Kerala High Court
Nortrans Marine Services (P) Ltd vs Cargo Care International on 10 November, 2020
Author: S.V.Bhatti
Bench: S.V.Bhatti, Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI &
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
RFA.No.672 OF 2004
AGAINST THE ORDER/JUDGMENT IN OS 105/2000 DATED 30-06-2004 OF PRINCIPAL SUB
COURT,KOCHI
APPELLANT/S:
NORTRANS MARINE SERVICES (P) LTD
A PRIVATE LIMITED COMPANY INCORPORATED UNDER THE, INDIAN
COMPANIES ACT, HAVING ITS OFFICE AND PLACE OF BUSINESS AT HINE
HOUSE, K.P.K.MENON ROAD, W.ISLAND COCHIN 682 003
BY ADVS.
SMT.P.F.ROSY
SMT.KRIPA ELIZABETH MATHEWS
SMT.C.B.SUMA DEVI
SRI.SURESH SAMUEL
SRI.V.M.SYAM KUMAR
RESPONDENT/S:
1 CARGO CARE INTERNATIONAL, A REGISTERED
PARTNERSHIP FIRM HAVING ITS OFFICE AT LEEGEES, BUILDING,
G.V.IYYER ROAD, W.ISLAND, KOCHI 682 003, REP. BY ITS MANAGING
PARTNER, BENNY FRANCIS.
2 NORASIA CONTAINER LINE LIMITED
P.B.NO.560, AVENUE BEAUREGARD 10, FRIBOURG, SWITZERLAND ZIP
1701.
3 AL SAHAL SHIPPING EST. PO BOX NO.27065
ABUDHABI, U.A.E.
4 ABUDHABI SHIPPING AGENCY ABUDHABI.
5 CMA-CGM & ANL COMPAGNIE MARITIME D AFFRETAMENT/COMPAGAIE
GENERAL MARITIME, AUSTRALIAN NATIONAL LINE, 4, QUAL D' ARENC
P.O., BOX NO.2409, MARSHILE 13002, CEDEX 2, FRANCE.
6 MOHANAN PILLAI.K. KALATHIL PARAMBIL
HOUSE, KALATHIPARAMBIL, LANE, KOCHI 16, KERALA.
7 MALLIKA PURUSHOTHAMAN G-8 ANARK
APARTMENTS, MARAR ROAD, TRICHUR.
8 MOHAMMED MAULAI MATHAPPULAL SAIDA
MANZIL, CHEPPALANGADI, KOTTAKKAL VIZ, MALAPPURAM, DISTRICT
676 503, KERALA.
9 UMA GOPI SREEKYLAS ALANCHANCODE
CHITTOOR COLLEGE P.O. PALAKKAD KERALA.
10 N.SUKUMARAN,
SOWPARNIKA,NILAPARAMBIL HOUSE,P.O PULAMANTHOLE,
MALAPPURAM DISTRICT 679323
11 JEEROY GEORGE
FOSTER,PARVASI MARKETING SALES(P) LTD, OFFICE OASIS COMPLEX,
PERINGAVU, TRICHUR 680018
12 NORASIA LINES(MALTA)LTD
OWNED BY NORASIA CONTAINER LINES LIMITED,P.B NO 560,AVENUE
BEAURGARD 10,FELBOURD,SWITZERLAND,IP 1701,REPRESENTED BY
THEIR AGENT AT COCHIN . M/S NORLORAN MARINE SERVICES(P)
LIMITED,HINE HOUSE, K.P.K MENON ROAD, WILLINGDON ISLAND,
COCHIN 682003.
R1 BY ADV.POOJA MENON FOR SRI.M.GOPIKRISHNAN NAMBIAR,
R1 BY ADV. SRI.ALIAS M.CHERIAN
R1 BY ADV. SRI.K.JOHN MATHAI
R1 BY ADV. SRI.JOSON MANAVALAN
R1 BY ADV. SRI.KURYAN THOMAS
R1 BY ADV. SMT.PRIYA KRISHNAMOORTHY
R1 BY ADV. SRI.PAULOSE C. ABRAHAM
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD AND RESERVED FOR
JUDGMENT ON 07-10-2020, ALONG WITH RFA.673/2004(B), THE COURT ON 10-11-2020
DELIVERED THE FOLLOWING:
RFA Nos.672 & 673/2020
-3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE S.V.BHATTI &
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 15TH ASWINA, 1942
RFA.No.673 OF 2004(B)
AGAINST THE ORDER/JUDGMENT IN OS 105/2000 DATED 30-06-2004 OF PRINCIPAL
SUB COURT,KOCHI
APPELLANT/S:
NORASIA CONTAINER LINES LTD
18/2, SOUTH STREET, VALLETTA, VIT 11, MALTA,, INCORRECTLY
SHOWN IN THE PLAINT AS, P.B.NO.560, AVENUE BEAUREGARD, 10,
FRIBOURG,, SWISTZERLAND ZIP 1701.
BY ADV. SRI.SANTHOSH MATHEW
RESPONDENT/S:
1 CARGO CARE INTERNATIONAL
PARTNERSHIP FIRM HAVING ITS OFFICE AT LEEGEES, BUILDERS
G.V.IYER ROAD, W.ISLAND, KOCHI 682 003, REP. BY ITS MANAGIG
PARTNER BENNY FRANCIS.
2 NORTRANS MARINE SERVICE P LTD.
HINA HOUSE, K.P.K. MENON ROAD,, W.ISLAND, COCHIN 682 003.
3 AL SAHAL SHIPPING EST. P.O.BOX NO.27065, ABU DHABI, U.A.E.
4 ABUDHABI SHIPPING AGENCY, ABUDHABI.
5 CMA-CGM ANI COMPAGNIE MARITIME D'AFFRETAMENT/
COMPAGIAE GENERAL MARITIME,, AUSTRALIAN NATIONAL LINE, 4
QUAID D'ARENC, P.O.BOX,. BO.3409, MARSHLLE 13002 CEDEX 2,
FRANCE.
6 MOHANAN PILLAI.K. KALATHIL PARAMBIL
HOUSE, KALATHILPARAMBIL LANE, KOCHI 16, KERALA.
RFA Nos.672 & 673/2020
-4-
7 MALLIKA PURUSHOTHAMAN G 8
ANARK APARTMENTS, MARAR ROAD, THRISSUR.
8 MOHAMMED MAULAVI MATHAPPULAL
SAIDA MANZIL, CHAPPALANGADI, KOTTAKKAL VIA,, MALAPPURAM
DISTICT 676 503.
9 UMA GOPI SREEKYLAS ALANCHANCODE
CHITTOOR COLLEGE P.O. PALAKKAD KERALA.
10 N.SUKUMARAN SOWARNIKA, NILAPARAMBIL HOUSE,
P.O.PULAMANTHOLE,, MALAPPURAM DISTRICT.
11 JEEROY GEORGE FOSTER PARVASI, MARKETING SALES (P) LTDL,
OFFICE OASIS COMPLEX,, PERINGAVU, THRISSUR 680 018.
12 NORASIA LINE MALTA LTD. AT PRESENT
CARRYING ON BUSINESS AS DEEPWATER SHIPPING (MALTA),
LIMITED AKARA BUILDING, WICKHAMS CAY 1, PO.BOX NO., 3136,
ROAD TOWN, TORTOLA, BRITISH VIRGIN ISLANDS,INCORRECTELY
DESCRIBED IN THE PLAINT AS OWNED BY NORASIA CONTAINER
LINES LIMITED , P.B NO 560 , AVENUE BEAUREGARD 10, FRIBOURG,
SWITERZLAND , ZIP 1701 REPRSENTED BY THEIR AGENT AT COCHIN
M/S NORLORAN MARINE SERVICE (P) LIMITED , HINE HOUSE, K.P.K
MENON ROAD, WILLINGDON ISLAND, COCHIN 682003.
R1 BY ADV. POOJA MENON FOR SRI.M.GOPIKRISHNAN NAMBIAR
R1 BY ADV. SRI.DENU JOSEPH, SRI.K.JOHN MATHAI
R1 BY ADV. SRI.JOSON MANAVALAN, KRIPA ELIZABETH MATHEWS
R1 BY ADV. SRI.KURYAN THOMAS, SRI.PAULOSE C. ABRAHAM
BY ADV. SMT.P.F.ROSY, SRI.SAJI MATHEW, SMT.C.B.SUMA DEVI
BY ADVS. SRI.C.G.SUNIL, SURESH SAMUEL, V.M.SYAM KUMAR
BY ADVS. SRI.K.P.VIJAYAN, SRI.M.R.VENUGOPAL
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD AND RESERVED
ON 07-10-2020, ALONG WITH RFA.672/2004, THE COURT ON 10-11-2020 DELIVERED
THE FOLLOWING:
R.F.A Nos.672 & 673/2004
-5-
JUDGMENT
[ RFA.672/2004, RFA.673/2004 ] Dated this the 10th day of November 2020 Per S.V.Bhatti, J.
Heard Learned Advocates Santhosh Mathew and V.M.Syamkumar for appellants and Advocates Pooja Menon, Alias M Cherian, and Denu Joseph for respondents.
2. The 1st and the 2nd defendants in O.S. No.105 of 2000 on the file of the Principal Subordinate Judge's Court, Kochi are the appellants in these two appeals. 1 st defendant is the appellant in R.F.A. No.673 of 2004 and 2 nd defendant is the appellant in R.F.A. No.672 of 2004. Both the appeals arise from the judgment dated 30.06.2004 in O.S. No.105 of 2000. This Court for convenience refers to the parties as plaintiff and defendants as arrayed in O.S. No.105 of 2000.
R.F.A Nos.672 & 673/2004 -6- 2.1 Cargo Care International, a registered partnership firm with its branch office at Kochi is the plaintiff. The plaintiff is the agent of Al Shahal Shipping Est. Abu Dhabi, U.A.E/ 3 rd defendant. Defendant Nos. 6 to 11 were Non-Resident Indians (NRI) from the State of Kerala, living at that point of time in Abu Dubai, U.A.E. Defendant Nos.6 to 11 have entrusted cargo i.e., a Mercedes Benz car, household articles etc under Exhibits A5 to A9 under in-house BoL. [List of contents in cargo with original invoices A7 - letter dated 12.8.1999, A8 - letter dated 20.09.1999, A9- claim form, and A11- facing page of Bill of Lading to 3rd defendant for shipment to Kochi.] On 24.07.1999 under Bill of Lading (for short 'BoL') (Exts.A11/B3), the assorted individual packages given by defendant Nos. 6 to 11 have been entrusted to Abu Dhabi Shipping Agency, Abu Dhabi/D4, the agent of Charter party of vessel M.V."FAS GULF" V.1E31, CMA- R.F.A Nos.672 & 673/2004 -7- CGM & ANL, Compagnie Maritime D' Affretament/Compagaie, General Maritime Australian National Line, France. The 5 th defendant is the owner of vessel M.V."FAS GULF" V.1E31. The plaintiff is admitted as the consignee in BoL dated 24.07.1999, therefore authorised to receive the consignment if delivered at Kochi. The goods/cargo covered by respective in-house BoL, as per the trade practice, were stuffed into container No.GSTU 9689690 and shipped in the vessel M.V."FAS GULF" V.1E31. The 2nd defendant, it is averred, was the agent of Charter party D12, at that point of time, and also the agent of D1.
2.2 From the case set up by D1 and D2 it is noted that D1 acquired the management and the ownership of D12. The plaintiff on 29.07.1999 (Ext.A15) received intimation from the 2nd respondent that on 27.07.1999 the vessel M.V."FAS GULF"
V.1E31 encountered severe weather conditions on passage from Khorfakkan to Nhava Sheva (India) and container No. GSTU R.F.A Nos.672 & 673/2004 -8- 9689690 and four other containers were lost on the High Seas.
The 2nd defendant notified complete loss of container and invited the plaintiff or its insurance company to remain present for survey when the vessel M.V."FAS GULF" V.1E31 calls on Port Kochi on 30.07.1999. Ext. A1 dated 04.08.1999 is the survey report. The plaintiff as the consignee/beneficiary under BoL dated 24.07.1999, has filed O.S. No.105 of 2000 for recovering damages amounting to U.S.D. 1,42,081 equivalent to Rs.62,44,459/- towards the loss of cargo entrusted to defendant Nos.1 and 2.
2.3 The suit was filed on 22.06.2000 against Norasia Lines (Malta) Ltd. P.B. No.560, Avenue Beaugard 10, Felbourd, Switzerland and Norlorans Marine Services (Ltd) West Aline, Kochi as defendant Nos.1 and 2. Later on, defendant Nos.3 to 11 were impleaded in I.A. No.588/2001 by order dated 15.06.2001.
The 12th defendant/Norasia Lines (Malta) Ltd owned by Norasia R.F.A Nos.672 & 673/2004 -9- Container Lines Ltd P.B.No.560, Avenue Beaugard 10 Felbourd, Switzerland represented by their agent M/s.Norloran Marine Services Pvt.Ltd. i.e., D2, as defendant No.12. The dates on which defendant Nos.3 to 12 have been impleaded are adverted to at this stage of the narration for a few arguments are made by the counsel appearing for the parties on jurisdiction, frame of suit, limitation etc.
