Appeal Nos. 747, 749 and 750 of 2005. Case: MV. X-press Annapurana and Anr. etc Vs Gitanjali Woolens Pvt. Ltd. and Ors. High Court of Bombay (India)
| Case Number | Appeal Nos. 747, 749 and 750 of 2005 |
| Counsel | For Appellant: Ms. Rahul Narichania with Kunal Shah i/b Bhatt and Saldhana, Advs. and For Respondents: Ranjit Dharmadhikari i/b Ratnaka Singh, (for respondent No. 2 in appeal No. 747/05 and for appellant in appeal No. 750/05); Robin Jaisinghani i/b IC Legal (for respondent No. 3 in appeal No. 747/05 and for appellant No. 749/05); Pradip Sacheti... |
| Judges | D. K. Deshmukh, J. and K. K. Tated , J. |
| Issue | Carriage of Goods by Sea Act (26 of 1925) - Section 2, Article 3(3); Civil Procedure Code (5 of 1908) - Orders 2, 6 Rules 2, 17; Contract Act (9 of 1872) - Section 230 |
| Citation | AIR 2011 Bom 105 |
| Judgement Date | March 11, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
D. K. Deshmukh, J.
1. All these three appeals challenge the same order passed by the learned single Judge of this Court. Therefore, all these appeals can be conveniently disposed of by a common order.
2. Admiralty Suit No. 27 of 1999 was filed in March, 1999 by Gitanjali Woollens Pvt. Ltd. (hereinafter referred to as the "Plaintiff") claiming following reliefs:
(a) That the vessel "X-Press Annapurna" of the 1st defendant be contemned in the sum of US $ 57,860.00 (United States Dollars Fifty Seven Thousand Eight Hundred Sixty only) together with interest on the principal sum of US $ 51,374.10 at the rate of 18% p.a. and/or at such other rate as this Hon'ble Court may deem fit and for a further sum of US $ 50,000.00 towards damages as per particulars of claim at Exhibit 'F' to the Plaint;
(b) That this Hon'ble Court be pleased to grant Leave under Order II, Rule 2 of the Code of Civil Procedure, 1980;
(c) That this Hon'ble Court be pleased to grant an order that the plaintiff is entitled to exercise a maritime lien on the 1st defendants vessel along with the Hull, Engines, gears, tackles, bankers, machinery apparel plant, furniture, appurtenances and paraphernalia for the purpose of securing the claim of the plaintiffs in the suit;
(d) That this Hon'ble Court be pleased to order to issue a warrant for arrest of the defendant No. 1's vessel with orders for interim Sale to follow, if necessary;
(e) That this Hon'ble Court be pleased to order that the 1st defendants vessels be arrested and/or detained, by and under the orders and direction of this Hon'ble Court; since there is no other asset of 2nd defendant available to the plaintiff in Italy, or elsewhere and with no other assets;
(f) That by a mandatory order of injunction restraining the defendants from in any manner whatsoever dealing with the 1st defendants' vessel "X-Press Annapurna", till the due and adequate security is furnished to the satisfaction of this Hon'ble Court in the sum of the plaintiffs' claim in the suit;
3. It was claimed by the plaintiff that the plaintiff had entrusted its cargo to defendant No. 3-Meridian Shipping Agency Pvt. Ltd., who was acting as an agent of defendant No. 2-Ignazio Messina and Co. for being carried from a Port in India to Assab Port, Ethiopia. According to the plaintiff, the plaintiff paid necessary charges for carriage of goods by sea to defendant No. 3, but the defendant No. 3 despite the demands made by the plaintiff did not hand over the bills of lading to the plaintiff. With the result, the goods were lost and the plaintiff suffered loss. When the plaintiff filed this suit, only prayers to be found in the plaint are quoted above. There was no prayer in the plaint claiming any relief or decree against other defendants, except the first defendant-vessel. The plaint was amended in January, 2004 and prayer clause (ai) was introduced, which reads as under:
(ai) that this Hon'ble Court be pleased to decree and order the defendants No. 1 to 4 jointly and/or severally to pay to the plaintiff a sum of US $ 57,860.00 (United States Dollars Fifty Seven Thousand Eight Hundred Sixty only) together with interest on the principal sum of US $ 51,374.10 at the rate of 18% p.a. and/or at such other rate as this Hon'ble Court may deem fit and for a further sum of US $ 50,000.00 towards damages as per particulars of claim at Exhibit 'F' to the Plaint.
4. The case of the plaintiff in principal is that the plaintiff has maritime lien on first defendant-vessel as the defendant No. 3 who was acting as an agent of the defendant No. 2 had wrongfully refused to issue bills of lading relating to the carriage of the suit consignment. The case made out in the plaint is that the suit consignment was entrusted to defendant No. 3 acting as an agent of the defendant No. 2, the consignment was loaded on defendant No. 1-vessel which is owned by defendant No. 4 and despite the fact that the freight for the said consignment was paid to defendant No. 3, the Bills of lading was not handed over to the plaintiff. With the result, the plaintiff could not realise export proceeds from their buyers in Ethiopia.
