THE UNION OF INDIA (UOI) REPRESENTED BY THE REGIONAL DIRECTOR (FOOD) SOUTHERN REGION Vs. RALLI BROTHERS LTD., REPRESENTED BY AGENTS, BEST AND COMPANY (P.) LTD. AND ORS.

JUDGEMENT

(1.) THIS is an appeal from the judgment and decree, of this Court under its Original Jurisdiction dismissing the suit, C.S. No. 97 of 1956. The Union of India instituted the suit, originally against four defendants, claiming a sum of Rs. 66,491 -11 -5 on account of loss and damage in respect of a consignment of British refined Granulated Sugar consisting of 90,799 bags, each bag weighing two cwt., the total weight being T. 9,097 -18 -0 -0 loaded at the Port of London and deliverable at the Port of Madras, J.V. Drake and Company the third defendant were the shippers and the Maritime Shipping and Trading Company Limited the owners of the ship, the S. S. ' Indore ' which carried the cargo. The first defendant in the suit chartered the ship on the 4th April, 1955 (Exhibit D -1) is the charter party) specifically for a full complete cargo of refined sugar in bags not exceeding 9,450 long tons net nor less than 9,000 long tons net for carriage to Madras. On the very day the third defendant in the suit, the shippers, sub -chartered the ship for the carriage of the sugar. The goods were taken aboard at London on 22nd September, 1955, Exhibit D -3 being the relative bill of lading. The ship arrived at Madras on 19th October, 1955 and it commenced to discharge the cargo on 27th October, 1955 and the discharge of the cargo was completed, it is stated, on 8th November, 1955. According to the plaintiff, there was shortlanding of 414 bags of sugar weighing T. 41 -8 -0 -0 as per bill of lading. The plaintiff also complained that 6,807 bags were discharged in a bad, slack, cut and torn condition and 747 bags of sugar were sweat -stained and damaged making the sugar unfit for use. The shortage in the Weight in respect of the slack, cut and torn and sweat -stained bags was estimated at T. 86 -13 -3 -4. There was a survey with reference to the 7,554 bags in slack, cut and torn condition or sweat -stained and as against this it was stated, there were available 420 bags of ship -sweepings and 521 bags of shed -sweepings giving a Weight of T. 76 -12 -2 -25. In the plaint as framed the claim is laid against the first defendant as "disponent owners " and carriers of the steamer. The second defendant -company was impleaded as the agents of the first defendant. The third defendant -company was impleaded as charterers and the fourth defendant as the agents of the third defendant. The first defendant, who are a company incorporated in England, in their written statement denied that they were ' disponent owners' of carriers of the steamer and referred to the Maritime Shipping and Trading Company Limited, London, as the owners of the vessel, S. S. ' Indore ' from whom the first defendant chartered the ship under charter party dated 4th April, 1955. It was pleaded that the charter referred to was only a voyage charter and not a charter by demise and that the charterers had no control or possession of the vessel and the Master and the crew of the vessel were the servants and agents of the owners of the vessel. The first defendant referred to the sub -charter entered into with the shippers the third defendant on identical terms and pointed put that the bill of lading was signed by the Master of the vessel as the agent of the owners thereof. While, thus denying all liability for the loss and damage, on the merits also there was traverse of the allegation that the consignment of tens 9,079 -12 -0 -0 was received on board at London in good order and condition. There was a denial of the charge of negligence and lack of due care and diligence in loading, handling, stowing, carrying, keeping of caring for the consignment and, as regards the short -landing, it was pointed out that the entire quantity had been landed at the Port of Madras. It was stated that in fact, there was an additional 11 bags landed and if there was any short delivery the matter was one for settlement between the plaintiff and the Madras Port Trust. The second defendant, the agents of the first defendant while adopting the Written statement of the first defendant, in variance with the written statement of the first defendant referred to the first defendant as the disponent of the vessel. It was pleaded that since the disponent owners of the vessel were parties to the suit, the second defendant cannot be held liable for the amount claimed by the plaintiff. As may be expected, defendants 3 and 4, the sub -charters and their agents pleaded that the plaint disclosed no cause of action against them. The written statement of the first defendant is dated 19th July, 1957. Long after on 24th September, 1958, Application No. 2065 of 1958 was taken by the plaintiff for impleading the fifth defendant, the Maritime Shipping and Trading Company Limited, the actual owners of the ship, as party fifth defendant in the suit. In the affidavit in support of the application, it was reiterated that the first defendant in the suit are the 'disponent owners' and carriers of the steamer S.S. 'Indore', the second defendant being the agent of the first defendant, the third defendant being the charterers and the fourth defendant, the agents of the charterers. The affidavit sets out negotiations between the parties for settlement of the claim and of the stay of the trial of suit pending the negotiations as the cause for delay in taking out the application. To this application, without prejudice to the contentions that may be raised in the suit, the parties had no objection and as per order dated 6th August, 1955, the fifth defendant, as alleged owners of the steamer S.S. ' Indore ' was made party defendants. In the amended plaint, it was stated that the fifth defendant was made a party to the suit, as it was contended by the first defendant that it was the fifth defendant as the owners of the vessel that were liable for the suit claim.

(2.) THE owners of the vessel in their written statement, dated 9th June, 1960, while admitting their ownership of the vessel, denied that the first defendant were 'disponent owners ' of the vessel. They specifically referred to the tally -sheet receipt under Section 39(3) of the Madras Port Trust Act and pleaded that the entire manifest quantity of sugar bags had been landed by the ship and taken delivery of by the Port Trust and if there had been any short delivery to the plaintiff by the Port Trust of Madras, the plaintiff must look to the Port Trust, Madras.

(3.) ON the pleadings, apart from quantum of damages, the main question for consideration was on whom was the liability for the damages. With whom was the contract was the prime matter for discussion and the liability of the Port Trust, if any, had also to be ascertained. There were as many as 21 issues in the suit and the learned Judge as against the fifth defendant, held that the institution of the plaint without obtaining leave under the Letters Patent could not be accepted as proper institution. It was, therefore, held that the Court had no jurisdiction as against the fifth defendant. On the plea of limitation raised by the fifth defendant, it was held that the claim as against the fifth defendant was barred by limitation, the claim itself getting extinguished under Rule 6 of Article III of the Carriage of Goods by the Sea Act. The exoneration of the fifth defendant on these legal bars have not been the subject of any argument before us, and rightly, the position being clear. The attempt before us has been to sustain the claim against the first defendant as the carrier or the ' disponent owners ' of the vessel. We shall be adverting to this aspect presently. On the merits while holding that 414 bags had not been delivered to the plaintiff by the Port Trust, the learned Judge was of the view that this was not a case of short landing as tally -sheets issued by the Port Trust showed the entire quantity of cargo as discharged. The Assistant Traffic Manager of the Port Trust admitted that the entire quantity was landed and that the tally -sheets were correct. The learned Judge proceeded in the view that the Port Trust by operation of law was made to accept the goods as bailee of the consignee, when it took charge of the goods from the ship and that the delivery of the goods to the Port Trust must be held to be delivery to the consignee. In taking this view, the learned Judge purported to follow certain earlier decision of this Court. Now this view of the jural position of the Port Trust cannot be maintained after the decision of the Supreme Court in The Trustees of the Port of Madras by its Chairman V.K.P.V. Shaik Mohamed Rawther and Co. : (1963) 2 S.C.R.915. The legal relationship between the ship -owner, the shipper or the consignor and the consignee is thus enunciated in the said decision: