ORDER
K.S. Gupta, J.
1. Plaintiff filed this suit, inter alia, alleging that it is a partnership concern carrying on business of export of ready-made garments. Subhash Chander Vij, being one of its partners is competent to institute the suit and sign and verify the plaint on behalf of the firm. Plaintiff through its agent M/s. Continental Carriers, New Delhi, on 31st July 1976 delivered a consignment of ready-made garments of the value of Rs. 1,48,200/- to the defendant for carriage to London and Airway Bill No. 220-5673 9174 dated 31st July, 1976 was accordingly issued by the defendant. On 3rd August 1976
the plaintiff handed over documents as noted in Para 4 of the plaint to State Bank of India, Foreign Exchange Department, New Delhi for collection of the amount through its counterpart State Bank of India, London, UK from M/s. R.K. Fashion Ltd., to whom the said consignment was to be delivered. On 6th August 1976 the State Bank of India, Foreign Exchange Department, New Delhi Branch sent the documents to State Bank of India, South Hall Branch, Middle sex, UK for handing them over to M/s. R.K. Fashion Ltd. against payment. State Bank of India, UK Branch sent a number of reminders
to said M/s. R.K. Fashion Ltd. to retire the documents but it failed to do so. On account of the lapse of said M/s. R.K. Fashion Ltd. in not retiring the documents and taking delivery of the consignment the plaintiff had to pay Rs. 48,838.45 towards demurrage to the defendant.
2. It is further pleaded that the plaintiff in place of said M/s. R.K. Fashion Ltd. nominated M/s. Kay Imports & Exports as consignee and this change was communicated to the defendant by M/s.Continental Carriers Ltd. through the letter dated 22nd April, 1977. Defendant was asked to deliver the consignment to said M/s. Kay Imports & Exports. By the letter dated 20th May, 1977 the defendant informed M/s. Continental Carriers that it has received a telex information through London office that the consignment has been delivered to M/s. Express Enterprises with information to M/s. Kay Imports & Exports. However, the enquiries made by the plaintiff from M/s. Kay Imports & Exports revealed that M/s. Express Enterprises was not the agent of M/s. Kay Imports & Exports nor did it take delivery of the consignment on behalf of M/s. Kay Imports & Exports. It is alleged that M/s. Express Enterprises by the letter dated 28th May 1977 informed said M/s. Kay Imports & Exports that the consignment was presently held in a bonded warehouse on the instructions of M/s. R.K. Fashion Ltd. and should M/s. Kay Imports & Exports wish to release the consignment a release note from M/s. R.K. Fashion Ltd. was needed. M/s. Continental Carriers inquired from the defendant through the letter dated 30th June, 1977 whether said M/s. Express Enterprises had taken delivery of the consignment either on behalf of M/s. Kay Imports & Exports or M/s. R.K. Fashion Ltd. By the letter dated 8th August, 1977 defendant informed M/s. Continental Carriers that consignment was released to consignee’s agent – M/s. Express Enterprises for delivery to a bonded warehouse. In reply to this letter M/s. Continental Carriers by the letter dated 22nd August, 1977 informed the defendant that M/s. Kay Imports & Exports never gave instructions to anybody for storing the consignment in question in a bonded warehouse. It was also noted in that letter that M/s. Kay Imports & Exports approached the London office of the defendant for taking delivery of the consignment but they were informed that the same had already been handed over on 5th May, 1977 to M/s. R.K. Fashion Ltd. through its agent – M/s.Express Enterprises. By the letter dated 7th September, 1977 said M/s. Kay Imports & Exports repudiated its liability to pay the amount of Rs. 1,48,200/- being the value of the consignment on the grounds of its not having taken delivery and M/s. Express Enterprises being not its agent. The defendant had unauthorisedly delivered the consignment on 5th May, 1977 to M/s. R.K. Fashion Ltd. through its
agent M/s. Express Enterprises. On account of that wrongful delivery of the consignment the plaintiff has suffered loss of an amount of Rs. 1,48,200/- being the value of consignment plus Rs. 39,569.40 by way of interest at the rate of 18% p.a. from May, 1977 to 9th November, 1978, the date of filing of suit. Despite service of legal notices dated 5th November, 1977 and 2nd August, 1978 the defendant has failed to pay the said amount of Rs.1,87,769.40. It was prayed that a decree for Rs. 1,87,769.40 with costs and interest pendente lite and future at the rate of 18% p.a. may be passed in favour of the plaintiff and against defendant.
3. Defendant contested the suit by filing written statement. In the amended written statement by way of preliminary objections it is alleged that the suit is barred by limitation by Rule 29 of the First Schedule as also by Rule 30 of Second Schedule to Carriage by Air Act, 1972; the plaint does not disclose any cause of action, this court has no jurisdiction to try the suit and the suit is bad for non-joinder of necessary parties.
4. On merits, it is denied that the plaintiff is a partnership concern and Subhash Chander Vij is competent to institute the suit and sign and verify the plaint. It is admitted that the plaintiff through M/s. Continental Carriers booked a consignment for London said to contain handloom cotton shirts and the declared value thereof was Rs. 1,48,200/- and the defendant issued Airway Bill No. 220-5673 9174 on 31st July, 1976. The consignee shown in the Airway bill was State Bank of India, South Hall branch, Middlesex, UK and not M/s. R.K. Fashion Ltd. as alleged. Consignment reached London on 4th August, 1976. On arrival of consignment the documents were passed on to M/s. Express Enterprises, nominated clearing agent of M/s. R.K. Fashion Ltd. for the purpose of clearance of customs formalities etc. and the consignment was actually cleared by Customs on 25th August, 1976 and it was removed to a bonded warehouse. IT is alleged that the defendant did not receive the bank’s delivery order and therefore, the consignor incurred heavy demurrage. It is admitted that the defendant received a sum of Rs. 48,838.45 as storage charges. it is alleged that M/s.
Continental Carriers through the letter dated 18th October, 1976 Instructed the defendant to delete the name of said bank as consignee and to deliver the consignment directly to M/s. R.K. Fashion Ltd. Defendant sent the appropriate telex message to its London Office. Since the consignment was prepaid M/s. R.K. Fashion Ltd neither paid the demurrage charges nor took delivery thereof. By another letter dated 22nd April, 1977 M/s. Continental Carriers advised the defendant to deliver the consignment in question to M/s. Kay Imports & Exports. Receipt of the subsequent letters dated 30th June, 1977 and 22nd August, 1977 from M/s. Continental Carriers is admitted. However, it is stated that the enquiry sought for in those letters was wholly irrelevant. It is denied that M/s. Kay Imports & Exports were ready and willing to accept the delivery of consignment as alleged. Consignment was available for delivery to M/s. Kay Imports & Exports It is denied that because of the negligence of defendant the consignment was delivered to M/s.Express Enterprises on behalf of M/s. R.K. Fashion Ltd. Receipt of plaintiff’s both the notices is admitted. However, it is denied that the
defendant is liable to pay Rs.1,48,200/- being the value of the consignment or interest thereon at the rate of 18% p.a. as claimed.
5. In the replication the plaintiff has controverted the averments made in the amended written statement besides reaffirming those made in the plaint.
6. On the pleading of the parties the following issues were framed:-
1. Whether the suit is within time?
2. Whether the plaintiff has no cause of action against the
defendant?
3. Whether this court has no jurisdiction to try the suit?
4. Whether the plaintiff is a registered partnership firm and;
the suing partner is its registered partner?
5. Whether the suit is bad for non-joinder of parties?
6. Whether the consignment was handed over by the defendant to M/s. Express Enterprises against the instructions of the plaintiff.
7. To what amount is the plaintiff entitled?
8. Whether the plaintiff is entitled to any interest, if so, at what rate and for what period?
9. Relief.
ISSUES 6 & 5:
7. Relevant rules as contained in First Schedule to the Carriage by Air Act 1972 may be noticed first. Rule 5(1) says that every carrier of goods has the right to require the consignor to make out and hand over to him a
document called an "air consignment note"; every consignor has the right to require the carrier to accept this document. Rules 6(1) and (2) provide that the air consignment note shall be made out by the consignor in three
original parts and be handed over with the goods. The first part shall be marked "for the carrier" and shall be signed by consignor. The second part shall be marked "for the consignee"; it shall be signed by the consignor
and by the carrier and shall accompany the goods. The third part shall be signed by the carrier and handed by him to the consignor after the goods have been accepted. Sub-rule (5) of said Rule 6 further provides that if, at the request of the consignor, the carrier makes out the air consignment note, he shall be deemed, subject to the proof to the contrary, to have done so on behalf of the consignor. Rule 12(1) says that subject to his liability to carry out all his obligations under the contract of carriage, the consignor has the right to dispose of the goods by withdrawing them at
the aerodrome of departure or destination, or by stopping them in the course of the journey on any landing or by calling for them to be delivered at the place of destination or in the course of the journey to a person other than the consignee named in the air consignment note, or by requiring them to be returned to the aerodrome of departure. He must not exercise the right of disposition in such a way as to prejudice the carrier or other consignors and he must repay any expenses occasioned by the exercise of this right. Sub-rule (4) of said Rule 12 provides that the right conferred on the consignor ceases at the moment when that of the consignee begins in accordance with Rule 13. Nevertheless, if the consignee declines to accept the consignment note or the goods of if he cannot be communicated with, the consignor resumes his right of disposition. Rule 16(1) States that the consignor must furnish such information and attach to the air consignment
note such documents as are necessary to meet the formalities of customs. octroi or police before the goods can be delivered to the consignee. Rule 18(1) provides that a carrier is lable for damages sustained in the event of the destruction or loss of, or of damage to, any registered luggage or any goods, if the occurrence which caused the damage so sustained took place during the carriage by air. Sub-rule (2) further says that the carriage by air within the meaning of sub-rule (1) comprises the period during which the luggage or goods are in charge of carrier, whether in an aero-drome or on board an aircraft, or, in the case of a landing outside an aerodrome, in any place whatsoever. Rule 22(2) provides that in the car-riage of registered luggage and of goods, the liability of the carrier is limited to a sum of 250 francs per kilogramme, unless the consignor has made, at the time when the package was handed over to the carrier, a special declaration of the value at delivery and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that, that sum is greater than the actual value to the consignor at delivery. Rule 25(1) which is material is reproduced below :-
“The carrier shall not be entitled to avail himself of the proviions of this Schedule which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as is in the opinion of the court equivalent to wilful misconduct.”
