SPACE 2000 SPA Vs. GOETZE INDIA LTD

JUDGEMENT

(1.) IN the year 1995 defendant had supplied three consignments of readymade leather garments to the plaintiff against full payment and details of the aforesaid consignment finds mention in the plaint. Plaintiff is an Italian company who had received the aforesaid consignment against INvoices of 5th July, 1995, (Ex. P-2), 30th June, 1995, (Ex. P-3) 23rd August, 1995, (Ex. P-4) and the said three consignments received from the defendant were inspected in the warehouse of the plaintiff, where it was discovered that the aforesaid consignments were defective and this was conveyed by the plaintiff to the defendant vide Communication of 21st September, 1995, (Ex.P-5). Since the plaintiff claims to have received no response from the defendant to the aforesaid Communication and the subsequent reminders, therefore the plaintiff had approached the Italian Court/Tribunal of Genova for appointment of a Surveyor to make a detailed INspection/verification of the aforesaid consignment of garments and to assess the defects therein. Vide Order of 7th December, 1995, (Ex.P-6) of Italian Tribunal, Dr. G. Bulfari was appointed as a Surveyor, who had conducted a detailed investigation and had concluded that the consignments in question was not negotiable as it had inherent manufacturing defects, details of which find mention in the Survey Report of 4th May, 1996, (Ex.P-7). On the basis of the aforesaid Survey Report, plaintiff herein had filed a petition for conservative arrest ante causam before the Tribunal of Florence and ultimately the aforesaid Tribunal vide Order of 20th July, 1998, (Ex.P-6) had declined to entertain the abovesaid petition on account of lack of territorial jurisdiction. Plaintiff claims to have suffered loss to the tune of US Dollors 1,45,027 equivalent to Rs. 60,91,134/- and this suit to recover the aforesaid amount is said to be within limitation, after excluding the period spent by plaintiff in prosecuting the proceedings before the Italian Court/Tribunal.

(2.) DEFENDANT has contested the aforesaid claim of the plaintiff by filing a written statement, wherein number of preliminary objections have been taken including that of the plaint being barred by time and on merits, it is stated that before the despatch of the consignment in question, representative of the plaintiff had carried out inspection and had certified this consignment to be fit for despatch and it is denied that the consignment supplied was substandard or defective. In the replication filed, plaintiff reiterates the averments made in the plaint.

(3.) WHEN this matter came up for final hearing, plaintiff's counsel as well as learned senior counsel for the defendant had ably assisted this Court to scan through the evidence on record and had made their respective submissions which have been considered and thereafter the findings returned on the aforesaid issues are as under:- ISSUE NO.(i)