ARBEE AND COMPANY MADRAS Vs. GOVIND DALL MILLS

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and decree in O.S. No. 1482 of 1981 passed by the IX Assistant Judge, City Civil Court, Madras. The first defendant is the appellant herein. The plaint averments can be summarised as follows : Two thousand bags of Jumbo Black Matpe (Oorid) packed in new jute bags with 50 kgs. per bag and of the aggregate value of 1, 00, 000 kgs. net was booked by Thai Agro Export Company, Bangkok to Madras Port and was shipped via., European Liberty, a ship of which the first defendant are the shipping agents. M.V. European Liberty was classified as a Class I vessel. The plaintiff purchased the goods paying a price of 31500 U.S. Dollars and it was insured for Rs. 2, 52, 000. The consignment reached Madras on or about 23rd of February, 1980. The plaintiff took delivery of the consignment from the Madras Port between 14.3.1980 and 19.3.1980. At the time of taking delivery, it was found that out of the 2000 bags shipped, 203 bags were short landed and 'B' certificate was issued by the Madras Port Trust. Further on the survey of the remaining 1797 bags, G. R. Newman, Insurance Surveyor on 28.3.1980, found that there was a shortage of 7982 Kgs. of Oorid in the said 1797 bags. The bags are surveyed at Central Berth, Madras Port Trust and found to weight only 81993 kgs. as against the actual weight of 89979 kgs. The steamer Agents representative was not available at the time of survey but surveyed the bags and went away as per the Independent Surveyor's Report. The plaintiff preferred a claim to the first defendant claiming the value of 203 bags short landed and the value of 7982 kgs. being the shortage assessed by the Independent Surveyor with regard to the 1797 bags.

(2.) THE shortage in weight and the short landing of 203 bags had occurred while the consignment was in the custody of the ship and the first defendant, as the shipping agents, is liable to pay the plaintiff the value of it. THE first defendant has negatived the claim of the plaintiff on the ground of delay in holding the survey. THE consignment reached the Madras Port in a defective condition and the first defendant is liable for that. THE second defendant, as insurer, is also liable to pay the plaintiff the value of it. THE plaintiff has claimed in all a sum of Rs. 46, 272.64 representing the value of 203 bags short landed and 7982 kgs. being the shortage in weight and the survey fees with the defendants. THE defendants received the notice, but have not complied with the demand. Hence the plaintiff has filed the suit for recovery of a sum of Rs. 46, 272.64 representing the amount due towards shortage and short landing and the survey from the defendants with interest and costs.THE first defendant in its written statement contended that the suit has not been filed within the statutory period of one year and the suit is barred under Article III, Rule 6 of the Carriage of Goods by Sea Act. THEre is no privity of contract between the plaintiff and the first defendant. THE first defendant is only the agent of a disclosed principal namely Goldstar Line Limited and hence under Section 230 of the Indian Contract Act, the first defendant is not personally liable and no decree can be passed against it. THE first defendant has further stated that a consignment allegedly consisting of 2000 bags of Jumbo Black Matpe (URAD) was entrusted to the principals of the first defendant at the Port of Bangkok for the carriage by Sea to the Port of Madras through the vessel M.V. European Liberty, owned by the principal of the first defendant. THE vessel carried the cargo with due care and diligence and arrived at the Port of Madras.

(3.) IN such a case, the Legislature could not be said to have exonerated a principal who has himself entered into the contract by foisting his contractual liability on to the agent without his knowledge and consent by means of statutory presumption that a contract existed by and between the agent and the third party simply because the principal contracting party could not be sued." The second decision relied on is The Union of INdia represented by the Regional Director (Food), Southern Region, Madras vs. Cheyenna Companies Naviera S.A. represented by its Agent, M/s. Pengotis A. Lemas and Associates Ltd. and another, in which, a learned Judge of this Court held that the carrier would be liable to make good the shortage and agent of the carrier at Madras cannot be made liable.The next decision is E.I.D. Parry (INdia) Ltd. having its registered office at Dare House, Madras-I vs. Far Eastern Marine Transport Company Ltd., represented by its Local Agents, Chowgule Bros. and two others (1988 1 LW 320), in which, S. A. Kader, J. held as follows : "16. Issue No. 4 - The second defendant-partnership firm is the local agent of the first defendant carrier. Neither in the plaint nor in the argument advanced by the learned counsel for the plaintiff has it been explained as to how the second defendant is liable for the suit claim. This contract of carriage by Sea has been entered into with the first defendant directly and in such a case, no liability can be attached to the agent. Section 230 of the INdian Contract Act comes into play only where the contract is entered into by the agent on behalf of the principal.