Madras High Court
Sp Container Line Private Limited vs Apg Logistics Private Limited on 19 September, 2014
C.S.No.79 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: Pronounced on:
28.02.2023 13.10.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.S.(COMM.DIV.)No.79 of 2016
SP Container Line Private Limited,
having its Office at No.204, 2nd Floor,
'Prestige Point', Old No.33, New No.47/16,
Haddows Road, Nungambakkam,
Chennai – 600 006.
[Rep. by its Authorized Signatory] ... Plaintiff
vs.
APG Logistics Private Limited,
Old No.50, New No.38, II Floor,
RajajiSalai,
Chennai – 600 001. ... Defendant
PRAYER : Civil Suit filed under Order IV Rule 1 CPC read with Order
XXXVII of the Code of Civil Procedure, 1908:-
i. To direct the Defendant to pay a sum of Rs.1,01,07,702.46/- along
with interest thereon at 24% p.a. on Rs.81,51,372.96 from the date of
the suit till actual realization.
ii. To direct the Defendant to pay the costs of the suit.
For Plaintiff : Mr.Bijesh Thomas
For Defendant : Mr.N.Balaji
https://www.mhc.tn.gov.in/judis
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C.S.No.79 of 2016
JUDGMENT
The plaintiff has filed this suit for the following relief:-
i. Direct the Defendant to pay a sum of Rs.1,01,07,702.46/- along with interest thereon at 24% p.a. on Rs.81,51,372.96 from the date of the suit till actual realization;
ii. Direct the Defendant to pay the costs of the suit.
2. The following issues were framed by this Court prior to Trial:-
i. Whether the suit is liable to be dismissed for non-joinder of necessary parties? ii. Whether the suit claim is barred under Section 24 of the Multimodal Transportation of Goods Act, 1993?
iii. Whether the defendant is an agent of the Consignor or Consignee of the Goods, and if so, whether the agent is exempt from liability under Section 230 of the Indian Contract Act, 1872?
iv. Whether the defendant is liable to pay sums due under the two suit bills of lading and if so, what is the sum payable?
v. Whether the plaintiff is entitled to interest on the sums claimed and if so, at what rate and for what period?
vi. Whether the defendant is absolved from liability on account of paying the necessary freight charges?
vii.Whether the plaintiff is entitled to any other relief?
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3. I shall briefly narrate the facts of the case. The plaintiff claims to be a reputed Non-Vessel Operating Common Carrier (NVOCC) Company engaged in the transportation of Cargos.
4. The expression Non-Vessel Operating Common Carrier (NVOCC) is sometimes confused with shipping line. However, they do not refer to the same thing. A Non-Vessel Operating Common Carrier (NVOCC) performs all of a sea Liner / sea Carrier’s duties (and some tasks which sea Liner / sea Carriers don’t). A Non-Vessel Operating Common Carrier (NVOCC) does not operate any vessel of its own. It merely leases out space of other Sea liner/ Sea carrier or charters them for special services.
5. A Non-Vessel Operating Common Carrier (NVOCC) is different from Freight Forwarder. Non-Vessel Operating Common Carrier (NVOCC) arranges ocean transportation. Freight forwarders may arrange all kinds of transportation viz., Ocean transportation, Air transportation up to a specified point in the journey where the importer’s agent takes control of the movement of goods based on the INCOTERMS 2020 Rule agreed upon. https://www.mhc.tn.gov.in/judis 3/56 C.S.No.79 of 2016
6. A Non-Vessel Operating Common Carrier (NVOCC) is permitted to add a profit percentage to their rates. Freight forwarders are only allowed to add operational fees. A Non-Vessel Operating Common Carrier (NVOCC) acts as an intermediary between the “Shipper” and the “Vessel Operator” and the vessel operator issues its own “Bills of Lading”.
7. A Freight forwarder is an authorized agent who acts on behalf of the “Shipper”. While both “Ocean Freight Forwarders” and Non-Vessel Operating Common Carrier (NVOCC) are required to obtain an Ocean Transportation Intermediary (OTI) license in countries like Singapore. A Freight Forwarder will identify the best route for goods, negotiate the best rate for the shipment and provide additional services and advice to the export. In India, such arrangements are partly governed by Multimodal Transportation of Goods Act, 1993, if a Multimodal Transport is involved.
8. Since Non-Vessel Operating Common Carrier (NVOCC) issue their own bills of lading, they are responsible for shipment as a carrier. The difference is that they have more flexibility with freight rates and can sometimes be easier to deal with since they are smaller companies. Non- Vessel Operating Common Carrier (NVOCC) can also handle cargo as a https://www.mhc.tn.gov.in/judis 4/56 C.S.No.79 of 2016 Freight Forwarder and can set up all logistics from origin to destination without interruption unlike a Carrier. Information may be slower for NVOCC as they do not operate the ships and their rates are only as good as their contracts will permit.
9. A Bill of Lading is a legal document that represents the title of goods and can be exchanged for the possession of the Cargo. Although Air Way bill has similar details and is considered to be a type of Bill of Lading, it doesn’t act as the title of goods. The Bill of Lading document is issued by the carrier or liner or their authorized agent, such as Non-Vessel Operating Common Carrier (NVOCC), to the shipper to acknowledge that they have received the goods.
10. As a Non-Vessel Operating Common Carrier (NVOCC), the plaintiff performs all the services of a sea carrier without owning a vessel. A Non-Vessel Operating Common Carrier (NVOCC), generally operates by leasing space in liners and transports goods for its customer.
11. A Non-Vessel Operating Common Carrier (NVOCC) also issues Bill of Ladings to its customers like regular liners/carriers who Transport goods.
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12. The defendant namely APG Logistics Private Limited, a Multimodal Transport Operator Company within the meaning of the Multimodal Transport of Goods Act, 1993 had approached the plaintiff and availed the services of the plaintiff to ship “Cut-to-Size Polished Slabs” for its Indian customer M/s.Jain Granites and Projects India Limited from the Chennai Port to a consignee named M/s.Eagle Logistics LLC in Jebel Ali Free Zone (North), Jebel Ali, UAE.
13. The plaintiff issued Ex.P2 Bill of Lading dated 19.09.2014 & Ex.P3 Bill of Lading dated 08.10.2014 to the defendant for transportation of “Cut-to-Size Polished Slabs”, (export consignment for short) for transportation of “Cut-to-Size Polished Slabs” from the Chennai Port to the said consignee named M/s.Eagle Logistics in Jebel Ali Free Zone (North), Jebel Ali, UAE.
14. The export consignments were sent in three containers viz., Container Nos.TEMU2297629, TEMU4329181 & TGHU3744847. The name of parties in Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Combined Transport Bills of Lading (B/L) are as under :-
https://www.mhc.tn.gov.in/judis 6/56 C.S.No.79 of 2016 Table No.1 Name of Delivery Agent Shipper Consignee Party to be NVOCC issuing notified Bill of Lading (Defendant) Carrier (Plaintiff) M/s.SP M/s.SP Container M/s.APG M/s.Eagle Same as Container Line Line LLC, Logistics Logistics Consignee Private Limited, Private LLC, CTC Reg.Office:No.2 P.O.Box.No.1154 Limited, Kala Rajesh 8/12, Door No.4- 88, Al Attar LIU RA08, st B, SMJ Parrys Centre 1 Floor, Old No.50, CC02, Jebel Building, New No.38, Ali Free A Block, Office IInd Floor, 2ndLine Beach Zone No.113, Opp to Rajaji Salai, Road, Chennai – (North), Spinneys Super Chennai – Jebel 600 001. Ali, Market, 600 001. UAE.
