MAHAJAN SILK MILLS PRIVATE LIMITED Vs. M V MSC ELENA A MOTOR SHIP FLYING THE FLAG OF PANAMA AND REGISTERED AT THE PORT OF PANAMA

JUDGEMENT

(1.) THE defendants who have been served have not yet filed their written statement. However, by the present Notice of Motion they have prayed that the suit be dismissed as barred under the provisions of Article III Rule 6 of the Indian Carriage of Goods by Sea Act, 1925. They have further prayed that consequent to dismissal, the Prothonotary and Senior Master be directed to return the original Bank Guarantee dated 3rd May, 1999.

(2.) BEFORE considering the Notice of Motion, a few relevant facts may be adverted to. The Bill of Lading was issued at Mumbai on 23rd June, 1997. The ship arrived at the Port of Felixstowe on or about 19th July, 1997. The goods were delivered to the Consignees on 6th August, 1997. There are further averments that only a part of the goods were delivered by the Agents of the defendants through the Consignees and the balance of the consignment remained secured in a warehouse. The present suit is filed on 30th March, 1999. The suit is based on the ground that the original sole defendant and/or her agent wrongfully and fraudulently delivered the consignment without production of the original documents. Fraud was intentionally suppressed from the plaintiffs and was made known to the plaintiffs only on 19th June, 1998 when the plaintiffs came to know that the consignment had been released without production or surrender of Bills of Lading. It is further pleaded that without prejudice to the said contention, the defendants vessel has been out of jurisdiction entitling the plaintiffs to exclude the said period. It is therefore, pleaded that the suit is in time. Without prejudice, it is contended and by way of abundant caution, the plaintiffs seek leave under Article III, Rule 6 of the Indian Carriage of Goods by Sea Act, 1925, although it is the case of the plaintiffs that the defendants are not entitled to invoke and avail of the said benefit. The defendants have relied on various documents. One such document is dated 18th June, 1998. By the said letter sent to the plaintiffs, the plaintiffs were informed that the Consignees had made some payments in respect of a part of the consignment and had taken delivery and the balance remained in secure warehouse. Similar is a letter of 27th June, 1998. The plaintiffs were informed that the goods were still under their control. The plaintiffs were asked to discuss the matter with the Consignees and agree to the payment of balance amount and/or advise to reship the goods to JNP or to any new buyer, if rejected by the Consignees.

(3.) AT the hearing of the Notice of Motion on behalf of the defendants, it is contended that considering the date of the Bill of Lading and the date when the ship arrived at the Port of Felixstowe, the suit as filed on 3rd March, 1999 has to be dismissed pursuant to Clause 6 of Article III of the Indian Carriage of Goods by Sea Act, 1925. Secondly, it is contended that even under the terms of the contract the suit ought to have been filed within one year after the delivery of the goods or the date when the goods should have been delivered. It is submitted that the suit having been instituted more than one year after delivery of the goods or the date when the goods should have been delivered, the defendants are discharged from all liabilities in respect of any loss or damages occasioned to the plaintiffs. On the other hand on behalf of the defendants it is contented that Clause 6 of Article III would not be attracted. It is contented that the said clause only applies during the period when goods are shipped and when they are discharged. Any claim after discharge is not covered by the said clause. In the instant case, it is pointed out that the cause of action is based on the ground that the defendants and/or their Agents have wrongfully released the goods to the Consignee without there being proper documents. In these circumstances, it is pointed out that it is the ordinary law of limitation that would apply and consequently the suit as filed is not barred.