8. Adverting to the pleadings and evidence, it is admitted case of the parties that the plaintiff firm through its agent M/s. Continental Carriers delivered a consignment of ready-made garments on 31st July, 1976 to the defendant at New Delhi for carriage to London and Airway bill No. 220-5673 9174 EX.D-1 dated 31st July 1976 was issued by the defendant. In Ex. D-1 State Bank of India, South Hall, Middlesex, UK is shown as the consignee while M/s. R.K. Fashion Ltd. as notify party. It is also not in dispute that after M/s. R.K. Fashion Ltd. failed to take delivery of the consignment on getting the documents released by making payment to the consignee, by the letter Ex.D-4 dated 18th October 1976 sent by M/s.Continental Carriers on instructions from the plaintiff, the defendant was instructed to delete the consignee bank’s name and deliver the consignment directly to M/s. R.K. Fashion Ltd. It is further not in dispute that by the letter Ex.P-1 dated 22nd April, 1977 which was received by the defendant on 26th April 1977, the defendant was instructed by plaintiff’s agent M/s. Continental carriers to deliver the consignment in question to M/s. Kay Imports & Exports and to debit the storage charges to its account and separate bill sent for this purpose. Case of the plaintiff is that despite receipt of the said letter Ex. P-1 the defendant handed over the consignment in question to M/s. Express Enterprises, agent of said M/s. R.K. Fashions Ltd. on 5th May, 1977 and it is, therefore, liable to compensate the plaintiff for the
value of consignment together with interest. On the point of delivery of consignment to M/s.Express Enterprises on the aforesaid date the averments particularly made in Paras 12 and 14 of the plaint, corresponding paras of the amended written statement and also the letters Ex. P-2, Ex. PW1/4 and Ex. PW1/2 are relevant. Para No. 11 of the plaint notices that the defendant by letter dated 8th August, 1977 informed M/s. Continental carriers that the consignment had been released to M/s. Express Enterprises being the consignee’s agent. In Para No. 12 it is pleaded that in reply to said letter dated 8th August 1977 M/s. Continental carriers by the letter dated 22nd August, 1977 wrote to the defendant that M/s. Express Enterprises was neither the agent of M/s. Kay Imports & Exports nor the later gave any instructions to anybody for clearance of the consignment on its behalf. It is further pleaded that in the said letter it was also mentioned that M/s. Kay Imports & Exports approached the London office of the defendant for taking delivery of consignment but they were informed that the consignment had already been handed over on 5th May 1977 to M/s. Express Enterprises. In Para No. 14 it is alleged that M/s. Kay Imports & Exports had been ready and willing at the relevant time to accept the delivery of consignment but the defendant was not in position to give delivery thereof to them for the reason that the consignment had already been unauthorisedly delivered on th May 1977 to M/s. R.K. Fashion Ltd. through their agent M/s. Express Enterprises. In corresponding paras of the amended written statement it has not been specifically denied by the defendant that the consignment in question was not handed over on 5th May, 1977 to M/s. Express Enterprises as alleged. Ex. P-2 dated 20th May, 1977 is the letter sent by the defendant to said M/s. Continental Carriers and in Para No. 2 of this letter it is stated that as per the telex information from their office in London the consignment in question was delivered to M/s. Express Enterprises with information M/s.Kay Imports & Exports. The defendant cannot wriggle out of
what is stated in said para 2 in Ex.P-2. Ex.PW1/4 dated 7th September,1977 is the letter sent by M/s.Kay Imports & Exports to the plaintiff repudiating the liability to pay the amount of Rs.1,48,200/- being the value of consignment in question on the grounds that neither the delivery of consignment was made to them nor M/s.Express Enterprises was their agent. Ex. PW1/2 dated 28th May 1977 is the letter sent by M/s. Express Enterprises to said M/s. Kay Imports & Exports and it, inter alia, notices that if the later do not have a clearing agent they are prepared to act for them.