Sheikh Khalifa Bin Zayed Road, Al Karma, Dubai.
Tel:00971437055 56 https://www.mhc.tn.gov.in/judis 7/56 C.S.No.79 of 2016
15. Ex.P2 Combined Transport Bill of Lading B/L).No.INMAAAEJEA1400702 dated 19.09.2014 was issued for transportation of export consignment in Container Nos.TEMU2297629 and TEMU4329181.
16. Ex.P.3 Combined Transport Bill of Lading (B/L).No.INMAAAEJEA1400723 dated 08.10.2014 was issued for transportation of similar export consignment in Container No.TGHU3744847.
17. The plaintiff submits that after the export consignment reached the port of destination at Jebel Ali Port, UAE, both the defendant as the Shipper and M/s.Eagle Logistics LLC, CTC Kala Rajesh LIU RA08, as the Consignee were notified about the arrival of the consignment on 13.10.2014 and 19.10.2014 respectively.
18. It is submitted that as per the terms of Ex.P2 and Ex.P3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014, the defendant as the Shipper of the sea cargo had to ensure clearance of the cargo within the detention free period of 14 days. https://www.mhc.tn.gov.in/judis 8/56 C.S.No.79 of 2016
19. It is the case of the plaintiff that the defendant as the “Shipper” was liable to pay “Container Detention Charges” to the plaintiff as the consignee M/s.Eagle Logistics failed to take delivery of the export consignment as per the following schedule:-
Table No.2 For Container Nos.TEMU2297629 & TEMU4329181 QTY USD/DAY Total USD First 1-5 days (13.10.2014 to 2 USD 00 USD 00 17.10.2014) 6-12 days (18.10.2014 to 2 USD 41 USD 00 24.10.2014) 13-14 days (25.10.2014 and 2 USD 61 USD 00 26.10.2014) Next 5 days (27.10.2014 to 2 USD 61 USD 610 31.10.2014) Next 314 days (19.01.2015 to 2 USD 82 USD 51496 10.08.2015) https://www.mhc.tn.gov.in/judis 9/56 C.S.No.79 of 2016 Table No.3 For Container No.TGHU3744847 First 5 days (19.10.2014 to USD 00 USD 00 23.10.2014) Next 7 days (24.10.2014 to USD 41 USD 00 30.10.2014) Next 2 days (31.10.2014 to USD 61 USD 00 01.11.2014) Next 5 days (02.11.2014 to USD 61 USD 305 06.11.2014) Next 308 (07.11.2014 till USD 82 USD 25, 256 days 10.08.2015
20. It is the further case of the plaintiff that the applicable rupee exchange rate for USD on 13.10.2014 and 19.10.2014 was Rs.62.57/- and Rs.62.97/- respectively, and the Defendant is liable to pay the exchange value for USD at the applicable daily USD rates, along with interest thereon for the subsequent period in the event of default.
21. It is the case of the plaintiff that neither the defendant https://www.mhc.tn.gov.in/judis 10/56 C.S.No.79 of 2016 nor the consignee paid the dues for the delay caused nor came forward to clear the export cargo at the port of discharge at Jebel Ali Port, UAE.
22. It is further case of the plaintiff that the plaintiff had also agreed for a partial waiver of the detention charges vide Ex.P.8 dated 26.11.2014 subject to immediate clearance of the export cargo based on the request made by the defendant for waiver of the detention charges vide Ex.P.7 dated 25.11.2014.
23. It is further case of the plaintiff that the defendant requested the plaintiff for another waiver vide Ex.P9 Email dated 01.12.2014. The plaintiff considered the same vide Ex.P.10 Email dated 01.12.2014 which offer was in force till 04.12.2014.
24. However, the Consignee as also the defendant failed to take delivery of the export cargo and clear the export cargo. Thus, according to the plaintiff, the defendant was liable to pay the entire detention charges in full along with all other applicable and incidental charges. Additional Charges included the Destination Terminal Handling Charges [‘DTHC’], https://www.mhc.tn.gov.in/judis 11/56 C.S.No.79 of 2016 local charges as applicable at the ‘Jebel Ali Port’ inclusive of applicable taxes etc in accordance with the terms of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014.
25. According to the plaintiff, the defendant was a “Merchant” as per Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014 and therefore liable to pay the amount to the plaintiff.
26. On behalf of the plaintiff, Mr.PrasadArun Kumar, the Director of the plaintiff was examined as P.W.1. P.W.1 was also cross-examined. Through P.W.1, the plaintiff marked Ex.P.1 to Ex.P.16 detailed as under:-
Table No.4 Sl. No. Date Ex. Nos. Description of Documents 1 10.07.2015 Ex.P1 Board Resolution 2 19.09.2014 Ex.P2 Bill of Lading No.INMAAAEJEA1400702 3 08.10.2014 Ex.P3 Bill of Lading No.INMAAAEJEA1400723 4 11.09.2014 Ex.P4 Export Form No.13 to 24.09.2014 5 13.10.2014 Ex.P5 Email (Notice of Arrival) of the plaintiff and the defendant 6 19.10.2014 Ex.P6 Email (Notice of Arrival) of the plaintiff and the defendant 7 25.11.2014 Ex.P7 Email (Request for waiver) sent by the defendant to the plaintiff 8 26.11.2014 Ex.P8 Email (Grant of conditional) sent by the plaintiff to the defendant 9 01.12.2014 Ex.P9 Email (Request for waiver) sent by the https://www.mhc.tn.gov.in/judis 12/56 C.S.No.79 of 2016 defendant to the plaintiff 10 01.12.2014 Ex.P10 Email (Grant of Conditional) sent by the plaintiff to the defendant 11 19.01.2015 Ex.P11 Notices of demand of the plaintiff to the defendant 12 31.01.2015 Ex.P12 Postal Acknowledgment Receipt 13 20.02.2015 Ex.P13 Reply Letter of the defendant to the plaintiff 14 06.03.2015 Ex.P14 Notice of Rejoinder of the plaintiff to the defendant 15 - Ex.P15 Statement of Accounts 16 22.10.2015 Ex.P16 Certificate under Section 65B of the Evidence Act, for Exs.P5 to P10
27. The defendant on the other hand denies the claim of the plaintiff. It is submitted that both the plaintiff and the defendant are registered Multimodal Transporters at the time of suit transaction and were possessing requisite Registration Certificate as Multimodal Transporters under the provisions of the Multimodal Transportation of Goods Act, 1993 as detailed under :-
Table No.5 MTO Certificate- Date of Certificate Number Validity Period Plaintiff/Defendant Registration and Issue Plaintiff’s Certificate 12th March 2013 MTO/DGS/1156/FEB 12th March to 2016 February 2016 Defendant’s 10th February 2012 MTO/DGS/1006/JAN 10th February 2012 2015 to January, 2015 Certificate
28. The defendant further states that the list of Registered Multimodal https://www.mhc.tn.gov.in/judis 13/56 C.S.No.79 of 2016 Transport Operator published by the Directorate General of Shipping (Ministry of Ports, Shipping and Waterways) Government of India in their website namely www.dgshipping.gov.in. also shows that the defendant and the plaintiff are the Registered Multimodal Transport Operator.
