with
Defendants No.3 as the Agents of Defendants No.
2?
A) No, it is not correct.
Q) Have you demanded the release of the Bills
of Lading by this letter?
A) I have not in particular demanded the release
of the Bills of Lading by this letter.
62,Q) In your answer given sometime back, you
have stated that the buyers gave extension of
Letter of Credit as and when the Plaintifs
requested. Is your said answer not contradictory to
what is stated in paragraph 3 of this letter (dated
23rd June 1998 (Exhibit P-22)?
A) There is no contradiction as I have already
stated that this was a pre-warning letter.
Q) Therefore, what you stated in your letter
dated 23rd June 1998 (Exhibit P-22) was a
deliberate falsehood?
A) I will not claim it as a falsehood, because I
had to convey the message of warning that if
Defendants No.3 still do not release the Bills of
Lading, they may face the liability for the costs of
goods and any further extension of Letter of Credit
was between Plaintiffs and the consignee.
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Kambli 24 App.747, 749 & 750 of 2005
Q) Would you atleast agree that what you stated in
this letter regarding the buyers refusal to extend
the Letter of Credit was not a correct statement?
A) According to me, it was a correct statement.
20. It is clear from the above quoted deposition of the
Plaintiff’s only witness that even according that witness by
letter dated 23-6-1998 the release of the Bills of Lading was
not demanded. It is clear from the record that so far as a
letter dated 13th April, 1998 is concerned, the Plaintiff has not
been able to prove that that letter was delivered by the
Plaintiff to the third Defendant. According to the Plaintiff
himself by letter dated 23rd June, 1998 at Exh.P-22 the
release of the Bills of Lading was not demanded. Thus, there
is no document on record placed by the Plaintiff showing that
delivery of the Bills of Lading was demanded from the third
Defendant by the Plaintiff at any point of time after the vessel
left the port. On record the plaintiff has also not placed any
oral evidence by examining a witness who orally demanded
the delivery of bill of lading from defendant no.3. Thus, it can
be said that there is no evidence on record either
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Kambli 25 App.747, 749 & 750 of 2005
documentary or oral to prove that on behalf of the plaintiff
delivery of bill of lading was demanded from defendant no.3.
Section 2 of the Indian Carriage of Goods By Sea Act,1925
reads as under:-
“2. Subject to the provisions of this Act,
the rules set out in the Schedule
(hereinafter referred to as “the Rules”) shall
have effect in relation to and in connection
igwith the carriage of goods by sea in shipscarrying goods from any port in India to any
other port whether in or outside India.”
Perusal of the Schedule shows that sub-Article (3) of Article III
casts duty on a shipper to demand a bill of lading. The
relevant portion of Article III(3) reads as under:-
“After receiving the goods into his charge,
the carrier or the master or agent of the
carrier, shall, on demand of the shipper
issue to the shipper a bill of lading.”
In the present case, the plaintiff was the shipper and
defendant no.3 could be described as agent of the carrier.
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Therefore, defendant no.3 was under a statutory duty to
deliver to the plaintiff a bill of lading on demand being made.
In other words, there was no duty cast on defendant no.3 to
deliver bill of lading to the plaintiff without the plaintiff
demanding the bill of lading. In this regard, the case of the
third defendant is that the plaintiff did not demand delivery of
bill of lading because there was an agreement between the
plaintiff and defendant no.3 that the defendant no.3 would
deliver the bill of landing to the plaintiff only after the dues not
only of the plaintiff, but of the sister concern viz. Deepak
Woolens Ltd. will also be cleared and the dues of Deepak
Woolens Ltd. were not cleared. According to the plaintiff,
when the third defendant agreed to accept the shipment it
was the condition put by them that the plaintiff will have to
clear all the dues of the plaintiff and all the dues of its sister
concerns before demanding the bill of lading. According to the
plaintiff, the negotiations for carriage of the consignment in
question was carried out not by Mr.Surendra Goel- the
witness examined by the plaintiff, but by Mr.Deepak Goel. The
following portion from the cross-examination of Mr.Surendra
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Kambli 27 App.747, 749 & 750 of 2005
Goel is relevant. It reads as under:-
“Q. Who was the person who entered into
negotiations on behalf of the plaintiffs which
resulted into an agreement between the
plaintiffs and third defendant referred to in
this paragraph ?
A. On behalf of the plaintiffs the
ignegotiations were conducted by Mr.DeepakGoel and on behalf of third defendants,
negotiations were conducted by Mr.Ketan
Dholakia. There is no memorandum
pertaining to this agreement. It was an oral
agreement. Mr.Deepak Goel is still available
and he is working under me.”
