SURRENDRA OVERSEAS PRIVATE LTD Vs. TOM WILHELMSEN

JUDGEMENT

(1.) The plaintiff imported 23430 pieces of "Trough Bars for fabrication of crossing slippers and Turnouts" by the vessels M. V. "Tai Yin" from Gefle to Calcutta under Bill of Lading No. 3 dated 29-12-58 issued at Gothenburg in Sweden by the defendant No. 3 Messrs Wilh Wilhelmsen, a partnership firm of which the defendants Nos. 1 and 2 are partners. The defendant No. 3 is the owner of the vessel "Tai Yin". The said Bill of Lading was issued by the defendant No. 3 subject to a printed notice for payment of rebate or deferred commission and the said notice was issued by the defendant No. 3 along with some other companies. The contents of the said notice is as follows : MADRAS CALCUTTA and TUTICORIN SCANDINAVIAN JOINT SERVICE. Aktiebolaget With Wilhelmsen Aktieselskapet Svenska Ostaslatiska Kompanlet Det stasiatiske (The Swedish East Asia Co Ltd.) OSLO, NORWAY. GOTHENBURN, SWEDEN Kompangl (The East Asiatic Company Limited) COPENHAGEN, DENMARK NOTICE TO SHIPPERS Deferred Commission in respect of shipments. Shippers of cargo from all ports in Norway, Sweden, Finland, Denmark, Germany, Holland and Belgium, and also Dunkirk to Madras and Calcutta are hereby informed that until further notice, and subject to the terms and conditions set out herein, each of the undernamed Companies and Lines will pay to Shippers by their Line a Deferred Commission of ten per cent, calculated upon the net amount of freight on their shipments. Deferred Commission will be calculated on the basis of the Sterling Freight irrespective of the currency in which the freight has been paid. If Shippers, when freight has been paid in local currency, desire their deferred Commission paid in the same local currency instead of sterling, the Sterling Deferred Commission will be converted into local currency at the highest rate of exchange operating on the day the Deferred Commission becomes due. The said Commission shall be computed every four months up to the 30th April 31st August and 31st Dec. in each year, and shall be payable four months after such respective dates to those Shippers only, who, until the date at which such commission shall become payable, shall have given their support to the undernamed Companies or Lines by shipping exclusively by vessels despatched by the said Companies or Lines, and provided that such Shippers, either as Principals or as Agents, shall not have directly or indirectly made or been interested in any shipments by vessels other than those despatched by the undernamed and also provided that the Statement of Claim for such Commission shall be made in the form below, within twelve months from the end of the period comprised therein. Shipments purchased or sold C. I. F., C. and F., F. O. B., ex Works or on any other terms unless shipped by Conference vessels will invalidate claims to the above Commission. BRITISH INDIA STEAM NAVIGATION CO. LTD INDIA STEAMSHIP CO. LTD. BROOKLEBANKS' WELL LINE. COMPAGNIE DES MASSAGERIES DEUTSCHE DAMPFSOHIFFAHRTS GESELLSOHAFT "HANSA". MARITIMES. East Asiatic Co. Ltd. PENINSULAR & ORIENTAL STEAM NAVIGATION COMPANY. HOLLAND BENGAL BURMA LINE. SCINDIA STEAM NAVIGATION CO. LTD. HOLLAND BOMBAY KARACHI LINE. SWEDISH EAST ASIA CO. LTD., WILH WILHELMSEN. COMMISSION FOR PERIOD : PAYMENT DUE ON : 1st. Jan. to 30th April 1st Sept. (of same year) 1st May to 31st Aug. 1st Jan. (of following year) 1st Sept to 31st Dec. 1st May (of following year). <FRM>JUDGEMENT_224_AIR(CAL)_1979Html1.htm</FRM>

(2.) According to the plaintiff, the entire freight of 15015-2-11 equivalent to Rupees 2,00,550.12 np. payable under the said Bill of Lading was paid by the plaintiff in or about February 1959 to the defendants' local agents Messrs United Liner Agencies of India Private Ltd., at Calcutta who accepted the same on behalf of the defendants. In the premises, the plaintiff became entitled to 10% deferred commission amounting to 1501.10 (sh)-4d equivalent to Rupees 20,052.62 np. The defendant's local agent by its letter dated 12-3-59, admitted that the aforesaid rebate would fall due for payment to the plaintiff on 1-9-59. The plaintiff submitted its claim form to the local agent in July 1959 who accepted the same. The said deferred commission was payable by the defendants at the plaintiff's office at Calcutta. The defendant wrongfully did not pay the said deferred commission or any portion thereof in spite of demands. The present suit was instituted on 2-1-62 for recovery of said dues. According to the plaintiff the defendants carry on business at No. 17 Brabourn Road, through its local agent as admitted by the defendants in their letter dated 13-7-59. The defendants Nos. 1 to 3 filed a Joint Written Statement alleging that this Court has no jurisdiction to try this suit. The main defence in the written statement is that the plaintiff, after receipt of the defendants' letter of 12-3-59, became directly and/or indirectly interested in a shipment of parcel of iron by S. S. "Janmada" of Malabar Steamship Company Bombay, some time in April 1959 and thereby committed breach of the term of the notice and as such was not entitled to receive the commission. The defendant also denied that it carried on business through the said local agent at No. 17 Brabourn Road Calcutta. The following issues were raised. ISSUES 1. Did the plaintiff fulfil and comply with all the terms and conditions for claiming deferred commission in terms of the said printed notice? 2. Has the Court jurisdiction to try this suit?

(3.) To what relief, if any the plaintiff is entitled ? 3. No oral evidence was adduced by the parties. The Judge's brief of documents Fart 1 and 11 were marked by consent as Exts. A and A-1. Issue No. 2