29. The defendant further states that Ex.P2 Bill of Lading dated 19.09.2014 and Ex.P3 Bill of Lading dated 08.10.2014 filed by the Plaintiff in the above suit also bear the Multimodal Transport Operator Registration No.MTO/DGS/1156/FEB2016 dated 12.03.2013 of the plaintiff and shows that they are the Registered Multimodal Operator. The Registration Certificate for Multimodal Transport Operator of the defendant was marked as Ex.D2.
30. According to the defendant, Ex.P2 Bill of Lading dated 19.09.2014 and Ex.P3 Bill of Lading dated 08.10.2014 based on which the plaintiff has filed the present suit are nothing but a Multimodal Transport Contract/Document (hereinafter referred to as MTO Contract/Document) as per the Multimodal Transportation of Goods Act, 1993 and thus, both the plaintiff and the defendant being parties to the above contracture are governed under the above Act.
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31. The defendant further states that the suit claim was based on Ex.P2 and Ex.P3 Bills of Lading dated 19.09.2014 & 08.10.2014/MTO Contract with regard to the supply of three containers as detailed above to Transport consignment “Cut-to-Size Polished Slabs” from the Chennai Port in India to the Jebel Ali Port, UAE and that freight amount was pre-paid by the defendant on behalf of its Customer/client as is admitted by the plaintiff in the plaint and therefore the defendant cannot be liable for the alleged loss over and above the pre-paid freight amount.
32. The defendant further states that the plaintiff has admitted that the exporter Consignor M/s.Jain Granites and Projects India Limited is the owner of the export cargo and M/s.Eagle Logistics LLC LIU RA 08, CC02 was the Consignee.
33. The defendant further states that the defendant being a Multimodal Transport Operator stood in the equal footing as that of the plaintiff. It is further stated that though the defendant was a Shipper as per Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading, the owner and Consignee of the goods transported in the above containers, namely M/s.Jain Granites and Projects India Limited (Consignor) and M/s.Eagle Logistics LLC LIU RA 08, CC02(Consignee) alone are liable for https://www.mhc.tn.gov.in/judis 15/56 C.S.No.79 of 2016 the loss, if any that may have been sustained by the plaintiff and therefore, the plaintiff cannot demand any amounts for the alleged loss suffered by the plaintiff from the defendant as it is both unfair and is contrary to law and terms of contract.
34. The defendant further denies the claim of the plaintiff that on the face of the Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading, obligations were cast on the defendant as the Shipper to pay the Detention Charges and all destination charges as per the Liner’s Tariff.
35. With regard to the same, the defendant refers to the following Clauses in Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014, as per which, the responsibility of returning the empty container was to be returned to the liner at nominated depot by the Consignee’s at its Cost and Risk. Relevant Clause in Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading is extracted hereunder:-
“Empty Container to be returned to line nominated depot at Consignee’s Cost and Risk” https://www.mhc.tn.gov.in/judis 16/56 C.S.No.79 of 2016
36. It is submitted that the above condition is unambiguous and puts responsibility only on the consignee namely M/s.Eagle Logistics LLC LIU RA 08, CC02 (Eagle Logistics at UAE) to return the empty containers at their cost and risk and does not in any manner put obligations or responsibility on the defendant to return the empty container at the port of discharge merely because the defendant is declared as the merchant in Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014.
37. It is submitted that the terms and conditions on the reverse side of the Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading are in tiny fonts and impossible to be read with naked eyes and can be read only by using magnifying glass and hence the terms and conditions printed on the reverse side of Ex.P2 and Ex.P3 Bill of Lading much less the Clause Nos.15, 16 & 23 cannot bind the defendant.
38. Further, It is submitted that even as per Ex.P5 Email (Notice of Arrival) dated 13.10.2014, also the plaintiff followed the terms on the Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading and had issued Cargo Arrival Advice intimating the arrival of the cargo at Jebel Ali Port, UAE on 13.10.2014 Email (Notice of Arrival) for Container Nos.TEMU2297629 & TEMU4329181 on the Consignee and not to the defendant.
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39. It is further submitted that though the plaintiff claims to have issued Ex.P6 Email (Notice of Arrival) dated 19.10.2014 for Ex.P3 dated 08.10.2014 Bill of Lading No.INMAAAEJEA1400723 to the Consignee and the defendant, no such document has been filed in the present suit.
40. Ex.P5 Email (Notice of Arrival) dated 13.10.2014 issued to the Consignee “Eagle Logistics at UAE” called upon only the latter in terms of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014, in the following words:-
“Kindly arrange prompt clearance of your cargo up on presentation of original B/L and guarantee letter.” “It is consignee or his clearing agent responsible to return our empty container in sound condition, failing which, we will take legal action to collect our container value total charges along with line detention charges etc.,” “In case the container is returned in damaged/dirty condition all repair/cleaning expenses will be to you’re A/c. Kindly note that containers not cleared within 90 days will be moved for AUCTION as per DUBAI CUSTOMS & PORT authorities regulation and shipping line will have right to claim all charges back from consignee for the unclaimed cargo consignment” https://www.mhc.tn.gov.in/judis 18/56 C.S.No.79 of 2016
41. It is submitted that having put such condition in the Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading and having sent exclusive letter to the Consignee, the plaintiff should have filed the above suit only against the Consignor or the Consignee namely “M/s.Eagle Logistics UAE” at UAE.
42. It is submitted that for the reasons best known to the plaintiff, the plaintiff has failed to file/raise any claim/dispute against the Consignee “M/s.Eagle Logistics UAE” and instead has filed the present suit against the defendant. It is submitted that the plaintiff may have possibly also recovered the loss by selling the export cargo in Auction as is contemplated in Cargo Arrival Advice in Ex.P5 Email (Notice of Arrival) dated 13.10.2014.
43. It is further submitted that the plaint is silent on the aspect regarding the auction and sale of the goods stored and exported in the containers and further, the plaint is also silent for the reason for delay in returning the container or clearing the goods from the customs of UAE. https://www.mhc.tn.gov.in/judis 19/56 C.S.No.79 of 2016
44. It is further submitted that the plaintiff is an International Operator and is doing business in UAE also where the export cargo was sent to the Consignee, whereas the defendant is a small agent doing business for a small margin for a few thousand within India and hence, the plaintiff could have secured back the containers from the consignee but has deliberately suppressed the said factum only to extract further amounts from the defendant.
45. The defendant has categorically denied having been notified about the arrival of the container pertaining to the above Ex.P2 dated 19.09.2014 Bill of Lading No.INMAAAEJEA1400702 and Ex.P3 dated 08.10.2014 Bill of Lading No.INMAAAEJEA1400723.
46. Thus, it is submitted that the corresponding obligation to clear the cargo after payment of all applicable charges and return the containers to the plaintiff was only on the consignee namely, M/s.Eagle Logistics at UAE and not on the defendant as is claimed by the plaintiff. https://www.mhc.tn.gov.in/judis 20/56 C.S.No.79 of 2016
47. It was submitted that Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 combined Bills of Lading do not contain the applicable tariff for “container detention charges” .
48. The defendant further states that, as far as the claim of the waiver made by the defendant to the plaintiff for and on behalf of its customer is concerned, it was as a good gesture to maintain the good relationship with the plaintiff and the Consignee/owner and to build future business relationships with them and nothing more.
