Delhi District Court
M/S Fortune Mall Pvt Ltd vs M/S Air Canada (Cargo Claim Global ... on 30 January, 2023
IN THE COURT OF SH. GAURAV RAO, ADJ-03 / NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CS No. 58722/16
CNR No. DLND01-010163-2016
M/s Fortune Mall Pvt Ltd
Regd Office SCO 43
Sector-7, Chandigarh
Through its Director
Mr. Vikram Gupta
........Plaintiff
Vs.
M/s Air Canada (Cargo Claim Global Division)
Indira Gandhi International Airport,
10-A Import Building
Cargo Complex,
New Delhi - 110037
Through its Principal Officer
..........Defendant
Date of institution : 17.09.2016
Date on which reserved for judgment : 20.01.2023
Date of decision : 30.01.2023
Decision : Suit dismissed
JUDGMENT
1. The present suit for recovery of Rs. 6,07,000/- has been filed by the plaintiff against the defendant.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 1/38 Plaint/Plaintiff's version
2. It is the case of the plaintiff that it is a private limited company and Mr. Vikram Gupta who is one of its directors, is well conversant with the facts and has the authority to sign, verify & institute the present suit on its behalf.
2.1 It is its case that it had sent two pallets consisting 6 pieces/statues of Lord Krishna Ji decorated with pastel color melamine quote, made in POP/Terracotta, French design (hereinafter referred to as the "statues/consignment") as per invoice no. 407 dated 14.06.2015 valued at U.S. $ 6910 from Indira Gandhi International Airport, New Delhi to Toronto Canada, through defendant, under Airway Bill no. 014-3503 0111 dated 19.06.2015 issued by the defendant.
2.2 It is further its case that the consignment was entrusted to the defendant in perfectly sound condition, at the forwarding station for loading and the said consignment was duly accepted by the defendant & booked for transportation on receiving freight charges, as per the rate prescribed by the defendant and along with the said consignment two others similar consignments covered under Airway bill no. 014-3503 0074 dated 16.06.2015 and bill no. 014-3503 0096 dated 17.06.2015 were also booked with the defendant.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 2/38 2.3 It is further its case that the packing of the goods was brand new as per international standard which is accepted and recognized world-wide and the fragile condition/nature and value of the goods and its packing were duly declared and the same was accepted by the defendant as it was found to be totally fit for export. It is its case that against this entrustment of the statues, no protest/objection or doubt was ever raised by the defendant to the effect that the packing of statues was defective in any manner.
2.4 It is further its case that the defendant was required to carry the statues, so securely packed and delivered to the consignee in safe condition, by protecting it from the ordinary & inevitable incident of a journey and in eventuality of loss, was liable to reimburse/compensate the declared value of the damage and further consignor can claim post-accident expenses, thus, it is clear that the goods were bailed and booked on the risk and liability of the defendant.
2.5 It is further its case that when the statues/consignment reached at the destination, it was found that the consignment was badly dealt with by the employees of the defendant in course of transit and they had not taken due care as a man of ordinary prudence would do. It is its case that on arrival of consignment at the destination it was found to be in broken/damaged condition and consequently the consignee M/s Beverly Hayward Inc refused to take delivery of the statues, a CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 3/38 claim was lodged with the defendant by the consignee and all the documents as demanded were supplied.
2.6 It is its case that the officials of the defendant, however, with malafide intentions, denied the legitimate claim on the pretext that the packaging of consignment was of inferior quality though similar consignments containing identical articles value and having similar packing were duly transited by the defendant and safely delivered to the consignee in secured & sound form.
2.7 It is further its case that the allegations made on the part of the defendant that the packaging of the consignment in question was of inferior quality is totally false and had it been so, the defendant would not have accepted the consignment and issued the Airway Bill.
2.8 It is further its case that consignment/statues were damaged due to the fault in taking proper care, during the transit, which the defendant was required to take in handling the consignment and the condition of the consignment at the destination station Toronto apparently shows that it was roughly handled and this fact can be ascertained from the fact that the pallets were found to be missing and card board carton were discovered in badly torn condition.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 4/38 2.9 It is further its case that the defendant is thus liable to compensate the loss suffered by it due to clear negligence and deficiency on the part of the defendant's employees and on account of violation of statutory responsibility. It is its case that it is entitled to be indemnified against the following losses:-
a. Value of goods as per invoice - USD $ 6910
b. Import duty paid - USD $ 422
c. Clearance charges at
destination & freight - USD $ 400
Total USD $ 7732
2.10 It is further its case that the value of above said
claimed amount in Indian rupees @ Rs 66-82 per dollar is Rs. 5,16,652/- and besides this the defendant is also liable to pay interest @15% per annum on the above said amount for the period 01.07.2015 up-till date which comes to Rs. 90,414/-, thus, total outstanding amount is Rs. 6,07,066/- , however it claims Rs. 6,07,000/-
2.11 It is further its case that on failure of the defendant to pay the claimed amount a legal notice dated 20.06.2016 was got issued by it, to the defendant, which was duly received by the defendant, but the defendant instead of complying with the said notice, got sent a false and frivolous reply dated 07.07.2016 wrongly typed as 07.07.2017, through their Manager, and left with no other option, it has filed the present suit.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 5/38 Written Statement/Defendant's version
3. Defendant took certain preliminary objections. It was pleaded that this Court lacks territorial jurisdiction to entertain the dispute at hand as the defendant's office is situated at Indira Gandhi International Airport, which falls outside the territorial limits of this court. It was pleaded that the alleged cause of action, if any, though denied, has arisen at the point of destination of the cargo sent by the plaintiff i.e. in Toronto/Canada, thus, this court lacks territorial jurisdiction to entertain the plaint.