3. The plaint averments are that the plaintiff is the agent of 3rd defendant/shipper and is a registered partnership firm. 3rd defendant entrusted personal effects of defendant Nos.6 to 11 for carriage by sea to Port Kochi. 1 st defendant and 12th defendant are chartered parties and 2nd defendant is their agent at Kochi. The cargo container No. GSTU 9689690 was carried in M.V."FAS GULF" V.1E31 . 5th defendant is the owner of the said carrier. As per the Contract of Affreightment, the cargo was to be consigned or delivered to plaintiff, a declared R.F.A Nos.672 & 673/2004 -10- consignee in the BoL at Kochi. The 4 th defendant, the agent of charter party, signed and issued BoL dated 24.07.1999 bearing No. NSLUADSAUH 002510 for container No.GSTU 9689690. According to BoL, the subject cargo is delivered to the plaintiff, being the consignee under BoL, at Port Kochi. The plaintiff receives or acknowledges the cargo in container No. GSTU 9689690 for the benefit or delivery of defendant Nos.6 to 11 as per the details borne out by in-house BoL. On 27.07.1999 M.V."FAS GULF" V.1E31, during the voyage between Khorfakkan and Nhava Sheva Port, experienced high water swells and due to the adverse or harsh weather conditions, the carrier lost five containers on board, including container No.GSTU 9689690 entrusted for shipment to Port Kochi. On 29.07.1999 in Ext. A15 the 2nd defendant being the agent (at this stage this Court is not proposing to detail whether the 2nd defendant sent the communication as the agent of 1st defendant or 2nd defendant), R.F.A Nos.672 & 673/2004 -11- issued the notice of loss and called upon the plaintiff to participate in the survey scheduled on 30.07.1999. Ext.A1 dated 04.08.1999 is the Surveyor's Report for the survey carried out at Port Kochi. The plaintiff alleges that defendant Nos.1, 2 and 12 under BoL dated 24.07.1999 (Ext.A11/B3) have acknowledged the personal effects and belongings of defendant Nos.6 to 11 for shipping to Port Kochi. The cargo entrusted under the BoL dated 24.07.1999 declares the plaintiff as the consignee entitled to deliver the goods in container No. GSTU 9689690. The plaintiff as per the Contract of Affreightment has not received the goods. Therefore, there is breach of obligation of shipment of goods undertaken by defendant Nos. 1 and 12. The loss of cargo on 27.07.1999 is admitted.
3.1 The plaintiff on 26.10.1999 (Ext.A2) claimed U.S.D. 1,42,081 for the loss of goods in container No.GSTU 9689690 to 2nd defendant. The 2nd defendant acknowledged the loss claim R.F.A Nos.672 & 673/2004 -12- submitted by the plaintiff. On 22.03.2000 the plaintiff has sent the reminder to defendant on the pending claim. The plaintiff alleges that defendant Nos.1, 12 and 2, in spite of acknowledgement of loss claim from the plaintiff, have not settled the claim. The suit is filed in terms of clause 9(2) of BoL and is not barred by limitation. Defendant Nos.1, 2, 4, 5 and 12 committed breach of Contract of Affreightment resulting in loss to plaintiff; the defendants, therefore, are liable to make, by way of damages to plaintiff, for the loss of cargo entrusted for the benefit of defendant Nos.1, 2, 4, 5, and 12 through plaintiff. The plaintiff avers that the cause of action for the suit arose on 24.09.1999 when the goods were agreed to be delivered to plaintiff at Port Kochi in accordance with the Contract of Affreightment and the breach of non-delivery of cargo was intimated to plaintiff, the Court has jurisdiction to entertain the suit.
R.F.A Nos.672 & 673/2004 -13-
4. Defendant Nos.1 and 2, filed common written statement. The written statement is signed by 2 nd defendant as agent of 12th defendant. The first and foremost aspect warranting mention from the written statement is that the 1 st defendant namely Norasia Lines (Malta) Ltd. was incorporated on 31.05.2000. The 1st and 2nd defendants do not join issue with the plaintiff on the description of defendant Nos.1 and 2 in the cause title or their addresses of business. The subject BoL was issued to plaintiff by Noratia Lines (Malta) Ltd. The 1 st defendant purchased Norasia Lines (Malta) Ltd. The ownership and management of Norasia Lines (Malta) Ltd had changed in favour of 1st defendant with effect from 31.05.2000. Norasia Lines is not made a party/defendant to the suit. The suit is bad for non-joinder of parties. The 1 st defendant had not taken over/purchased the liability, if any, of Norasia Lines/D12 which issued BoL to plaintiff. The 1st defendant objects to the R.F.A Nos.672 & 673/2004 -14- jurisdiction of the Principal Subordinate Judge's Court at Kochi to try the suit on the ground that cause of action or any part of the cause of action for filing the suit has taken place within the territorial jurisdiction of the Trial Court, much less against the answering defendants at Kochi. The BoL has been issued at Abu Dhabi by defendant No. 4 as the agent of Norasia Lines/D12. The loss of cargo on 27.07.1999, it is stated, is admitted by the plaintiff. Therefore, the loss of cargo is out of the jurisdiction or bounds of the Court at Kochi. The 2 nd defendant, even if he is within the territorial jurisdiction of the Court, the suit as framed and filed is incorrect.
4.1 The registered office of 2nd defendant, as a matter of fact, is at Ernakulam and a branch office of D2 was located at Kochi. Defendant Nos.1 and 2 admit issuance of seven sets of in- house BoL Nos.AZC/COC/AUH/676, 677, 678, 679, 680, 681 and 682 dated 12.06.1999 in favour of defendant Nos.6 to 11. The R.F.A Nos.672 & 673/2004 -15- suit is bad for non-joinder of parties namely Norasia Lines, Shipper, Abu Dhabi Shipping Agency and owners of the vessel M.V. "FAS GULF". 3rd defendant i.e., the Principal of plaintiff, entrusted the cargo to 12th defendant, but not to 1st defendant. 12th defendant acknowledged receipt of cargo as per the container details given in BoL dated 24.07.1999. In other words, the 1st defendant neither acknowledges the receipt of cargo nor issued BoL to plaintiff. The defendants call upon plaintiff to prove that plaintiff is the agent of M/s.Al Shahal Shipping, Shipping and clearing Agent Abu Dhabi and that the plaintiff is duly authorised by 3rd defendant to file the suit. The legal status of plaintiff is contested and also the competence or authority of person who signed the plaint on behalf of the plaintiff firm. Container No.GSTU 9689690 suffered from misdeclaration of value etc, the plaint is silent about the cost of cargo, item wise, entrusted by the 3rd defendant to 12th defendant. The owners of R.F.A Nos.672 & 673/2004 -16- vessel M.V."FAS GULF" are not made parties to the suit. The defendants deny their liability for the loss of cargo covered by BoL dated 24.07.1999. Defendants refer to clause 4 of BoL and claim exemption from any liability. The averment in plaint that due to high-seas and swells on 27.07.1999 five containers were lost, including the subject container, is not disputed, and it is an act of God and not on account of any of the exceptions covered by BoL. The claim of plaintiff, if any, is available against Norasia Lines and/or the owner of vessel M.V."FAS GULF". The plaintiff does not refer to the details of cargo covered by Ext.A11 BoL. On account of misdeclaration or misstatement the carrier/ship are not responsible for the loss or damage in connection with such goods. The defendants pray for dismissing the suit.
4.2 Defendant Nos.3, 6, 9 and 10 have filed written statement and in view of the arguments now put forward on their behalf supporting the case of plaintiff, by endorsing the R.F.A Nos.672 & 673/2004 -17- efforts taken by the plaintiff, I am of the view that the stand taken by the owners of individual cargo (parcels) need not be adverted to in this judgment. The 12th defendant has remained ex parte. The 1st and 2nd defendants upon amendment of cause title, i.e., deleting the word 'Malta' from the description of D1, inclusion of other defendants, particularly the 12 th defendant, and the description of 12th defendant as represented by agent D2, have not filed additional written statement.
5. The Trial Court framed the following issues for decision:
i) Whether this Court has territorial jurisdiction to try the suit?
ii) Whether the suit is bad for non-joinder of necessary parties?
iii) Whether the suit is not maintainable for the reasons stated in the written statement of defendants 1 and 2?
iv) Whether the suit claim is barred by limitation?
R.F.A Nos.672 & 673/2004 -18-
v) Whether the plaintiff is entitled to any and what amount and interest and from which all defendants?
vi) To what reliefs and costs?
5.1 Exts.A1 to A37 were marked for and on behalf of plaintiff and Mr.Benny Francis was examined as PW1. Exts.B1 to B31 were marked on behalf of 1st and 2nd defendants. Exts.B30 and B31 are shown in the appendix of evidence but verification of originals discloses that they are merely produced after evidence on defendants' side. No witness tendered the document or proved. The counsel state that this is a mistake in the judgment and Exts.B30 and B31 can be excluded from consideration for any purpose. The rest of the exhibits are admitted as copies of correspondence between the parties. DW1, an employee of 2nd defendant, Richard Lafrancis, was examined. DW2 is Mr.Wemce Morris Joseph and DW3 is Mr.Jeeroy George/D11.
R.F.A Nos.672 & 673/2004 -19- Summary of findings of Trial Court.
5.2 The Trial Court by referring to clause 7.2 of Ext.A11/B3, in answering issue No.i, held that the Subordinate Judge's Court Kochi has territorial jurisdiction to entertain the suit.
5.3 On issue No.ii it is held that defendant Nos. 3 to 12 were impleaded by the plaintiff and on account of subsequent impleadment of these defendants, it cannot be said that the suit is bad for non-joinder of necessary parties.
5.4 On the question of limitation, covered by issue No.iv, the Trial Court found that the suit is barred by limitation insofar as 5th defendant alone is concerned. In other words, the suit, insofar as defendant Nos. 1, 2 and 12 are concerned, is within the period of limitation.
5.5 The Trial Court has taken up for consideration issue Nos.iii and v together and held that defendant Nos.1 and 2 are R.F.A Nos.672 & 673/2004 -20- liable to reimburse the suit claim made for complete loss of cargo. The Trial Court finally decreed the suit as prayed for, directing the defendants to pay Rs.62,44,459/- and its assets with future interest at 6% per annum from the date of the suit till realisation. Hence, the appeals.
6. Advocates Santhosh Mathew and Syamkumar appearing for the appellants assail the findings of Trial Court in all fours by referring to pleadings, documents and a few decisions. The arguments of the counsel can be stated as touching upon the jurisdiction of the Court at Kochi to entertain O.S. No.105 of 2000; the competence of plaintiff to file the suit, in other words, that the suit is hit by the requirement of Section 69 (2) of the Indian Partnership Act, 1932 (for short 'IP Act'); the suit is barred by limitation on account of impleading D12 beyond the period of limitation; the suit filed against D2 who enjoys protection under Section 230 of Indian R.F.A Nos.672 & 673/2004 -21- Contract Act is bad in law and the loss of container No.GSTU 9689690 is on account of the circumstances which are beyond the control of the 5th defendant as carrier, or for the matter defendant Nos.1 and 12 are chartered party to the agreement, therefore, 'perils of the sea' clause or 'act of God' protects these defendants from inferring the suit claims. The damages awarded as prayed for are illegal, unsustainable and contrary to the accepted principle on which damages are awarded and finally, if the loss is an actionable claim and proved by plaintiff, still the amount of damages shall be as per the clauses of BoL. The judgment of the Trial Court is completely unsustainable, illegal and suffers from perversity. The gist of the submissions is prefaced and the arguments are considered in detail as and when the respective points are considered by this Court.
7. Adv.Pooja Menon appearing for 1st respondent/plaintiff argues that the clause relied on by R.F.A Nos.672 & 673/2004 -22- defendant Nos.1 and 2 to claim that the Court at Kochi does not have jurisdiction is inapplicable. According to her, BoL deals with special provisions and clause 7.2 completely covers the case of plaintiff. The details on maintainability of suit, regarding territorial jurisdiction, are mixed up in the context of Section 69 of the IP Act. Her first and foremost objection is that there is no pleading or definite averment in the written statement vis-à-vis the objection under Section 69(2) of IP Act. The suit is filed within the period of limitation. The impleadment of 12th defendant is to clear the impediment of not having an alleged proper party, in spite of clear admissions on who is answerable for the suit claim in the written statement. The defendants who have to answer the claim of plaintiff, as on that date, were impleaded as defendant Nos.1 and 2 in the suit. The suit, from any perspective, is not barred by limitation. The description of 1st defendant by including the word 'Malta' is at R.F.A Nos.672 & 673/2004 -23- best a misdescription, once the misdescription part, i.e., 'Malta', is deleted, the cause title is conforming to the status now claimed by the 1st defendant through Exts.B1 to B4. The written statement refers to the very description of D1 in cause title and admits the description. According to her, this submission is completely academic and liable to be rejected. She refers to the valuation available in Hague-Visby Rules, and submits that the claim made by the plaintiff in the suit is on the lower side and as a matter of fact the plaintiff is entitled to more than what is claimed. According to her, the decree does not warrant interference. She prays for dismissing the suit.
8. Adv.Alias appearing for defendant Nos.6 to 11 has argued particularly by referring to the in-house BoLs issued by 3rd defendant in favour of defendant Nos.6 to 11, and the striking distinguishing factor with which Ext.B3 has been issued by the agent of chartered party. According to him, the suit is R.F.A Nos.672 & 673/2004 -24- filed on account of non-performance of agreed contractual obligation i.e., to deliver cargo at Port Kochi. There is no dispute about entrustment of goods, shipment, issuance of BoL, loss on high seas, inspection on 30.07.1999 and the suit claim is for and on behalf of the real owners, no exception to the judgment and decree could be taken. He contends that the Court while interpreting BoL and its terms and conditions, will have to see the obligations undertaken on the front page of BoL, read with all the contractual clauses overleaf BoL. In other words, according to him, the obligation undertaken in BoL is to deliver goods at Port Kochi. The goods are lost on the high seas. Therefore, clause 7.2 of BoL is applicable, and the Court at Kochi has jurisdiction to entertain the suit to recover damages or loss of consignment. According to him, clause 27, if read, then, which is the applicable law in English Courts, therefore the applicable law once is made the law of port of discharge, the R.F.A Nos.672 & 673/2004 -25- port of discharge has territorial jurisdiction, and that Court alone is competent to decide the dispute. He prays for dismissing the appeals.
9. This Court has perused the record and taken note of the rival submissions made by the counsel appearing for the parties. This Court is of the view that the arguments now put forward substantially refer to the very issues which have been considered and decided by the Trial Court. However, keeping in view a few findings recorded by the Trial Court, the arguments have been made including how these findings either are incorrect or tenable by the contesting parties.
10. This Court takes note of the arguments advanced by the counsel appearing for the parties, formulates the following points for consideration:
(I) Whether Principal Subordinate Judge's Court, Kochi has territorial jurisdiction to entertain and try O.S. No.105 of R.F.A Nos.672 & 673/2004 -26- 2000 in terms of clauses 7 or 27 of BoL (Ext.A11/B3), which deal with applicable law and jurisdiction for the disputes arising under BoL?
(II) Whether the suit, at the instance of plaintiff claiming to be a registered firm and in the absence of proof of registration, is hit by Section 69(2) of IP Act?
(III) Whether the suit is within the period of limitation?
(IV) Whether the 2nd defendant is entitled to the protection under Section 230(1) of Indian Contract Act?
(V) Whether the alleged intense sea gales and swells are covered by the sea perils or act of God to exonerate the 1 st and 2nd defendants from suit liability?
(VI) Whether the quantum awarded by the Trial Court either in lieu of loss of cargo or towards damages is justifiable and tenable?
R.F.A Nos.672 & 673/2004 -27- (VII) Whether the judgment of the Trial Court in O.S. No.105 of 2000 is valid, legal and tenable?
Point I - Whether Principal Subordinate Judge's Court, Kochi has territorial jurisdiction to entertain and try O.S. No.105 of 2000 in terms of clauses 7 or 27 of BoL (Ext.A11/B3), which deal with applicable law and jurisdiction for the disputes arising under BoL?
11. Advocate Santhosh Mathew contends that O.S. No.105 of 2000 filed before the Subordinate Judge's Court Kochi is not maintainable for want of territorial jurisdiction, exclusion of jurisdiction on English Courts and applicability of English law. According to him, the relationship between the parties admittedly is governed by BoL (Ext.A11/B3). According to clause 27 of BoL the parties have agreed on the applicable law as were the jurisdiction for resolving the disputes or claims that may arise in execution or breach of obligation under the BoL. Clause 27 reads thus:
"27. Law and Jurisdiction The contract evidenced hereby or contained herein shall be governed by English Law. Any claim or other dispute R.F.A Nos.672 & 673/2004 -28- thereunder shall be solely determined by the English Courts unless the Carriage otherwise agrees in writing."
11.1 According to him, the parties have consented to the applicable law and the jurisdiction for resolving the disputes under BoL. This is a clause which deals with the applicability of law and confers exclusive jurisdiction on the English Courts. Therefore, the plaintiff filing the instant suit before the Trial Court in Kochi is contrary to the agreed terms between the parties. On the other hand, clause 27 is attracted and therefore the suit ought to have been dismissed on the ground lack of jurisdiction to entertain the suit. In support of his contention he places strong reliance on the judgment of the Apex Court in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries1. According to him, clause 27 is applicable but not clause 7.2 of BoL. A finding on jurisdiction is positively given, this Court need not take up other points for decision. 1 1990 SCC (3) 481 R.F.A Nos.672 & 673/2004 -29-
12. Advs. Pooja Menon and Alias appearing for plaintiff and defendant Nos. 6 to 11 contend that plaintiff is the consignee declared and shown in Ext.A11/B3. The plaintiff is a third party but a beneficiary or lawful recipient of consignment under the BoL (Ext.A11/B3). The plaintiff being a third party to the BoL is protected by other clauses in the BoL. The learned Advocates place strong reliance on clause 7.2 in support of their contention that loss of consignment in shipment from the port of delivery to the port of discharge is covered by the internal law of the final port of discharge. The suit is filed by availing the common law remedy in the Subordinate Judge's Court at Kochi for breach of Contract of Affreightment by defendant Nos.1, 2 and 12. The counsel submit that the decision on which strong reliance is placed by defendant Nos. 1 and 2 is distinguishable and clause similar to 7.2 is not considered or decided in British India Steam Navigation Co. Ltd. case. According R.F.A Nos.672 & 673/2004 -30- to them, a Court while construing a commercial document, more particularly a document like BoL, will have to give full effect to each one of the effective conditions, obligations and clauses with which the BoL has been issued. By giving such construction it can be discerned that this is not a case where the jurisdiction of the Court in Kochi is excluded and that the parties will have to work out all their remedies for breach of contract under English Law and English Courts.
12.1 The counsel appearing for the parties do not dispute the settled position in law that incorporation of jurisdiction clause in BoL is of central importance in determining the correct forum for the resolution of disputes arising under a BoL. The common law recognises the freedom of parties to select their own forum in a carriage of goods by sea. Therefore, the parties, by their contract, confer jurisdiction on a particular Court or the Courts of a particular State, either on a non- R.F.A Nos.672 & 673/2004 -31- exclusive basis or as is more common in BoL or on an exclusive basis. From the practice or under an established custom, typical clauses include provisions in BoL that any dispute shall be referred to the English Court or the District Court of New York or Court in Singapore. The scope and effect of these clauses are considered at Common Law while fixing the jurisdiction. Further, at Common Law the validity and effect of a jurisdiction clause is purely a matter of construction of applicable clauses in BoL, which will be determined by the putative applicable law of the contract by the Court where the suit is instituted. The clauses that are sufficiently certain in scope will be considered and jurisdiction for entertaining the lis by a Court is decided.
13. The jurisdiction is ascertainable and determined from the expression 'used' in the clauses in BoL. The common area of dispute in cases of this nature between the parties to a R.F.A Nos.672 & 673/2004 -32- BoL, is whether a given jurisdiction clause is exclusive or non- exclusive. Again this is certainly a question of construction requiring to be determined "whether the clause operates transitively in the sense of imposing on all parties a duty to refer their disputed claims to the named jurisdiction or intransitively in the sense of requiring all parties to consent to the jurisdiction of a given Court, if the jurisdiction is invoked by a claimant party. Further, the applicable jurisdiction clauses whether are exclusive or non-exclusive are potentially important, for these clauses will determine whether the suit filed in a Court other than in specified venue is a breach of contract. Simultaneously, slight differences in wording in jurisdictional clauses will make substantial difference in appreciating the effect of jurisdictional clauses incorporated in BoL. Bearing in mind the above aspects the contentions put forward by the parties are examined.
R.F.A Nos.672 & 673/2004 -33-
14. The Supreme Court in British India Steam Navigation Company Ltd case was dealing with a jurisdiction clause incorporated therein. The jurisdiction clause reads thus:
"3. JURISDICTION: The contract evidenced by this bill of lading shall be governed by English law and disputes determined in England or, at the option of the Carrier, at the port of destination according to English law to the exclusion of the jurisdiction of the Courts of any other country."
14.1 The clauses in Ext.A11/B3 dealing with the jurisdiction are excerpted for immediate reference hereunder:
" 7. Special Provisions Notwithstanding anything provided for in clause 5 and 6 of this Bill of Lading and subject to clause 18:
1) If it can be proved where the loss or damage occurred the Carrier and the Merchant shall, as to the liability of the Carrier, be entitled to require such liability to be determined.
a) by the provisions contained in any international convention or national law, which provision
i) cannot be departed from by private contract to the detriment of the Merchant and
ii) would have applied if the Merchant had made a separate R.F.A Nos.672 & 673/2004 -34- and direct contract with the Carrier respect of the particular stage of transport where the loss or damage occurred and received as evidence thereof any particular document which must be issued if such international convention of national law shall apply.
Provided that an international convention or national law may be invoked as aforesaid only H it would have been applicable if the contract referred to in iv above were governed
1) Where the loss or damage occurred between the time that the Goods were received by the Carrier for transportation and the time that the Goods were loaded at the port of loading by the internal law of the State of the place of receipt, or
2) Where the loss or damages occurred during carriage by sea, by the internal law of the final port of discharge. Or
3) Where the loss or damage occurred between the time that the Goods were discharged at the final port of discharge and the time that the goods were delivered to the Merchant, by the internal law of the State of the place of delivery or
b) Subject to (a) xxx xxx xxx
27. Law and Jurisdiction The contract evidenced hereby or contained herein shall be governed by English Law. Any claim or other dispute thereunder shall be solely determined by the English Courts unless the Carriage otherwise agrees in writing." R.F.A Nos.672 & 673/2004 -35- 14.2 The clause considered by the Apex Court in British India Steam Navigation Company Ltd and the clauses falling for consideration of this Court are not similar. Hence, this Court proposes to consider the jurisdiction of Kochi to entertain the suit from the clauses agreed in Ext.A11/B3.
14.3 The admitted details in Ext.A11/B3 are that D3 is the shipper of the consignment. Plaintiff is the consignee. Ext.A11 is signed for Abu Dhabi Shipping Agency and Ext.B3 is signed by Abu Dhabi Shipping Agency as agents for the Carrier - Norasia Lines (Malta) Ltd/D12. The only difference by referring to which a few submissions were made are relating to the description of charter party/carrier. The parties do admit the clauses printed on the backside of Ext.A11/B3 are substantially one and same in Exts.A11 and B3. The BoL refers to plaintiff as consignee and BoL is non-negotiable. Port of discharge is Kochi, the place of receipt of cargo is Abu Dhabi and place of delivery R.F.A Nos.672 & 673/2004 -36- is Kochi city. On 27.07.1999 the container covered by Ext.A11/B3 No.GSTU 9689690 was lost. But for the loss of consignment on high seas on 27.07.1999, the normal mode and manner of performance or discharge of obligation by the parties are that the consignment would have been delivered and acknowledged at Kochi Port and delivered to plaintiff at Kochi city. This mode of performance could not be undertaken on account of loss of container on high seas on 27.07.1999.
14.4 Now, let me advert to clause 7: Special Provisions. Clause 7.2 deals with where the loss/damage occurred between the time that the goods were received by the Carrier for transportation and the time that the Goods were loaded at the port of loading, by the internal law of the State of the place of receipt. Applying clause 7.1, the special provision noted above to the case on hand, the loss or damage if had occasioned at Abu Dhabi then, by a plain reading of the above clause, the internal R.F.A Nos.672 & 673/2004 -37- law of the State of the place of receipt, i.e., Abu Dhabi, UAE is applicable. The party aggrieved by breach may have to work out the remedy in accordance with the legal system of UAE. In such cases the party cannot be compelled to move English Court for loss of cargo even before the cargo sets on sail. The logic is to compartmentalize the jurisdiction to three different situations but in two different places viz. internal law of port of receipt and internal law of port of discharge. Special provision 7.2 deals with where the loss or damages occurred during carriage by sea, by the internal law of the final port of discharge, means where the cargo is actually being shipped by the carrier and before it reaches final port of discharge, then the law applicable is the internal law of the final port of discharge. Clause 7.3 deals with where the loss or damage is suffered to the cargo between the time the goods were discharged at the final port of discharge and the time that the R.F.A Nos.672 & 673/2004 -38- goods were delivered to the Merchant, by the internal law of the State of the place of delivery. Juxtaposing sequence of events of the case on hand, the damage if had occasioned after the cargo has been safely and successfully discharged at the Port Kochi, loss or damage occasioned to delivered consignment at port, but before it is actually delivered to the merchant/ consignee, even then the internal law of the State or the place of delivery is applicable. Clause 7.2 or clause 7.3 of the subject BoL stipulates Kochi Port, Kochi City, for loss or damage to cargo on high seas or in the port. In the case on hand, the loss or damage occasioned on the high seas. The expression used in 7.2 emphasizes the words 'by the internal law of the final port of discharge'. In situations like the present, the meaning of the word 'internal law' includes within its fold lex loci, means the law or custom of the place and lex fori, means the law of the forum of Court. Therefore, where the beginning of cause of R.F.A Nos.672 & 673/2004 -39- action occasions on the high seas, the cause of action travels with the vessel and touches the tides of port of discharge and firms up as the territorial Court for working out remedies against breach of Contract of Affreightment.
14.5 Reverting to the circumstances leading to the filing of the suit, it is noted that the 2 nd defendant through Ext.B24 dated 29.07.1999 informed the plaintiff of loss of cargo in container No. GSTU 9689690 on passage from Khorfakkan to Nhava Sheva. The ship M.V."FAS GULF" V.1E31 is scheduled to be berthed at Kochi Port on 30.07.1999 and the arrangement as may be deemed fit for survey etc could be undertaken by the plaintiff and/or the individual consignees of the goods. The plaintiff, thereafter, referring to Ext.A1 survey report and correspondence on the subject, within the period of one year of limitation, on 22.06.2000 filed O.S. No.105 of 2000. In the plaint, in paragraph Nos.7 to 9 the plaintiff has set out the grievance, R.F.A Nos.672 & 673/2004 -40- the breach, the right and the reason for invoking the jurisdiction of the Court at Kochi. Paragraphs 7 to 9 of the plaint read thus:
"7. As the goods were entrusted to the defendants on 24.7.1999, and the defendants, have admitted the loss of the cargo, this suit is filed within time in accordance clause 9(2) of the Bill of Lading and is not barred by the law of limitation.
8. The plaintiff submits that in view of the breach by the defendants of the terms of the contract of affreightment, resulting in loss to the plaintiff, the defendants are liable to pay damages to the plaintiff for the loss of the cargo entrusted by the plaintiff to the defendants. The plaintiff quantifies the loss at US $142081.00 being the value of the goods lost in transit. The present exchange rate of the US Dollar is Rs.43.95 and accordingly the Court Fee is computed on the said exchange rate. The plaintiff, however, reserves its right to claim the damages at the exchange rate prevailing as on the date of recovery.
9 The cause of action for the suit arose on 24.09.1999 in Willingdon Island, Cochin where the goods were supposed to be delivered to the plaintiff in accordance with the contract of affreightment. The suit is therefore filed before the Hon'ble Court which has jurisdiction to entertain and try the suit."
R.F.A Nos.672 & 673/2004 -41- 14.6 The 1st and 2nd defendants have replied to the averments dealing with the jurisdiction as follows:
"3. This court has no jurisdiction to try the above suit as no cause of action for the suit has taken place against the answering defendants at Cochin. The Bills of Lading has been issued at Abu Dhabi by Abu Dhabi Shipping Agency who was acting as the agents of Norasia Lines, who were not made parties to the suit. The shippers are also having their respective business at Dubai / Abu Dhabi and the cargo has been lost as admitted by the Plaintiff in the High Seas, which was out of this Court's jurisdiction. For the sole reason that the 2nd defendant is having a branch office at Willingdon Island will not give a proper cause of action or jurisdiction to try the suit at Cochin. Even the 2nd defendant's regd office is at Ernakulam."
14.7 Section 47 of the Indian Contract Act 1972 which deals with the time and place of performance of promise etc reads as follows:
"47. Time and place for performance of promise, where time is specified and no application to be made.--When a promise is to be performed on a certain day, and the promisor R.F.A Nos.672 & 673/2004 -42- has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed.