49. The defendant further states that the tone and tenor of the Exs.P7 Email dated 25.11.2014 and Ex.P9 Email dated 01.12.2014 through which the defendant claimed waiver for the consignor and the consignee would show the bonafide conduct of the defendant. It is submitted that the defendant merely communicated the request for waiver of charges by the Consignee to the plaintiff.
50. The defendant further states that in those e-mails also, the defendant has stated that the consignee sought maximum waiver and by the weekend the Consignee undertook to clear the container. Nowhere, the defendant has sought a waiver for itself.
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51. The defendant further states that it is not liable for the unliquidated damages as claimed by the plaintiff nor any interest was agreed upon much less 24% p.a.
52. The defendant further states that though the defendant admits to issuance of Ex.P11 Demand Notice dated 19.01.2015 and Ex.P13 Reply Notice dated 20.02.2015 issued by the defendant to the address of the plaintiff’s counsel, the claim of Rs.20,47,562/- is denied as untenable.
53. The defendant further denies the averments claiming that the plaintiff was not aware of the “inter-se arrangement”. On the contrary, even as per the Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Combined Bill of Lading, it is the Consignee alone who was liable to return the empty containers to the plaintiff.
54. It is therefore stated that the plaintiff is trying to hide the same and is finding fault with the defendant for Ex.P13 Reply Notice dated 20.02.2015.
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55. Further, having issued notice to the consignee namely M/s.Jain Granites and Projects India Limited for claiming the due amount, the plaintiff has failed to add them as a party to the above suit. It is submitted that the said Jain Granites and Projects India Limited is a necessary party. It is submitted that in absence of the necessary party, the plaint is liable to be dismissed for non joinder of a necessary party.
56. It is submitted that the plaintiff wantonly failed to bring the Jain Granites alone in the picture and deliberately left the consignee from this claim after having agreed by express terms that the consignee alone is liable to return the empty containers.
57. It is submitted that the plaintiff has wrongly averred that the defendant can claim the amount from M/s.Jain Granites and Projects India Limited subsequently and thus the above suit is also liable to be dismissed for non-joinder of necessary parties namely M/s.Eagle Logistics at UAE and M/s.Jain Granites and Projects India Limited. https://www.mhc.tn.gov.in/judis 23/56 C.S.No.79 of 2016
58. The defendant further states that the plaintiff has no locus standi to claim any amount much less the suit claim amount of Rs.1,01,07,702.46 merely because the Freight Charges was pre-paid by the defendant for the consignments of the Consignee.
59. It is submitted that the responsibility shifts on the Consignee to clear the goods and return the empty containers to the agent of the plaintiff at UAE. Hence, the above suit filed against the defendant is not at all maintainable as there is no cause of action against them.
60. Further the defendant is only an agent of the consignor (Jain Granites and Projects India Limited.) for transportation the export cargo to be delivered at UAE to the Consignee (Eagle Logistics at UAE) and therefore the present suit was not maintainable in the absence of the principal namely the owner and Consignee of the above goods especially when their names are shown and known to the plaintiff.
61. It is therefore submitted that as per Section 230 of the Indian Contract Act, 1872, an Agent is not liable and cannot be sued personally that too in the absence of the Consignor, the Principal for whom the goods https://www.mhc.tn.gov.in/judis 24/56 C.S.No.79 of 2016 have been sent. For this reason, also and for the non-joinder of disclosed principals namely the Jain Granites and Eagle Logistics as a party the suit, the suit is liable to be dismissed.
62. The defendant further states that apart from the above said grounds, the plaintiff and the defendant are Multimodal Transport Operator as per the registered Certificate respectively and hence the above suit is a time-barred suit and the same is liable to be dismissed as it was filed beyond the prescribed period of 9 months from the date of arrival of the goods at UAE Port as per Section 24 of Multimodal Transportation of Goods Act, 1993.
63. It is submitted that the Act, saves the Multimodal Transport Operator from the claims made against them and limits their liability only if the claim is made within the parameters of the provisions of the above Act. It is submitted that the defendant is entitled to take shelter under Section 24 of the Act.
64. It is further submitted that, as the entire contract in Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014 is as per the above said Act, 1993 with the Multimodal Transport Registration Number https://www.mhc.tn.gov.in/judis 25/56 C.S.No.79 of 2016 of the Plaintiff on the top of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014, the claim made against another Registered Multimodal Transport Operator beyond nine months from any of the circumstances envisaged in Section 24 of the Act, 1993 is barred by law.
65. It is submitted that the plaintiff has signed the plaint only on 28th Day of October, 2015. Since, the present suit was filed after 9 months from the date of arrival of goods at UAE on 13.10.2014 and 19.10.2014 the present suit is barred. It is submitted that since the present suit was filed beyond limitation even as per the true copy of the plaint furnished to the defendant.
66. On behalf of the defendant, the defendant has filed proof affidavit along with a Board Resolution authorizing D.W.1. Mr.RajeshKannan, the Director of the defendant to depose evidence. D.W.1 was also subject to cross-examination.
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67. On behalf of the defendant, following Exhibits were marked through D.W.1:-
Table No.6 Sl. Date Ex. Nos. Description of Documents No. 1 14.05.2018 Ex.D1 Registration Certificate of the defendant for MultimodalTransportOperator during the period between February, 2012 and January, 2015.
2 04.01.2021 Ex.D2 Board Resolution for authorization of Mr.Rajesh Kannan to defend the suit
68. I have considered the arguments advanced by the learned counsel for the plaintiff and the learned counsel for the defendant. I have also perused the Plaint, Proof Affidavit, Exs.P1 to P16 filed on behalf of the plaintiff, and the Written Statement of the defendant, Proof Affidavit, Exs.D1 to D2 filed on behalf of the defendant. I have also perused and considered the deposition of the P.W.1 and D.W.1.
69. The plaintiff is a Non-Vessel Operating Common Carrier (NVOCC). The plaintiff is also registered under the provisions of the Multimodal Transportation of Goods Act, 1993 as is evident from reading of the Ex.P2 and P3 combined Bill of Lading dated 19.09.2014 and 08.10.2014.
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70. Ex.P.2 and Ex.P.3 combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 is a separate contract of transportation of goods through Carrier/Liner by the plaintiff in the capacity as a Non-Vessel Operating Common Carrier (NVOCC).
71. The plaintiff does not own or operate Sea Carrier/ Sea Liner albeit Vessel. The plaintiff would have merely leased out space in a Sea Carrier/ Sea Liner or a Container in such Sea Carrier/ Sea Liner for the transportation of goods for its customers like the defendant and similarly placed person and thus operated as a Non-Vessel Operating Common Carrier (NVOCC).
72. Thus, the plaintiff has also offered related services to other companies who own and operate ships. It is the liner/ shipping company who owns and operates vessels to deliver cargo on behalf of the plaintiff.
73. The defendant is also a Multimodal Transport Operator as defined in Section 2(m) of the Multimodal Transportation of Goods Act, 1993. Section 2(m) of the Multimodal Transportation of Goods Act, 1993 reads as under:-
https://www.mhc.tn.gov.in/judis 28/56 C.S.No.79 of 2016 “2(m)“Multimodal Transport operator” means any person who-
i. Concludes a Multimodal Transport contract on his own behalf or through another person acting on his behalf;
ii. acts as principal, and [not as an agent either of the consignor, or consignee or of the carrier] participating in the Multimodal transportation and who assumes responsibility for the performance of the said contract; and iii. is registered under sub-Section (3) of Section 4.