3.1 It was further pleaded that the plaintiff has no claim, whatsoever, against it and after the cargo arrived in the Toronto, the correspondence happened between the consignee i.e. Beverly Hayward Inc. and the Cargo Claims Air Canada, Canada, as evidently the goods/statues were sent on CIF basis and additionally, the agreement between the plaintiff and the consignee was in the nature of CIF which stands for "Costs, Insurance, Freight" and in this type of contract, the seller's liability ends once the seller has placed goods on board at his cost and from that point the responsibility of the seller ceases and the delivery of the goods to the buyer is completed. It was pleaded that the goods, therefore from that stage onwards is at the risk of buyer and therefore, the plaintiff has no cause of action or any claim against it.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 6/38 3.2 It was further pleaded that the alleged cause of action arose in Toronto and not within the territorial jurisdiction of this court, which even otherwise lacks territorial jurisdiction. It was pleaded that it has been alleged in the plaint that when the goods reached on June 14th, 2015 at destination i.e. Toronto it was found that the consignment was in broken/damaged condition and the consignee i.e. Beverly Howard INC refused to take delivery. It was pleaded that consignee i.e. Beverly Howard INC also lodged a claim with the defendant in Toronto vide the Cargo Loss/Damage Claim dated June 23, 2015 and therefore cause of action if any arose at Toronto and not in India.
3.3 It was further pleaded that the suit is bad for misjoinder/non joinder of parties and plaintiff has no locus standi to file the present case. It was pleaded that the consignment was sent on the C.I.F. basis, which means that the plaintiff had no title or right in the consignment once it was handed over to the forwarding agent and the sale of goods took place the moment consignment was handed over to the forwarding agent. It was further pleaded that the initial claim was filed by Beverly Howard INC and the same was rejected by Air Canada and Beverly Howard INC never challenged the rejection of its claim and now, the plaintiff contests the same issue in the courts in India without having any locus or cause of action in its favor. It was further pleaded that neither Beverly Howard INC nor the insurance company is a party in the present proceedings and therefore the present suit is not maintainable.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 7/38 3.4 It was further pleaded that the goods were handed over by the Forwarding Agent of the Consignor to Jet Airways in India and not to Air Canada, which was not flying from India at that point of time and Jet Airways is therefore a necessary party to the present suit.
3.5 On merits it was pleaded that the plaintiff has not given a true & correct statement of facts of the case. It was pleaded that the shipment/statues were originally tendered in Delhi on 9W (Jet Airways) on June 20, 2015 by the Forwarding Agent of Consignor/Consignee and Air Canada did not have any flight operating out of India until the end of 2016. It was pleaded that the shipper was Fortune Mall Pvt. Ltd. while the consignee was Beverly Howard Inc and Freight Forwarder was GAC Logistics Pvt Ltd., who acts as clearing agents for consignee and consignor.
3.6 It was pleaded that Shipper tendered 2 pieces at 97 kilos and the statues were packaged in a fabric bag, then in a cardboard box, which was evident when Consignee opened the box in Toronto. It was pleaded that statues were transferred to Air Canada in London on June 21, 2015 at 20:15 and were put into a container DPE 38753R7 and thereafter they traveled on a direct flight to Toronto Air Canada 859 arriving on June 21, 2015.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 8/38 3.7 It was further pleaded that when the shipment arrived there, a customs hold was put on it and the hold was released & goods cleared on the 23 June at 09:24. It was pleaded that the consignee came to pick up his goods, he opened one box, stated that the goods were damaged, refused the shipment and he did not open both boxes and did not try to mitigate the loss.
3.8 It was further pleaded that thereafter the consignee filed a claim for the statues with gold inlay & marble base on June 23, 2015 and when the shipment was inspected by its staff, the goods were clay statues, hand painted and had no trace of gold painting inlays or trace of marble and it was evident that the claim was fraudulent and for an article which was not even a part of the consignment.
3.9 It was pleaded that the plaintiff has claimed that the goods/statues sent by it were made from POP/terracotta, whereas on inspection, it came out that the goods were made from clay and the same was inspected by Beverly Howard INC, who refused to take over the consignment on a false ground that the goods were damaged.
3.10 It was further pleaded that the packaging of the consignment was of inferior quality and the goods/statues itself were of the questionable standard since it was made of clay which was also one of the reason for rejection by the consignee in taking delivery thereof.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 9/38 3.11 It was denied that the goods were damaged due to any fault of the carrier and it was also denied that the cardboard cartons were discovered in badly torn condition. It was pleaded that the goods are still lying at Toronto Airport which will clearly reveal that the packaging was substandard.
3.12 It was further pleaded that the goods received were in a packed condition, however, the delivery of the goods was refused by the consignee since the statue of Lord Krishna was found to be made from clay, there was no marble base or inlay and finding the goods to be substandard the consignee refused to take over the delivery and the goods were also not packaged properly by IATA standards and the allegations that the consignment was found to be broken/damage is an afterthought.
3.13 It was further pleaded that Air Canada merely carried the goods as a cargo and it does not check the packaging or provide such services. It was pleaded that the goods were handed to the forwarding agent GAC Logistics who are the agents of consignee/consignor and not of Air Canada or its agent.
3.14 It was further pleaded that the defendant was aware of the packaging conditions of the consignment and since the defendant is the carrier and does not check the packaging condition, the onus and risk of packaging entirely lies on consignor who is the only party to be aware of the nature of CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 10/38 goods and nature of packaging required for safe transit. It was denied that the carrier is liable for any damage owing to defective or substandard packaging and as the consignment was sent on CIF basis, the risk of damage is solely on the consignee i.e. Beverly Howard INC and since the goods were also insured under C.I.F. by New India, as is evident from the Airway Bill and Invoice, the liability to compensate, if any, is solely on the insurance company and not on the defendant.
3.15 It pleaded that Beverly Howard INC lodged the complaint, that too after the period of limitation had expired, as provided under the Carriage by Air Act and in any case the same stood dismissed. It was pleaded that as far as plaintiff is concerned it sent a legal notice on 20.06.2016 which cannot be a claim and even otherwise the same is barred by limitation as provided by the Carriage by Air Act.
Replication
4. In its replication, the plaintiff denied the averments of the written statement while simultaneously reiterating and reaffirming the contents of the plaint.
5. Defendant had filed the affidavit of admission- denial but no such affidavit was filed by the plaintiff.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 11/38 Issues
6. On the basis of pleadings of the parties, following issues were framed, by the Ld. Predecessor of this court, vide proceedings dated 29.03.2017:-
1. Whether the plaintiff is entitled for recovery of Rs.
6,07,000/- (Rupees Six Lakh Seven Thousand Only) along with interest @15% per annum from the date of filing of the suit till realization as prayed for ? OPP
2. Whether this court has no jurisdiction to try and entertain the present suit? OPD.
3. Whether the suit is liable to be dismissed on account of mis-joinder and non-joinder of the parties? OPD.
4. Whether the plaintiff has no locus standi to file the present suit? OPD.
5. Relief.
Plaintiff's evidence
7. To prove its case, plaintiff examined Sh. Vikram Gupta as PW1 who tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:-
A. Copy of certificate of incorporation of plaintiff company as Mark A. B. Resolution dated 16.08.2016 passed by the Board of Directors in his as PW1/2.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 12/38 C. Office copy of invoice no. 407 dated 14.06.2015 and packaging as Mark B. D. Airway Bill No. 014 3503 0111 dated 19.06.2015 as Mark C. E. Photographs as Mark D. F. Copy of rejection letter dated 08.07.2015 as Mark E. G. Copy of departmental appeal dated 15.08.2015 as Mark F. H. Copy of legal notice dated 20.06.2016 as Mark G. I. Copy of reply to the legal notice through their manager as Mark H. Defendant's evidence
8. Defendant did not lead any evidence.
Findings
9. I have heard the Ld. counsels for the parties, given due consideration to the rival contentions raised at bar, have carefully gone through the record and perused the case laws relied upon by Ld. Counsels for the parties.
9.1 As all the issues are inter connected they are taken up together and my finding is as under:-
Issue no. 1: Whether the plaintiff is entitled for recovery of Rs. 6,07,000/- (Rupees Six Lakh Seven Thousand Only) CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 13/38 along with interest @15% per annum from the date of filing of the suit till realization as prayed for ? OPP Issue no 2: Whether this court has no jurisdiction to try and entertain the present suit? OPD.
Issue no. 3: Whether the suit is liable to be dismissed on account of mis-joinder and non-joinder of the parties? OPD. Issue no. 4: Whether the plaintiff has no locus standi to file the present suit? OPD.
9.2 In nutshell the case of the plaintiff is that it had sent a consignment i.e. 6 pieces of statues of Lord Krishna Ji to Toronto Canada vide invoice dated 14.06.2015 i.e. Mark C, through the defendant, vide airway bill dated 19.06.2015 i.e. Mark C and the consignment was entrusted to the defendant in a perfectly sound condition, after proper packing, however, when the consignment reached the destination it was found to be broken/damaged as the defendant did not take due/proper care of the consignment during the transit. It is its case that as the consignment/statues was/were damaged/broken, the consignee M/s Beverly Howard Inc. refused to take the delivery of the same.
9.3 It is not in dispute that the consignment was shipped by the defendant in terms of invoice Mark B and airway bill Mark C. Though the original of the invoice and the airway bill were not filed on record by the plaintiff, however, it is to be seen that copies of the invoice and airway bill were also filed by the CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 14/38 defendant along with its written statement, list of documents on 09.12.2016. Though the defendant in its affidavit of admission denial denied the above documents, however, once the defendant itself filed those documents along with the list, did not dispute the genuineness of these documents and did not claim that the same were forged or fabricated, during the cross-examination of PW1, who tendered the documents, it can be safely concluded that the documents are not in dispute and rather stands admitted.
9.4 The airway bill Mark C described the contents of the consignment as under:-
"STATUES OF KRISHNA JI DECORATED WITH PASTEL COLOUR MELAMINE QUOTE MADE IN POP/TERACOTA FRENCH DESIGN 2 PALLETS CONSISTING OF 6 PIECES OF COMMODITY AS ABOVE"
9.5 It is also evident from the airway bill that the goods were accepted for transit in good order and condition. Same is evident from the following note on the airway bill:-
"It is agreed that the goods described herein are accepted in apparent good order and condition (except as noted) for carriage SUBJECT TO CONDITIONS OF CONTRACT ON THE REVERSE HEREOF ALL GOODS MAY BE CARRIED BY AND OTHER MEANS INCLUDING ROAD OR ANY OTHER CARRIER UNLESS SPECIFIC CONTRARY INSTRUCTIONS ARE GIVEN HEREON BY THE SHIPPER AND SHIPPER AGREES THAT THE SHIPMENT MAY BE CARRIED VIA INTERMEDIATE STOPPING PLACES WHICH THE CARRIER DEEMS APPROPRIATE THE SHIPPER'S ATTENTION IS DRAWN TO THE NOTICE CONCERNING CARRIER'S LIMITATION OF LIABILITY Shipper may increase such limitation of liability by declaring a higher value for carriage and paying a supplementary charge if required."
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 15/38 9.6 Hence when the consignment/statues were handed over to the defendant, the same was/were not in damaged condition and the defendant also did not object to the packaging i.e. the same was not properly packed or that it was defectively packed. Once no such objection was raised by the defendant, no noting whatsoever in this regard was made on the airway bill, the defendant cannot now agitate that the consignment was not properly packaged/packed or the damage resulted on account of defective packaging. This is more so when the defendant has failed to lead any evidence to even remotely prove that the packaging was defective. Except for the bald averments in the written statement, no evidence was led by the defendant to prove that the packaging of the consignment/statues was defective or that it was the defective packaging which resulted into damage to the consignment/statues. The averments in the written statement thus remained unsubstantiated, uncorroborated.
9.7 It is also not in dispute that the consignee refused to accept the delivery of the consignment/statues at Toronto, Canada. As per the written statement, the consignment arrived in Toronto on 21.06.2015 and after the custom hold on the consignment was cleared on 23.06.2015, the consignee refused to take the delivery and rather filed a claim against the defendant on 23.06.2015.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 16/38 9.8 Plaintiff has placed on record one letter i.e. Mark E dated 08.07.2015, which was written by the defendant to the consignee Beverly Howard Inc. vide which the consignee's claim was rejected by the defendant. Letter Mark E is reproduced hereunder:-
"1 Bell Blvd. Comp.# 1650 Enfield Nova Scotia B2T 1K2 July 8, 2015 WITHOUT PREJUDICE Beverly Howard Inc. 26 Northface Cres Brampton ON L6R 2Y2 Reference: 014-3503 0111 dated June 19, 2015 Dear Jassy:
This letter is in reference to the claim you submitted to this office for damage to a shipment that traveled from India to Canada. We have reviewed the handling of this shipment and it is evident that the packaging was inferior for the shipping of this product. Air Canada adheres to the standards as set by IATA.