Illustration A promises to deliver goods at B's warehouse on the first January. On the day A brings the goods to B's warehouse, but after the usual hour closing it, and they are not received. A has not performed his promise."
14.8 The BoL Ext.B3/A11 accepted performance of contractual obligation at Kochi Port and Kochi City. The breach has arisen on account of non-delivery of goods/cargo at Kochi Port by defendant Nos.1 and 2. The Apex Court in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies, Salem2 has considered the applicability of jurisdiction clause to a situation where the breach has occurred. The relevant portion of the judgment reads as follows:
"So long as the parties to a contract do not oust the jurisdiction of all the courts which would otherwise have jurisdiction to 2 1989 (2) SCC 163 R.F.A Nos.672 & 673/2004 -43- decide the cause action under the law it cannot be said that the parties have by their contact ousted the jurisdiction of the court. Where there may be two or more competent courts which can entertain a suit consequent upon a part of the cause of action having arisen therewithin, if the parties to the contract agreed to vest jurisdiction in one such court to try the dispute which might arise as between themselves the agreement would be valid. If such a contract is clear, unambiguous and explicit and not vague it is not hit by Sections 23 and 28 of the Contract Act. This cannot be understood as parties contracting against the statute. Mercantile law and practice permit such agreements.
The jurisdiction of the Court in matter of a contract will depend on the situs of the contract and the cause of action arising through connecting factors. A cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the R.F.A Nos.672 & 673/2004 -44- defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."
14.9 This Court upon construing clause 7.2 which deals with special provisions of BoL, is of the view that special provision will prevail over the general clauses contained in Ext.A11/B3. The right of plaintiff is for receiving the consignment at Port Kochi. The wrong or breach in the case is failure to deliver the consignment and remedy for a breach in this behalf is covered by special clause 7 of BoL. BoL being a commercial document looks at the interest of both parties in trade, commerce and intercourse. The unilateral approach is anathema to successful trade and commerce. The expression used is 'internal law of the port of discharge'. The expression 'internal law' takes care of the procedural as well as substantive provisions of applicable law. I am convinced that clause 7 to the R.F.A Nos.672 & 673/2004 -45- extent of determining the jurisdiction is clear and further deliberation of other clauses is also unnecessary. Having regard to the above reasons, keeping in view the occasioning of breach i.e, failure to deliver goods at Kochi and that the cause of action has arisen within the jurisdiction of territorial Court at Kochi and that the 2nd defendant had its office within the jurisdiction of Kochi Court, by applying special provision in clause 7.2 in Ext.A11/B3, this Court is of the view that the learned Principal Subordinate Judge's Court Kochi has jurisdiction to decide the lis filed for realisation of damages for non-delivery of cargo at Kochi.
The issue is answered in favour of plaintiff and against defendant Nos.1 and 2.
Point II - Whether the suit, at the instance of plaintiff claiming to be a firm registered and in the absence of proof of registration, is hit by Section 69(2) of IP Act?
15. Cargo Care International/plaintiff claims to be a partnership firm, represented by its Managing Partner, as the R.F.A Nos.672 & 673/2004 -46- agent at Kochi of M/s. Al Sahal Shipping, Abu Dhabi/defendant No.3, has filed the suit. The plaintiff in the cause title described that it is a registered partnership firm. Defendants 1 and 2 take objection to the maintainability of O.S. No.105 of 2000 under Section 69(2) of IP Act. The argument proceeds to point out that the primary evidence of proof of registration of Firm is not filed by plaintiff. Ext.A10, a notarized copy of partnership is not a substitute for the primary proof requiring in this behalf. The plaintiff, since laid the foundation in plaint as a registered firm, the mandatory requirement of Section 69(2) of IP Act is attracted and suit must fail on this ground.
Section 69 of IP Act reads:
"69. Effect of non-- registration (1) No suit to enforce a right arising from a contract of or conferred by this Act shall be instituted in any court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of firms as a partner in the firm.
R.F.A Nos.672 & 673/2004 -47- (2) No suit to enforce a right arising from a contract shall be instituted in any court by or on behalf of a firm against any third party unless the firm is registered and the person suing are or have been shown in the Register of firm as partners in the firm."
15.1. Advocates for defendants 1 and 2 contend that the plaintiff since has not placed before the Court the copy of registration of partnership, the suit is hit by Section 69(2) of the IP Act. The objection goes to the maintainability of suit. Ext.A10 is the notarized xerox copy of partnership deed and cannot be treated as a deed evidencing registration of plaintiff as partnership firm. Defendants 1 and 2 have taken objection in the written statement and there is cross-examination by D5 in this behalf, by relying on the material available on record, it is argued that the Trial Court ought to have held that the suit is not maintainable. The defendants rely on the judgments reported in Naranjan Chauhan v. State of H.P.3, Kumud Kachari v. 3 2009 KHC 6660 R.F.A Nos.672 & 673/2004 -48- Rajdhani Tractors & Agencies, Assam4 and Seth Loonkaran Sethiya v. Mr.Ivan E. John5. 1977 (1) SCC 379. Therefore, the suit on the ground of not conforming to the requirement stipulated under Section 69(2) of IP Act is liable to be dismissed.
15.2 The plaintiff contends that defendant Nos. 1 and 2 have not specifically pleaded on the non-compliance with Section 69(2) of IP Act in the written statement much less contested the alleged deficiency under Section 69(2) of IP Act before Trial Court. The parties are governed by pleadings and when a plea is not raised in the written statement on the maintainability of suit for not complying with Section 69(2) of IP Act, the Court is not required to go into the question of maintainability of the suit de hors an objection from a contesting party. It is next contended that in the absence of clear and categorical plea from the contesting defendants it must be treated that such an objection, even if available, is 4 2017 KHC 3026 5 (1977 1 SCC 379 R.F.A Nos.672 & 673/2004 -49- waived by the defendants. The objection under Section 69(2) of IP Act is not akin to an obligation set out by Section 3 of Limitation Act; where the Court is called upon to decide viz., whether the suit is within the period of limitation or not. Whereas, in cases touching Section 69(2) of the IP Act, unless a plea is specifically raised, the Court is not required to answer the maintainability of suit vis-à-vis Section 69(2) of IP Act. Alternatively, it is contended that Section 69(2) of the IP Act is not attracted to the case on hand for the plaintiff is not a party to Exts.A11/B3. Even assuming without admitting that plaintiff is an unregistered firm, the bar under Section 69(2) of the IP Act is not attracted. The plaintiff is enforcing a statutory right of a common law available under BoL and the absence to specifically place on record the registered partnership deed does not affect the merits of matter.
15.3 From the nature of objection canvassed by the R.F.A Nos.672 & 673/2004 -50- defendants it can be stated that the defendants are not contending that the details furnished by the plaintiff i.e., name, description, place of residence/business of plaintiff is inadequate or that plaintiff in fact is the consignee. But, the objection in this context is that the plaintiff failed to prove the status it claimed as a registered partnership firm. The reply of plaintiff is that the written statement does not contain any objection under Section 69(2) of the IP Act. A defendant to the suit under Order VIII Rule 2 of CPC is required to raise by his pleading all matters which show that the suit not to be maintainable. Order VIII Rule 2 of CPC reads thus:
"2. New facts must be specially pleaded.--The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality." (emphasis supplied) R.F.A Nos.672 & 673/2004 -51- 15.4 The plaintiff relies on the Division Bench judgment of Himachal Pradesh High Court in Naranjan Chauhan case, for the proposition that once the plea was taken that the suit was not maintainable, the plaintiff was not taken by surprise and plaintiff was well aware of the question raised by defendant Nos.1 and 2. The question under Section 69(2) of IP Act is a legal one and provisions of Section 69 as held by the Apex Court are mandatory, therefore, it cannot be gainsaid that this plea cannot be considered until and unless it was specifically pleaded viz. that there was a bar under Section 69(2) of the IP Act. This plea, being a legal one, can be raised at any stage. It cannot be again said that the facts were not pleaded. The reply of Advocate Pooja Menon since goes to the root of objection, I prefer to first consider whether sufficient ground has been laid in the written statement.
15.5. The plaintiff relies on the Division Bench judgment R.F.A Nos.672 & 673/2004 -52- reported in Jalal Mohammed Ibrahim (Died) v. Kakka Mohammed Ghouse Sahib6 para 11 and 12 reads thus:
"11. Under Order 7 Rule 1 Civil P.C. the plaint shall contain the name, description and place of residence of the plaintiff and the facts showing that the court has jurisdiction. Under Order 6, Rule 6 Civil P.C. any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff or the defendant, as the case may be. Under Order 8. Rule 2 of the Civil P.C. the defendant must by his pleading raise all matters which show the suit not to be maintainable and all such grounds of defences, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as for instance fraud, limitation etc. It is not disputed that the summons in the suit C.S. 173 of 1950 was duly served on all the defendants including the plaintiff herein. The three partners of Roshan and Co. who were impleaded individually did not file any written statement in that suit. The joint receivers who were in possession of the properties of the firm were also impleaded as defendants and though they took time for filing a written statement, ultimately they did not file and the suit was decreed ex parte. The maintainability of the suit is one of the grounds that will have 6 AIR 1972 Madras 86 R.F.A Nos.672 & 673/2004 -53- to be specifically pleaded under will have to be specifically pleaded under Order 8, Rule 2, Civil P.C. The defendants in that suit and not raised that plea. The learned author Mulla in his book on Civil P.C. 13th Edn. p. 769 states that a question of fact, which had not been put forward in the written statement, cannot be allowed to be raised later, for example a plea that a partnership was not registered. In Chaimanram v. Ganga Saha, it was held that the plea could not be allowed to be raised in the second appeal when it was not pleaded in the written statement. In Mohamed Ali v. Kondho Rayaguru, AIR 1945 Pat 286 a Division Bench of the Patna High Court took the same view and further observed that, since it was the defendant who intended to contest the performance of the condition precedent. viz the registration of the firm within the meaning of Order 6, Rule 6. Civil P.C. and if that point was not raised in the pleadings, the question was not at all before the court. A similar view was taken by the Rajasthan High Court in Kalyan Sahai v. Firm Lachminarian. These authorities clearly establish that the defence of non-registration of the firm is as plea that will have to be raised in the suit itself, and if it had not been raised, it could not be permitted to be raised for the first time in the second appeal. Such a plea could not be permitted to be raised in a separate suit is in our opinion, a fortiori case. In this connection we may also refer to the decision of this court in Goverdhandoss v. Abdul Rahiman, AIR 1942 Mad 634 = ILR R.F.A Nos.672 & 673/2004 -54- (1942) Mad 775 wherein it was held:--
"There is distinct provision in the Limitation Act that a court is bound to dismiss a suit on the ground of limitation, if it finds the suit to be barred, whether a plea of this kind had been raised on behalf of the defendants or not. No such provision however exists in the Partnership Act and therefore the court is not bound to dismiss the suit on the ground of non- registration of the firm suo motu, if no plea had been raised by any of the defendants to the suit."
Learned counsel for the appellant drew our attention to Order 7, Rule 11 (d) Civil P.C. which states that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law and contended that Section 69 of the Partnership Act is a provision barring a suit by an unregistered firm, the court could dismiss a suit suo motu and that therefore the decision in AIR 1942 Mad 634 requires reconsideration. But we consider that it is not necessary to go into that aspect, because we are of the view that the maintainability of a suit is a plea that will have to be taken by a defendant in the suit, and if such a plea had not been taken, it will not be open to him to raise that plea on any ground in a separate suit.
12. Further, the decree passed in a suit instituted by an unregistered firm is not a nullity. The disability created by R.F.A Nos.672 & 673/2004 -55- Section 69 of the Partnership Act is with regard to the right to institute a suit and not with regard to the power of the court to pass a decree. The object of this section appears to be to protect public against a firm carrying on business under a name which does not disclose to the public the names of the actual partners. But still the objection as regards the maintainability of the suit on the ground that it is an unregistered firm is one that it is primarily available to the defendants in the suit,. Therefore, the defendants could waive that objection. In construing an analogous provision contained in Section 80. Civil P.C. the Privy Council in Vellayan Chettiar v. Govt. of the Province of Madras ILR (1948) Mad 214 = (AIR 1947 PC 197) said that though the provisions of Section 80. Civil P.C. were mandatory and must be enforced by the court it could be waived by the authority for whose benefit it was provided. The plea of bar of jurisdiction being a matter, which might and ought to have been made a ground of defence directly or attack in the former suit, shall be deemed to have been a matter directly and substantially in issue in such a suit. It has been repeatedly held that in order that fraud may be ground for vacating a judgment, it must be a fraud that is extrinsic or collateral to everything that has been adjudicated upon but not one that has been or must be deemed to have been or must be deemed to have been dealt with by the court (vide Chinnayya v. Ramanna ILR 38 Mad 203 = (AIR 1916 Mad 364); Kadirvelu Nainar v. Kuppuswami Naicker. ILR 41 Mad R.F.A Nos.672 & 673/2004 -56- 743 = (AIR 1919 Mad 1044)(FB); Jagannath v. Perumal Naidu. (1969) 82 Mad LW 167; Weavers Mills Ltd. v. Balkis Ammal. In our opinion, therefore, the mere fact of filing of the suit by the first defendant as the sole proprietor of Ghouse and Co., contrary to Section 69 of the Partnership Act cannot be considered to be extrinsic or collateral to everything that has been adjudicated upon."