Thus, according to the plaintiff, though the negotiations were
conducted on behalf of plaintiff by Deepak Goel, he has not
been examined as witness. The following portion from the
deposition of the witness for the plaintiff – Mr.Surendra Goel
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Kambli 28 App.747, 749 & 750 of 2005
is also relevant:-
“Q. Is it correct that Mr.Deepak Goel,
Mrs.Lobo and Mr.Pandey were looking after
export shipments of the Plaintiffs?
A. Yes. It is correct.
Q. Is it also correct that for this suit
shipment, it was Mr.Deepak Goel and
ig Mrs.Lobo who first approached Defendants
no.3 ?
A. I do not remember who approached
Defendants No.3, but Defendants No.3 used
to come to the office regularly. Who spoke to
them and what happened, I do not
remember.
47. (Attention of the witness is drawn to
paragraph 5 of his Affidavit of Evidence and
his answer to the question in paragraph 12
of his deposition recorded on 25th
November,2002)
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Kambli 29 App.747, 749 & 750 of 2005
Q. After reading paragraph 12 of your
deposition and paragraph 5 of your Affidavit
of Evidence, do you agree that it was
Mr.Deepak Goel who had approached
Defendants No.3 for the shipment of the
goods, which form subject matter of the
suit?
A. I do not know whether Mr.Deepak
Goel or other staff members approached
Defendants No.3 for the suit shipment.
Q. Is it true that the Agreement referred to
in paragraph 5 of your Affidavit in Evidence
is the same Agreement, which is referred to
by you in paragraph 4 of your said Affidavit
of Evidence ?
A. Yes. It is the same agreement.
Q. After reading paragraphs 4 and 5 of
your Affidavit of Evidence and the answer
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Kambli 30 App.747, 749 & 750 of 2005
given by you to the previous question in
paragraph 12 of your deposition recorded on
25th November 2002, do you now agree that
it was Mr.Deepak Goel who first approached
Defendants No.3 for the suit shipment?
A. I have already answered that
Mr.Deepak Goel negotiated for the total
transaction including the suit shipment.
(Witness clarifies that there used to be no
negotiations for individual shipments. Once
the negotiation is done, the lower staff was
to carry on with the instructions given to
them by Mr.Deepak Goel.)
Q. Is it correct that before undertaking the
suit shipment Defendants No.3 insisted that
both the Plaintiffs and Deepak Woolens Ltd.
should clear their outstanding dues?
A. It is not correct.
Q. Did Defendants No.3 at least insist on
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Kambli 31 App.747, 749 & 750 of 2005
the plaintiffs clearing its outstanding dues
before undertaking the suit shipment?
A. No. it is not correct.
In the deposition of Mr.Surendra Goel there is a mention that
when delivery of bill of lading was demanded, respondent no.
3 refused to issue bill of lading “on the pretext that there was
an amount still outstanding and due to them from Deepak
Woolens Ltd.”
So far as the evidence led on behalf of
defendant no.3 is concerned, it was their case that the
agreement for carriage of the suit consignment was with
Mr.Surendra Goel and it was clearly agreed that the dues of
the plaintiff as also Deepak Woolens Ltd. would be cleared
before bill of lading is demanded. So far as the relationship
between the plaintiff and Deepak Woolens Ltd. is concerned,
Mr.Deepak Goel after whom that concern is named is
admittedly the son of Mr.Surendra Goel. It is clear from the
cross examination of Mr.Surendra Goel that the plaintiff and
Deepak Woolens Ltd. are controlled by the members of the
family of Mr.Surendra Goel. Both the companies have their
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registered office at same place i.e. 1-B, Court Chambers, 35,
New Marine Lines, Mumbai. It has also come on record that
apart from having common shareholders and the registered
office at the same place, even the stationary used by Deepak
Woolens Ltd. and the plaintiff is common. Thus, on record
there is enough material available to indicate that there was
an agreement between the parties for the plaintiff to clear the
dues of Deepak Woolens Ltd. also before it claims delivery of
bill of lading, and because the plaintiff did not clear the dues
of Deepak Woolens Ltd. the delivery of bill of lading was not
demanded.
