MADURA CO LTD Vs. PCXAVIER

JUDGEMENT

(1.) This is a revision petition by the petitioner who is described as Madura Co. Ltd. Alleppey, against the decree of the Subordinate Judge of Cochin, in a suit by the respondent-plaintiff P.C. Xavier, timber merchant, for damages for injury caused to certain packages containing shooks handed over to the defendant company at the Muttancherry Station which was the out-agency of the S.I. Ry. Co. The petitioner-company is a company incorporated with its registered office at Calcutta. The objects of the company are : (1) to build, purchase, hire or otherwise acquire and hold steam and other ships, boats, launches and other vessels, (2) to carry on the business of shipping owners, managers of shipping property, freight contractors, carriers by land and sea, etc. (3) to deal in coal; (4) to purchase lands, wharfs, warehouses, etc., (5) to carry on the business of general merchants; (6) to carry on all or any of the above businesses as principals or agents; (7) to make agreements and arrangements with other companies or amalgamate with other companies and other objects. The company has got several branch offices, for instance, one at Cochin for carrying goods. But it has got a branch office at Alleppy which is the head office for all the branch offices which are in the nature of out-agencies for the S.I. Ry. Co. One such out-agency branch office is at Muttancherry and it is known as the S.I. Railway Out-agency Office. The contracts are entered into by the consignors of goods in that office for the purpose of sending goods from the boating station across the Cochin backwater to be handed over to the railway station at Ernakulam and thence to be carried to the final place of destination. The petitioner company would take a railway consignment receipt in the Form H provided by the Railways Act and would give to the consignors a counter receipt for the goods delivered. The goods are actually handed over to the petitioner company at the boating station in British Cochin though Muttancherry is in the Native State. The boats then start from that place and carry the goods to the railway station at Ernakulam which is within the jurisdiction of the Sub-Court. These boats are referred to as vallams in the evidence on record. The Subordinate Judge finds that the goods were loaded from the Kalvetti Canal, which is in British territory. Three objections were taken : (1) that the Subordinate Judge's Court at Cochin has no jurisdiction to try the suit; (2) they are not liable as the sinking of the boat was due to an accident and not to any misconduct of the boatman; and (3) the amount of damages.

(2.) The Subordinate Judge found that as the goods are delivered in British territory to the petitioner company the cause of action arises within the British territory and it has got jurisdiction to decide the case. On the second point the Subordinate Judge states that the evidence shows that three boats started hut one of the boats capsized and that there was a strong gala and shifting of the sail ending in the capsizing of the boat. The Subordinate Judge says that misconduct should include mismanagement or wrong management, and negligence and incompetence in the steering of the boat comes under wrong mismanagement. Therefore he thought that a case of misconduct is. made out. As to the amount of damages, his opinion is that the plaintiff has made out a prima facie case which was not rebutted by the defendant. He therefore gave a decree.

(3.) In revision those three points were repeated by the learned advocate for the petitioner. On the first point I think the Subordinate Judge is right. Though the actual contract is entered into in the Muttancherry office which is within the Native State, the very first item of performance of the contract which is contemplated by both the parties, namely the entrusting of the goods by the consignor to the consignee, takes place in the Kalvetti Canal where the plaintiff has got his place of business. It is there that the goods were weighed and loaded into the defendant's boats. This is enough to give jurisdiction to a British Court. It is unnecessary to rely on the fact that the place where the boat's delivery of the goods takes place, namely, Ernakulam is within the British territory. I therefore agree with the finding of the Subordinate Judge on the first point.