74. Section 2(l) of the Multimodal Transportation of Goods Act, 1993 defines the expression “Multimodal Transport Contract”. Section 2(l) of the Multimodal Transportation of Goods Act, 1993 reads as under :-
“Section2(l):“Multimodal Transport contract” means a contract under which a Multimodal Transport Operator undertakes to perform or procure the performance of Multimodal transportation against payment of freight.”
75. The defendant is also registered under the provisions of the aforesaid Act. The defendant would have entered into a Multimodal Transport Contract with the exporter consignor namely M/s.Jain Granites and Projects India Limited if transport of the consignment was through different modes of transportation.
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76. The defendant would have also issued Multimodal Transport Document as defined in Section 2(l)(a) of the Multimodal Transportation of Goods Act, 1993 to its customers namely M/s.Jain Granites and Projects India Limited if there was a contract for Multimodal Transport within the meaning of Section 7 of the Act. Section 2(l)(a) and Section 7 of the Multimodal Transportation of Goods Act, 1993 reads as under:-
Section2(l)(a) Section 7 “Multimodal Transport “.Issue of Multimodal
Document” means a negotiable Transport Document:-
or non-negotiable document evidencing a Multimodal 1) Where the consignor and the Transport Contract and which Multimodal Transport Operator can be replaced by electronic have entered into a contract for data interchange messages the Multimodal transportation permitted by applicable law.” and the Multimodal Transport Operator has taken charge of the goods, he shall, at the option of the consignor, issue a negotiable or non-negotiable Multimodal Transport Document;
[Provided that the Multimodal Transport Operator shall issue the Multimodal Transport Document only after obtaining, and during the subsistence of a valid insurance cover.]
2. The Multimodal Transport https://www.mhc.tn.gov.in/judis 30/56 C.S.No.79 of 2016 Document shall be signed by the Multimodal Transport Operator or by a person duly authorised by him.”
77. A Multimodal Transport Document is to be regarded as document of title as per Section 8 of the Multimodal Transportation of Goods Act, 1993. Section 8 of the Multimodal Transportation of Goods Act, 1993 reads as under:-
“Section 8:Multimodal Transport Focument to be regarded as document of title:-
1.Every consignee named in the negotiable or non-
negotiable Multimodal Transport Document and every endorsee of such document, as the case may be, to whom the property in the goods mentioned therein shall pass, upon or by reason of such consignment or endorsement, shall have all the rights and liabilities of the consignor.
2. Nothing contained in sub-section (1) shall prejudice or affect the right of the Multimodal Transport Operator to claim freight from the consignor or enforce any liability of the consignee or endorsee by reason of his being such consignee or endorsee.
78. In this case M/s.Jain Granites and Projects India Limited is the Consignor and M/s.Eagle Logistics LLC, CTC Kala Rajesh LIU RA08, CC02, Jebel Ali Free Zone (North), Jebel Ali, UAE is the Consignee. https://www.mhc.tn.gov.in/judis 31/56 C.S.No.79 of 2016
79. The defendant is the shipper of the export consignment on behalf of the said export Consignor namely M/s.Jain Granites and Projects India Limited.
80. Section 9 of the above said Act contemplates what is required to be reflected in the Multimodal Transport Document. The defendant has not filed a copy of the Multimodal Transport document while acting as a Multimodal Transport Operator. However, there is no doubt the defendant has acted as an agent of export Consignor namely M/s.Jain Granites and Projects India Limited.
81. The Consignor is required to indemnify a Multimodal Transport Operator against loss resulting from inadequacy or inaccuracy of the particulars referred to sub-section (1) to Section 12 of the Act.
82. As per sub-clause (3) to Section 12, the right of the Multimodal Transport Operator” under sub-section (2) shall in no way limit his liability under the Multimodal Transport Contract to any person other than the Consignor.
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83. Thus, if Ex.P2 and P3 combined Bill of Lading dated 19.09.2014 and 08.10.2014 are treated as a Multimodal Transport Document, the Plaintiff would be entitled to sue the defendant under the provisions of Multimodal Transport Act, 1993. However, the plaintiff has not sued the defendant as a Multimodal Transport operator. The plaintiff has sued the defendant as a Non-Vessel Operating Common Carrier (NVOCC) simplicitor.
84. The contract between the plaintiff and defendant is not that of a Multimodal Transport.
85. Ex.P2 Bill of Lading dated 19.09.2014 and Ex.P3 Bill of Lading 08.10.2014 contains several clauses which are standard terms of contract in a regular Bill of Lading.
86. The defendant is not the “Consignor” of the goods. The defendant is named as the Shipper of goods on behalf of its customer namely M/s.Jain Granites and Projects India Limited.
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87. The goods were exported by the exporter - consignor M/s.Jain Granites and Projects India Limited as is evident from Ex.P13 Reply Notice dated 20.02.2015 in response to Ex.P11 Demand Notice dated 19.01.2015 of the plaintiff.
88. The defendant has merely acted as a Logistic Company and facilitated the transportation of consignment for the Consignor M/s.Jain Granites and Projects India Limited for delivery of goods to M/s.Eagle Logistics, LLC, CTC, Kala Rajesh LIU RA08, CC02, Jebel Ali Free Zone (North), Jebel Ali, UAE, the consignee.
89. This is an admitted position in Paragraph 3 & 4 of the plaint. Although the plaint refers to Shipping Bill of Export filed with the Customs at Chennaicopy of the Shipping Bills has not been filed.
90. The plaintiff is the owner of the 3 container or space therein in which “Cut-to-Size Polished Slabs” of the exporter / Consignor M/s.Jain Granites and Projects India Limited were transported / shipped. https://www.mhc.tn.gov.in/judis 34/56 C.S.No.79 of 2016
91. The freight for transportation was pre-paid by the defendant on behalf of the consignor M/s.Jain Granites and Projects India Limited. The plaintiff has also admitted to the same.
92. Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 issued by the plaintiff to the defendant is categorical. It specifically states the “Carrier” is not responsible on the particulars of the goods as declared by the Shipper. In Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 defendant has acted as the “Shipper” for transportation of goods to Jebel Ali Port, UAE on behalf of M/s.Jain Granites and Projects India Limited.
93. Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 issued by the plaintiff to the defendant defines expression “Carrier” as follows:-
“Carrier means M/s.SP Container Line Private Limited, Reg.Office:No.28/12, Door No.4-B, SMJ Parrys Building, 2nd Line Beach Road, Chennai – 600 001. It also defines “Consignee” as a person name and the phrase of the Bill of Lading in the relevant space” https://www.mhc.tn.gov.in/judis 35/56 C.S.No.79 of 2016
94. Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 also defines “Consignee” as a person named.