21. The witness of the Plaintiff has stated that the
Plaintiff asked for damages and did not ask for delivery of
Bills of Lading by letter dated 23-6-1998. The reason that was
given by the Plaintiff for demanding the amount of loss
suffered by the Plaintiff from 23-6-1998 onwards was that the
letter of credit had come to an end. The letter at Exh.P-23 i.e.
letter dated 24th July, 1998 addressed by an advocate for the
Plaintiff to the Defendant No.3 was pointed out to the witness
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Kambli 33 App.747, 749 & 750 of 2005
of the Plaintiff Mr.Surendra Goel and he was asked,
Q. By this letter, you again did not demand release of
the Bills of Lading citing the reasons that the period
of validity of the Letter of Credit had expired?
A. Yet, it is correct.
In the letter dated 24th July, 1998 at Exh.P-23 the Plaintiff has
stated
“As a result of your shipping agent’s entirely illegal
retention of the bills of lading pertaining to this consignment,
the period of validity of the letter of credit issued by the
foreign buyer to my client has expired and the export
proceeds can no longer be realised with certainty by my
client. ”
This witness, therefore, was asked after showing him the
letter at Exh.P-33 i.e. the letter dated 14th July, 1998
addressed by HDFC Bank Ltd.,
Q.Do you agree that by this letter, the validity of the
Letter of Credit was extended upto 5th August, 1998?
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Kambli 34 App.747, 749 & 750 of 2005
A. Yet, it was extended upto 5th August 1998, but with
amendments other than the extension of the date.
22. On behalf of the Defendant No.3 Mr.Anil
Madhavan, Senior Manager was examined as a witness. In
paragraph 3 of his examination-in-chief he states that
Mr.Deepak Goel and Mrs.Lobo hd approached him to accept
the consignment, but he refused to accept the consignment,
because there were dues outstanding against M/s.Deepak
Woollens Ltd. and M/s.Gitanjali Woollens Pvt.Ltd. Then in
paragraphs 4 & 5 he states,
“4. A few days thereafter, Mr.Surendra
Goel came to our office and approached Mr.Ketan
Dholakia and me. Mr.Surendra Goel requested us
to accept the fresh consignment stating that
Deepak Woollens Limited and Gitanjali Woollens
Private Limited were facing a temporary liquidity
crunch and would clear the outstandings. At this
point, I spoke to my General Manager over the
telephone and apprised him of my conversation
with Mr.Surendra Goel. Mr.Varadarajan, the
General Manager, told me that we could accept
the consignment on the condition that the Bills of
Lading in respect of the consignment would be
released only after both Deepak Woollens Limited
and Gitanjali Woollens Private Limited cleared all
their outstanding dues and the freight charges for
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Kambli 35 App.747, 749 & 750 of 2005
the fresh consignment.
5. I communicated this to Mr.Surendra Goel
who agreed that the Bills of Lading in respect of
the fresh consignment need not be released till
both Deepak Woollens Limited and Gitanjali
Woollens Private Limited cleared all their
outstandings and the freight charges for the fresh
consignment. I also told Mr.Surendra Goel that any
payments made by the Plaintiff and/or Deepak
Woollens Limited would first be appropriated
towards the past dues of Gitanjali Woollens Private
Limited and Deepak Woollens Limited set out in
para 5 of the written statement. Mr.Goel agreed. It
was on this understanding that Defendant No.3
accepted the fresh consignment which forms the
subject matter of the present suit and shipped two
containers to Assab abroad the Vessel X-press
Annapurna, which left the Mumbai Port on 7th April
1998.
. In so far as paragraphs 4 & 5 of the examination in chief
of witness Mr.Mahadevan is concerned, all that is to be found
in the cross-examination of the Plaintiff is as follows:
“It is not true that the statement made by me in
paragraph 4 of my examination in chief that
Mr.Surendra Goel approached Mr.Dolkia.”
There is no other cross-examination. There is no cross-
examination whatsoever about what is stated in paragraph 5
of the examination-in-chief.
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Kambli 36 App.747, 749 & 750 of 2005
23. It is, thus, clear from the record that though on 14th
July, 1998 the validity of the letter of credit was extended, by
letter dated 24th July, 1998 the Plaintiff demanded the amount
of loss on the ground that the validity of the letter of credit has
expired. Thus, the reason that was given by the Plaintiff for
not delivery of the bills of lading namely expiry of the letter of
credit was a false reason. In our opinion, therefore, it
appears that the real reason why the Plaintiff did not demand
delivery of Bills of lading was the inability of the Plaintiff to
clear the due of M/s.Deepak Woollen Pvt.Ltd. , which the
Plaintiff had agreed to clear before demanding the delivery of
Bill of lading. It, thus, appears that the Plaintiff has not been
able to establish that he demanded the delivery of Bills of
lading from the third Defendant. We have already pointed out
above that under Article (III)(3), the carrier is under no duty to
deliver Bills of lading without it being demanded by the
shipper, and therefore, as the Plaintiff- who was the shipper –
did not demand the delivery of Bills of lading, the Defendant
No.3 was under no obligation to deliver the same, and
therefore, the entire basis of the Plaintiff’s claim in the suit
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Kambli 37 App.747, 749 & 750 of 2005
disappears. In our opinion, therefore, the Plaintiff was not
entitled to make any claim against the Defendants.
