Steel Authority of India Ltd. v. Messrs Stanimpex — 1998 DIGILAW 522 (CAL)

Judgment This is an application filed by the petitioner inter alia praying for:- (a) Leave under Clause 12 of the Letters Patent be revoked; (b) The name of the defendant No. 4 who is the petitioner herein be struck out from the Cause Title of the suit; (c) The plaint in Suit No. 185C of 1996 be rejected and/or taken off the file; (d) The suit against the defendant No. 4 be dismissed; (e) Stay of the suit being Suit No. 185C of 1996 and all proceedings thereunder till the disposal of this application; (f) The suit being Suit No. 185C of 1996 be not transferred to the list of un-defendant suit till the disposal of this application. 2. On or about 17th December, 1992 the petitioner at the request of Shopping Team S.R.I., Issued an insurance policy bill No. 29 609 in order to guarantee on behalf and on account of the defendant No. 2, the transport of 33 boxes of electrical and mechanical equipments from the Port of Genoa (Italy) to the Port of Calcutta by means of the vessel M.V. "SNAGOV ROMANIA". The total sum insured by the petitioner was $ 675,475. The goods in question were sold by the defendant No. 2 on CIF basis to the plaintiff. The said insurance contract is governed by the laws of Italy. 3. The plaintiff in the suit carries on business as manufacturers of steel including alloy steel at its various plants in India and markets the same both for domestic consumption and/or export. The defendant No. 1 is a concern carrying on business of importing machinery and spare parts particularly those required for steel plants. The defendant No. 2 likewise carries on similar business as associates of the defendant No.1 from Milan, Italy. The defendant No. 3 is a Government of India undertaking carries on business of carriage of goods by sea for reward and for the said purpose owns and manages a number of merchant vessels for carriage of diverse kinds of cargo 4. By a contract of carriage contained in or evidenced by Bill of Lading dated 10th December, 1993 the defendant No. 3 agreed to carry various items of machinery in 33 cases marked 1/33 to 33/33 weighing 163.634 Kgs. of board the vessel M.V. "SNAGOV" from the Port of Genoa, Italy to Calcutta being the destination Port. By a contract of carriage contained in or evidenced by Bill of Lading dated 10th December, 1993 the defendant No. 3 agreed to carry various items of machinery in 33 cases marked 1/33 to 33/33 weighing 163.634 Kgs. of board the vessel M.V. "SNAGOV" from the Port of Genoa, Italy to Calcutta being the destination Port. The said machinery was sold by the defendant No. 2 who was to effect the dispatch of the same for and on behalf of the defendant No. 1 for an agreed consideration of US $ 6,14,052.00 including carriage insurance and freight. The said Bill of Lading indicated the consignee to be the State Bank of India, Rourkella and the plaintiff was a party to be notified under the same. 5. In terms of the contract for sale of the said machinery entered into between the plaintiff and the defendant Nos. 1 & 2 the defendant No. 2 contemporaneously with the loading of the cargo on board the vessel M.V. "SNAGOV ROMANIA" issued an invoice in respect of the said machine and acknowledge payment by the plaintiff of the price of the cargo against L/C. No. 01-050193/95 dated 12th May, 1993. 6. Pursuant to the request made by the defendant No. 2 the petitioner (being the defendant No. 4 herein) in the usual course of its business issued a policy of insurance dated 10th December, 1993 in respect of the said cargo. Initially, the petitioner issued the insurance certificate in respect of the 32 cases under policy No. 29609 dated 10th December, 1993 and thereafter corrected the original certificate on 17th December, 1993 to cover all the 33 cases which were shipped on board the vessel M.V. "SNAGOV ROMANIA". 7. The defendant No. 3 being the Shipping Corporation of India to carry the cargo from the Port of Genoa, Italy to Calcutta, the defendant No. 3 resorted to wrongful deviation and caused the vessel to sail to the Port of Mumbai and there caused the discharge and transhipment of the entire cargo of 33 cases without any intimation thereof to the petitioner. The further case of the petitioner that after the cargo was off-loaded from board the vessel M.V. 