LMS GANI MOHAMED Vs. SINGAPORE AIRLINES LTD

JUDGEMENT

(1.) The question in this revision is whether the amendment regarding case of fraud can be introduced and should be allowed. The petitioner is the plaintiff who had filed the suit against the respondents for recovery of a sum of Rs.2,68,536 together with interest. The 1st respondent herein is the Carrier and the 2nd respondent is the Consignee. On 31.7.1987, the consignment of 8 packages was entrusted to the 1st respondent for delivery to the 2nd respondent. Airway bill dated 31.7.1987 was issued by the 1st respondent. Since there was no information about the delivery of the goods, the petitioner made enquiries and they were informed by the 1st respondent that the consignment had been delivered. The petitioners believed this. Subsequently, when they wrote another letter regarding the date of delivery, they were informed by the 1st respondent that the goods were still in the warehouse at Taipei. The petitioners requested the 1st respondent to rebook the consignment at their cost, but the 1st respondent did not do so. The suit was therefore filed for damages arising out of the negligence of the 1st respondent as carrier of the goods.

(2.) The suit was filed on 28.6.1990 before this Court. Subsequently, on account of the pecuniary jurisdiction, it was transferred to the City Civil Court at Chennai.

(3.) The 1st respondent had filed their written statement even in 1991 stating first that the suit was barred by limitation since as per Rule 29 of Schedule I of the Carriage of Goods by Air Act, the right to damages will stand extinguished if an action is not brought against the carrier within two years reckoned from the date of arrival at the destination or from the date from which the aircraft ought to have arrived at the destination or from the date from which the carriage commenced. In this case, the goods were entrusted on 31.7.1987. The consignment reached on 9.8.1987. The relevant documents were handed over to the 2nd respondent on 10.8.1987 and therefore, the suit filed on 28.6.1990 was barred by limitation. The 1st respondent also resisted the suit claim on the ground that the moment, the carrier namely the 1st respondent handed over the documents to the consignee, the 2nd respondent herein, the rights of the consignor namely the petitioner against the 1st respondent stood extinguished and then, the 1st respondent in its reply telex had no doubt stated "shipment delivered" instead of "shipment documents delivered". However the truth of the matter was that the shipment documents were delivered to the Consignee who did not clear the cargo. The correct information was given on 9.7.1988 in which it was stated that the consignment reached on 9.8.1987 and the notified party picked up the documents on 10.8.1987 and that since the notified party did not come back with the Bank endorsement, the shipment was still at Taipei. Therefore, the correct position was informed on 9.7.1988 itself and in any event, the 1st respondent having handed over the shipment documents to the consignee, cannot rebook the cargo back to India. Whatever grievance the petitioner had, he ought to have contacted the consignee for that. According to the 1st respondent, they had fulfilled their obligation as carrier, they had not failed in the discharge of their duties, they had not only reached the consignment in time, but had also handed over the shipment documents to the person named therein, i.e. the 2nd respondent. In 2001, a petition was filed by the petitioner stating that by oversight, some particulars had not been given for the inference of fraud and therefore, they sought the permission of the Court to amend the plaint by introducing one paragraph. The crux of the materials, sought to be introduced by way of amendment, is that though on 14.1.1988, the 1st respondent said that they had delivered the goods on 9.7.1988, they had reversed their stand. To the request that the consignment should be rebooked, the 1st respondent gave excuses. So, according to the petitioner, the 1st respondent had played a fraud by concealing the facts of non-delivery and according to the petitioner, this fraud came to light only by the letter dated 10.11.1989 and since fraud had been committed, this must be incorporated in the plaint. According to the petitioner, no new relief was sought for and no new case was set out and therefore, the amendment should be allowed. The Court below rejected the application arid hence the C.R.P. has been filed.