5. The suit was contested by defendant Nos. 2, 3 and 4 by filing written statement. The principal defence of the defendant Nos. 1 and 4 was that there is no privity of contract between the defendant Nos. 1 and 4 on one hand and the plaintiff on the other hand. It was also claimed that suit in the admiralty jurisdiction could not have been filed against the defendant No. 1-vessel, when the defendant No. 1-vessel admittedly is a vessel flying foreign flag and was not in Indian water. The principal defence of the defendant No. 3 was that there was an agreement between the plaintiff and the defendant No. 3 that the Bills of Lading were to be delivered to the plaintiff on the plaintiff clearing all the liabilities of the plaintiff as also its sister concern M/s. Deepak woollen Limited. This agreement was not abided by the plaintiff and therefore the delivery of the Bills of lading was not claimed by the plaintiff from the defendant No. 3 and therefore the defendant No. 3 is not at all liable. It is also claimed by the defendant No. 3 that the defendant No. 3 was admittedly acting as an agent of the defendant No. 2 to the knowledge of the plaintiff, therefore, as the defendant No. 3 was agent of the disclosed principal the suit was not maintainable against the defendant No. 3. The defendant No. 3 also claimed that the suit as against the defendant No. 3 was barred by the law of limitation, as for the first time a prayer for decree against defendant No. 3 was made in the year 2004. The second defendant also opposed the suit on the grounds similar to the ones raised by defendant No. 3.
6. On behalf of the plaintiff two witnesses were examined and on behalf of the third defendant one witness was examined. No oral evidence was led on behalf of the defendant Nos. 1, 2 and 4. On the basis of the pleadings and the documents following issues were framed.
ISSUES
1. Whether the plaintiffs are entitled to receive a sum of US$ 57860 together with interest @ 18% p.a. as per the particulars of claim shown in Exhibit E to the plaint?
2. Whether the plaintiffs have become entitled to receive a sum of US$ 50,000 as damages?
3. Whether defendant No. 1 and defendant No. 4 prove that they are third parties to the suit transaction and that there exists no privity of contract between the plaintiffs and the defendant No. 1 and defendant No. 4?
4. Whether the defendant No. 1 and defendant No. 4 prove that for the vessel to be proceeded against in rem, a claim must just lie against her owner in personam?
5. Whether the defendant No. 1 and defendant No. 4 prove that the vessel was given on charter to Bengal Xpress Container Lines Ltd., who had entered into a further charter with Shreyas Shipping Ltd., who in turn had a connecting carrier agreement with the 2nd defendants?
6. Whether the plaintiffs prove that under the letter of credit, shipment was required to be effected on or before 20th April, 1998?
7. Whether the defendant No. 1 and defendant No. 4 prove that by reason of the Mate receipt dated 1st April, 1998 having been issued by the 3rd defendants, the plaintiffs cause of action can only lie against the 3rd defendants and/or the 2nd defendants?
8. Whether the plaintiffs prove that it was the obligation of the defendants to issue to the plaintiffs a Bills of Lading?
9. Whether the 2nd defendants prove that the 3rd defendants acted on their own and without any prior consent, permission or instructions from 2nd defendants in the matter of shipment of the cargo?
10. Whether the 2nd defendants prove that the plaintiffs were in arrears for payment of freight?
11. Whether the plaintiffs prove that the sum of Rs. 1,52,770/- was paid in respect of freight for the suit consignment?
12. Whether the 2nd defendants prove that the 3rd defendants acted on their own accord and their acts/omissions were not binding upon the second defendants?
13. Whether the 2nd defendants prove that the third defendants on their own adopted ways and means for recovery of the arrears?
14. Whether this Hon'ble Court has jurisdiction to try the suit?
15. Whether the suit is barred by limitation?
16. Whether the plaintiff discloses any cause of action against the 3rd defendants when admittedly the 3rd defendants were acting as agents of a disclosed principal.
17. Whether the plaintiff proves that the plaintiff paid the freight in respect of the suit consignment to the 3rd defendants?
18. Whether the plaintiff proves that the 3rd defendants have contravened the provisions of the Carriage of Goods by Sea Act or the Bills of Lading Act as alleged in paragraph 9 of the Plaint?
19. Whether the plaintiff proves that the 3rd defendants in any manner acted in collusion with defendant Nos. 1 and 2 or committed acts of mala fide, malfeasance, non-feasance or tortious acts resulting in conversion of the suit consignments to their benefit and loss to the plaintiff as alleged in paragraphs 9 and 11 of the plaint.
20. Whether the plaintiff proves that the 3rd defendants are in any manner liable to pay any amounts as claimed in the suit?
21. Whether the 3rd defendants prove that the suit consignment were accepted and carried on the basis of the understanding set out in paragraphs 4 to 7 of the written statement?
22. Whether the 3rd defendants prove that they were acting within authority as agents of the 2nd defendants.
23. Whether the 3rd defendants prove their claim in the counter-claim filed by the 3rd defendants.
24. What orders?
7. The learned single Judge decided the suit by his judgment dated 9th August, 2005. The learned single Judge decreed the suit in terms of prayer clauses (ai) and (c). He held that the plaintiff is entitled to recover all the claims as decreed by him by enforcing the security furnished pursuant to the interim order dated 19-4-1999 to the Prothonotary and Sr. Master of...
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