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2005 DIGILAW 724 (CAL)

J. M. BAXI, COMPANY v. FOOD CORPPRATION OF INDIA

2005-12-02

BHASKAR BHATTACHARYA, PRAVENDU NARAYAN SINHA

body2005
BHASKAR BHATTACHARYA, J. ( 1 ) THIS first appeal is at the instance of the defendant No. 2 in a suit for recovery of money on account of shortage of goods and mutilation of part thereof and is directed against the judgment and decree dated 15th October, 1988 passed by the Assistant District judge, 8th Court, Alipore in Money Suit No. 41 of 1972 thereby passing a decree of Rs. 72,860. 95p against both the defendants. ( 2 ) THE plaintiffs-respondents filed the aforesaid suit against defendants claiming damages on account of short landing of goods and marring of part thereof on the allegation that defendant No. 1, the owner of the vessel, agreed to deliver 9900 Metric tons of Ammonium Nitrate Phosphate at the ports of Pondichery and Calcutta but the defendant No. 2, the agent of defendant No. 1 delivered lesser amount of goods as detailed in the plaint. It was further alleged that part of the goods received was in messed-up condition making those unusable. In the plaint, the plaintiff in paragraph 4 alleged that the defendant No. 2 was the agent of the defendant no. 1 and was responsible for the delivery of the goods as per terms of the bill of lading. ( 3 ) THE aforesaid suit was contested by both the defendants by filing separate written statements thereby denying the material allegations made in the plaint. ( 4 ) IN the written statement filed by defendant No. 1, it was specifically alleged that defendant No. 2 was the shipping-agent of defendant No. 1 for the limited purpose of arranging loading and unloading of goods carried by the vessels belonging to defendant No. 1 at the Ports of Calcutta, Bombay and Pondichery for and on behalf of the owner and for forwarding claims, if any, to the owner of the goods and as such, the defendant No. 2 was not responsible as alleged for delivery and for carriage of the goods. It was further stated that defendant No. 2 being such an agent of the defendant No. 1, the disclosed principal, the plaintiff had no cause of action or right to sue against defendant No. 2. It was further pointed out that defendant No. 2 not being a privy to the contract of carriage evidenced by the Bill of Lading, cannot be sued. It was further pointed out that defendant No. 2 not being a privy to the contract of carriage evidenced by the Bill of Lading, cannot be sued. ( 5 ) THE defendant No. 2 in the written statement, inter alia, took the similar plea. ( 6 ) AS indicated earlier, the learned trial judge on consideration of the materials on record came to the conclusion that the plaintiffs proved short delivery and it was further proved that a portion of the goods received was in spurious condition and thus decreed the suit. ( 7 ) BEING dissatisfied, the defendant No. 2, the agent, has preferred the present appeal. ( 8 ) MR. Bose, the learned advocate appearing on behalf of the appellant, before entering into the merit of the appeal, has taken a pure question of law as regards maintainability of the suit against his client, namely, the defendant No. 2. According to Mr. Bose, in view of Section 230 of the Indian Contract Act, the present suit was not maintainable against the defendant No. 2 as the plaintiff has also sued its principal viz. , the defendant No. 1 and it does not appear from the agreement between the plaintiff and defendant No. 1 that the defendant No. 2 came within exceptions indicated in the said Section. Mr. Bose, therefore, prays for dismissal of the suit against the defendant No. 2 on that ground alone. ( 9 ) MR. Dason, the learned advocate appearing on behalf of the respondent, did not dispute that the defendant No. 2 was not party to agreement and that it did not appear from the Bill of Lading that defendant no. 2 bound itself in any way in the said agreement. ( 10 ) AFTER hearing the learned counsel for the parties and after going through the materials on record we find that defendant no. 1, the principal itself has avowed in its pleading that defendant No. 2 was merely its agent for the purpose of clearing and had rio liability in the matter. No material has been placed before the Court showing that defendant No. 2 agreed to take any responsibility in the transaction between the plaintiff and defendant No. 1. The Bill of Lading does not indicate any responsibility of the appellant for short-landing. No material has been placed before the Court showing that defendant No. 2 agreed to take any responsibility in the transaction between the plaintiff and defendant No. 1. The Bill of Lading does not indicate any responsibility of the appellant for short-landing. This is not a case where the agent has signed the agreement on behalf of the owner; on the other hand, the plaintiffs had sued the known principal and at the same time, the principal itself in the written statement has also accepted the position that the liability, if any, arising out of the agreement is to be borne by the principal alone. ( 11 ) IN such a situation, we find substance in the contention of Mr. Bose that the learned trial Judge erred in law in passing a joint decree against both the defendants. We, thus, accept the contention of Mr. Bose that in the fact of the present case the defendant No. 2 was an unnecessary party to the litigation and no decree could be passed against the defendant No. 2, even if, shortlanding or mutilation of he goods due to the negligence of the defendant No. 2 is proved. ( 12 ) WE, therefore, modify the judgment and decree passed by the learned trial Judge to this extent that decree passed by the learned trial Judge is not binding upon defendant No. 2 and the decree is varied to that extent. We make it clear that we have not gone into the merits of the claim as we are convinced that the suit was not maintainable against the defendant No. 2. The judgment and decree passed by the learned trial Judge is, thus, modified to the extent indicated above. In the facts and circumstances, there will be, however, no order as to costs. Order accordingly.