(emphasis supplied) 15.6 In paragraph 17 of N.A. Munavar Hussain Sahib v. E.R. Narayanan7, the Madras High Court considering the requirement of Section 69(2) of IP Act and Order VIII Rule 2 of CPC has held thus:
"17 Under Order VIII, Rule 2, Civil Procedure Code the defendant must raise in his written statement all matters which would show how the suit is not maintainable and in this case, the written statement filed by the appellants in Original Suit No. 671 of 1978 does not disclose that any object on had been raised by them regarding the maintainability of the suit based on section 69 of the Indian Partnership Act. Mulla on Civil Procedure Code (thirteenth edition, page 769) states that a question of fact which had not been put forward in the written statement cannot be allowed to be raised later and cites as 7 AIR 1984 Madras 47 R.F.A Nos.672 & 673/2004 -57- example to plea of non-registration of a partnership. Further, the plea regarding the maintainability of the suit by reason of the operation of section 69 of the Partnership Act is a mixed question of fact and law and, if such a plea is not raised at all, there will be no evidence relating to that aspect with the result that facts necessary for its determination would be absent. It is on account of this that courts have consistently taken the view that if the plea had not been raised in the written statement, it would not be allowed to be raised at a later stage in the proceedings. Further, unlike the provisions in the Limitation Act, there is no provision in the Partnership Act which compels the Court to dismiss the suit on the ground of non-registration of the firm suo motu, even if no plea in that regard had been raised by the defendants in the suit. We may now briefly refer to a few decision on this aspect. ABDUR RAHMAN and SOMAYYA JJ., in Goverdhan Doss Takersery v. V. Abdul Rahiman 1 pointed out that it is not easy to accept the view that the Court is Bound to dismiss a suit on the ground of non- registration of a firm suo motu, even if no plea had been raised by any of the defendant in this suit. In Mohammed Ali v. Karji Kondho Rayaguru the objection based on Section 69 of Partnership Act was not permitted to be taken on the ground that it was not taken before the lower Courts and being a mixed question of fact and law, cannot be decided without a finding of fact on the basis of materials placed in that regard indeed the R.F.A Nos.672 & 673/2004 -58- decision proceeds to the extent of holding that a defendant who intends to contest the performance of a condition precedent, viz., the registration at the firm, should raise this point in the pleadings and if it was not so raised, the question was not before the Court at all, Kalyan Sahai v. Firm Lachhminarai Shambhulal 3 had to deal with a similar question and it was pointed out that whether a firm is registered or not is a question of fact and unless this fact is enquired into and decided, the restrictions Regarding the filing of suits tinder section 69 of the Partnership Act, cannot be involved by any of the parties to the suit. The decision in Chiman Ram v. Ganga Saha 1 also took the view that the plea that a suit as laid is not maintainable by reason of section 69 of the Partnership Act is a mixed question of fact and law and such a plea cannot be allowed to be raised when it was not pleaded in the written statement. In Jalal Mohammed Ibrahim v. Kakka Mohammed Ghouse Sahib 2 a Division Bench of this Court to which one of us was party, the question arose whether the defence regarding the non-registration of a firm and the invalidity of the decree passed in a suit relating to such a firm can be permitted to be raised in a separate suit. One a consideration of some of the decisions referred to earlier, the Division Bench held that the defence of non-registration of a firm is a plea that has to be raised in the suit itself and if it had not been so raised, it could not be permitted to be raised for the first time and more so it R.F.A Nos.672 & 673/2004 -59- cannot be permitted to be raised in a separate suit. Bearing in mind the principles laid down in the decisions referred to above and the omission on the part of the appellants to raise a specific Plea in that regard we are of the opinion that it will not be open to the appellants at this stage to urge that the suit in Original Suit No. 671 of 1978, Sub-Court, Madura, is not maintainable by reason of section 69 of the Partnership Act. We have therefore no hesitation in rejecting this contention of the learned Counsel for the appellants in Appeal Suit No. 529 of 1982."
15.7 A learned senior judge of Madras High Court in V.V.Textiles v. Mahavir Fabrics8 has considered the entire case law on the necessity to incorporate details needed by Section 69(2) of IP Act in the written statement:
"39. Thus, (1) The Registration of a firm is a condition precedent for the launching of a suit by the firm as per Section 69(2) of the Partnership Act. Subsequent registration cannot cure the defect.
(2) The objection regarding non-registration has to be specifically pleaded. Once pleaded it is incumbent on the plaintiff to prove the same and failure is fatal.
8 (2001) 3 MLJ 295 R.F.A Nos.672 & 673/2004 -60- (3) if non-registration is not specifically pleaded no evidence can be let in for the plea not raised. The objection regarding non-registration can be waived. Unless the waiver of the right or the absence of the right makes any particular matter illegal, or where the benefit is conferred by a statute which has public policy for its object, and, (4) Such waiver can be expressed or be inferred from the facts and circumstances of the case.
40. In the present case, only in the course of evidence the defendant attempted to invoke the mandatory nature of the provisions of Section 69(2) of the Act by deposing that the plaintiff was not a registered partnership firm. Rightly did the Courts below not permit it."
15.8 For the proposition that for the enforcement of a statutory or common law right the requirement of section 69 of IP Act is not an impediment, the plaintiff relies on the judgment reported in Haldiram Bhujiawala v. Anand Kumar Deepak Kumar 9, para 9 reads thus:
"9. The question whether Section 69(2) is a bar to a suit filed by an unregistered firm even if a statutory right is being enforced or even If only a Common Law right is being enforced came up 9 AIR 2000 SC 1287 R.F.A Nos.672 & 673/2004 -61- directly for consideration in this Court in M/s Raptokas Brett Co Ltd Ganesh Property MANU/SC/0595/1998 : AIR1998SC3085 In that case, Majmudar speaking for the Bench clearly expressed the view that Section 69(2) cannot bar the enforcement by way of suit by an unregistered firm in respect of a statutory right or a common-law right. On the facts of that case, it was held the right to evict a tenant upon expiry of the lease was not a right 'arising from a contract' but was a common law right or a statutory right under the Transfer of Property Act. The fact that the plaint in that case referred to a lease and to its expiry, made no difference. Hence, the said suit was held not barred. It appears to us that in that case the reference to the lease in the plaint was obviously treated as a historical fact. That case is therefore directly in point. Following the said judgment, It must be held in the present case too that a suit is not barred by Section 69(2) if a statutory right or a common law right is being enforced"
15.9 Lastly the plaintiff for the aforesaid proposition relies on Purushottam v. Shivraj Fine Arts Litho Works 10 paras 23 to
25."
"23. Relying upon the aforesaid analysis this Court in Haldiram Bhujiawala and Anr. (supra) held that the contract 10 (2007) 15 SCC 58 R.F.A Nos.672 & 673/2004 -62- contemplated by Section 69 of the Act is the contract entered into by the firm with the third party defendant. The contract by the unregistered firm referred to in Section 69(2) must not only be one entered into by the firm with a third party defendant, but must also be one entered into by the plaintiff firm in the course of the business dealings of the plaintiff firm with such third party defendant.
24. With respect, we find ourselves in complete agreement with the principles enunciated in Haldiram Bhujiawala and Anr. (supra). Having regard to the purpose Section 69(2) seeks to achieve and the interest sought to be protected, the bar must apply to a suit for enforcement of right arising from a contract entered into by the unregistered firm with a third party in the course of business dealings with such third party. If the right sought to be enforced does not arise from a contract to which the unregistered firm is a party, or is not entered into in connection with the business of the unregistered firm with a third party, the bar of Section 69(2) will not apply.
(emphasis supplied)
25. In the instant case the contract was entered into with the respondent firm by the erstwhile proprietor of the concern namely Purushottam. The partnership firm came into existence later. The amount claimed in the suit were due to the proprietor Purushottam who carried on his proprietary R.F.A Nos.672 & 673/2004 -63- business in the name and style of "Dinesh Paper Mart". When he entered into partnership with others, he contributed to the partnership by way of his contribution to the capital, all the assets and liabilities of his erstwhile proprietary concern. Thus, though the partnership firm, which was unregistered, became entitled to enforce the contractual obligation of the defendant firm which it owed to Purushottam, the contract was not one entered into by the unregistered firm with a third party, nor was it one entered into by the unregistered firm in the course of its business dealings with the defendants. So viewed, the bar of Section 69(2) cannot apply to the suit filed by the appellants- plaintiff."
15.10 Let me examine whether the written statement filed refers to an objection on maintainability vis-à-vis Section 69(2) of IP Act. In para 1 of the written statement it is averred that the suit is not maintainable either in law or on facts. Para 3 of the written statement is already excerpted and for brevity the same is not reproduced as this juncture once again. As is evident by a mere reading of paragraph 3 of the written statement it is evident that the objection taken in para 3 of the R.F.A Nos.672 & 673/2004 -64- written statement is substantially on the territorial jurisdiction of the learned Principal Subordinate Judge's Court Kochi but not an objection under Section 69 of the IP Act. In paragraph 6 of the written statement it is stated that the "plaintiff may be put to strict proof of the legal status and the competence of the person who has signed the plaint". Instead of reading the said objection in isolation it is correct to appreciate the preceding sentence which is stated in para 6 of the written statement which deals with the alleged agency, claimed by the plaintiff, Al Shahal Shipping and Clearing Company, Abu Dhabi, and the plaintiff. On consideration of pleadings in written statement, I am not convinced that an objection on the ground of breach of Section 69(2) of IP Act is not raised. The defendants must raise, as is the requirement of Order VIII Rule 2 CPC, by their pleadings, all matters which show the suit not to be maintainable.
R.F.A Nos.672 & 673/2004 -65- 15.11 The objection under section 69(2) of the IP Act is a verifiable or provable circumstance. The plaintiff, if is a registered partnership firm and an objection as required by Order VIII Rule 2 is taken by the contesting defendants in the written statement, then by referring to the pleading already made by the plaintiff, the documentary evidence in support of such pleading could be placed on record. In the absence of a specific and categorical plea taken under Section 69(2) of the IP Act, neither the court is expected to consider the maintainability of the suit in the background of non-compliance with the requirement of Section 69(2) of the IP Act nor a plaintiff is expected to place on record the proof in support of its assertion that it is a registered partnership firm. In the case on hand, I, after carefully examining the stand taken in the written statement, am of the view that the defendants have failed to take objection as is required by Order VIII Rule 2 of CPC R.F.A Nos.672 & 673/2004 -66- read with Section 69 of the IP Act. I have carefully perused the dictum laid down by the Madras High Court in V.V. Textiles case and I am in agreement with the view expressed by the learned Judge in the said reported judgments. With respect, I am unable to apply or consider the proposition laid down by Himachal Pradesh Court in Naranjan Chauhan case, for, the facts in the case on hand are certainly distinguishable.
15.12 In as per the principle laid down by the Supreme Court in Haldiram Bhujiawala case, the plaintiff in the case on hand is enforcing a right as a consignee under BoL (Ext.A11/B3) and this is a statutory right for which the requirement under Section 69 of the IP Act cannot be insisted upon. To the same effect is the decision of Supreme Court in Purushottam case.
15.13 For the above reasons and after considering the stand taken in written statement, the nature of claim being R.F.A Nos.672 & 673/2004 -67- enforced by the plaintiff and the principles laid down by the Madras High Court in the decisions referred to above, I am of the view that the objection now raised by the defendants is unsustainable and this point is accordingly answered in favour of plaintiff and against defendants 1 and 2.
Ancillary point on agency of plaintiff vis-à-vis D3 or D6 to D11.
15.14 Advocate Santhosh Mathew argues with considerable force that 3rd defendant is the shipper/Principal of plaintiff/the agent. Firstly, the plaintiff has not established the relationship of Principal and Agent between plaintiff and D3 and unless the authority as agent is established the suit is not maintainable. Secondly, Exts.A11/B3 are final BoLs and the in- house BoLs are issued in favour of defendant Nos.6 to 11 by the agent of 3rd defendant. The plaintiff unless demonstrates authority as an agent, cannot either represent D3 or speak for the loss of defendant Nos.6 to 11. The plaintiff is not the owner R.F.A Nos.672 & 673/2004 -68- and by being a mere agent without interest in the subject consignment, the suit is liable to be dismissed.
15.15 I am afraid this objection is untenable. I take up the stand of 2nd defendant vis-à-vis defendant Nos. 6 to 11. Plaintiff through Ext.A13 dated 29.07.1999 furnished the names of owners of consignment and requested the 2 nd defendant to inform the owners of consignment as well. The 2 nd defendant through Ext.A16 replied as follows:
"Please refer to your letter nil ref- dated 29.07.1999 regarding informing individual consignee's as per your house b/l regarding the above mentioned lost container, we would like to state as follows:
Since the terms and conditions of NL BL will govern the contract of carriage, therefore the notification can be given by us only to Cargo Care International, Cochin-3 [i.e., plaintiff] Hence unable to meet your request."
The 1st and 2nd defendants have filed common written statement. The 1st and 2nd defendants having chosen to recognise the plaintiff as the consignee under the contract, now R.F.A Nos.672 & 673/2004 -69- can't call upon producing any other authorisation for plaintiff to sue purportedly for the benefits of defendant Nos.6 to 11.
15.16 Advocate Alias appearing for D6 to D11 states that it is a dispute between the plaintiff on one hand D6 to D11 on another hand. Defendant Nos.1 and 2 cannot take advantage of the circumstance both in law and fact. The objection that for want of express authority from D6 to D11 is without merit and rejected. Coming to the alleged absence of authority of 3 rd defendant for filing the suit , I refer to written statement of D3 which reads as follows:
"Plaintiff is the agent of 3rd defendant. The 3rd defendant is the shipper with whom defendant 6 to 11 entrusted their personal effects for exporting to Kochi. The cargo in question was entrusted to the 1st defendant by the 3rd defendant and 3rd defendant have issued in-house Bill of Lading to defendants who are the owners of the cargo. The container No.GSTU 9689690 was entrusted with defendant 1, 2, 4 and 5."
(emphasis supplied) The 3rd defendant is admitted both as shipper of subject cargo R.F.A Nos.672 & 673/2004 -70- and Principal of plaintiff. The 3rd defendant by way of pleading acknowledges the status of plaintiff as its agent. Independent of the above objection, the 2nd defendant at the earliest point of time has gone on record that as the claim is arising under a non-negotiable BoL D2 will interact only with the plaintiff. For the above reasons and after considering the material on record I am of the view that the objection raised by D1 is untenable and rejected.
Hence this ancillary point is answered in favour of plaintiff and against defendants 1 and 2.
Point III - Whether the suit as filed and continued upon amendment to plaint is within the period of limitation?
