NATIONAL INSURANCE CO LTD Vs. NAVROM CONSTANTZA

JUDGEMENT

(1.) This is an application of defendants Nos. 1 and 2 for rejection of the plaint in the suit against the said defendants and for dismissal of the suit against the said defendants.

(2.) The plaintiff is National Insurance Company. On or about 9th June, 1983 the plaintiff has filed the suit against the defendants for a decree of Rs. 2,69,567.75P. The defendant No. 1 is a ship owner incorporated under the appropriate laws of Rumania. The defendant No. 2 carries on business as agent of the Shipping Companies. The defendant No. 3 is Steel Authority of India which purchased 648 pieces of mild steel plates weighing 1459.57 Kgs. from a Rumania Company. It has been alleged that on or about 17th Sept. 1981, the defendant No. 2 acting as agent of the defendant No. 1 agreed with the defendant No. 3 that the defendant No. 1 would carry the said goods from the Port of Galatz to Calcutta. It is also alleged that on or about 30th Sept. 1981 the said goods were shipped on Board the vessel M.V. Cugir (hereinafter referred to as the said vessel) owned by the defendant No. 1 for carriage from Galatz to Calcutta and in respect whereof a bill of lading dated 30th September, 1981 was issued by the defendant No. 1. It is also the allegation of the plaintiff that by a policy of insurance dated 22nd October, 1981 the said goods were insured with the plaintiff against divers risks including the shortage and rust damage. It is alleged that on or about 28th Nov. 1981 the said vessel arrived at the Port of Calcutta and on the same day the consignment was unloaded and discharged at the Port of Calcutta when it was found that 37 pieces of mild steel plates weighing 87 Metric tons had been short landed. When the defendant No. 3 came to know about the short landing, a short landing certificate was issued by the Calcutta Port Trust on 6th Feb. 1983. According to the plaintiff, an 23rd Feb. 1982 the clearing agent lodged and/or preferred a claim with the defendant No. 2 for a sum of Rs. 2,39,598/- on account of the said short landing as the value of the said goods. It is also the allegation of the plaintiff that the plaintiff duly paid the said sum under the policy of insurance and the defendant No. 3 issued a deed of subrogation in favour of the plaintiff.

(3.) The petitioner's case is that as it would appear from the writ of Summons, the plaint was presented and filed on 9th June, 1983 and the writ was issued on 4th March, 1985. The claims were made on the defendant No. 2 on account of the said alleged short landing by a letter dated 17th Feb. 1982. According to the petitioner, the said vessel left the Port of Calcutta on 7th Dec. 1981 which would be evident from a certificate of the Calcutta Port Trust, a copy whereof is annexed to the petition being Annexure-'F', and it would also be evident from the outturn report of the Calcutta Port Trust being Annexure-'G' to the petition.