'SNAGOV ROMANIA" at the Port of Mumbai 25 packages were subsequently put on board the vessel M.V "VISHVA-PARIJAT" 7 packages on board the vessel M.V. "STATE OF NAGALAND" and the balance one package was to be onboard the vessel M.V. "VISHVA-PRAFULLA" for transhipment to Calcutta. It is the case of the plaintiff out of the 33 cases for which delivery orders were issued by the defendant No. 3 delivery could only be had of 29 packages and short landing certificate was obtained from the Calcutta Port Trust Authorities for 4 packages i.e. package Nos. 2/33, 5/33, 19/33 and 28/33. Thereafter, Calcutta Port Trust Authorities tested one package which is package No. 5/33 and the defendant No. 3 issued legal delivery order dated 16th August, 1994 for the same. Thereafter, the plaintiff by its letters dated 22nd June, 1995; 28th September, 1995 and 4th January, 1996 raised a claim on the petitioner for payment for such short landings. The plaintiff also claimed interest at the rate of 22 % per annum on the petitioner for the said claims. The petitioner (defendant No. 4 in the Suit) rejected the claim made by the plaintiff on the ground that claim was lodged after 60 days from the date when the goods were discharged at the Port of Calcutta to the date when the short landing certificate was issued by the Port Trust Authorities. It further appears that the short landing certificate was issued by the Calcutta Port Trust on 7th May, 1995 while the goods were delivered at the Calcutta Port on different dates, last one being 10th November, 1994. 8. The petitioner submitted that the said contract of insurance dated 17th December, 1992 was issued at the request of Shipping Team S.R.I., on behalf and for the account of the defendant No. 2. The said contract of insurance is governed by the provisions and is subject to the Italian Law. The said policy of insurance was granted under the general conditions of the "I altan Cargo Policy" ED 1983. The further case of the petitioner that the contract of insurance is not subject to the jurisdiction of this Hon'ble Court. The said contract of insurance is governed by the provisions and is subject to the Italian Law. The said policy of insurance was granted under the general conditions of the "I altan Cargo Policy" ED 1983. The further case of the petitioner that the contract of insurance is not subject to the jurisdiction of this Hon'ble Court. On the ground that the petitioner is an Italian Insurance Company having its registered office at Milan in Italy and the insurance coverage was issued on request of Shipping Team S.R.I., which is an Italian Company on behalf and for the account of the defendant No. 2 being another Italian Company. Furthermore, no leave has been sought for under the Clause 12 of the Letters Patent to Institute the suit as against the petitioner (being the defendant No. 4) 9. Mr. Sarkar appearing on behalf of the petitioner, submitted that the plaintiff has no cause of action against the petitioner nor does the plaint discloses any. Furthermore, in view of Article 16 of the Italian Cargo Policy, 1983 which has been expressly incorporated in the policy of Insurance, the Italian Court has the exclusive jurisdiction in respect of any matters and claims arising out of the contract of insurance. 10. Mr. Sarkar further drew my attention to the plaint and submitted that no allegation has been made against Mr. Sarkar's client. He further submitted that by virtue of the fact that the landing of the cargo at the Port of Mumbai caused by the deviation and the subsequent transhipment amounts to an aggravating factor which entitled the petitioner to avoid the contract of insurance. Such fact has not been denied by the plaintiff father admitted in the plaint itself. Mr. Sarkar further drew my attention to Paragraph 15 of the said plaint and submitted that the plaintiff has admitted such fact in its averment made in the plaint. He further drew my attention to Paragraph 18 of the said plaint and submitted that the plaintiff has specifically mentioned :- “…………in any event and it apparent from the facts referred to hereinbefore and hereinafter. The defendant No. 3 was prima facie liable for all direct and consequential damage resulting from the arbitrary transhipment of the plaintiff's cargo by the defendant No. 3" which shows that even the damages should be paid by the defendant No. 3 as stated in the said paragraph. The defendant No. 3 was prima facie liable for all direct and consequential damage resulting from the arbitrary transhipment of the plaintiff's cargo by the defendant No. 3" which shows that even the damages should be paid by the defendant No. 3 as stated in the said paragraph. He further drew my attention to the Article 16 of the said insurance cover which deals with the jurisdiction of the Court which is as follows :- "Article 16. Jurisdiction of the Court. The Insurance company's head office has jurisdiction in the matter." He also drew my attention to the International Civil Law. He further submitted that the plaint should be taken of the file inasmuch as it has been held that the jurisdiction must be against all the defendants. He also drew my attention to Section 47 and Section 48 of the Marine Insurance Act, 1963 which are as follows:- "Section 47. Change of voyage. (1) where, after the commencement of the risk, the destination of the ship is voluntarily changed from the destination contemplated by the policy, there is said to be a change of voyage. (2) Unless the policy otherwise provided where there is a change of voyage, the insurer is discharged from liability as from the time of change, that is to say, as from the time when the determination to change it is manifested; and it is immaterial that the ship may not in fact have left the course of voyage contemplated by the policy when the loss occurs." "Section 48. Deviation, (1) where a ship without lawful excuse, deviates from the voyage contemplated by the policy the insurer is discharged from liability as from the time of deviation, and it is immaterial that the ship may have regained her route before any loss occurs. (2) There is a deviation from the voyage contemplated by the policy:- (a) where the course of the voyage is specifically designated by the policy, and that course is departed from ; or (b) where the course of the voyage is not specifically designated by the policy, but the usual and customary course is departed from. (3) The intention to deviate is immaterial, there must be a deviation to fact to discharge the insurer from his liability under the contract." 11. (3) The intention to deviate is immaterial, there must be a deviation to fact to discharge the insurer from his liability under the contract." 11. In view of such Section 47 leave must be revoked against the plaintiff and the name of the defendant No. 4, should be struck out from the Cause Title of the plaint and/or the Suit should be dismissed against the petitioner herein. 12. Mr. Sarkar further submitted that the insurer is discharged from liability in view of said sections and as such there is cause of action against the defendant No. 4 and submitted that the name of the petitioner (the defendant No. 4) should be struck out from the plaint and the suit should be dismissed against him. 13. He further relied upon a judgment reported is (1) AIR 1948 Calcutta 268, Diminion of India v. Gopal Chandra Tapadar & Ors. and submitted that this Court has no jurisdiction to entertain this Suit against the petitioner since no cause of action arose within the jurisdiction of this Court. He further submitted that the petitioner (defendant No. 4) does not maintain any office within the jurisdiction of this High Court and the Court has no jurisdiction to pass a decree against the petitioner. He further submitted that the suit has been filed in the year 1996 and after the service of the writ of summons this application has been filed by the petitioner for revocation of the leave under Clause 12 of the Letters Patent. Mr. Sarkar further relied upon a judgment reported in (2) AIR 1955 Madras 595, Kurivalli Lingayya Setty v. Sitharam Agarwala & Anr. and submitted that if the Court has no jurisdiction by reason of Sections 19 and 20 of the Code of Civil Procedure over one of the defendants joined under the provisions of Order 1, Rule 3 and Order 2, Rule 3, the suit cannot be entertained against such defendant and his name must be struck out from the array of the parties. He further submitted that the similar question arose which is reported in (3) AIR 1922 Calcutta 500 and where the Calcutta High Court has held that if the Court has no jurisdiction to try the suit against the defendants in that case the name of the defendants should be struck out from the suit. 14. Mr. He further submitted that the similar question arose which is reported in (3) AIR 1922 Calcutta 500 and where the Calcutta High Court has held that if the Court has no jurisdiction to try the suit against the defendants in that case the name of the defendants should be struck out from the suit. 14. Mr. Ray appearing on behalf of the plaintiff submitted that the loss occurred at Calcutta Part. He further drew my attention to Annexure-D to the plaint and submitted that the goods were delivered at Calcutta. The short landing certificate was received at Calcutta, loss was suffered by the plaintiff at Calcutta and as such this Court has jurisdiction to