Further the invoice you have provided is for statues of Krishna- inlay with marble base. Upon further inspection the goods are totally made from clay - no marble and spray painted. We had our Management inspect the goods and found two boxes not even opened. The statues were in fabric bags and in cardboard boxes. We are sorry but as the consignee you are to mitigate the loss, this is not done by walking away from the shipment.
Unfortunately due to the above we are not able to entertain your claim. Your goods are sitting at the warehouse and are accumulating storage charges. Please call and make arrangements for pick up immediately.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 17/38 If you wish to claim for any damages you may wish to take your claim and concerns to the shipper as it is their responsibility to have the goods packaged to withstand transport. We are very sorry we are not able to process your claim. We value your business and ho that future shipments will be packaged according to IATA standards.
Regards, Manager, Cargo Claims- Global Air Canada Law Branch"
9.9 Though in the said letter defendant claimed that it had reviewed the handling of the shipment/consignment in question and according to it the packaging was inferior and furthermore it was the shipper's responsibility i.e. plaintiff's responsibility to have the goods/statues packaged in a manner so as to withstand transport, however, as discussed above, no objection whatsoever was raised by the defendant at the time when the consignment was handed over to it for transit. Furthermore no evidence has been led to prove that the packaging was indeed inferior or defective. The defendant's plea of defective/inferior packaging appears to be nothing but an afterthought. If there was any defect in the packaging or the consignment was not properly packed, not only the defendant would have refused to take the consignment for delivery but would have also noted the objections on the airway bill Mark C. Not doing so itself belies, falsifies the defendant's claim.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 18/38 9.10 Consignee Beverly Howard Inc replied to the rejection of its claim, vide Mark E by the defendant, vide its letter Mark F which is reproduced hereunder:-
"Dated: August 15, 2015 To Manager, Cargo Claims-Global, Air Canada Law Branch, 1, Bell Blvd, Comp #1650, Enfield, Nova Scotia B2T 1K2 Sub: 014-3503 0111 Dated June 19, 2015 Dear Sir/Madam, We are surprised to have your reply of June 8, 2015 wherein you have mentioned that our cargo got broke due to insufficient packaging. This reply of yours is arbitrary and what so ever you have stated is totally wrong and we strongly object to it. We had taken picture of the cargo when it was offered to us for delivery and the same are being attached herewith (Pic 407 A to L). Please have a look at them. Any lay person can say how brutally the shipment was handled. Before this shipment, we had another two shipments which came into Toronto through your airlines but there was no problem to those. The airway bills for your reference are 014-3503 0074 & 014-3503 0096. Had the packaging been inferior, there should have been damage to these also. You have also stated that the packaging should have been as per IATA standards. Please provide us copy of the same for our reference and further use. Now may we ask you, looking at the pictures, it this the IATA standards that your airlines adheres to transport Fragile Cargo?? This damage has not only resulted in financial loss to us but also hurt our sentiments as these are Indian God Statues for prayers.
Now please look at each of the pictures: The shrink wrap is totally torn (Pic 407 A,B,F,G,H.J.KL). All boxes tied together with a tape put later having marking of your airlines (Pic 407 A TO L). Top lid green tape of your airlines has been put (Pic 407 D, E, H, I). Is it the shipper who did this? Now refer your airway bill. It says 2 pallets. Where are the pallets? We can't see them in the picture rather all boxes are placed in shabby condition on one pallet. Taping done by the shipper is tagged with one of the box if like someone has put cloth for drying after wash (Pic 407 A,D,E,G,I. K). This is something extremely bad and not CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 19/38 acceptable. Now instead of your airlines looking into the claim is pointing out deficiency only to escape from payment of claim. The product description of the cargo has been rightly mentioned as in your airway bill and what you have mentioned in your rejection letter. Due to mistake of your cargo handling people, your airline cannot walk away by rejecting the claim which kindly note. The cargo had all around markings of FRAGILL HANDLE WITH CARE, ETC. Why they were not taken care? Do IATA standards define anything for this?? We also feel to inform you that we got the shipment not only to walk away leaving it behind at the airport and by investing over 9000$ for the statues, your air freight, customs etc. So kindly be gentle while what you are writing. We are sure not going to suffer the loss due to mistake made by your airlines.
We also have one picture of the cargo which we have requested from the shipper in the way these boxes looked pre dispatch (Pic 407 M & N). Kindly have a look on these. We have refused to accept the delivery of the cargo at the airport and the same is still in your possession as was in damaged condition and as stated above. Kindly do not discard it until this claim is settled. Kindly also note that nonpayment of claim and your letter in the way it is written is causing lot of mental stress to us and your airline may be liable to pay such damages in case claimed by us.
Keeping in view what we have said above, kindly settle our claim without any further loss of time.
Regards, Jassy For BEVERLEY HOWARD INC., 26, Northface Cres, Brampton, ON, L6R 2Y2 CC: Lise-Marie Turpin, Vice President, Cargo"
9.11 In the above letter the consignee Beverly Howard Inc. categorically attributed the damage caused to the statues/consignment to the defendant. It categorically stated that the shipment was mishandled by the defendant and denied that the packaging was inferior. According to the consignee, if the packaging was inferior, the other consignments received by it vide airway bills no. 014-3503 0074 and 014-3503 0096, would CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 20/38 also have been damaged but the same is not the case. According to the said letter, the consignment was brutally handled by the defendant.
