DODSAL PRIVATE LIMITED Vs. NARMADA SEAWAYS LIMITED

JUDGEMENT

(1.) This is a Notice of Motion taken out by the 5th defendants for dismissal of the suit as against them for absolute want of cause of action against them and in the alternative for stay of the suit under section 34 of the Arbitration Act.

(2.) The material facts in nutshell are these. The two plaintiffs and each of the defendants Nos. 1 to 5 are Companies registered under the Indian Companies Act. The 6th defendants are the Oil & Natural Gas Commission. In or about May 1983 the 6th defendants had invited tenders for laying of land line pipes from Umrat to Hazira in the State of Gujarat. The said tender was ultimately awarded by them to the 1st plaintiffs. The 2nd plaintiff are Insurers of the 1st plaintiffs. We are here concerned with the 1st plaintiffs alone. I shall refer to them as plaintiffs. The terms and conditions of the work are recorded in an Agreement dated 21st August, 1984. It appears that the work, inter alia, involved the transportation of coal tar enamel and reinforced Concrete Coated Pipes from Mangalore to Magdala in Gujarat. The plaintiffs under their Agreement undertook this job also. It appears that while the proceedings relating to the finalisation of the tender were still not concluded, the plaintiffs entered into a contract with the 1st defendants on 29th May, 1984 for transportation of the said pipes from Mangalore to the designated Steel Yard at Magdala. The 2nd defendants are a sister concern of the 1st defendants. The 1st defendants entered into a contract with their sister concern and entrusted them a part of the work. The 2nd defendants in their turn entered into two separate and independent Charter-party Agreements with the 3rd and 5th defendants for carriage of the pipes by Sea from Mangalore Port to Magdala Port. Here it may be noted that at Mangalore, initially the pipes were to be transported to the Port from the Yard by road and next by barges to the mother ship. After the goods were loaded on to the ship, the defendants 3 and 5 were to carry the goods to Magdala. At Magdala, again the same process of transporting the pipes from the shop to the jetty by barges and eventually from the jetty to the work site by road was to follow in the reverse order. It is not disputed and this ought to be noted-that the job of defendants 3 and 5 under their separate contract was restricted to carriage of the pipes by ship only, that is from the port of goods being loaded into the ship at Mangalore upto the point of discharge from the ship to the barges at Magdala. For the purposes of this motion, we are concerned only with the case of the 5th defendant who were responsible for carriage of 738 pipe which they did in their Ship "m. v. JAY AMBIKA .

(3.) According to the plaint averments, extensive damage was caused to these pipes carried by the 5th defendants and other 683 pipes carried by the 3rd defendants. The plaint further avers that the damage was caused during the course of the entire journey, (that is, by road, barges and ships) and that this was due to the negligence of the servants/ employees/representatives of the defendants. The primary claim of the plaintiffs for damages in the sum of Rs. 77,02,725, 15 is against the 1st defendants with whom they had entered into the contract of 29th May, 1984. In the alternative they also claim damages from defendants 2 to 5. The averments in relation to the alternative claim are principally contained in para 15 of the plaint.