95. Clause 6 of the Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 Combined Transport Bill of Lading enumerates Carrier’s responsibility. It reads as under:-
“6. Carrier’s Responsibility – “Combined Transport” Where the Carriage is “Combined Transport”, the Carrier undertakes to perform and/or in his own name to procure performance of the Carriage from the Place of Receipt or the Port of Loading, whichever is applicable, to the Port of Discharge or the Place of Delivery or the Place of Delivery, whichever is applicable, and save as is otherwise provided for in this bill of lading, the Carrier shall be liable for loss or damage occurring during the Carriage only to the extent set out below:
6.1 Where the stage of Carriage where loss or damage occurred is not known.
(a) Exclusions:The Carrier shall be relieved of liability for any loss or damage where such loss or damage was caused by:
i. an act or omission of the merchant or Person acting on behalf of the Merchant other than the Carrier, his servant, agent or Subcontractor; ii. compliance with instructions of any Person entitled to give them;
iii. insufficient or defective condition of packing or marks;
https://www.mhc.tn.gov.in/judis 36/56 C.S.No.79 of 2016 iv. handling, loading, stowage or unloading of the Goods by the Merchant or any Person acting on his behalf;
v. inherent vice of the goods;
vi. strike, lock out, stoppage or restraint of labour, from whatever cause, whether partial or general; vii. a nuclear incident;
viii. any cause or event which the Carrier could not avoid and the consequences whereof he could not prevent by the exercise of reasonable diligence.
(b) Burden of Proof:
The burden of proof that the loss or damage was due to one or more of the causes or events specified in this clause 6.1 shall rest upon the Carrier. Save that if the Carrier establishes that, in the circumstances of the case, the loss or damage could be attributed to one or more of the causes or events specified in Clause6.1(a)(iii), (iv) or (v), it shall be presumed that it was so caused. The Merchant shall, however, be entitled to prove that the loss or damage was not, in fact, caused either wholly or partly by one or more of these causes or events.
(c) Limitation of liability Except as provided in clauses, 7.2(a), (b) or 7.3, if clause 6.1 operates, total compensation shall under no circumstances whatsoever and howsoever arising exceed in all cases 2 USD per kilo of the gross weight of the Goods lost or damaged.
6.2 Where the stage of Carriage where the loss or damage occurred is known: Notwithstanding anything provided for in Clause 6.1 and subject to Clause 18, the liability of the Carrier in respect of such loss or damage shall be determined:
a) by the provisions contained in any international https://www.mhc.tn.gov.in/judis 37/56 C.S.No.79 of 2016 convention or national law which provisions:
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 and direct contract with the Carrier in respect of the particular stage of the Carriage during which the loss or damage occurred and received as evidence thereof any particular document, which must be issued if such international convention or national law shall apply;
b) by the Hague Rules Articles 1-8 inclusive (excluding Article 3 Rule 8) only, where the provisions of clauses 6.2(a) or (b) do not apply if the loss or damage is known to have occurred during Carriage by sea;or;
c) where the provisions of clause 6.2(a), (b) and /or (c) above do not apply, in accordance with the contract of carriage or tariffs of any inland carrier in whose custody the loss or damage occurred or in the absence of such contract or tariff by the provisions of clause 6.1. For the purposes of clause 6.2 references in the Hague Rules to carriage by sea shall be deemed to include references to all waterborne Carriage and the Hague Rules shall be construed accordingly.
6.3 If the Place of Receipt or Place of Delivery is not named on the face of the document the Carrier shall be under no liability whatsoever for loss or damage to the Goods howsoever occurring:
a. If the Place of Receipt is not named on the face of document hereof and such loss or damage arises prior to loading on to the vessel; or https://www.mhc.tn.gov.in/judis 38/56 C.S.No.79 of 2016 b. If the Place of Delivery is not named on the face of the document, if such loss or damage arises subsequent to discharge from the vessel, save that were COGSA applies then the provisions stated in said Act shall govern before loading on to and after discharge from any vessel and during Carriage to or from a container yard or container freight station in or immediately adjacent to the sea terminal at the Port of Loading and/or Discharge.
6.4 Amendment of Place of Delivery In the event that the Merchant requests, and the Carrier agrees to amend the Place of Delivery, such amended Carriage will be undertaken on the basis that the Terms and Conditions of this bill of lading are to apply, until the goods are delivered to the Merchant at such amended Place of Delivery.
96. Clause 16 of Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading deals with Merchant’s Responsibility.
97. The expression “Merchant” has been defined in clause (1) of Ex.P2 and Ex.P3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 as follows:-
“Merchant includes the Shipper, Holder, Consignee, Receiver of the goods, any person owning or entitled to the possession of the Goods or of this bill of lading and anyone acting behalf of such person.” https://www.mhc.tn.gov.in/judis 39/56 C.S.No.79 of 2016
98. The expression “Shipper” is not defined in Ex.P2 and Ex.P3 Combined Transport Bill of Lading. However, in Ex.P2 and P3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014, the defendant is the Shipper.
99. In the commercial parlance, a Shipper is the person who exports the goods through a shipping line. The shipper normally insures the goods against marine and sometimes war risk, breakage or leakage. The consideration paid by him to the insurers is a premium and the document embodying the contract is a policy. He then has the complete set of shipping documents consisting of a bill of lading, the policy of insurance and the invoice (which shows the details of the goods bought and the price payable).
100. In nearly all cases the documents are attached to a draft or Bill of Exchange drawn on the consignee or on a bank named by him either at sight or at so many days or months. Almost invariably the Shipper does one or three things with these documents.
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101. Clause 16 of Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading reads as under :-
16.Merchant’s responsibility 16.1All of the persons coming within the definition of Merchant in Clause 1 shall be jointly and severally liable to the Carrier for the due fulfillment of all obligations undertaken by the Merchant in this bill of lading.
16.2The merchant shall be liable for and shall indemnify the Carrier against, all loss, damage, delay, fines, attorney fees and/or expenses arising from any breach of any of the warranties in clause 15.3 or from any other cause whatsoever in connection with the Goods for which the Carrier is not responsible.
16.3 The Merchant shall comply with all regulations or requirements of customs, portand other authorities, and shall bear and pay all duties, taxes, fines, imposts, expenses or losses including, without prejudice to the generality of the foregoing. Freight for any additional carriage undertaken, incurred or suffered by reason thereof, or by reason of any illegal, incorrect or insufficient declaration or marking numbering or addressing of the Goods and shall indemnify the Carrier in respect thereof.
16.4 If containers supplied by or on behalf of the Carrier are unpacked at the Merchant’s premises, the Merchant is responsible for returning the empty containers, with interiors clean, odour, stain free and in the same condition as received, to the point or place designated by the Carrier, within the time https://www.mhc.tn.gov.in/judis 41/56 C.S.No.79 of 2016 prescribed. In case the containers are not cleaned to a satisfactory condition or if the container is found damaged then the cost of cleaning/repairs shall be to the account of the Merchant. Should a container not be returned in the condition required and/or within the time prescribed in the Tariff, the Merchant shall be liable for any detention, loss or expense incurred as a result thereof.
16.5 Containers released into the care of the Merchant for packing, unpacking or any other purpose whatsoever are at the sole risk of the Merchant until redelivered to the Carrier. The Merchant shall indemnify the Carrier for all loss of and/or damage and/ or delay to such containers. Merchants are deemed to be aware of the dimensions and capacity and weight limitations of any Containers released to them. Merchant is liable for any expenses and consequences resulting from overweight/dimension/capacity.
102. Clause 17 of Ex.P2 dated 19.09.2014 and Ex.P3 dated 08.10.2014 Bills of Lading deals with Freight, Expenses and Fees which reads as under:-
“17. Freight, Expenses and Fees 17.1 Full Freight shall be payable based on particulars furnished by or on behalf of the Shipper.