entertain, try and determine the suit. He further submitted that the plea of forum convenient has been raised to revoke the leave under Clause 12 of the letters Patent. He further submitted that the suit has been filed in the year 1996 and only in the year 1998, after two years the defendant No. 4 have sought to file this application to revoke the leave and further for dismissal of suit against the defendant No. 4, the petitioner herein. Such prayer should not be granted inasmuch as the long time has lapsed, but no steps have been taken by them for revocation of leave which was granted at the time of filing of the suit. They ought to have come before this Court at the first instance. In support of his contention he relied upon a judgment reported in (4) AIR 1961 Calcutta 166, A.K. Raha (Engineers) Ltd. v. State of Punjab. He further submitted that the expression "cause of action" should be taken as much broader sense to mean the entire bundle of facts which the plaintiff has to prove if he has to succeed in his suit against the defendants Mr. Ray further submitted that at this stage the statements made in the plaint are to be taken as true and correct. He further drew my attention to the paragraphs of the plaint and submitted that in part of the cause of action as pleaded in the plaint are within the jurisdiction and as such this Court has granted leave under Clause 12 of the Letters Patent. He further drew my attention to the paragraphs of the plaint and submitted that in part of the cause of action as pleaded in the plaint are within the jurisdiction and as such this Court has granted leave under Clause 12 of the Letters Patent. In support of his contention, he relied upon the judgments reported in (5) AIR 1966 Calcutta 1, M/s. Sterling Corporation Pvt. Ltd. v. Smt. Sushila Devi Rampurta & Ors; (6) AIR 1975 Calcutta 427, Smt. Sukla Chowdhury v. Ms. Manjuli Tudai; (7) AIR 1974 Calcutta 231, Union of India v. Kamal Kumar Goswami & Ors. 15. Mr. Ray further drew my attention to the prayers made in the petition and submitted that the decree is for damages against the defendant No. 4 and therefore at this stage the loss which has been suffered by the plaintiff should be the liability of the insurer also to make it good in view of the insurance policy. In reply Mr. Sarkar submitted that no part of the cause of action as pleaded in the plaint to obtain the leave under Clause 12 of the Letter, Patent not concerned with the petitioner (defendant No. 4). Mr. Sarker drew my attention to the said averments and submitted that leave should be revoked as against the petitioner. 16. After considering the facts and circumstances of this case it appears to me from the plaint that the statements made in the plaint even taken as true and correct it appears that no part of the cause of action arose within the jurisdiction of this High Court as against the defendant No. 4, the petitioner herein. It is a fact that the defendant No. 4 issued the insurance from its office at Italy. It is a fact that the said insurance was received by the insured at Italy which is outside the jurisdiction of this High Court save and except no other cause of action has been stated in the plaint. It further appears that no insignificant part of the cause of action also arose against the defendant No. 4 within the jurisdiction of this High Court. Further more, under Sections 47 and 48 of the Marine Insurance Act, 1963 the liability of the insurer has been discharged in accordance with the said sections of the said Act as it appears to me. It further appears that no allegations against Mr. Further more, under Sections 47 and 48 of the Marine Insurance Act, 1963 the liability of the insurer has been discharged in accordance with the said sections of the said Act as it appears to me. It further appears that no allegations against Mr. Sarkar's client within the jurisdiction of this High Court made in the said plaint. Furthermore, the cause of action as pleaded in Paragraph 43 for the purpose of obtaining the leave under Clause 12 of the Letters Patent also shows that there is no cause of action against the defendant No. 4 has been pleaded in the plaint. 17. In view of that I do not have any hesitation to revoke the leave under Clause 12 of the Letters Patent against the defendant No. 4. The name of the defendant No. 4 may be struck out from the Cause Title of the plaint and the suit register may be amended accordingly. The suit as against the defendant No. 4 is dismissed. For the reasons stated hereinabove this application is allowed, however no order as to costs.