Research › Search › Judgment

Calcutta High Court · body

2010 DIGILAW 831 (CAL)

Raa Projects Limited v. Seaways Shipping Limited

2010-07-19

SANJIB BANERJEE

body2010
JUDGMENT 1. THE plaintiff's loss is plain to see; but the form of the claim is questionable. THE appearing defendants say that the plaintiff has barked up a wrong tree in chasing them. 2. THE claim is for damages. According to the plaintiff, the first defendant' is an agent of the defendant Nos.2, 3 and 4. THE defendant No.2 is part of what the plaintiff describes as the OOCL group that owns several vessels. THE defendant Nos.3 and 4 are foreign companies without any apparent presence in India. It is the plaintiff's case that the plaintiff shipped shrimps on board the vessel M. V. Tiger Creek. The plaintiff has relied on the relevant bill of lading which is signed by the second defendant on behalf of the third defendant. According to the plaintiff, before the goods reached the discharge port of Southampton in the United Kingdom, the plaintiff's buyers declined to accept the goods; whereupon, the plaintiff obtained another contract from a party in Scotland. The plaintiff says that it advised the defendants (the use of the expression 'defendants' is loosely made in the plaint without always specifying the particular defendant involved) to carry the goods to Felixstowe rather than Southampton, without referring to the minor formalities that were required to be complied with upon the bill of lading indicating that the goods were to be discharged in Southampton. 3. THE goods reached Southampton. THE plaintiff abandoned its earlier demand that the goods be carried to Felixstowe. THE plaintiff wanted the goods to be sent back to -Calcutta. Correspondence followed between some of the parties and it is the general refrain in the plaint that the plaintiff made demands on the first and second defendants whether for the preservation of the goods or for expeditious steps to be taken for the return of the goods. against the applying defendants. 4. FINALLY, the plaintiff relies on a proforma bill of lading allegedly issued by the defendant No.4. The plaintiff says that notwithstanding such proforma bill of lading, which, according to it, demonstrates a concluded contract, the goods were ultimately destroyed by the authorities in the United Kingdom for which a two-day notice was received from the defendants by the plaintiff. 4. FINALLY, the plaintiff relies on a proforma bill of lading allegedly issued by the defendant No.4. The plaintiff says that notwithstanding such proforma bill of lading, which, according to it, demonstrates a concluded contract, the goods were ultimately destroyed by the authorities in the United Kingdom for which a two-day notice was received from the defendants by the plaintiff. The plaintiff complains that it was due to the acts and conduct of the defendants that the plaintiff lost its goods and not only lost its investment of about Rs.50,00,000/- but was also slapped with a demand to pay a sum in excess of ? 8,000 as costs of destruction of the goods. The first and second defendants have applied by way of G.A.No.474 of 2009 and G.A.No.581 of 2009, respectively, for rejection of the plaint; at least qua the applying defendants. The two defendants have urged similar grounds. They say that the suit is ex facie barred by the laws of limitation since the claim was launched well after a year of the original bill of lading being issued. The applying defendants say that since there was no concluded contract as to the return of the goods, the time has to be reckoned from the date of the Calcutta-Southampton bill of lading and a period of more than one year had elapsed from the time that the goods had reached Southampton before the suit was instituted. It is the applying defendants' alternative case that, in any event, the bill of lading made the laws of England applicable to the transaction between the third defendant and the plaintiff and on the basis of the applicable laws, the claim is barred by limitation. However, the applying defendants fairly concede that they have not cited the English law which has to be regarded as an issue of fact. 5. THE applying defendants say that on the basis of averments in the plaint, the suit is barred by Section 230 of the Contract Act and/or principles analogous thereto. THEy say that in either case since the relevant applying defendant is said to be the agent of a disclosed principal, the claim against the agent cannot be maintained. THE second defendant has relied on a judgment rendered in similar circumstances reported at AIR 1982 Cal 161 (Steel Authority of India Ltd. v. Trans world Marine Ltd. Anr.). THEy say that in either case since the relevant applying defendant is said to be the agent of a disclosed principal, the claim against the agent cannot be maintained. THE second defendant has relied on a judgment rendered in similar circumstances reported at AIR 1982 Cal 161 (Steel Authority of India Ltd. v. Trans world Marine Ltd. Anr.). THE plaintiff in that case had brought a suit against a foreign party and its Indian agent. It was contended on behalf of the plaintiff that since the first defendant was a foreign shipping company, the second defendant had been sued as agent. Notwithstanding such argument, the judgment found that in view of Section 230 of the Contract Act, the plaintiff could not sue both the principal and the agent. THE name of the second defendant in such case was directed to be deleted from the cause title of the plaint to the relevant suit. 6. THE plaintiff here says that the plaint has to be read meaningfully to ascertain the cause of action disclosed there in .THE plaintiff says that the plaint would be covered by the first limb of the presumption of a contract to the contrary as envisaged in Section 230 of the Contract Act. THE plaintiff says that since the disclosed principal here is a foreign company against which the plaintiff has no direct recourse, the suit should not be dismissed as against the Indian agents. The plaintiff refers to Paragraphs 2, 6, 8, 12 and 20 of the plaint to say that the averments contained therein disclose substantial cause of action against the applying defendants whether or not they are agents of any disclosed principal. 