9.12 Defendant in its letter Mark E while claiming that the packaging was inferior also talked about its adherence to IATA standards regarding shipment and vide its letter Mark F, Beverly Howard Inc. asked the defendant to provide it with the copy of the standards/guidelines of IATA and also, while referring to the photographs it had provided to the defendant, it asked the defendant whether it had adhered to those standards or not. It will be worthwhile to mention that copy of IATA standards, guidelines regarding packaging have not been brought on record by the defendant. It was for the defendant to prove as to how the plaintiff/shipper failed to adhere to those standards, where the plaintiff lacked, what were the shortcomings in the packaging and that it was defective packaging which resulted in damage to the consignment/statues but the defendant has failed to prove the same.
9.13 Hence in view of the noting on the airway bill Mark C and in the absence of any positive, concrete evidence being provided by the defendant, it can be safely concluded that the consignment was handed over to the defendant in good order and condition i.e. properly packed and from letter Mark E it appears that the consignee refused to take delivery claiming damage to the consignment/statues. However, the plaintiff has miserably CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 21/38 failed to prove that there was indeed damage to the consignment/statues. Plaintiff has failed to prove the exact damage and the quantum of damage to the consignment/statues.
9.14 Before the defendant could be called upon to account for and explain as to how the consignment was damaged during the transit, it was incumbent upon the plaintiff to prove the damage. Undoubtedly being the carrier, it was the defendant's absolute duty to safely, securely transport and deliver the consignment and ensure that there is no damage to it during transit but in the absence of any evidence as regards the damage it is not possible to fasten the defendant with any liability.
9.15 Plaintiff has miserably failed to prove as to what was the exact damage suffered by the consignment/statues. Plaintiff has failed to prove as to whether all the 6 pieces of statues were damaged or just 1 or 2 of them. According to Mark E two of the boxes were not even opened by the consignee. Once the boxes were not even opened, how the fact that the consignment/statues were damaged was ascertained by the consignee is beyond my understanding. Plaintiff has also failed to prove what was the extent of damage. No evidence in this regard whatsoever has been led by the plaintiff. Plaintiff did not bother to examine any official/ employee of Beverly Howard Inc. who had inspected the consignment, at the time of delivery and detected the damage. This was the bare minimum the plaintiff was expected to do in order to prove the damage and to be CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 22/38 entitled to claim, if any. Plaintiff has failed to bring the best possible evidence on record. From Mark E what can be gathered atmost is that there was a dispute raised by the consignee who claimed damage to the consignment/statues but what was the exact damage has not been proved by the plaintiff. Court cannot assume the damage or the quantum of damage in the absence of any positive, concrete evidence.
9.16 According to Mark F, as above, certain photographs were also provided to the defendant vide the said letter. These photographs are on record as Mark D and it appears that the photographs were taken at Toronto, Canada at the time when the consignee Beverly Howard Inc. refused to accept the delivery. The photographs do not show any damaged statue. The photographs are of certain cardboards and no damage or quantum of damage to the statues/consignment can be even remotely ascertained from the photographs. In fact even the cardboards are not damaged leave apart substantially damaged. The photographs are thus not even remotely proof of damage or quantum of damage.
9.17 The plaintiff had also averred in the plaint that the consignment was roughly handled by the defendant which fact can be ascertained from the fact that the pallets were found to be missing and the cardboard cartons were discovered in badly torn condition. Again it appears that to prove the said fact plaintiff is relying solely upon photographs Mark D. As discussed above, CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 23/38 Mark D does not even remotely prove any substantial damage to the cardboard cartons much least the statues. A pallet is a portable, rigid platform that is flat and can carry the load. No doubt 6 cardboards/cartons can be seen on one pallet only, whereas, as per invoice Mark B there were two pallets but that by itself does not prove damage to the statues. The cardboards/cartons/consignment is lying on the pallet and the plaintiff has failed to prove as to how merely because they were lying on one pallet, same caused damage to the consignment/statues.
9.18 Mark F also talks about the defendant having been provided with the pre dispatch photographs, as were provided to Beverly Howard Inc. by the plaintiff and Beverly Howard Inc. asked the defendant to compare those photographs with the photographs taken at the time when the consignment/statues were offered for delivery to it i.e. Mark D. Those photographs have not been brought on record by the plaintiff to prove as to how the packaging, cardboard cartons looked different pre dispatch and at the time of delivery. The onus to prove this crucial fact was upon the plaintiff and the plaintiff has miserably failed to do so.
9.19 In fact in its reply Mark H dated 07.07.2017 to the plaintiff's legal notice i.e. Mark G dated 20.06.2016, the defendant had claimed that consignee after opening the box CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 24/38 refused to take the goods/consignment and left the cargo building. Letter Mark H is reproduced hereunder:-
"Air Canada Cargo Claims 1 Bell Blvd, Comp, #1650 Enfield Nova Scotia 82T 1K2 July 7, 2017 Vikas Sagar Advocate PB & HR High Court Chamber No.1 District Court Sec. 17 Chandigarh Reference: 014-3503 0111 Dear Sir, This letter is in reference to your letter of support for the claim against the above mentioned airway bill. This claim was for damages of goods that traveled from India to Toronto, Canada. Upon arrival the consignee came to our business to pick up his goods. He opened one box and stated he would not take the goods. He then left the cargo building.
The consignee stated the very valuable statues had gold and marble inlay and further stated they were very well packaged. In fact, the statures were made of clay, had no marble and were hand painted. The packaging was a fabric bags around the statue and was contained in a cardboard box. According to IATA packaging standards, the shipper is responsible for ensuring that the cargo is packed in an appropriate way for air carriage so as to ensure that it can be carried safely with ordinary care in handling and so as not to injure or damage any person, goods or property.
Packaging design must allow for changes in altitude, temperature, angle and orientation which may occur during flight and for changes in weather conditions on the ground, at origin, destination, transit and transfer points. As we still have the goods in our possession we therefore hold the evidence that goods were not packaged properly. We are sorry but we will not entertain this claim.
Regards, CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 25/38 Manager, Cargo Claims- Global Air Canada Law Branch"
9.20 Hence according to letter Mark H consignee opened only one box and refused to take the goods/consignment. Why the consignee did so has not been explained by the plaintiff. If the consignee did not do so, as is claimed in letter Mark H, then it was for the plaintiff to prove the same i.e. to rebut the contents of letter Mark H. Moreover as discussed above from the photographs it is not clear as to whether the consignment/ cardboard boxes were even opened by the consignee or not as the same can be lying in closed/packed condition. All these facts could have been proved only through the consignee's official/witness. Plaintiff itself had not inspected the consignment after it landed in Canada and therefore plaintiff is not in a position, cannot prove the damage to the consignment if any. Relevant portion of cross-examination PW1 in this regard reads as under:-
"Que.- Did you ever inspect the consignment after it landed in Canada?
Ans. No."
9.21 According to Mark H, the consignee claimed at the time of refusal to take delivery that the product/statues ordered were different from the consignment, what was delivered. In Mark H, the defendant claimed that the consignee had stated that the very valuable statues had gold & marble inlay and further stated they were very well packaged, whereas, the CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 26/38 consignment/statues were made of clay, had no marble and were hand painted and that the packaging was a fabric bags around the statue and was contained in a cardboard box. Plaintiff did not lead any evidence to rebut the defendant's above stand regarding the discrepancy in the consignment or that it was one of the reason for the consignee's refusal to take the delivery. The claim which was filed by the consignee has not been proved on record by the plaintiff. Plaintiff should have proved the claim so as to prove as to what was the damage claimed by the consignee Beverly Howard Inc. as well as to prove that the defendant was taking a false stand regarding discrepancy in the consignment, the product ordered and delivered. The claim so filed could have proved the extent, quantum of damage to the statues/ consignment. Nonetheless according to the written statement this claim was rejected by the defendant and the fact that it was rejected has not been disputed by the plaintiff.
9.22 At the same time it will be worthwhile to point out that in Mark H, though the defendant claimed that the damage was on account of improper packaging and also claimed that they are in possession of evidence to prove the same, however, no such evidence has been brought on record by the defendant. The defendant kept on agitating that the packaging was defective/improper, however, for the reasons best known to it, it failed to lead any evidence in this regard and I find absolutely no reason to believe the absolutely bald and unsubstantiated plea.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 27/38 9.23 So not only the plaintiff could not prove any damage to the consignment/statues, however, even otherwise, in my considered opinion the plaintiff is not entitled to recovery of said amount. Plaintiff was merely the shipper and the consignment was on CIF basis i.e. Cost, Insurance and Freight as is evident from invoice dated 14.06.2015 i.e. Mark B. Once the goods were shipped on CIF basis, not only the responsibility of the shipper/plaintiff ceased and the delivery of the goods to the buyer/consignee was complete and the goods from that stage onwards were at the risk of the buyer/consignee but most importantly it was only the consignee/buyer who could have sued, lodged claim against the defendant/carrier and the insurer and not the plaintiff. Plaintiff not being the owner of the goods sold on CIF basis, he has no locus to file the present suit. The suit could have been filed only by the consignee/buyer/Beverly Howard Inc or by the insurance company on the basis of letter of subrogation if any from the consignee.
9.24 In RFA No 423/18 dated 18.05.2018 titled as TT Limited Vs. Golden Eagle Company Ltd. and ors it has been held as under:-
"7. Trial court has very exhaustively discussed all these aspects from paras 21 to 24 of the impugned judgment, and since the discussion is very illuminating and thorough, I would seek to reproduce these paras instead of giving my own words and reasoning. These paras 21 to 24 read as under:-
"21. First of all in order to sustain a claim for marine insurance the insured must possess requisite insurable interest in the goods at the relevant point of time. Now Sections 7 and 8 of the Marine Insurance Act, 1963 provide as under:-
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 28/38 "........ 7. Insurable interest defined.- (1) Subject to the provisions of this Act, every person has an insurable interest who is interested in a marine adventure.
(2) In particular a person is interested in a marine adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or by damage thereto, or by the detention thereof, or may incur liability in respect thereof.
8. When interest must attach.-(1) The assured must be interested in the subject-matter insured at the time of the loss, though he need not be interested when the insurance is effected: Provided that, where the subject-matter is insured "lost or not lost", the assured may recover although he may not have acquired his interest until after the loss, unless at the time of effecting the contract of insurance the assured was aware of the loss, and the insurer was not.
(2) Where the assured has no interest at the time of the loss, he cannot acquire interest by any act or election after he is aware of the loss ......"
22. In the judgment titled as Contship Container Lines Ltd. V. D.K. Lall reported as (2010) 4 SCC 256 the Hon'ble Supreme Court has observed:
"20. Halsbury's Laws of England, 4th Edn., Vol. 25 (para 190) has, while dealing with the expression "insurable interest" under the Marine Insurance Act, 1906 prevalent in that country, explained the purport of the expression "interest" in a marine adventure in the following words: "190. Meaning of „insurable interest‟.-.. A person may be said to be interested in an event when, if the event happens, he will gain an advantage, and, if it is frustrated, he will suffer a loss, and it may be stated as a general principle that to constitute an insurable interest it must be an interest such that the peril would by its proximate effect cause damage to the assured, that is to say cause him to lose a benefit or incur a liability."
21. Halsbury‟s refers to the decision of House of Lords in Lucena v. Craufurd (1806) 2 Bos & PNR 269 as to the meaning of the expression "insurable interest":
".....A man is interested in a thing to whom advantage may arise or prejudice happen from the circumstances which may attend it;...and whom it importeth that its condition as to safety or other quality CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 29/38 should continue. Interest does not necessarily imply a right to the whole or part of the thing, nor necessarily and exclusively that which may be the subject of privation, but the having some relation to, or concerning the subject of the insurance; which relation or concern by the happening of the perils insured against, may be so effected as to produce a damage, detriment or prejudice to the person insuring. And where a man is so circumstanced with respect to matters exposed to certain risks and dangers as to have a moral certainty of advantage or benefit but for those risks and dangers, he may be said to be interested in the safety of the thing. To be interested in the preservation of a thing is to be so circumstanced with respect to it as to have benefit from its existence, prejudice from its destruction."