Aforesaid letters and the pleadings prove beyond doubt that M/s. Express Enterprises was not the agent of M/s. Kay Imports & Exports and the delivery of the consignment in question was made by the defendant to M/s. Express Enterprises on 5th May, 1977 against the instructions contained in said letter Ex.P-1.
9. Scheme of the Rules aforementioned clearly indicates that to meet the formalities of customs etc. the goods need not be handed over to an agent of the consignee and if the consignee declines to accept the goods the consignor resumes his right of disposition of goods but he must repay to the carrier any expenses occasioned by the exercise of that right . Needless to repeat that by the said letter Ex. P-1 M/s. Continental carriers as agent of the plaintiff had asked the defendant to debit the storage charges in their account after aforesaid M/s. R.K. Fashion Ltd. had failed to take
the delivery of the consignment in question. Admittedly, Rs.48,838.45 were also received by the defendant from plaintiff towards storage charges of the said consignment. Obviously, loss of the value of the consignment in question to the plaintiff was caused as a result of wilful misconduct on the part of the defendant in handing over the same to said M/s.Express Enterprises within the meaning of aforesaid Rule 25(1) for which defendant is liable to compensate the plaintiff. Suit is not bad for non-joinder of any other party. Both the issues are answered accordingly.
ISSUE NO.1
10. This issue was treated as a preliminary issue and by the order dated 23rd September 1981 it was decided in favour of the plaintiff holding that the suit was within limitatio Civil Appeal No.3912/83 taken out by the defendant against this order was dismissed by the Supreme Court by the order dated 28th February, 1996 holding that it will be open to the defendant if the suit is decreed in favour of the plaintiff to raise all questions including the question of limitation before the Court of appeal. This issue thus stands settled as regards this court.
ISSUE NO.2.
11. In view of finding on said issue No. 6, no separate finding need be recorded on this issue.
ISSUE NO.3.
12. Since the consignment in question was booked with the defendant at New Delhi, a part of cause of action within the meaning of Section 20(c) CPC
had accrued within the territorial jurisdiction of this court. Issue is
answered in negative.
ISSUE NO.4.
13. Ex.Pw1/1 is the certified copy of Form “A” pertaining to the plaintiff firm and name of Subhash Chander Vij who signed and verified the plaint and instituted the suit, appears at serial No. 2 therein as a partner thereof Issue is, therefore, decided in the affirmative.
ISSUES NO.7 & 8
14. It is in the deposition of Subhash Chander Vij, PW-1 that the value of consignment which was handed over to the defendant against Airway Bill Ex.D-1 was Rs.1,48,200/-. The bank rate of interest at that time was 18% p.a. whereas market rate of interest was 21% p.a. There is market custom also to pay interest on credit sales and the defendant is thus entitled to interest on the said amount. In cross examination it was not even remotely suggested to him that the value of consignment was not Rs.1,48,200/-. It is a matter of common knowledge that the bank rate of interest goes on changing as per instructions of the RBI. The plaintiff did not examine any official from any of the scheduled banks to depose about the rate of interest which was prevailing durin the years 1977 to 1996. Statement of PW-1 came to be recorded on three dates within first six months in 1997. Rs. 39,569.40 have been claimed by way of interest at the rate of 18% p.a. from May 1977 upto he date of filing of suit i.e. 9th November, 1978. There is no doubt that the plaintiff is entitled to claim interest on the aforesaid amount of Rs.1,48,200/- as the firm was deprived of the use of this money
because of the wrongful misconduct on the part of defendant in handing over the consignment in question to an unauthorised person. I feel that interest of justice will be secured if the plaintiff is allowed interest @ 9% p.a. upto the date of filing of the suit as also pendente lite and future. Calculated at that rate the amount of interest upto the date of filing of suit will be Rs.19,784.70 which the plaintiff is entitled to recover together with the said amount of Rs.1,48,200/-.
15. Issues are answered accordingly.
RELIEF
16. In view of finding on the said issues, the suit is decreed for Rs. 1,67,984.70 with proportionate costs and interest pendente lite and future at the rate of 9% p.a. on Rs. 1,48,200/- against the defendant.