WHEELS INDIA LIMITED Vs. KHEMCHAND RAJKUMAR AND ANR.

JUDGEMENT

(1.) SUIT for recovery of a sum of Rs. 2,07,168.95 against the defendants jointly or severally together with interest at 6 per cent. per annum from the date of plaint till date of recovery.

(2.) THE material facts which have led to the institution of the suit may be briefly summarised. The plaintiff, Wheels India Limited is a Company Incorporated under the Indian Companies Act. The first defendant Messrs. K. Rajkumar is a firm carrying on business at Madras with Headquarters at Bombay. The second defendant M/s. National Steel Corporation is a firm carrying on business in Pittsburgh, Pennyslvania, United States of America. After some negotiations with the first defendant firm, which is the Indian representative of the second defendant firm of the United States the plaintiffs forwarded to the second defendant through the first defendant a purchase order Exhibit P -5 for supply of 2447 tons of steel plates the goods to be shipped by sea (60 per cent. by U.S. Vessels and 40 per cent. by Indian Vessels) to Madras at the rate of $162.80 C. and F. Madras per long ton, earliest delivery preferred by first week of March, 1964. The order was placed against the plaintiff's import licence which was valid upto 30th April, 1964 and payment was to be by irrevocable letter of credit. An irrevocable letter of credit was accordingly issued on 29th January, 1964, by an American Bank at the instance of the United Bank of India, the plaintiff's bankers, but subsequently the plaintiffs agreed to a rise in the rate of $6.72 per long ton and the letter of credit was accordingly modified. The goods were shipped at the Port of Baltimore by a steamer S. S. Anji on 4th April, 1964 and the second defendant firm was paid the price on tendering the bill of lading No. 1i dated 4th April, 1964, to the American bank. The ship did not arrive at the Madras Harbour in six weeks as anticipated but was tied up at the Port of Saigon, South Vietnam, as the carrier had gone bankrupt and the goods were off loaded at the harbour. As the steel plates were required for immediate manufacture in March, 1964, the plaintiffs became worried about the delay and expressed their anxiety to the first defendant on 22nd June, 1964; whereupon the first defendant wrote a letter Exhibit D -10 to the second defendant conveying the plaintiff's anxiety and calling for information about the date of arrival of the ship and on 24th June, 1964, the plaintiffs wrote a letter Exhibit P -12 to the first defendant requesting the latter to take up the matter immediately with the second defendant and inform them about the then position of the steamer. On 28th June, 1964 the plaintiffs received a cable from the United States Embassy in New Delhi informing them that the ship had become bankrupt and that the goods were consequently off loaded at Saigon and asking them to make arrangements for transhipment of the goods from Saigon to Madras. On 30th June, 1964, the plaintiffs sent a cable to the second defendant with copy to the first defendant requesting the second defendant to make arrangements for transhipment of the goods, and followed it up with a letter of even date (Exhibit P -15) to the first defendant requesting the latter to intercede immediately with their principals at United States and arrange to get the materials as early as possible. On 1st July, 1964, the second defendant sent a cable Exhibit D -11 regretting their inability to make any arrangement for the transhipment of the goods from Saigon. On 1st July, 1964, the first defendant wrote a letter Exhibit D -12 to the second defendant requesting them to contact the forwarders and to have the goods transhipped by some other vessel. On 2nd July, 1964, the second defendant wrote a letter Exhibit D -13 to the plaintiff's regretting their inability to make arrangements for the transhipment and had indirectly hinted that the liability was not theirs because the title to the cargo had passed to the plaintiffs and that the plaintiffs were holding the original bill of lading. The first defendant continued to insist upon the second defendant making arrangements for transhipment but the second defendant had, by a lengthy letter Exhibit D -17, dated 7th July, 1964, repudiated their obligation to make any arrangements or for meeting the costs of transhipment by referring to the Export and Import Practice as published by the U. S. Department of Commerce and the book Incoterms 1953, a book published by the International Chamber of Commerce and suggested that the problems could be solved only by the plaintiffs sending an agent to Saigon for the purpose.

(3.) ULTIMATELY , with the help of Denis Frores, Lloyds Agents at Saigon, the goods were transhipped from Saigon to Madras in two ships S. S. "Java Mail " and S. S. "American Mail" and paid freight charges of Rs. 1,37,087 -69 to South Indian Export Co., Ltd., and a sum of Rs. 70,091 -26 representing expenses and fees relating to unloading the goods and reloading them in the two ships as claimed by M/s. Denis Frores, Lloyds Agents at Saigon. As the defendants have repudiated their liability to pay the charges incurred by the plaintiff's for the transhipment of the goods from Saigon to Madras, in spite of registered notice, the plaintiffs have come forward with the present suit to recover the aforesaid sum from both the defendants.