24. Really speaking as we have held that the Plaintiff
never demanded delivery of the Bills of Lading from the
Defendant No.3, the very basis of the suit of the Plaintiff
disappears and the suit is liable to be dismissed. However,
as we have heard the parties on all the points, in our opinion,
it will be in the interest of justice to decide the other points
that were urged.
25. The second point which according to us is to be
considered is , whether the learned single Judge was justified
in passing a decree in terms of prayer clause (ai), because
though the suit was filed in the year 1999 amendment in the
plaint for inserting prayer (ai) was allowed by order dated
20-1-2004 keeping the question of limitation expressly open.
The issue of limitation, though raised, has not been
considered by the learned single Judge in the impugned
judgment. The suit was filed in the month of March, 1999 on
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Kambli 38 App.747, 749 & 750 of 2005
a cause of action which according to the Plaintiff arose in
June-July, 1998.
26. The Plaintiff pleaded their entire cause of action
in the body of the plaint and stated in the plaint that they
were entitled to proceed against the Defendants Nos. 2 & 3 in
personam. They made claim against the Defendants Nos. 2 &
3 in the body of the plaint, but no prayer was made claiming
any decree against the Defendants Nos. 2 & 3. In fact, there
was no decree claimed against any of the Defendants in the
suit as it was filed in March, 1999. What the Plaintiff sought to
do was to enforce only maritime lien, which they claimed
against the first Defendant-vessel. Furthermore, by prayer
clause (b), the Plaintiff sought leave of the court under Order
2 Rule II for leave to sue for other reliefs which according to
them they were entitled. This clearly shows that the Plaintiff
deliberately and intentionally omitted to ask for any relief
against the Defendants Nos. 2 & 3. When the evidence was
being recorded, the Plaintiff moved an application for
amendment to introduce prayer (ai) in the suit. The
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Kambli 39 App.747, 749 & 750 of 2005
amendment was allowed keeping the question of limitation
open. It is, thus, clear that when prayer clause (ai) was
inserted, the period of limitation for institution of a suit for a
decree on a cause of action, which arose in 1998 had already
expired. Therefore, it is clear that no decree in terms of prayer
clause (ai) could have been passed by the learned single
Judge.
27.
In the case of Munilal v/s. The Oriental Fire and
General Insurance Company Limited and anr. AIR 1996 SC
642, the Supreme Court held that a party could not be
permitted to amend the plaint after the suit for the reliefs in
question was barred by time during the pendency of the
proceedings. The Appellant in that case had filed a suit
against the Insurance Company seeking a declaration that he
was entitled to the total loss of the truck from the Insurance
Company. The Trial Court dismissed the suit on the ground
that the suit was for a mere declaration and and
consequential relief for payment of compensation had not
been sought. Before the Supreme Court, it was contended by
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Kambli 40 App.747, 749 & 750 of 2005
the Appellant that the First Appellate Court and the High Court
were wrong in refusing to permit the Appellant to amend his
plaint by introducing consequential relief for payment of
compensation. The Supreme Court however held that the
First Appellate Court and the High Court were right in
rejecting the application for amendment as a fresh suit for the
said relief had by that time become barred by limitation. It is
pertinent to note that in the case before the Supreme Court,
the entire cause of action had been pleaded by the Appellant
who in fact sought a declaration that he was entitled to claim
the losses that he had suffered from the Insurance Company.
Despite this position, the Supreme Court held that the
Appellate Court and the High Court were right in rejecting the
Appellant’s application for amendment.
28. In the case of Tarlok Singh v/s. Vijay Kumar
Sabarwal, (1996) 8 SCC 367, the Supreme Court held that
the suit for specific performance was barred by limitation, as
by the time the relief of specific performance was introduced
in the plaint by way of amendment, a fresh suit for specific
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Kambli 41 App.747, 749 & 750 of 2005
performance had become barred by limitation. The Supreme
Court held that the amendment would operate with effect from
the date the amendment was allowed by the Court and by
that date, the suit for specific performance which had been
initially filed for perpetual injunction to restrain the Defendant
from committing breach of the contract, had become barred
by limitation.
29.
It was contended before us that the Plaintiff had
pleaded all the facts necessary for claiming a decree in terms
of prayer clause (ai) in the plaint, as it was filed in March,
1999, but only prayer was not made. In our opinion, the
submission of the Plaintiff is not well founded. By prayer
clause (b), the Plaintiff has stated that he will seek leave of
the court under Order II Rule 2 of CPC. Perusal of the
provisions of Order II Rule 2 shows that when a suit is filed,
the Plaintiff has to claim all the reliefs to which he is entitled
on the same cause of action. He can only omit to sue for any
relief to which he is entitled on the same cause of action only
with the leave of the court. Perusal of the plaint shows that
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Kambli 42 App.747, 749 & 750 of 2005
prayer clause (b) reads as under:
(b) That this Hon’ble Court be pleased to grant Leave
under Order II Rule 2 of the Code of Civil Procedure, 1980;
This clearly shows that the Plaintiff had deliberately omitted to
sue for the reliefs which he ultimately claimed by prayer
clause (ai), as the Plaintiff contemplated institution of a fresh
suit seeking that relief. But the Plaintiff never obtained such a
leave from any court. In this situation, therefore, in our
opinion, provisions of sub-rule 2 of Rule 2 of Order II become
relevant. They read as under:
(2) Relinquishment of part of claim- Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omittedor relinquished.
. Perusal of the above quoted provisions makes it
clear that there is an obligation on every Plaintiff to claim all
the reliefs to which he is entitled on the same cause of action
in the same suit. If he does not want to claim all the reliefs in
that suit, then he has to seek leave of the court to omit to sue
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Kambli 43 App.747, 749 & 750 of 2005
for some of the reliefs and then he can institute a different suit
claiming those reliefs. But if the Plaintiff omits to claim all the
reliefs to which he is entitled on the same cause of action and
does not obtain leave of the court as contemplated by Order II
Rule 2, then he is barred from claiming those reliefs
subsequently. From the conduct of the Plaintiff, it is clear that
in this case he deliberately omitted to claim reliefs which he
later on sought by prayer clause (ai). In our opinion,
therefore, in view of the provisions of sub-rule 2 of Rule 2 of
Order II, he could not have claimed reliefs in terms of prayer
clause (ai). Thus, apart from relief sought in terms of prayer
clause (ai) of the plaint being barred by law of limitation, it is
also barred by the provisions of Order II Rule 2 of the CPC.
30. The third point which is to be considered is
whether any decree could have been passed against
Defendant No.3. It was specifically claimed on behalf of the
Defendant No.3 that since the Defendant No.3 was
admittedly acting as an agent on behalf of the disclosed
principal namely the Defendant No.2, the Plaintiff could not
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Kambli 44 App.747, 749 & 750 of 2005
hold the Defendant No.3 liable for any loss allegedly caused
to it. The learned single Judge has while passing the decree
against the Defendant No. 3 has held that the fact that the
Defendant No.3 acted as agent on behalf of the disclosed
principal would not come to the aid of the Defendant No.3, as
the principal i.e. the Defendant No.2 was a foreign principal.
The relevant observations are to be found in paragraph 31 of
the judgment. It reads as under:
“31. The defendant no.3 has on the other
hand contended that the defendant No.2 being
the principal and a disclosed principal under the
Contract Act, the 3rd defendant is not liable but
only the plaintiff is liable. It is an admitted positionthat the 2nd defendant is a foreign company and in
case of a foreign principal the liability of the 2nddefendant does not get discharged merely by
virtue of the fact that he is a disclosed principal. ”
. It appears that the learned single Judge has totally
misread the provisions of Section 230 of the Indian Contract
Act. Section 230 of the Indian Contract Act reads as under:
230. Agent cannot personally enforce, nor be
bound by, contract on behalf of principal.- In the
absence of any contract to that effect an agent
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Kambli 45 App.747, 749 & 750 of 2005by him on behalf of his principal, nor is he
personally bound by them.
Presumption of contract to contrary.- Such a
contract shall be presumed to exist in the followingcases:-
(1)Where the contract is made by an agent for
the sale or purchase of goods for amerchant resident abroad;
(2)Where the agent does not disclose the
name of his principal;
(3)where the principal, though disclosed,
cannot be sued.
31.
It appears that the learned single Judge is
referring to clause (1) of second part of Section 230. But that
clause will come into play where the contract is made by an
agent for the sale or purchase of the goods for a merchant
residing abroad. The contract which was subject matter of the
suit was not a contract for either sale or purchase of the
goods. In the present case, the Defendant No.3 acted as an
agent on behalf of the disclosed principal for carriage of
goods by sea and not for sale or purchase of goods, and
therefore, clearly no decree against Defendant No.3 could
have been passed.
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Kambli 46 App.747, 749 & 750 of 2005
32. The fourth point that is to be considered is that the
learned single Judge has passed a decree in terms of prayer
clause (ai). By prayer clause (ai), the Plaintiff apart from
claiming the amount towards loss of goods, was claiming the
amount of US$ 50,000 as damages. In the particulars of claim
there are no particulars given of the loss. No particulars of the
damages were given in the pleadings by the Plaintiff. In the
particulars of claim, it was stated that the Plaintiff suffered
loss of US$ 50,000 on account of loss of business and loss of
reputation. The Plaintiff failed to state as to what was the
amount of damages claimed on account of loss of business
and on account of loss of reputation. Besides, merely stating
in the affidavit of examination-in-chief, the witness examined
by the Plaintiff, that the Plaintiff had suffered damages of
US $ 50000 on account of loss of business and loss of
reputation, no other evidence was led by the Plaintiff. In the
entire judgment impugned in the appeal, there is no
discussion on this aspect of the matter, and the learned single
Judge has passed the decree for payment of US $ 50000
towards damages. In our opinion, looking at the matter from
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Kambli 47 App.747, 749 & 750 of 2005
any point of view no decree for damages could have been
passed.
33. The fifth point is, on behalf of the Defendants
Nos.1 & 4 it was claimed that there is no privity of contract
between the Plaintiff and the Defendants Nos.1 & 4. The case
of the Plaintiff in the plaint is that the Defendant No.1 has not
issued Bills of Lading in respect of the suit consignment. In
paragraph 9 of the plaint, the Plaintiff has stated that the first
Defendant has under an obligation to issue transport
documents in the nature of of Bills of Lading in respect of two
containers. It is an admitted position that the first Defendant
vessel had carried the goods to the port of Destination and
discharged the goods. In the examination-in-chief
Mr.Surendra Goel has also deposed that containers shipped
on the first Defendant vessel were discharged at Assab.
There is no pleading and no evidence, which would show that
there was any contract between the Defendants Nos. 1 and 4
on one hand and the Plaintiff on the other hand to deliver to
the Plaintiff the Bills of Lading. The contract for delivering the
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Bills of Lading even according to the Plaintiff was between the
Plaintiff and the Defendant No.3, who was acting as agent of
Defendant No.2. We have already held above that the Plaintiff
never demanded delivery of Bills of Lading from the third
Defendant. The cause of action which is narrated in the plaint
by the Plaintiff is based on failure of the third Defendant to
deliver the Bills of Lading to the Plaintiff, as admittedly there
was no contract between the Plaintiff and the Defendants
Nos.1 & 4 for delivery of Bills of Lading, in our opinion, no
decree could have been passed by the learned single Judge
against the Defendants Nos. 1 & 4 and in favour of the
Plaintiff. The job entrusted to the Defendant No.1-vessel was
to deliver the consignment at the port of destination and it is
an admitted fact that the consignment was delivered by the
Defendant No.1-vessel at the port of destination. In our
opinion, therefore, it is unfair to pass any decree against the
Defendant No.1-vessel or its owner.
34. One more contention was urged before us that as
the defendant No.1-vessel admittedly was not within the
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maritime jurisdiction of this court, on the date on which the
suit was filed, the suit was not maintainable in the admiralty
jurisdiction of this court. But as we have taken the view that
the very basis of the suit of the Plaintiff was non-existent, in
our opinion , it is not necessary to decide that question in
these Appeals.
35. For the aforesaid reasons, therefore, all the
Appeals succeed and are allowed. The judgment and order of
the learned single Judge impugned in the Appeals is set
aside. The suit filed by the Plaintiff is dismissed. The Plaintiff
is directed to pay costs to all the Defendants. Security, if any,
given by the Defendants be discharged.
At the request of the learned Counsel appearing for the
Plaintiff, it is directed that the Prothonotary & Sr.Master will
discharge the bank guarantee pursuant to this order after a
period of four weeks from today.
(D.K.DESHMUKH, J.)
(K.K.TATED, J.)
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