16. Whether the suit is barred by the limitation stipulated in clause 9 of BoL (Ext.A11/B3).
Clause 9 of the BoL reads thus:
"9. Notice of Loss, Time Bar 1/ Unless notice of loss of or damage to the Goods and the general nature of it be given in writing to the Carrier at the R.F.A Nos.672 & 673/2004 -71- pace of delivery before or at the time of the removal of the Goods into the custody of the person entitled to delivery thereof under this Bill of Lading, or if the loss or damage be not apparent, within seven consecutive days thereafter, such removal shall be prima facie evidence of the delivery by the Carrier of the Goods as described in this Bill of Lading. 2/ Subject to paragraph 3 below the Carrier shall be discharged of all liability under this Bill of Lading unless suit is brought and written notice thereof given to the carrier within nine months after delivery of the Goods. In the case of total loss of the Goods the period shall begin to run two months after the Goods have been received for transportation. 3/ Notwithstanding paragraph 2/ above, if the whole of the carriage undertaken by the Carrier is limited to the carriage from a CY or CFS in or immediately adjacent to the sea terminal at the port of loading to a CY or CFS in or immediately adjacent to the sea terminal at the port of discharge, the Carrier shall be discharged from all liability whatsoever in respect to the Goods unless suit is brought within one year of their delivery or of the date when they should have been delivered."
16.1 The plaintiff, on 22.06.2000 had filed OS 105/2000. The objection by referring to clause 9 limitation is not that the date on which the suit was filed is beyond the period of R.F.A Nos.672 & 673/2004 -72- limitation. The factual basis for the objection on limitation is that BoL is (Ext.A11/B3) dated 24.07.1999 was issued as per the plaint averment by the 1st and 12th defendants on 24.07.1999. The proof affidavit filed by the employee of 2 nd defendant, who was examined as DW1, has brought on record that there is no company by name Norasia Container lines (Malta) Ltd. The company which issued Ext.B3 is Norasia Lines (Malta) Ltd/12 th defendant. The description of 1st defendant as Norasia Container lines (Malta) Ltd was amended as per order dated 21.03.2003 in I.A. No.425/2003. The consequence of the said amendment is that the description 'Malta' is deleted from the cause title. In the case on hand, the cause of action has arisen on 29.07.1999 or 30.07.1999, the day on which vessel M.V."FAS GULF" V.1E31 reached Kochi, but failed to perform the obligation it has undertaken. The suit filed on 23.06.2000 was shown against Norasia Container Lines (Malta) Ltd and Nortrans R.F.A Nos.672 & 673/2004 -73- Marine Services Pvt. Ltd. On 21.03.2003 the chartered party (D12), according to defendants 1 and 2, was impleaded in order in I.A. No.423/2003. Therefore, the suit admittedly is barred against D12 and consequently suit against D1 is also barred. The defendants refer to and rely on Section 21 of Limitation Act to contend that the amendment carried out through order dated 21.03.2003 in I.A. No.423/2003 is effective from the date on which D12 was impleaded in the suit. Once the suit insofar as D12 fails, for the same reasoning, even assuming without admitting that the D1 is the successor or purchased or managing the company of D12, the suit fails against D1 and D12 as well.
16.2 Advocate Pooja Menon argues that in the plaint cause title the description of 1st defendant (Malta) is a bona fide mistake. The plaintiff through Exts.A26 and A25 has called upon the 1st defendant to settle the claim. In Exts.A26 and A27 R.F.A Nos.672 & 673/2004 -74- the 1st defendant has been described as Norasia Container Lines (Malta) Ltd. The 2nd defendant through Ext.A28 replied to the plaintiff purportedly as the agent of 1 st defendant and in the said reply nothing is brought on record about the wrong description of 1st defendant with the inclusion of word 'Malta'. Therefore, the amendment carried out to the cause title on 21.03.2003 neither change the cause of action nor results in the plaint being presented as beyond the period of one year limitation stipulated by clause 9 of BoL (Ext.A11/B3). Therefore, according to plaintiff the suit is within the period of limitation.
16.3 The objections raised by the 1st and 2nd defendants have two facets: one that the plaint as presented describes the 1st defendant erroneously i.e., (Malta), and the error either partly or fully was corrected on 21.03.2003. Therefore, the 1 st defendant is legally on record with effect from 21.03.2003. The said amendment resulting in deletion of 'Malta' is beyond the R.F.A Nos.672 & 673/2004 -75- period of limitation. The other facet of the objection is that Ext.A11/B3 was issued by D12. D12, on 21.03.2003, was impleaded as 12th defendant. Even if all other contentions are held against the charter party, D12 is impleaded beyond the period of limitation, therefore, the suit is barred even against D1 and D12.
16.4. The objections raised in this behalf either are untenable or convenient pleas without much substance. To appreciate the first facet of the objection raised by the defendants, this court refers to the first two lines in paragraph 2 of the written statement dated 06.02.2001 filed by the 1 st and 2nd defendants, which reads 1st defendant as "Norasia Container Lines Ltd (Malta), the 1st defendant herein was incorporated only on 31.05.2000". The written statement was filed on 06.02.2001. The 1st and 2nd defendants admit that the 1st defendant, as described in the cause title, was incorporated on R.F.A Nos.672 & 673/2004 -76- 31.05.2000. The first facet of objection is contrary to the stand taken in the written statement. 1 st and 2nd defendants having failed to object to the description of 1 st defendant in the cause title, filed vakalat, written statement and finally, it is argued that 1st defendant is not on record within the period of limitation. Further, this amendment of deletion of word (Malta), at best, could be treated as removal of a misdescription and under these circumstances does not materially alter the period of limitation. Further, having filed the written statement without a demur on this aspect the objection now taken does not survive and rejected.
16.5. The next objection is that D12 was impleaded after the period of one year and, therefore, the suit fails insofar as defendants 1 and 2 as well, is equally tenable. In para 2 of the written statement the defendants have admitted that "1st defendant purchased Norasia Lines Malta; the ownership and R.F.A Nos.672 & 673/2004 -77- management of former company Norasia Lines has been changed with effect from 31.05.2000. Norasia Lines is also not made a party to the suit and hence barred by non-joinder of parties. The 1 st defendant had not taken over/purchased the liability, if any, of Norasia Lines (Malta) Ltd/D12 who has issued the BoL to the plaintiff". The said pleading introduces acquisition of ownership and management of D12 i.e., Norasia Lines (Malta) Ltd by D1. The 1 st and 2nd defendants to show that the liability of D12 anterior to 31.05.2000 has not placed any evidence to that effect. The presumption is that if someone acquires ownership and management of a former company the burden is on that person to establish that the liability is not taken over in the acquisition of ownership and management of D12.
16.6. In the case on hand, defendants Nos. 1 and 2 have produced Exts.B30 and B31 documents on 24.01.2004. The evidence of DW1 commenced with the filing of proof affidavit R.F.A Nos.672 & 673/2004 -78- on 10.11.2003, DW1 was cross-examined on 11.11.2003. The person who is under obligation to discharge the claim, if finally proved, has been impleaded at the first instance. In the opinion of this Court, by a cumulative reading of Exts.A26, A27, and A28 read with the admission in the written statement, is of the view that the second objection that the correction of cause title is beyond the period of one year and D12 is impleaded beyond the period of one year is also unsustainable, liable to be rejected and accordingly rejected.
For the above reasons the objection that the suit is beyond the period of limitation is unsustainable and rejected. This point is accordingly held in favour of plaintiff and against D1 and D2. Point IV - Whether the 2nd defendant is entitled to exemption granted by Section 230(1) or the circumstances covered by Section 230(2) of Contract Act are attracted to the inclusion of Nortrans as D2.
17. The plaintiff prays for a comprehensive decree against 1st, 2nd, 4th, 5th and 12th defendants and substantially R.F.A Nos.672 & 673/2004 -79- prays for a joint decree against all the defendants. The 2 nd defendant in the written statement maintains that apart from the other objections taken in the written statement the 2 nd defendant being an agent of 1st defendant; is not a party to the Contract of Affreightment and the plaintiff has no right to proceed against the 2nd defendant. The presence of 2nd defendant is arrayed for the purpose of territorial jurisdiction. therefore, it is contended suit fails against D2. The premise in fact is that D2 is a mini agent of charter party, be it D1 or D12 and law exempts personal obligation on an agent.
17.1 Section 230 of Contract Act reads thus:
"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 cannot personally enforce contracts entered into by 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 following cases:
R.F.A Nos.672 & 673/2004 -80- (1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) Where the agent does not disclose the name of his principal;
(3) Where the principal, though disclosed, cannot be sued."
17.2 Plain reading of the above provision of law, the purport and intent of law relating to liability as well as the entitlement of agent to take protection of Section 230 of Contract Act can be stated as follows:
"i. An agent is not bound by the contract on behalf of the principal.
ii. An agent, therefore, cannot be sued on behalf of the principal.
iii. If there is an agreement to the contrary in the contract of agency, the gent would be entitled to enforce the contract himself or he is personally bound by the contract himself. iv. This entitlement as well as liability would be on behalf of the principal and not in his own name. Hence, after being entitled to a particular right under the contract or after being held liable for a particular duty under the contract, the agent would have to account for the right to the principal and be entitled to recover the liability from the principal respectively. R.F.A Nos.672 & 673/2004 -81- v. The aforesaid points relate to contracts of agency made in India for commercial contracts entered into by agent on behalf of the principal in India and enforceable in India. vi. Even if there is no contract to the contrary relating to the enforcement of contracts or the liability under the contracts of the agent on behalf of the principal, such a contract is presumed to exist for a foreign principal or when the principal, though an Indian principal is not disclosed or where the principal, though an Indian principal, cannot be sued. vii. Hence when the agency contract is between an Indian agent and a foreign principal and that principal is disclosed in the contract entered into by the agent with the third party also the agent would be entitled to personally enforce that contract and also be bound by such contract.
viii. Hence such agent can be sued by the other contracting party upon the liability incurred by the foreign disclosed principal under a contract entered in to by such foreign disclosed principal with the third party."
The point under consideration depends on examination of contemporaneous correspondence between the plaintiff and the 2nd defendant from the time of intimation of loss of cargo till the final letter of settlement made by D2.
R.F.A Nos.672 & 673/2004 -82- 17.3 Adv. Syamkumar argues that the 2nd defendant being the agent at the relevant point of time, i.e., 24.07.1999, was the agent of 12th defendant and with effect from 31.05.2000 is the agent of 1st defendant, D2 has been discharging functions of agent. It is nobody's case that 2 nd defendant has signed Ext.A11/B3. Therefore, the case squarely falls under Section 230(1) of Contract Act and suit fails in so far as D2 is concerned. The suit, in so far as the 2 nd defendant is concerned, is liable to be dismissed. He does not however dispute the standing or right of a named consignee to secure delivery of goods covered by BoL or in default of performance thereof, to maintain a suit for breach of Contract of Affreightment by charter party. Even in such cases, according to him the remedy is against the Principal responsible for the transaction on the date of issue of BoL. Therefore, he prays for dismissing the suit.
17.4. Advocate Pooja Menon argues that Section 230 (1) of R.F.A Nos.672 & 673/2004 -83- Contract Act does not apply to the peculiar circumstances of the case on hand. According to her, Section 230 deals with agents entering into contract for and on behalf of Principal. The 2 nd defendant had option to take the statutory protection, if any, from the inception of cause of action and documents exhibited by both the parties, according to Advocate for plaintiff, would go to show that the 2nd defendant did not disclose the Principal who is answerable for the breach of obligations of Ext.A11/B3 BoL. On the contrary, systematic attempts have been undertaken by 2nd defendant, firstly to shield the Principal, whether it is D1 or D12 and secondly to ensure that the claim gets time-barred. It is not disputed that the 2 nd defendant is the agent of foreign Principal. The case on hand comes under the presumption of contract to the contrary and presumption is drawn from the circumstances, correspondence on the topic and conduct of parties.
R.F.A Nos.672 & 673/2004 -84- 17.5 Keeping in view the above submissions, let me examine the contemporaneous correspondence exchanged between the parties whether the 2nd defendant preferred to stay clear from the obligation or conducted with complete unification with an indeterminate Principal as on that date. The 2nd defendant by admitting the plaintiff as the consignee, through Ext.B24/A15 puts plaintiff on notice of loss of container No.GSTU 9689690. It is not clear whether the knowledge of plaintiff of consignment etc, starts with this intimation or had knowledge before communication in Ext.A15. The plaintiff through Ext.A13 dated 29.07.1999 called upon the 2nd defendant to inform the consignees in whose favour in- house BoL was issued, i.e., defendant Nos.6 to 11 in the suit. Through Ext.A16 dated 30.07.1999, the 2nd defendant informs the plaintiff that since the terms and conditions of NL BL will govern the contract of carriage, therefore the notification i.e., R.F.A Nos.672 & 673/2004 -85- of loss, can be given by D2 only to Cargo Care International, Kochi-3/plaintiff. In other words, 2nd defendant asserts that the 2nd defendant is not under obligation in any way to correspond with defendant Nos.6 to 11. 2nd defendant in Ext.A15/B24 communicates with plaintiff as agent of Norasia Lines (Malta) Ltd. In Ext.A16 there is no reference to the status of 2 nd defendant, specifically mentioned except stating as agents. The 2nd defendant uses the letterhead of the trademark of "NORASIA " and not the letterhead of Norasia Lines (Malta) Ltd. It is not clear from the record to appreciate the distinctness or oneness of Norasia Companies and Norasia Lines (Malta) Ltd. Be that as it may, the plaintiff through Ext.A2 submitted claim of individual consignees for settlement to 2nd defendant. The 2nd defendant through Ext.A17 confirms acknowledgement of receipt of claim for settlement of lost goods in container No.GSTU 9689690. The acknowledgement in Ext.A17 does not R.F.A Nos.672 & 673/2004 -86- appear to have been issued as an agent of D12 or D1. Ext.A18 dated 03.01.2000 is a reminder addressed by plaintiff to 2 nd defendant and Ext.A19 dated 04.01.2000 is the reply of 2 nd defendant to plaintiff. Ext.A20 dated 29.01.2000 is a reminder sent by plaintiff to 2nd defendant and Ext.A23 is the letter of 2nd defendant to plaintiff. These exhibits have relevance in appreciating two aspects, namely the 2 nd defendant under the authority from its Principal, whether disclosed or undisclosed, D1 or D12 is proceeding to settle the claim submitted by the plaintiff. Plaintiff replied through Ext.A22 thus:
"While we do not wish to embark upon a detailed analysis of the various clauses in the Bill of Lading at this point of time, we would only state that the quantification of the claim preferred by us represents an accurate calculation of the losses suffered by the consignees and by us. We have not effected payment of any amount to the consignees as yet as they are awaiting a final settlement of the claim from your end before proceeding to realise their individual claims. We have also not been informed by any of the consignees, despite letters written to them R.F.A Nos.672 & 673/2004 -87- seeking such information, as to whether they have taken out any separate insurance against transit loss, for the cargo. In the absence of any such intimation it is to be presumed that they have not."
