J HARKISHANDAS AND CO Vs. LLOYD TRIESTINO

JUDGEMENT

(1.) The facts that are relevant and material for deciding this suit are as under:-

(2.) On about 26-6-1998 the Plaintiffs forwarded a copy of a letter dated 26-6-1998 from the Plaintiffs which was addressed to M/s.Patvolk interalia informing them that the 2nd Defendants had acquired title to the said consignment. They further stated that since the Bill of Lading was issued by M/s.Patvolk, they held them fully responsible for all costs, consequences for non performance of the contract.

(3.) It appears that the Port of Kandla was hit by cyclone on 9-6-1998. With the result the vessel m.v. Orient Patriot on which the consignment was to be loaded was diverted to Jawharlal Nehru Port Trust. It appears that as a result of the cyclone, the Port authorities of Kandla Port suspended port operation. On 20-6-1998, therefore, the agent of the defendant No.1 addressed a communication to the Plaintiff pointing out therein that the port operations have been suspended due to cyclone. A request was made to the Plaintiffs to surrender the Bill of lading and advice of the Plaintiffs was sought whether the Plaintiffs want to take the cargo back to town. It appears that on 22-6-1998 the Kandla Port Trust Authorities issued two public notices. By first notice all concerned were informed that the port will be partially recommissioned from 24-6-1998, By second notice all concerned were informed that the goods that are lying in Port should be cleared within 7 days, otherwise the goods will be disposed of by the port authorities. By communication dated 23-6-1998 the agent of the first Defendant informed the agent of the Plaintiffs about this development and asked them to surrender the Bill of Lading. The Plaintiffs by letter dated 26-6-1998 informed the first Defendant that the second Defendant has acquired title to the said consignment and that since the Bill of Lading was issued by the agent of the first Defendant, the Plaintiffs hold the first defendant fully responsible for all costs and consequences for nonperformance of the contract. The Plaintiff states that second Defendant sent all the documents for payment to the banker of the buyer M/s.Arasco with M/s.ING Bank, Amsterdam Branch. The second Defendant was informed by that bank that payment would not be made by the buyer in relation to that consignment. The Plaintiffs state that second defendant also came to know that the consignment was still in India. It appears that there was correspondence between the parties by which the agent of the first Defendant was asking the Plaintiffs to surrender the bill of lading so that the containers can be destuffed. But the Plaintiffs informed the agent of the first defendant that the title to the consignment has been transferred to second Defendant and therefore they cannot surrender the Bill of Lading. The case of the Plaintiffs was that as the agent of the first Defendant had issued to them a Bill of Lading with the stamp "shipped on Board", the first Defendant was liable for anything that happens to the consignment. According to the Plaintiffs, the stand taken by the first Defendant that the Bill of Lading was stamped only as "Received for shipment" is fradulent.