JUGOLINIJA RAJIA JUGOSLAVIJA Vs. FAB LEATHERS LTD

JUDGEMENT

(1.) This revisional application raises a short point as to whether the plaintiff's suit is prima facie barred by law as against defendants Nos. 1 and 2 or not in view of clause (vi) of Article 3 of the Rules adopted by the International Conference on Maritime Law commonly known as Hague Rules. The defendant Nos. 1 and 2 are the petitioners before us. The order impugned is one dated September, 30, 1983, passed by the learned Judge, 3rd Bench, City Civil Court, Calcutta, in Money Suit No. 186 of 1981. By the order impugned, the learned Judge has rejected an application filed by the defendant Nos. 1 and 2 under Order 7 Rule 11 of the Code for rejection of the plaint so far as they are concerned on the ground that it is so barred under the said clause. The defendant No. 1 is a company incorporated under the laws of Yugoslavia and defendant No. 2 is a local agent of defendant No.1.

(2.) Since the disputed issue has to be decided only on the plaint it would be necessary to set out the plaintiff's case in material particulars. The plaintiff carries on business in manufacture and sale of leather products and for such business the plaintiff is required to import various leather chemicals including Sal cromo A.B. Self basifying powder from Italy. Sometime in April 1979, plaintiff purchased some quantity of the said powder from Messrs. Laigi Stoppani, Italy, valued in Indian currency at Rs. 49,235.72. Packed in 160 bags those goods were despatched by the seller through defendant No. 1 under bill of lading No. 14 dated April 19,1979. The goods were shipped by M. V. Baker having the flag of Yugoslavia. The ship arrived at the Calcutta Port on June 17, 1979. The goods delivered against the aforesaid bill of lading No. 14 dated April 19,1979, was short by 80 bags. A short delivery certificate was issued on September 29, 1979. On October 25, 1979, the plaintiff lodged a claim with the defendant Nos. 1 and 2 for a sum of Rs. 24,642.86 for the value of the goods lost. Defendant Nos. 1 and 2 by their letter dated November 26, 1979, informed the plaintiff that the claim is receiving attention. A reminder being sent on February 26, 1980, defendant Nos. 1 and 2 further informed the plaintiff on March 5, 1980, that the matter is still under investigation. After 2 further reminders it is alleged that the defendant Nos. 1 and 2 informed by their letter dated April 21, 1980, that those 80 bags had since been traced and requested the plaintiff to collect the same from the port authority. The plaintiff, however, found those bags not to be the goods answering the description as in the bill of lading and a survey was held on May 29, 1980, as a result whereof the plaintiff could fully, finally and unmistakably determine the loss of the 80 bags. On that very day the plaintiff called upon the defendant Nos. 1 and 2 to finally settle their claim and though the defendant No.1 on June 2, 1980, called for certain documents, ultimately refused to settle the claim lodged by the plaintiff. Hence, the plaintiff instituted the aforesaid money suit against the defendant Nos. 1 and 2 for recovery of the sum of Rs. 24,642.86 together with interest amounting in total to Rs. 32,775.01. In this suit, the defendant No. 3 was added as a party defendant as the insurer. The suit was filed on April 16,1981.

(3.) It is not in dispute that clause (vi) of Article 3 of the Hague Rules provides for absolute discharge for all liability for such loss so far as the shipper is concerned unless the suit is brought "within one year after the delivery of the goods or the date when the goods should have been delivered". It is also not in dispute that all the countries who participated in the Conference including India and Yugoslavia had adopted the said Hague Rules. So far as India is concerned, section 2 of the Indian Carriage of Goods by Sea Act, 1925, provides : "Subject to the provisions of this Act, the Rules set out in the Schedule (hereinafter referred to as the Rules) shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in India to any other port whether in or outside India." The Schedule incorporates the Hague Rules. Ordinarily, this statutory provision would apply to outward carriage of goods from any port in India and not to carriage of goods from any port outside India to any port in India. We shall refer to this aspect further later in this judgment but we merely record that there is no dispute that clause (vi) of Article 3 of the Hague Rules was adopted and was given statutory force without any amendment by the Indian Carriage of Goods by Sea Act, 1925.