7. PARAGRAPH 2 of the plaint describes the first defendant to be a shipping agent for container-line companies. The first defendant is alleged to be a shipping agent of the defendant Nos.2,3 and 4 in India. The second defendant is described to be a container shipping and logistic shipping company which is part of the OOCL group. The defendant Nos.3 and 4 have also been described to be part of the OOCL group. The allegation in PARAGRAPH 2 of the plaint, therefore, implies that the first defendant is an agent of, inter alia, the second defendant and the second defendant is a group concern of the defendant Nos.3 and 4. 8. The defendant Nos.3 and 4 have also been described to be part of the OOCL group. The allegation in PARAGRAPH 2 of the plaint, therefore, implies that the first defendant is an agent of, inter alia, the second defendant and the second defendant is a group concern of the defendant Nos.3 and 4. 8. IN Paragraph 6 of the plaint, it has been alleged that the defendant Nos.1, 2 and 3 entered into a contract with the plaintiff for the purpose of carriage of the shrimps from Calcutta to Southampton on board the vessel. A copy of the bill of lading is, however, appended to the plaint from which it appears that the defendant No.1 had no connection with the transaction and the defendant No.2 had signed the bill of lading for and on behalf of the third defendant. Paragraph 8 of the plaint refers to a communication addressed by the plaintiff to the office of the first defendant and a demand made on the first and second defendants to re-direct the consignment from Southampton to Felixstowe. Again, notwithstanding such allegations not having referred to the first and second defendant as agents of any other, there is a general sense conveyed that the first and second defendants were called upon to do what the plaintiff demanded of them since they were the agents of the third defendant. If the allegations contained in Paragraph 8 of the plaint are to be read other than as allegations made by the plaintiff against the applying defendants as agents of the third defendant, then such allegations would not disclose any cause of action against the applying defendants. 9. AT Paragraph 12 of the plaint, the plaintiff has referred to an e-mail message from the defendant No.1 and which was apparently issued "also on behalf of defendant Nos.2 and 3" by which the plaintiff's offer for bringing the consignment back from Southampton to Calcutta was accepted by the first defendant. The proforma invoice would, however, show that there never was any concluded contract. 10. PARAGRAPH 20 of the plaint refers to a demand made by the plaintiff through its Advocates upon the first and second defendant to compensate the plaintiff for the alleged loss and damage suffered by the plaintiff. The proforma invoice would, however, show that there never was any concluded contract. 10. PARAGRAPH 20 of the plaint refers to a demand made by the plaintiff through its Advocates upon the first and second defendant to compensate the plaintiff for the alleged loss and damage suffered by the plaintiff. The allegations contained in PARAGRAPH 20 are not part of the plaintiff's cause of action but may have been relevant if the plaint had otherwise disclosed an independent cause of action against the first and second defendants. The plaintiff's argument that the plaintiff is covered by the first limb of the exception to the application of Section 230 of the Contract Act is of no merit. There is a presumption of a contract to the contrary within the meaning of the expression in Section 230 of the Contract Act if the contract is made by an agent "for the sale or purchase of goods for a merchant resident abroad." The first limb of the exception does not cover a contract for the carriage of goods. The other limbs are not applicable to the present case. There is no reason why the dictum in the Steel Authority case should not be applied to the present case. 11. ACCORDINGLY, G. A. No.474 of 2009 and G. A. No.581 of 2009 succeed. Since the plaint cannot be rejected in part, these applications by the first and second defendants are allowed by directing the names of the first and second defendants to be deleted from the array of parties in the suit. The plaintiff will also pay costs assessed at 500 GM to either of the defendant Nos.1 and 2. 12. G. A. No.4103 of 2008 is the plaintiff's application in the nature of attachment before judgment. The claim in the suit is for damages. It is preposterous to suggest the a high order in the nature of attachment before judgment can be claimed in support of an unliquidated claim in damages. Since the plaintiff does not wish to press the application at this stage, the costs awarded are somewhat reduced but the plaintiff will pay costs assessed at 500 GM to either of the first and second defendants for its misadventure in praying for attachment before judgment in a questionable claim in damages. It is recorded that G.A.No.473 of 2009 has appeared by mistake as such application had earlier been disposed of. It is recorded that G.A.No.473 of 2009 has appeared by mistake as such application had earlier been disposed of. Urgent certified photocopies of this order, if applied for, be given to the parties subject to compliance with all requisite formalities.