17.6. Through Ext.A26 the plaintiff addressed claim settlement reminder to 1st defendant for the loss of cargo in the vessel M.V."FAS GULF" V.1E31. Ext.A27 is a reminder addressed by plaintiff to 2nd defendant. Ext.A28 is the reply given by 2nd defendant to letters dated 23.06.2000 (Ext.A26) and 28.06.200 (Ext.A27). The reply is given by 2nd defendant as agent of Norasia without specific mention of principal for whom D2 as agent is speaking. In the background of Exts.A26 and A27, it remains a big question mark whether the 2 nd defendant has replied to Exts.A26 and A27 as agent of Principal, 1st or 12th defendant. Alternatively, could it be held that the reply is given on behalf of the Principal who is under obligation to pay damages. The 2nd defendant either by choice design or R.F.A Nos.672 & 673/2004 -88- otherwise did not object to the addressee/D1 in Exts.A26 and A27 by contending that D1 is not the Principal to answer the subject claim. D2 being the common agent both for D1 and D12, the plaintiff is compelled to assume that the reply given in Ext.A28 is in furtherance of the reminders, communications so far sent in this behalf. Yet another significant circumstance in this behalf is that on 22.06.2000 the plaintiff has filed the suit for recovery of amount by way of damages for the loss of cargo in container No.GSTU 9689690. 2nd defendant replied on 14.07.2000 and admits the settlement of the claim at USD 24,208. Plaintiff sends a reminder through Ext.A29 to state its view on settlement offer communicated through Ext.A28 dated 14.07.2000. Ext.A29 is dated 03.08.2000. Ext.A31 is dated 21.08.2000 which refers to Norasia Lines (Malta) Ltd. Read with Exts.A33, A35 etc the following conclusions are recorded:
a) Plaintiff/consignee is dealing with a foreign Principal R.F.A Nos.672 & 673/2004 -89- through an Indian agent having branch offices in Bombay, Kochi etc.
b) The agent as per the admitted details borne out by Ext.A11/B3 does not dispute the right and entitlement to have delivery of consignment.
c) As breach of condition of delivery has occasioned, the 2 nd defendant to communicates only with plaintiffs, but not with individual consignees in whose favour In-House BoL was issued.
d) The 2nd defendant received and acknowledged the claim submitted to it for loss of subject consignment.
e) The 2nd defendant in Exts.B24 letter dated 29.07.1999 refers to Norasia Lines (Malta) Ltd.
f) The 2nd defendant has not filed separate written statement and/or placed before the Court the
communication/correspondence made by 2nd defendant with the Principal whosoever it is, D1 or D12.
R.F.A Nos.672 & 673/2004 -90-
g) The plaintiff on 22.06.2000, even after instituting the suit writes through Exts.A26 and A27, by directly addressing the 1 st defendant, as answerable for settling the claim, the 2nd defendant answers and does not disclose for and on whose behalf the reply was given.
h) The 2nd defendant in the settlement offer given in Ext.A28 does not disclose the Principal, but calls upon the plaintiff to accept the final settlement proposal.
i) The plaintiff when files the suit with 1 st and 2nd defendants it is contented that suit against 2nd defendant is not maintainable.
17.7. In the considered view of this Court, the 2 nd defendant to take the protection under Section 230(1) of Contract Act, at the earliest point of time, should have disclosed the Principal who is answerable for the suit claim, continue to correspond with the plaintiff without disclosing who is R.F.A Nos.672 & 673/2004 -91- answerable for the subject damages. This Court after going through the pleadings and correspondences holds that the 2 nd defendant is either covering the Principal or not disclosing the Principal who is answerable to the plaintiff. The 2 nd defendant once takes a plea of convenience, fails to disclose correspondence, does not dispute at the right time on the description of 1st defendant in the correspondence made to settle the claim, the 2nd defendant cannot take the protection under Section 230(1) of the Contract Act.
17.8. The case comes under presumption of contract to contrary, i.e., where the Principal though disclosed, cannot be sued. DW1 who entered the box as representative or employee of D2, disclosed that the address of 1 st defendant is incorrect. The 2nd defendant, by accepting the cause title files the written statement.
17.9. For the above reasons the 2nd defendant has created a R.F.A Nos.672 & 673/2004 -92- situation where the Principal even if disclosed cannot be sued for want of details. The objection of 2nd defendant is accepted, then the legitimate claim of plaintiff is to be rejected on the choicest pleadings of 2nd defendant. The foreign Principal has not placed independently anything before the Trial court. The point is answered, for the above reasons, in favour of the plaintiff and against the defendants.
Point V - Whether the alleged intends sea gales and swells are covered by sea perils or act of God to exonerate the 1st and 2nd defendants from suit liability?
18. Defendant Nos. 1 and 2 resist the suit claim that the loss of subject container is on account of high sea swelling and high winds which are beyond the control of the carrier and the charter party. Therefore, even if the claim is otherwise admissible, the defendants are not answerable in law for it is covered by the BoL, i.e., Perils of the Sea.
Act of God is defined thus:
"Act of God. (Vis Major). An event which happens R.F.A Nos.672 & 673/2004 -93- independently of human action and which no human foresight or skill could reasonably be expected to anticipate [S.13 (2 nd prov.), Motor Transport Workers Act (27 of 1961) and Railways Act (24 of 1989), S.93(a)]"
[P Ramanatha Aiyar's Advanced Law Lexicon, 4th Edition] 18.1 Advocate Santhosh Mathew refers to Keystone Transports Limited v. Dominion Steel & Coal Corporation, Limited 11 on the following:
" A "peril of the sea" is not defined in the Water Carriage of Goods Act, 1936, and it would indeed be very difficult to give in a law a definition which would cover all the possible causes which may arise.
"Each case must be considered with reference to its own circumstances" : per Lord MacNaghten in Thamses and Mersey Marine Insurance Co.v. Hamilton, Fraser & Co. (12 A.C 484). "Perils of the sea" do not mean to cover only accidents peculiar to navigation that are of extraordinary or catastrophic nature, or arise from irresistible force: Canada Rice Mills Ltd. v.Union Marine and General Insurance Co. (67 L1.L.R 549)"
(emphasis supplied) 11 1942 Supreme Court of Canada 495 R.F.A Nos.672 & 673/2004 -94- 18.2 Both Advocates Pooja Menon and Alias rely on the Full Bench judgment of this Court reported in General Traders Ltd v. Pierce Leslie (India) Ltd12. The Full Bench referring to the plea of 'Act of God' or 'perils of the sea', after elaborately discussing precedents on the point, held as follows:
"10. When a party seeks asylum under the defence of act of God, it is not enough that he makes a plea that the weather turned wild, or that a gale or a tornado developed and swells of height rolled up in the sea. Oceanic vicissitudes are not unknown. Fury of the waters near and off the shore is part of the erratic peculiarities of the sea which sailors anticipate during voyage. Such odds are occasionally faced by the seamen in maritime adventures. A carrier of goods by sea, if absolved from liability merely on account of fury of waters, the consignee of the cargo would very often go without his goods delivered and his loss reimbursed. A ship and her accessories must be so adapted or attuned as to afford adequate protection for the crew and the cargo in the ship against such tempestuous behaviour of the sea. The rule of "act of God" has a special attribute in the law of torts, its legal connotation has acquired appreciable limits in the case law.
11. In the textbook on Tort by Winfield and Jolowics page 444 12 AIR 1987 Kerala 62 FB R.F.A Nos.672 & 673/2004 -95- (12th Edn. By W. V. H. Rogers) the doctrine of "act of God" is discussed. That defence applies "in circumstances which no human foresight can provide against and of which human prudence is not bound to recognise the possibility". This defence was first recognised by Blackburn, J. in the celebrated case, Fletcher v. Rylands, (1866) LR 1 Exch 265-280. The House of Lords in Greenock Corpn. v. Calidonian Railway, 1917 AC 556 considered the scope and ambit of damnum fatale (act of God) in a case where a concrete paddling pond was constructed by the Corporation in the bed of a stream, altering the course of the stream, and owing to a "rainfall of extraordinary violence", the stream overflowed at the pond and consequently water poured into the town damaging the properties of two railway companies. Their Lordships held that:
"The dam must be made perfect against all extraordinary falls of rain -- else the protection is not afforded against the operation which the party must accomplish. An extraordinary fail of rain is a matter which, in our climate, cannot be called a damnum fatale-"
In Gushing v. Walkar & Sons, (1941) 2 All ER 693 the question considered was Whether the defendants could escape liability on account of "blowing a terrible gale with an easterly wind". According to Hallet, J., for the wind to amount to an act of God as a defence in law, "the wind must not merely be exceptionally strong, but must be of such exceptional strength that no one R.F.A Nos.672 & 673/2004 -96- could be reasonably expected to anticipate or provide against it". In Greenwood Tileries Ltd. v. Clapson, (1937) 1 All ER 765 their Lordships considered at page 771 a contention whether a high tide which produced the pressure which caused a wall to collapse will amount to an act of God. Branson, J. observed thus :
"..........I do not think it is possible to say that this tide was so high and so unexpected and incalculable as properly to fall within the definition of act of God."
The case law thus supports the principle that mere erratic peculiarities of the sea or even a gale or tornado resulting from the fury of the sea may not by itself amount to "act of God"
unless the fury is of such a degree or dimension that no human foresight can provide against and of which human prudence is not bound to recognise the possibility.
12. None of the defendants had laid factual foundation in the written statement to make out a defence on the rule of "act of God". It is not enough for the defendants to merely state in the written statement that the jettisoning of the cargo was a consequence of act of God. Defendants have no case that the tempest or gale in the sea was so heavy or so unprecedented that the sailors could not have taken precautionary measures with reasonable foresight. When there is want of pleadings of facts necessary to constitute "act of God", it is idle to contend R.F.A Nos.672 & 673/2004 -97- that such a defence is available to the defendants. Apart from the insufficiency of the pleadings, the evidence let in by the defendants, even if found reliable, will not show that the jettisoning of goods was on account of causes falling within the ambit of the rule of act of God."
18.3 These two decisions guide this Court in fixing the inner and outer limits of situation viz, perils of the sea or act of God. Now, one has to look at the pleadings and evidence on record for deciding the point. The arguments of defendant Nos.1 and 2 stated succinctly are that the damage of container is admitted, the reasons stated for loss of consignment are that due to circumstances beyond the control or on account of sea perils the container was lost. Therefore, the claim made for loss of subject consignment is unenforceable against D1 & D2. Likewise, plaintiff replies that by specifying the applicable clause of 'perils of the sea' or 'act of God' one is not exonerated from liability but this is a fact, an issue decided in the R.F.A Nos.672 & 673/2004 -98- circumstances of the case. The Court therefore, appreciates the circumstances set up by 1st and 2nd defendants and records a finding whether the exemption to answer the claim of damages is made out or not. It is not disputed either as a fact or proposition of law that the burden is on defendant Nos.1 and 2 to establish that a case for covering the instant claim for damages is excluded by perils of the sea etc. 18.4. Let me, for the said purpose, examine the exhibits placed on record by the parties in the chronological order. These exhibits are contemporaneous letters and reasonable probability about truth or otherwise could be deduced. The 2nd defendant through Ext.A15 dated 29.07.1999 informed the plaintiff that container No.GSTU 9689690 shipped on vessel M.V. "FAS GULF" encountered extremely severe weather conditions on 27.07.1999 between Khorfakkan and Nhava Sheva and container No.GSTU 9689690 was lost. Ext.B13 dated 28.07.1999 is a Sea R.F.A Nos.672 & 673/2004 -99- Protest Report by the Captain. Ext.B12 is the survey report dated 29.07.1999 and Ext.B16 is the xerox copy of Deck Log Book and the corresponding entries are excerpted hereunder:
"0010 - Ship Time 16 min advance for ZD+0430 0200 - GPSl 230 33.5 NT - 0600 35.0E V/L Pitching & rolling mildly to rather rough sea w/mildly swell 0400 GPSl 230 18.70 - 0610 05.4E 0410 ADVANCE 10 minutes to READ ZD =+ 4m30m 0600 GPS 230 04.390 0610 82'E V/L Rolling heavy at on times High seas & swell 0800 GPS 220 49.62'N 0620 02.03'E checked all lashing on deck."
DW2 is examined on behalf of defendant No.5/owner of M.V. "FAS GULF". The oral evidence of DW2 cannot be appreciated or treated as evidence in this behalf, for DW2 is an employee deposing by referring to the material placed on record.
18.5. Advocate Pooja invites my attention to what is called 'Beaufort Wind Scale' to appreciate what constitutes a very R.F.A Nos.672 & 673/2004 -100- serious high sea swelling and what is a normal or anticipated or expected situation in the sailing of a ship.
5 17-21 Fresh Breeze Moderate waves 4-8 ft Small trees in leaf begin to taking longer form, many sway whitecaps, some spray 6 22-27 Strong Breeze Larger waves 8-13 ft, Larger tree branches moving, whitecaps common, whistling in wires more spray 7 28-33 Near Gale Sea heaps up, waves 13- Whole trees moving, resistance 19 ft, white foam streaks felt waking against wind off breakers I prefer to first appreciate Ext.B16 copy of Deck Log Book and from a bare perusal of Ext.B16 it appears the relevant entries especially 'extreme', 'very high' have been written subsequently or fudged in the available space. Though this Court does not possess expertise in understanding the technicalities of a Deck Log Book, but by looking at Ext.B16 Deck Log Book and appreciating a few routinely written entries and entries with difference of pattern and in contradistinction to relevant entries made when high sea swell was recorded, I am unable to give required importance to Ext.B16 to hold that the record R.F.A Nos.672 & 673/2004 -101- speaks a fact. Applying the standard measurement of Beaufort Wind Scale, it is not possible to conclude that the recorded readings can be classified as perils of seas. I take note of the principle laid down by the Full Bench of this Court in General Traders Ltd case and respectfully follow the dictum laid down therein, namely that every unexpected eventuality is not covered by perils of the sea or an act of God.