The Carrier may at any time open the Goods or Container(s) and if the Shipper’s particulars are incorrect the Merchant and the Goods shall be liable for the correct Freight and any expenses incurred in examining, weighing, measuring or valuing the Goods.
https://www.mhc.tn.gov.in/judis 42/56 C.S.No.79 of 2016 17.2 Full Freight shall be considered completely earned on receipt of the Goods by the Carrier and shall be paid and non returnable in any event.
17.3 All sums payable to the Carrier, are due on demand and shall be paid in full in United States Currency or at the carriers option in its equivalent in the currency of the Port of Loading or of Discharge or the Place of Receipt or of Delivery or as specified in the Carrier’s Tariff.
17.4 The Merchant’s attention is drawn to the stipulations concerning currency in which the Freight is to be paid, rate of exchange, devaluation and other contingencies relative to Freight in the applicable Tariff. In the event of any discrepancy between Freight (incl.charges etc.) items in the bill of lading or any Carrier invoices, the latter shall prevail.
17.5 All Freight shall be paid without any set-off, counter-claim, deduction or stay of execution at latest before delivery of goods.
17.6 If the merchant fails to pay the Freight when due he shall be liable also for payment of service fee or interest due on any outstanding sum, reasonable attorney fees and expenses incurred in collecting any sums due to the Carrier. Payment of Freight and charges to a freight forwarder, broker or anyone other than the Carrier or its authorized agent, shall not be deemed payment to the Carrier and shall be made at the Merchant’s sole risk.” https://www.mhc.tn.gov.in/judis 43/56 C.S.No.79 of 2016
103. The defendant is a merchant only as per Clause 16.4 of Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014. The Merchant is liable for the loss, if the container is not returned within the time prescribed. As per Ex.P2 and Ex.P3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014, a merchant is also liable for detention, loss or expense incurred as a result the delay in return of container.
104. At the same time, the Plaintiff has a right of lien over the goods and any documents relating thereto for all sums due at any time to the carrier as per Clause 18 of Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014. Clause 18 of Ex.P.2 and Ex.P.3 Combined Transport Bill of Lading dated 19.09.2014 and 08.10.2014 reads as follows:-
“18. LIEN:- The Carrier shall have a lien on goods and any documents relating thereto for all sums whatsoever due at any time to the Carrier under this Contract and for General Average contributions to whomsoever due. The Carrier shall also have a lien against the Merchant on the goods and any documents relating thereto for all sums due from the Merchant to the Carrier under any other contract. The Carrier may exercise his lien at any time and at any place in his https://www.mhc.tn.gov.in/judis 44/56 C.S.No.79 of 2016 sole discretion, whether the Contractual Carriage is completed or not. In any event any lien shall (a) survive the delivery of the goods and (b) extend to cover the cost of recovering any sums due and for that purpose the Carrier shall have the right to sell the Goods and Documents by public auction or private treaty, without notice to the Merchant and at the Merchant’s expense and without any liability towards the merchant.”
105. Once a Cargo reaches the destination, the Carrier is expected to give suitable notifications in terms of Clause 23. Clause 23 reads as under:-
“23.Notification and Delivery:
23.1 Any mentioning in this bill of lading of parties to be notified of the arrival of the Goods is solely for information of the Carrier. Failure to give such notification shall not involve the Carrier in any liability nor relieve the Merchant of any obligation hereunder.
23.2 The Merchant shall take delivery of the goods within the time provided for in the Carrier’s applicable Tariff. If the Merchant fails to do so, the Carrier may without notice unpack the goods if packed in containers and/or store the Goods ashore, afloat, in the open or under cover at the at the sole risk of the Merchant. Such storage shall constitute due delivery here under, and thereupon all liability whatsoever of the Carrier in respect of the Goods or that part thereof shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier.
https://www.mhc.tn.gov.in/judis 45/56 C.S.No.79 of 2016 23.3 If the Goods are unclaimed within a reasonable time of thirty days from date of arrival at destination or whenever, in the Carrier’s opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at his discretion and without prejudice to any other rights which he may have against the Merchant without notice and without any responsibility attaching to him sell, abandon or otherwise dispose of the goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant in respect of this bill of lading 23.4 Refusal by the merchant to take delivery of the Goods in accordance with the terms of this Clause and/or to mitigate any loss or damage thereto shall constitute a waiver by the Merchant to the Carrier of any claim whatsoever relating to the goods or the Carriage thereof.
23.5 The Carrier may in his absolute discretion receive the Goods as Full Container Load and deliver them as less than Full Container and/or as break bulk cargo and/or deliver the Goods to more than one receiver. In such event the Carrier shall not be liable for any storage, loss, damage or discrepancies of the Goods, which are found upon the unpacking of the Container.”
106. Ex.P.2 and Ex.P.3 combined Bill of ladings dated 19.09.2014 and 08.10.2014 issued by the plaintiff is not a Multimodal Transport Document within the meaning of Section 2(la) of the Multimodal Transportation of Goods Act, 1993. Combined Transport arises only if the https://www.mhc.tn.gov.in/judis 46/56 C.S.No.79 of 2016 place of receipt/or place of delivery are indicated on the face of the documents in the relevant space and includes more than one mode of transport.
107. Clause 27 of Ex.P.2 and Ex.P.3 combined Bill of ladings dated 19.09.2014 and 08.10.2014 deals with Law and Jurisdiction which reads as follows:-
“27. Law and Jurisdiction Whenever US COGSA applies, whether by virtue of Carriage of the Goods to or from the United States of America or otherwise, or losses occur during inland Carriage within the United States of America, this bill of lading is to be governed by United States law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes hereunder. In all other cases, this bill of lading shall be governed by and construed in accordance with Indian Law and all disputes arising hereunder shall be determined by the Indian Courts to the exclusion of the Courts of any other Country.”
108. Although it has been argued that the plaintiff has not informed the defendant about the arrival of the Ex.P.2 & P.3 Consignment at Jebel Ali Port, UAE, the fact remains that the defendant was aware of the arrival of the Consignment and had negotiated on behalf of the Consignor for waiver of detention charges vide Ex.P.9 dated 01.12.2014.
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109. As per Section 16.4 of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014, the responsibility of returning the container within the time prescribed in the Tariff is on the Merchant who shall also be liable for any detention, loss or expenses incurred as a result of detention, loss or expenses incurred therewith. However, the plaintiff as the Carrier is entitled for a lien over the goods and documents for all sum due from Merchant to Carrier under any other contract implying any third party expenses which may be incurred by the Carrier. The plaintiff as a carrier has a right to sell the goods in a public auction.
110. In this Case, the plaintiff has issued notice of arrival to the consignee by Ex.P5 E mail (Notice of arrival) dated 13.10.2014. However, as per clause 23.2 of Ex.P.2 and Ex.P.3 combined Bill of ladings dated 19.09.2014 and 08.10.2014, if the Merchant fails to take delivery of the goods within the time provided for in the Carrier’s applicable Tariff, the Carrier may without notice unpack the goods if packed in containers and/or store the Goods ashore, afloat, in the open or under cover at the at the sole risk of the Merchant and such storage shall constitute due delivery and thereupon all liability whatsoever of the Carrier in respect of the Goods or that part thereof shall cease and the costs of such storage shall forthwith upon demand be paid by the Merchant to the Carrier. https://www.mhc.tn.gov.in/judis 48/56 C.S.No.79 of 2016
111. As per clause 23.3 of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014, if the Goods are unclaimed within a reasonable time of thirty days from date of arrival at destination or whenever, in the Carrier’s opinion the Goods are likely to deteriorate, decay or become worthless, or incur charges whether for storage or otherwise in excess of their value, the Carrier may at his discretion and without prejudice to any other rights which he may have against the Merchant without notice and without any responsibility attaching to him sell, abandon or otherwise dispose of the goods at the sole risk and expense of the Merchant and apply any proceeds of sale in reduction of the sums due to the Carrier from the Merchant in respect of this bill of lading.
