SOUTHERN INDIA BEARING DISTRIBUTORS ASSOCIATION Vs. NAVLOMOUR

JUDGEMENT

(1.) O. S. A. Nos. 86 of 1982 and 88 of 1982 arise out of the judgment and decree dated December 20, 1979, in C. S. No. 101 of 1976, on the file of this court. The plaintiffs in the said suit, namely, the Southern India Bearing Distributors Association and Canara Bank are the appellants in O. S. A. No. 86 of 1982 and the third defendant-insurance company is the appellant in O. S. A. No. 88 of 1982. The suit is for a decree for a sum of Rs. 5, 89, 072 with interest thereon. The first defendant is Navlomour, charterers of vessel S. S. Sumadija, Bucharest, Romania, represented by their agents in India, the South India Corporation Agencies Private Limited, Madras-600 001. The trial court gave a decree against D-3 alone for the abovesaid full sum claimed and a decree for Rs. 11, 181.56 against D-1. The trial court negatived the suit claim against D-2, namely, the trustees of the port of Bombay. Therefore, O. S. A. No. 86 of 1982, has been filed by the abovesaid plaintiffs praying for decree against all the defendants as prayed for in the plaint. Aggrieved by the decree for the total sum, D-3 has filed O.S.A. No. 88 of 1982. C. S. No. 101 of 1976, was tried along with another connected suit, C. S. No. 545 of 1978, where the plaintiff is different but the defendants are the same as in C. S. No. 101 of 1976. The plaintiff in C. S. No. 545 of 1978, is one Lala Gopikrishna Gokuldoss. Both the plaintiffs in C. S. No. 546 of 1978, and the first plaintiff in C. S. No. 101 of 1976, have imported ball bearings from Romania and the said goods were shipped from Bucharest, Romania to Madras through the abovesaid vessel S. S. Sumadija, owned by the abovesaid Navlomour, the first defendant in C. S. No. 101 of 1976, who is the second defendant in C. S. No. 546 of 1978 (hereinafter referred to as "the carrier"). The second plaintiff-bank in C.S. No. 101 of 1976, only financed the import of the goods and the plaint in the said suit says that the suit is filed by the second plaintiff also "to avoid any technical defence".Admittedly, though the goods were to be delivered at Madras, the carrier delivered the goods only at Bombay port on March 16, 1975, to the Bombay Port Trust who is the second defendant in C.S. No. 101 of 1976, and the first defendant in C. S. No. 546 of 1978 (hereinafter referred to as "the port trust"). The plaintiff in C.S. No. 546 of 1978, has imported 201 cases of ball bearings and the first plaintiff in C. S. No. 101 of 1976, has imported 461 cases of ball bearings from Romania. In C. S. No. 546 of 1978, out of the abovesaid 201 cases, the complaint in the said suit is that nine cases were not delivered to the plaintiff therein. In C. S. Nos. 101 of 1978, and 546 of 1978, admittedly the said goods while they were stored at the port trust godown caught fire on September 24, 19 75. In C. S. No. 101 of 1976, the abovesaid sum of Rs. 5, 89, 072 with interest is claimed as damages and in C. S. No, 546 of 1976, a sum of Rs. 17, 590. 60 with interest, is claimed as damages. In C. S. No. 546 of 1976, a decree has been given for the abovesaid sum of Rs. 17, 590. 60 only against the third defendant and in so far as the carrier is concerned, only a decree for Rs. 1, 178. 15 was given. In this suit also, the port trust has been exonerated and no decree was given against it. The above said decree for Rs. 1, 178. 15 against the carrier was for short-landing of two cases out of the abovesaid nine cases and, so far as damages due to fire was concerned, only D-3 insurance company was made liable for the abovesaid sum of Rs. 17, 590. 60. Likewise, in C. S. No. 101 of 1976, also, the abovesaid decree for Rs. 11, 181.56 was for short-landing of 20 cases out of the abovesaid 461 cases and as for the damages due to fire, only D-3 was made liable.

(2.) O. S. A. No. 87 of 1982, is also by D-3 against the judgment and decree in C.S. No. 546 of 1978. The carrier has also filed cross-objections in O. S. A. No. 86 of 1982, and O. S. A. No. 87 of 1982. The said cross-objections are against the respective decrees given against the carrier for the above referred to Rs. 11, 181.56 and Rs. 1, 178. 15, respectively, for short-landing of goods in each of the two cases.Since one of the issues, namely, issue No. 5 in C.S. No. 101 of 1976, and issue No. 2 in C.S. No. 546 of 1978, is, whether this court has jurisdiction to try these suits or whether the court in Romania alone can try the suit as pleaded by the common carrier, we take up the said issue first. On this issue, the learned trial judge has held that this court has jurisdiction to try the suits. Learned counsel for the carrier argued that the learned judge was in error in holding so. As per the terms of the relevant bill of lading

(3.) IN the present case also, the carrier has a local agent, namely, the South INdia Corporation Agency P. Ltd., Madras, to represent it in the abovesaid suits. This is indeed a strong reason to hold that the balance of convenience and the ends of justice sustain the jurisdiction of this court to entertain and dispose of those suits. Therefore, we confirm the findings of the learned trial judge on the abovesaid jurisdiction question. Further, these suits were filed more than fifteen years ago and if adverse findings were to be given against the plaintiff after fifteen years on the question of jurisdiction, it will cause great hardship to the plaintiff. The plaintiff cannot be now asked to go all the way to Romania to take legal action against the carrier. Then, learned counsel for the carrier also argues that the carrier cannot be made liable at all in view of section 42 of the Major Port Trusts Act, 1963, particularly sub-section (7) therein. The relevant provisions of section 42(2) and 42(7) run as follows :