MAYUR LTD Vs. VESSEL M V FORTUNE EXPRESS

JUDGEMENT

(1.) Leave granted.

(2.) This appeal is preferred by the plaintiff-appellants challenging the Judgment of the division Bench of the Calcutta High Court dated 23.8.2004 whereby the plaintiffs' suit filed in Admiralty Jurisdiction was directed to remain permanently stayed and the bank guarantee furnished by the defendant-respondents in the suit was directed to stand immediately discharged. The plaintiff-appellants were also directed to pay the costs.

(3.) Appellant No. 1 Mayar (H. K. ) Limited admiralty suit in the High Court at Calcutta on 27.3.2000 in admiralty jurisdiction along with appellants Nos. 2 to 5 with whom a contract to sell the goods was entered into by plaintiff/appellant No. 1, against the defendant-respondents alleging, inter alia, that plaintiff/appellant No. 1 (hereinafter called "a-l") is a company incorporated under the laws of hong Kong and engaged in the business of export and import of timber logs. By and under a Charter Party Agreement entered into on 7.1.2000 between plaintiff No. 1-Mayar (H. K. ) Limited and defendant No. 2-Trustrade enterprises PTE Ltd. , a company incorporated under the appropriate laws of Singapore and carrying on business, inter alia, at 101, Cecil street 10-04 Tong. Eng. Building, Singapore (description given in the plaint) an owner on behalf of the vessel M. V. "fortune Express" (hereinafter referred to as "the vessel") , a foreign vessel flying the flag of Singapore, the defendants agreed to carry on board the vessel a quantity of 5200 CBM Sarawak Round logs or upto vessel's full capacity for discharge at the Port of Calcutta, India. In or about January 2000, A-1 purchased various quantities of malaysian Sarawak logs for the purpose of shipment to the Port of Calcutta and to sell the same to various third parties having their offices in West Bengal, India. Under five bills of lading dated 21.2.2000, 17.2.2000, 24.2.2000, 15.2.2000 and 18.2.2000, the defendants agreed to carry on board the said vessel 1638 pieces of logs of different quality measuring 5325.2941 CBM from various ports of Malaysia to the Port of Calcutta, India. At the request of A-1, the five bills of lading were split into 17 bills of lading at the instance of the defendants so as to facilitate sale by A-1 to various buyers in West Bengal, India. The appellants 1 to 5 are the holders in due course and/or endorsees of the six of those bills of lading which dealt with the 642 pieces of logs. As per the stowage plan of the vessel, out of 642 logs, the subject matter of bills of lading, which were loaded on board the vessel, 578 logs were lying on the deck of the vessel. The vessel arrived at the Port of Calcutta on 7.3.2000 and started discharging the cargo lying on its deck from that date till 15.3.2000. At the time of the discharge of the cargo lying on the deck of the vessel, it was found that 456 logs out of 578 logs which were lying on the deck of the vessel were missing and had been short-landed. It has been alleged that in breach of the defendants' duty as a carrier and/or bailees for reward and/as evidenced by the six bills of lading, the defendants have failed to deliver 456 logs whereby the plaintiffs have suffered loss and damage. The plaintiffs have also alleged that the defendants also acted in breach of their contract entered into with A-1 being the shipper under the aforesaid six bills of lading. The defendants have acted in breach of the Charter Party Agreement entered with a-1 by failing and neglecting to carry on board the vessel from the loading point to the discharge port, the agreed quantity of logs. As the logs were not delivered, all the plaintiffs are entitled to claim from the defendants the proportionate value and expenses incurred on account of the said missing 456 logs which is approximately valuedat Rs. 1,30,19,688.44p. as per the particulars stated hereinbelow : 1. Proportionate value of 456 logs of aggregate value of Rs. 1,56,87,298.44p. Rs. 1,09,13,902.2.56p. 2. Proportionate port charge and other charges paid in respect of 456 logs. Rs. 4,14,130. 72p. 3. Proportionate custom duty paid in respect of 456 logs rs. 5,00,264.73p. 4. Proportionate Insurance payment made in respect of 456 logs. Rs. 10,91,390. 43p rs. 1,30,19,688.44p. The plaintiffs have also claimed from the defendants interest on the aforesaid sum at the rate of 24 per cent per annum until realization of the entire sum from the defendants. The plaintiffs have prayed for the arrest of the vessel along with her tackle, apparel and furniture.