18.6. There is yet another angle in examining this argument of defendant Nos. 1 and 2 i.e., if at all it is the case of defendant Nos. 1 and 2 that the instant claim is covered by perils of the sea or act of God, the defendants ought not to have considered claim given by the plaintiff for and on behalf of defendant Nos. 6 to 11. The 2nd defendant through Exts. A17 and A19 dated 28.10.1999 and 04.01.2000 acknowledged the claim and through Ext.A21 dated 05.04.2000 offered to settle the claim as decided by its Principal. The conduct or understanding of R.F.A Nos.672 & 673/2004 -102- defendant Nos.1 and 2 about the incident and settling the claim is a circumstance equally relevant and appreciated in finding out whether the defence now set up is available in fact or a plea coined to resist plaintiff's claim. In my considered view, D1 and D2 fail to bring home this point as required by law. The attempt made through a few exhibits will not assist for recording a finding that the case is covered by perils of the sea etc. Keeping in view the principle that burden is on defendant Nos.1 and 2 and that the defendants firstly have failed to discharge the burden, have come forward to settle the claim by applying package limitation as upper limit, 35% of the upper limit is stated as reasonable in a case where the perils of the sea defence is an admitted fact, as the vessel met with rough weather on 26.07.1999.
For the above reasons this point is answered in favour of plaintiff and against defendant Nos.1 and 2. R.F.A Nos.672 & 673/2004 -103- Point (VI) Whether the quantum awarded by the Trial Court either in lieu of loss of cargo or towards damages is justifiable and tenable? and Point (VII) Whether the judgment of the Trial Court in O.S. No.105 of 2000 is valid, legal and tenable?
19. The plaintiff filed the suit for realising by way of damages for non-delivery of cargo, the valuation of goods in consignment etc at USD 1,42,081.00 at Rs.43.95. The plaintiff reserved right to claim damages at the exchange rate prevailing as on the date of recovery. The suit is for recovery of a sum of Rs.62,44,459.95. Non-delivery of cargo and/or delivery of damaged cargo are two important categories where the principles applicable for determining the quantum of damages are by and large similar. The discussion is not focusing on breach of contractual obligation but focusses on the enforcement of contractual claim. In theory there could be different criteria for the recovery of damages in each of contract, negligence and conversion. The difference in theory may be important from the perspective of a Court in claims for R.F.A Nos.672 & 673/2004 -104- consequential loss. However, these theoretical differences, it is noted, will not in practice affect the basic measure of damages for cargo not delivered, or for that matter cargo that delivered in a damaged condition. The loss is identifiable and determined as a fact in issue. The case on hand comes in former category. In cases where the cargo is not delivered at all, the prima facie measure of admissible damages, would be on the fundamental principle that damages are those that may "fairly and reasonably be considered as arising naturally according to the usual course of things from the breach of contract.....", their market value at the time and place at which the cargo should have been delivered. This is often referred to as 'sound arrived value'. Sound arrived value is a safe way or position at least where there is an available market for such goods, which assumes that the Good's owner may purchase a replacement for the lost or damaged consignment. To determine the quantum R.F.A Nos.672 & 673/2004 -105- of damages, firstly this Court will examine and consider what is the basic measure of damages as "that sum of money which will put the party who has been injured or who has suffered loss, in the same position as he would have been, if had he not sustained the wrong for which he is now getting his compensation or reparation". Secondly, only the damages caused by the breach of contract complained of is considered and, in other words, causation etc is removed from consideration and not considered as applicable to the case on hand. In matters of present nature, once it is found that the defendant is found liable in negligence, defendant will have to compensate claimant for damage of a kind but was a reasonably foreseeable consequence of his negligence.
19.1 Keeping in perspective the above discussion let me refer to contemporaneous correspondence on the subject pleadings, proof etc. The plaintiff through Ext.A2 submitted R.F.A Nos.672 & 673/2004 -106- comprehensive claim details of cargo and the names of beneficiaries. The consolidated claim reads thus:
"UAE Dhs converted to USD @ 3.685 $ 118256.01
Unforeseen expenses 10% $ 11825.61
Communication, survey etc $ 2000.00
Compensation for loss of goodwill $ 10000.00
Total USD 142081.62
==============
19.2 Exts. A4 to A10 are invoices produced by the owners in support of their respective household effects, electronic goods, furniture, Mercedes Benz Car etc shifted in container No.GSTU 9689690. Through Ext.A17 dated the details furnished by the plaintiff are received and acknowledged by D2. Ext.A19 dated 04.01.2000 is a letter addressed by 2 nd defendant to plaintiff confirming letter No.CCI/ASS/59/99, copy of loading charge and Al-Sahal Shipping's letter request to ADSA/AUH. The 2nd defendant through Ext.A21 dated 05.04.2000 objected on the quantum of damages claimed by the plaintiff for and on R.F.A Nos.672 & 673/2004 -107- behalf of defendant Nos.6 to 11. For continuity in appreciating, this Court is of the view that operative portion of Ext.A21 is excerpted:
"The cargo being personal affects the value of the cargo has to be substantiated by way of purchase bills, declared value at the time of issuance of HBL packing details etc. Whether the cargo was insured for transit loss at the time of loading if so its value insured and what type of cover. What is the status of such claim whether they have received any loss settlement.
(emphasis supplied)
2. Since no specific value to the cargo has been attributed and specifically declared in the B/L we deem that the settlement would be guided by international practices procedures set for the purpose. It is noteworthy that there had been opportunity to declare the value of the cargo in the B/L with the approval of line and accepted by paying additional consideration by way of enhanced freight for covering insurance. Since such options were not utilised at the inception the settlement is restricted accordingly.
(emphasis supplied) The parties to the NBL being Cargo care international as per contract of affreightment the claim is restricted to shipper/- AL SAHAL SHIPPING EST ABHUDHABI AND consignee/ CARGO R.F.A Nos.672 & 673/2004 -108- CARE INTERNATIONAL COCHIN.
Please confirm whether you have settled any claim to the parties and the amount thus paid with proof thereof may be adduced.
We are trying for an early settlement of your loss as is permissible withing the B/L even though you would appreciate that the subject claim is a part of the Marine peril and adventure at high seas which is beyond the control or comprehension of the carrier and the Line, but due to a" Force Majeure" reasons only which is an exception."
19.3 Ext.A22 is the reply of plaintiff. Through Ext.A24 packing list along with purchase bills were also supplied. The plaintiff through Ext.A5 reiterated that the claim for damages is substantially rested on the original invoices produced by the respective owners and the value can be treated as by and large reflecting the correct value of the lost goods. The 2 nd defendant through Ext.A28 agreed to settle the claim at 35% of their maximum liability based on the package limitation applicable to this shipment. The 35% if reflects USD 40,000 then the value determined by 2nd respondent and its Principal would come to R.F.A Nos.672 & 673/2004 -109- USD 1,14,285. Therefore, the defendants accepted valuation and veracity of invoices produced by D6 to D11 and acted accordingly.
19.4 The plaintiff through Ext.A30 requested for settlement at 75% of SDR 51333.59 as full and final settlement of the claim. The 2nd defendant through Ext.A31 enhanced the settlement offer from USD 24280 to USD 40000. In the course of correspondence the plaintiff through Ext.A25 refers to the report of M/s. J.B.Boda Surveyors (P) Ltd and informs the 2 nd defendant that the original invoices produced by D6 to D11 are original invoices in fact, they could be accepted as genuine and therefore the amount claimed is supported by documentary evidence. The 1st and 2nd defendants in the written statement have objected to the ad valorem damages for the loss of consignment and even, if the negligence is found in handling the cargo the outer limit is covered by SDR. Therefore, the suit R.F.A Nos.672 & 673/2004 -110- claim for damages, as prayed for is illegal and consequently the award of damages by the Trial Court in the judgment and decree impugned is unsustainable in law.
19.5 Advocates appearing for plaintiff and defendant Nos. 6 to 11 contend that the 2 nd defendant during and in the course of engaging the plaintiff with correspondence on settlement of claim stayed focused on the claimants' establishing the veracity and value of household effects etc., covered by respective invoices. The 2nd defendant, desired to settle the claim as per SDR, as the value of cargo was not disclosed, there is no need for calling original of invoices, verifying genuineness of invoice its value etc. Therefore after proof on value and veracity are provided by plaintiff, paying anything less would not amount to settlement of claim for damages in accordance with law, but would amount to acceptance a discretionary amount suggested by defendant Nos. 1 and 2. An attempt is also made by arguing R.F.A Nos.672 & 673/2004 -111- that the plaintiff and D6 to D11 are in fact entitled to more amount than what is claimed. Therefore, the quantum of damages decided by the Trial Court does not warrant interference of this Court.
20. The submissions are noted and by keeping in perspective the discussion made on the method and mode of determining the damages in preceding paragraphs the quantum of damages is reasonable and legally determined as follows:
(a) This Court is of the view that the claim amounting to USD 10,000 towards loss of goodwill firstly in the considered view of this Court is a remote causative claim. Apart from being remote in nature, the basic details of what is the goodwill held by plaintiff or its Principal, what is the goodwill loss suffered by the Shipper and its agent in this behalf are not spelt out and without establishing these basic details claim for loss of goodwill considered, and granted by the Trial Court.
R.F.A Nos.672 & 673/2004 -112-
(b) The plaintiff claims USD 11,825.61 towards incidental expenses etc. The claim for USD 11,825.61 suffers from the same infirmity noted in respect of the loss of goodwill claim considered by this Court in the preceding paragraph.
(c) Next the plaintiff claims USD 2000 towards communication, survey etc. The said claim is not supported in fact and by documentary evidence.
The above three claims in the considered view of this Court are accepted as axiomatic and damages awarded by the Trial Court. The Trial Court committed an error both in fact and in law by accepting these three claims. For the above reasons the award of damages under these three claims is illegal and unsustainable.
20.1 The above discussion next takes this Court to the actual claim made for loss of cargo as damages amounting to USD 118256.01. I have perused the undisputed invoice, accepted R.F.A Nos.672 & 673/2004 -113- as genuine, in value and veracity placed on record by the plaintiff. Defendant nos.6 to 11 are Non-Resident Indians from State of Kerala working in U.A.E. A cursory look at goods purchased, shipped by them to Kochi can easily be understood as goods purchased by them in Dubai while coming to India for a short stay or their personal use and utility. The goods covered by consignment are electronic goods, household articles, furniture, Mercedes-Benz car (reconditioned) etc. The invoices on which the owners rely are hardly two to four months old from the date of shipment. It is one thing if the goods stuffed in the container are also disputed or that if the plaintiff is unable to produce the record from the shipping agent in Dubai or the invoices on which the owners are relying for true value. It is another consideration in law if one places evidence and how damages are calculated. For the view I have taken on the negligence of defendant Nos.1 and 2, the R.F.A Nos.672 & 673/2004 -114- consideration of claim settlement by referring to valuation, by the 2nd defendant and its Principal, this Court is not persuaded to consider grant of damages on SDR principle and likewise is not persuaded by the argument of plaintiff that the owners are entitled to more amount by way of damages than what is claimed and that lesser amount is claimed and granted could be accepted. I am of the view that the quantum depends on the pleadings and proof in this behalf. As I am convinced to accept the documents on which the plaintiff and defendant Nos.6 to 11 are relying on, which were received, examined by D2 and that keeping in view the description and nature of cargo stuffed in container No. GSTU 9689690, the Court is of the view that the depreciation of minimum of 20% on the goods can be given and value depreciated amount can be allowed. Hence, 20% is deducted from USD 1,18,256 as final quantum of damages recoverable by plaintiffs. Thus it is held the plaintiff is entitled R.F.A Nos.672 & 673/2004 -115- to recover towards actual loss of cargo amounting to USD 94,605/- (U.S.Dollar Ninety Four thousand Six hundred and Five only). The Advocate for plaintiff during the course of her submissions stated that the claim for damages is made in trust and for the benefit of defendant Nos.6 to 11 and after appropriating the amount spent towards expenses, balance would be paid to them proportionately.
20.2 In view of the above discussion and reasons the claim made in USD is upheld and the plaintiff is entitled to recover USD 94,605/- (U.S.Dollar Ninety Four thousand Six hundred and Five only) towards damages for loss of cargo at the applicable rate of exchange when realised from the defendants with interest at 6% per annum from the date of the suit till the date of realisation. The plaintiff is entitled to proportionate costs throughout from the appellants/defendant Nos. 1 and 2. The plaintiff shall pay the difference of Court Fee before executing R.F.A Nos.672 & 673/2004 -116- the decree as undertaken in paragraph 8 of the plaint.
The appeals are allowed in part and the decree of the Trial Court is modified to the extent indicated above.
The proverb 'Better Late Than Never' applies to the case on hand. This Court places on record full appreciation for all the learned Advocates who appeared in the matter, for they preferred a judgment on merits, in spite of taking note of a few objections against the judgment under appeal, meriting remand. The counsel and the parties wanted a judgment on merits on all issues. I place on record my appreciation for all the counsel.
Sd/-
S.V.BHATTI JUDGE I agree.
Sd/-
BECHU KURIAN THOMAS
jjj/js JUDGE
R.F.A Nos.672 & 673/2004
-117-
RFA 673/2004
APPENDIX
ANNEXURE I NON DELIVERY REPORT DATED 24.01.2002 ISSUED BY
(IA NO.355/2005) "PROFESSIONAL COURIERS PVT.LTD". ANNEXURE I TRUE COPY OF ORDER IN APPLICATION NO.3923/2004 IN (IA NO.4489/2004) C.S.NO.797 OF 2004 DATED 08.10.2004 OF THE HIGH COURT OF JUDICATURE AT MADRAS (ADMIRALITY JURISDICTION)