HENRY R GARG Vs. ARAB SHIPPING CO

JUDGEMENT

(1.) BY consent of the parties, Notice of Motion is heard finally. Defendant no.3 - M/s.Galaxy Multimodel Systems Pvt. Ltd. has taken out this Motion for rejecting the plaint against third defendant under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (for short "C.P.C.") as the same does not disclose any cause of action qua third defendant as also for rejecting the plaint under Order VII Rule 11(d) of C.P.C. as the suit is not maintainable in view of Section 230 of the Indian Contract Act, 1872 (fort Short "The Act").

(2.) THE plaintiffs have instituted suit No.1729 of 2002 against the defendants for recovery of Rs.2,92,448/- with interest thereon @ 18% per annum from the date of filing of the suit till realisation. The case of the plaintiffs is that plaintiff no.1 had imported 3,500 bags (174.892 M.T.) of Green Mung Beans (Pedeshwewar) 2001 (for short "the suit consignment") from Yangon, Myanmar to Mumbai. The suit consignment was entrusted to defendant no.1 M/s.Arab Shipping Co. (LLC) at port of Yangon, Myanmar in good order and condition as also in properly and securely packed condition for carriage by sea from the Port of Yangon, Myanmar to Mumbai. On receiving the suit consignment, the defendant issued Bill of Lading No.11/MUM dated 20th March, 2001 acknowledging receipt of the suit consignment in good order and condition and in securely and packed condition and undertook to safely and properly carry and deliver the suit consignment to the plaintiffs in the like good order and condition at the Port of Mumbai.

(3.) IN support of this Notice of Motion, Capt. Piyush Pal Singh, Managing Director of the third defendant has made affidavit. In paragraph 4 of the affidavit, it is asserted that the averments in paragraph 1 of the plaint are to the effect that the third defendant is agent of the first defendant (wrongly typed as fourth defendant). Nowhere in the plaint, the plaintiffs averred as to how the third defendant is involved in the transaction referred to in the plant apart from being agent of the first defendant. No averment exists in the plaint explaining how defendant no.3 is either concerned or responsible for the alleged shortage of the suit consignment and consequent loss which forms basis of plaintiffs' claim in the suit. The said consignment was never, at any stage, either entrusted to defendant no.3 or transported by the third defendant and thus, there is no question of third respondent being responsible in alleged loss. Defendant no.3 was never entrusted any consignment or shipment or otherwise and consequently, cannot be held liable. In paragraphs 3, 4 and 12 of the plaint, the plaintiffs have averred that plaintiff no.1 entrusted the consignment to the first defendant. The only reference to the third defendant is that the third defendant is agent of first defendant and thus, even on a demurrer, the plaint, as framed, fails to disclose a cause of action against the third defendant. It is in these circumstances, it is prayed that the plaint is liable to be rejected qua third defendant having regard to the provisions Order VII Rule 11(a) of the C.P.C. for non disclosure of cause of action.