22. Dealing with the question whether the seller of goods retains any insurable interest, Halsbury explains (in Pare 201): "201. Seller and buyer.- When, however, the property which is the subject matter of the contract of sale has completely passed from the seller to the buyer or when it has under the contract of sale become completely at the buyers‟ risk, the seller ceases to have any insurable interest, and the buyer acquires one. Thus, a contract for the sale of goods to be supplied on board, a particular vessel may be so framed that the property in them and the risk of their loss do not pass to the buyer until a complete cargo has been loaded, in which case the buyer has no insurable interest until the complete cargo has been loaded; or the contract may be so framed that the property in and the risk as to any part of the goods passed to the buyer on shipment, in which case the buyer acquires an insurable interest on any part of the goods then shipped."
23. Reference may also be made by us to MacGillivray on Insurance Law. While dealing with insurable interest under contracts for the sale of goods, the author has the following to say:
"The unpaid seller of goods who has parted with property in them has no insurable interest in them unless either they remain at his risk or he has a lien, charge or other security interest over them for the price. So long as the risk remains with him, he has an interest whether the property has passed or not, and the measure of his interest is the purchase price or the actual value of the goods, whichever is the greater.
Even when risk and property have both passed, the seller retains an insurable interest in the goods while he still possesses them because, if he is unpaid in whole or part on account of the buyer‟s insolvency or for other reasons, he has an interest in respect of his lien for the CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 30/38 purchase money. His possession of the goods would also permit him to insure on the buyer‟s behalf if his intention is clear and the policy does not forbid it."
.....31. Coming to the case at hand, the contract of sale was on f.o.b. basis even when the contract of insurance proceeded on the basis that the transactions between the seller and the purchaser and meant to be covered by the policy would be on c.i.f. basis. The distinction between c.i.f. (cost, insurance and freight) and f.o.b. (free on board) contracts is well recognized in the commercial world. While in the case of c.i.f. contract the seller in the absence of any special contract is bound to do certain things like making an invoice of the goods sold, shipping the goods at the port of shipment, procuring a contract of insurance under which the goods will be delivered at the destination etc., in the case of f.o.b. contracts the goods are delivered free on board the ship. Once the seller has placed the goods safely on board at his cost and thereby handed over the possession of the goods to the ship in terms of the Bill of Lading or other documents, the responsibility of the seller ceases and the delivery of the goods to the buyer is complete. The goods are from that stage onwards at the risk of the buyer.
32. It is common ground that the seller had, in the case at hand, reserved no right or lien qua the goods in question. In the absence of any contractual stipulation between the parties the unpaid seller‟s lien over the goods recognised in terms of Sections 46 and 47 of the Sale of Goods Act. 1930 stood terminated upon delivery of the goods to the carrier. The goods from that stage onwards held by the carrier at the risk of the buyer and the property in the goods stood vested in the buyer.
33. The principle underlying transfer of title in goods in f.o.b. contracts was stated by a Constitution Bench of this Court in B.K. Wadeyar v. Daulatram Rameshwarlal [AIR 1961 SC 311]. The question as to the transfer of title in the goods arose in that case in the context of a fiscal provision but the principle relating to the transfer of title in goods in terms of FOB contract was unequivocally recognised. This Court held that in FOB contracts for sale of goods, the property is intended to pass and does pass on the shipment of the goods. The National Commission was, therefore, right in holding that the seller had no insurable interest in the goods thereby absolving the insurance company of the liability to reimburse the loss, if any, arising from the mis-delivery of such goods......"
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 31/38
23. Adverting to the facts of the present case it is seen that as per commercial invoice Ex.PW1/D-1 the material was sold on CNF basis. The correct expression for CNF under Incoterms, 2010 is CFR (Cost & Freight). Under a CFR (CNF) contract the risk passes on to the buyer when the goods have been placed safely on board and therefore the risk of the plaintiff ceased once the goods passed through the ship‟s rails. Accordingly, in the present case when the cargo was delivered on board the risk passed on the buyer i.e. the defendant no.1. No evidence has been led by the plaintiff to establish as to when the property in the goods was intended to pass. The contract was for sale of specific goods in deliverable state, though they were to be weighed etc., and therefore the under the normal course the property in the goods passed on the buyer at any rate before the goods were delivered on board. Conversely, there is no evidence to show that the property in the goods had not passed on to the buyer at the time of loading of goods on board or that the parties had agreed that the property in the goods shall pass on a later date.
24. Be that as it may, after loading of the cargo on board, the cargo was at the risk of the defendant no.1 as the contract was a CFR (CNF) contract and therefore the plaintiff had no insurable interest in the cargo thereafter. As per the case of the plaintiff the cargo was damaged during the course of voyage. As per section 8 of the Marine Insurance Act the plaintiff must establish insurable interest in the goods at the time of the loss/when damage was caused to the goods. The result is that the plaintiff has failed to show any insurable interest in the cargo during the voyage when it was allegedly damaged since the risk already stood transferred to the buyer i.e. the defendant no.1. Since there was no insurable interest at the time of the loss the plaintiff is not entitled to any insurance claim with respect to the damaged cargo and the insurance claim was therefore rightly repudiated by the defendant no.3 Insurance company." (underlining added)
8. A reading of the aforesaid paras of the impugned judgment shows that trial court has rightly arrived at a finding that the appellant/plaintiff had no insurable interest because ownership of the goods had passed to the respondent no.1/defendant no.1/buyer. Once the appellant/plaintiff had no insurable interest because ownership of the goods had passed on to the responded no.1/defendant no.1, hence the appellant/plaintiff was not entitled to amount under the insurance policy from the respondent no.3/defendant no.3. I may note that it is settled law that loss of goods is upon the owner of the goods and therefore it is the owner of the goods being the respondent no. 1/defendant no.1 who had to insure the goods and not the CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 32/38 appellant/plaintiff. Even if the appellant/plaintiff had taken an insurance policy, then that insurance policy to be valid had to have as the beneficiary of the policy as the respondent no.1/defendant no.1 and who had an insurable interest in the goods being the owner, however admittedly the beneficiary under the insurance policy of the appellant/plaintiff with the respondent no.3/defendant no.3 was the appellant/plaintiff and not the respondent no.1/defendant no.1. No fault therefore can be found with the impugned judgment of the trial court dismissing the suit against the respondent no.3/defendant no.3 on the ground that the appellant/plaintiff had no insurable interest in the goods.
9.25 PW1 during his cross-examination admitted that the goods were sent on CIF basis. The relevant portion of his cross- examination is reproduced hereunder:-
"The six packets of consignment were to Beverly Howerd Ind Canada. It is correct that the goods were sent on CIF basis. I am not aware about the carriage by air act. I am aware about the rules under which consignments are sent outside India. I do not know the meaning of CIF basis."
9.26 In Thyssen Krupp Materials Ag Vs. the Steel Authority of India MANU/DE/1106/2017, it has been held as under:-
"34. Keeping the above view in mind, the first question that this Court must consider is the one referred to it by the Supreme Court. The contract in the present case is f.o.b. Vishakhapatnam. The nature of an f.o.b. contract and its distinction from a CIF contract was explained by the Supreme Court in the case of Contship Container Lines Ltd v. D.K. Lall, (2010) 4 SCC 256:
"The distinction between CIF (Cost Insurance and Freight) and FOB (Free on Board) contracts is well recognized in the commercial world. While in the case of CIF contract the seller in the absence of any special contract is bound to do certain things like making an invoice of the goods sold, shipping the goods at the port of shipment, procuring a contract of insurance under which the goods will be delivered at the destination etc., in the case of FOB contracts the goods are delivered free on board the ship. Once the seller has placed the goods safely on board at his CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 33/38 cost and thereby handed over the possession of the goods to the ship in terms of the Bill of Lading or other documents, the responsibility of the seller ceases and the delivery of the goods to the buyer is complete. The goods are from that stage onwards at the risk of the buyer."
9.27 Ld. Counsel for the plaintiff relied upon Section 18 and 22 of Carrier By Air Act 1972 and M/s Jet Airways (India) Ltd. Vs. M/s Dhanuka Laboratories Ltd. RSA No. 295/16 dated 30.09.2016 wherein it has been held as under:-
"10 (iii) 27. From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without lose at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent and servants."
and there is no denying to the legal position that the liability of the carrier is absolute and it is for the carrier to deliver the consignment safely without any damage or loss and it has been discussed above that it was for the defendant to account for the damage to the consignment, however, not only the plaintiff has failed to prove the exact/quantum of damage to the statues/consignment but furthermore the plaintiff is not entitled to file the present claim as the goods were shipped on CIF basis. The claim if any could have been filed by the consignee/Beverly Howard Inc. and not the plaintiff. Plaintiff accordingly has no locus standi to file the present suit.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 34/38 9.28 According to the replication, the consignee had raised debit note upon the plaintiff, however, the said debit note has not been brought on record by the plaintiff. Plaintiff has failed to prove as to whether, after the debit note was raised by the consignee, it paid any amount to the consignee. Plaintiff has also failed to explain as to whether the consignee's claim, if any, filed with the insurer i.e. New India, with whom the consignment was insured was rejected or allowed by the insurer. What is the basis of plaintiff's claim, how the plaintiff suffered the loss has not been explained anywhere by the plaintiff. Only once the loss is proved that the plaintiff could have been entitled to claim damages if any. Moreover this suit is not for damages but the plaintiff is claiming the amount of the invoice i.e. consignment price and also the freight charges which the plaintiff cannot claim. Same could have been claimed only by consignee more so when the consignment was on CIF basis.
9.29 Therefore in view of the above discussion, issue no. 1 is decided against the plaintiff and issue no. 4 is decided in favour of the defendant.
9.30 As far as issue no. 2 is concerned, the onus to prove the said issue was upon the defendant. According to the defendant this court lacks the territorial jurisdiction to entertain the present suit as neither the defendant carries on its business within the jurisdiction of this court nor any cause of action arose CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 35/38 within the jurisdiction of this court. I have considered section 20 of the Code of Civil Procedure which reads as under:-
"20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction--
(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises."
9.31 As per memo of parties the defendant's address is as under:-
"M/s Air Canada (Cargo Claim Global Division) Indira Gandhi International Airport, 10-A Import Building Cargo Complex, New Delhi - 110037"
9.32 Hence the defendant is carrying on its business from its office located within the territorial jurisdiction of this court where the goods were handed over for shipment. Therefore, this court has the territorial jurisdiction to entertain the present suit. Issue no. 2 is accordingly decided against the defendant.
9.33 As far as issue no. 3 is concerned, in my considered opinion the suit is indeed bad for mis-joinder and non-joinder of the parties i.e. for non joinder of Beverly Howard Inc. i.e. the CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 36/38 consignee and for that matter insurer who had insured the consignment i.e. New India. As the consignment/statues were shipped on CIF basis, the claim should and could have been filed only by Beverly Howard Inc. and not the plaintiff. Suit should have been filed by Beverly Howard Inc., should have been in the name of Beverly Howard Inc. and the plaintiff might have been arrayed as a proforma party by Beverly Howard Inc. Even the forwarding agent GAC Logistics Pvt. Ltd. was not arrayed as a party to the suit. Furthermore as regards the loss/damage to the consignment is concerned, it was Beverly Howard Inc. who could have proved the damage to the consignment/statues. In the absence of Beverly Howard Inc. as a party to the suit and non examination of its official/ employee, the plaintiff has failed to prove the exact damage/loss to the consignment. Plaintiff on its own could not have proved the same. Therefore issue no. 3 is decided in favour of the defendant and against the plaintiff.
Relief
10. As issue no. 1 has been decided against the plaintiff and issue no. 3 & 4 have been decided in favour of the defendant, suit of the plaintiff is liable to be dismissed. I order accordingly.
11. Decree sheet be prepared in terms of judgment.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 37/38
12. File be consigned to record room after necessary compliance.
Announced in the open court on 30th January 2023 (Gaurav Rao) ADJ-03/ New Delhi District Patiala House Courts, New Delhi.
CS 58722/2016 M/s Fortune Mall Pvt Ltd Vs. M/s Air Canada Pages 38/38