112. Thus, as per Clause 23.3 of the Ex.P2 and P3 Combined Bill of Ladings dated 19.09.2014 and 08.10.2014, if the goods are unclaimed within a reasonable period of 30 days from the date of arrival at the destination or where the plaintiff is of the opinion that goods are likely to deteriorate or decay or become worthless or incur charges whether for storage or in excess of their value, the plaintiff may at discretion and without prejudice to any other rights abandon, sell or otherwise dispose of the goods at the sole risk and expense of the exporter namely M/s.Jain Granites and Projects India Limited and consignee M/s.Eagle Logistics LLC, CTC Kala Rajesh LIU RA 08, CC02 (Eagle Logistics at UAE) . https://www.mhc.tn.gov.in/judis 49/56 C.S.No.79 of 2016
113. The plaintiff also has a lien over the goods and the documents relating to as per clause 18. The freight of the consignment is not wrong. The plaintiff can recover only balance amount after adjusting the amount from sale of the consignment or expenses that may have been incurred for putting the consignment.
114. Thus, the plaintiff should have first auctioned and applied the cost in terms of Clause 23.2 & Clause 23.3 of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014. The plaintiff was entitled to mitigate the loss or damage as the Merchant namely the Consignor, Consignee and Shipper failed to take delivery. There are no records to show that the plaintiff has exercised the discretion in terms of Clause 23.4 of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014.
115. Having failed to exercise the discretion in terms of Clause 23 of Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014, the plaintiff cannot demand the amount as suit claim. The plaintiff would have exercised lien and cut its loss by either abandoning the consignment or sold it.
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116. Clause 16.4 of the Ex.P2 and P3 Combined Bill of Lading dated 19.09.2014 and 08.10.2014 will apply only where delivery of Export Consignment together with the container is taken but container is not returned in time.
117. Under those circumstances, detention, loss or expenses incurred on account of delay without proper cleaning shall be to the account of the Merchant. Similarly, 16.5 will also apply after delivery is made to the Consignor. When no delivery is not taken by the Consignee, the Carrier is entitled for a lien.
118. The plaintiff has merely acted as a Non-Vessel Operating Common Carrier (NVOCC). Therefore, the suit filed by the plaintiff to recover the amounts cannot be allowed as is not maintainable for the reasons stated above.
119. In the light of the above, issues framed are answered as under:-
Issue No.i:-
Whether the suit is liable to be dismissed for non- joinder of necessary parties?
Ans:- No. https://www.mhc.tn.gov.in/judis 51/56 C.S.No.79 of 2016 Issue No.ii:-
Whether the suit claim is barred under Section 24 of the Multimodal Transportation of Goods Act, 1993? Ans:- The plaintiff has acted as a “Non-Vessel Operating Common Carrier” (NVOCC) simplicitor while transporting the consignment on behalf of defendant's customer namely M/s.Jain Granites and Projects India Limited to the consignee M/s.Eagle Logistics LLC, CTC Kala Rajesh LIU RA 08, CC02 (Eagle Logistics at UAE).
Issue No.iii:-
Whether the defendant is an agent of the Consignor or Consignee of the Goods, and if so, whether the agent is exempt from liability under Section 230 of the Indian Contract Act, 1872?
Ans:- Yes, the plaintiff has not established the rights by showing the exact amount that is due from the defendant on account of the failure on the part of the consignee to take delivery after the export consignment reached the destination in Jebel Ali Free Zone (North), Jebel Ali, UAE.
Issue No.iv:-
Whether the defendant is liable to pay sums due under the two suit bills of lading and if so, what is the sum payable?
Ans:-No Issue No.v:-
Whether the plaintiff is entitled to interest on the sums claimed and if so, at what rate and for what period? Ans:- No. https://www.mhc.tn.gov.in/judis 52/56 C.S.No.79 of 2016 Issue No.vi:-
Whether the defendant is absolved from liability on account of paying the necessary freight charges? Ans:-No. Issue No.vii:-
Whether the plaintiff is entitled to any other relief? Ans:-No.
120. The suit is therefore liable to be dismissed and is accordingly dismissed. No cost. Parties are directed to bear their own cost.
13.10.2023 Speaking Order/Non-Speaking Order Neutral Citation : Yes/No rgm https://www.mhc.tn.gov.in/judis 53/56 C.S.No.79 of 2016 Plaintiffs' witness:-
Mr.PrasadArunKumar : P.W.1 Defendants' witness:-
Rajesh Kannan : D.W.1 Documents exhibited by the plaintiffs:-
Sl. Date Ex. Nos. Description of Documents No. 1 10.07.2015 Ex.P1 Board Resolution 2 19.09.2014 Ex.P2 Bill of Lading No.INMAAAEJEA1400702 3 08.10.2014 Ex.P3 Bill of Lading No.INMAAAEJEA1400723 4 11.09.2014 to Ex.P4 Export Form No.13 24.09.2014 5 13.10.2014 Ex.P5 Email (Notice of Arrival) of the plaintiff and the defendant 6 19.10.2014 Ex.P6 Email (Notice of Arrival) of the plaintiff and the defendant 7 25.11.2014 Ex.P7 Email (Request for waiver) sent by the defendant to the plaintiff 8 26.11.2014 Ex.P8 Email (Grant of conditional) sent by the plaintiff to the defendant 9 01.12.2014 Ex.P9 Email (Request for waiver) sent by the defendant to the plaintiff 10 01.12.2014 Ex.P10 Email (Grant of Conditional) sent by the plaintiff to the defendant 11 19.01.2015 Ex.P11 Notices of demand of the plaintiff to the defendant 12 31.01.2015 Ex.P12 Postal Acknowledgment Receipt 13 20.02.2015 Ex.P13 Reply Letter of the defendant to the plaintiff 14 06.03.2015 Ex.P14 Notice of Rejoinder of the plaintiff to the defendant 15 - Ex.P15 Statement of Accounts 16 22.10.2015 Ex.P16 Certificate under Section 65B of the Evidence Act, for Exs.P5 to P10 https://www.mhc.tn.gov.in/judis 54/56 C.S.No.79 of 2016 Documents exhibited by the defendants:-
Sl. Date Ex. Nos. Description of Documents No. 1 14.05.2018 Ex.D1 Registration Certificate of the defendant for MultimodalTransportOperator during the period between February, 2012 and January, 2015. 2 04.01.2021 Ex.D2 Board Resolution for authorization of Mr.Rajesh Kannan to defend the suit C.S.N.J., 13.10.2023 https://www.mhc.tn.gov.in/judis 55/56 C.S.No.79 of 2016 C.SARAVANAN, J.
rgm C.S.(COMM.DIV.)No.79 of 2016 13.10.2023 https://www.mhc.tn.gov.in/judis 56/56