MARSHALL AND CO Vs. NAGINCHAND FULCHAND

JUDGEMENT

(1.) The plaintiffs, Messrs. Marshall & Co. of Glasgow, sue the defendants, Naginchand Fulchand, a firm upon accepted bills of exchange drawn by the plaintiffs upon the defendants in respect of two cargoes shipped on the Hansa Line" Barenfels" and Hansa Line "Kybfels "- terms C.I.F.C.I., goods Aluminium circles-date of shipment on " Barenfels" 15th July 1914- date of shipment on "Kybfels", 25th July 1914.

(2.) The plaintiffs general allegation for the purposes of this suit is that they were never principals but merely defendants agents for the purpose of these goods. That was not the form in which they originally brought the suit, and there cannot be the least doubt that they have had recourse to this line of attack as the result of a judgment recently delivered by the Chief Judge of the Small Cause Court. In my opinion, after hearing Mr. Binning s argument upon this point, the alternative case is entirely without foundation. I cannot discern any feature of agency or in the least resembling agency in the transactions between the plaintiffs and the defendants revealed by the evidence in the present case. The only agent in the matter was Abdul Kader and he was the plaintiffs , not the defendants , agent. Colour may always be given to forlorn hopes of this kind by the inclusion in the Indian indent forms of C.I. in addition to the C.I.F. universally used and understood throughout the commercial world. It is only necessary to look at the original plaint, the evidence of Abdul Kader and the invoice for the goods per SS. " Kybfels" to see how unsubstantial the plaintiffs contention is that they were, by some process altogether unexplained and inexplicable, as far as I can see, converted into defendants agent. In truth both the transactions are ordinary commercial dealings between principal and principal on C.I.F. terms and the additional c. I., I presume, is intended for the benefit of Abdul Kader. Whether it be or whether it be not would not affect my conclusion in the slightest degree that neither were the plaintiffs ever in fact defendants agents nor ever thought themselves to be so until they were probably advised that their position as principals in a litigation of this kind was insecure. It is plain enough that, up to the 17th September 1914, the plaintiffs had a truer idea of their own rights and liabilities in these transactions than that of the legal advisers whom they then consulted. This change of front appears to have occured between the 17th September and 9th October upon which date they resolved to send on the somewhat belated shipping documents relating to the "Kybfels " shipment of aluminium circles and get the defendants acceptance of the bill drawn against those goods. The points raised in the argument are points of very great interest and subtlety.

(3.) But before disposing of them it is necessary to clear the ground by dealing with and laying out of the case, the claim in respect of the shipment per SS. " Barenfels " of the 16th July 1914. As to that, the position now appears to me to be simple and clear both in law and fact. The goods were duly shipped by the German steamer " Barenfels " which put to sea before the outbreak of war. The shipping documents, that is to say, the invoice, insurance policy and bill of lading were duly presented to the defendants, Naginchand Fulchand, in Bombay along with the bill of exchange for acceptance on the 31st July 1914, The terms agreed upon by the parties to these dealings were clearly D/A or acceptance against documents. The defendants duly accepted against these documents which were at that time in good order and all quite legal and valid. That being so the property in the goods thereon passed to the defendants and the plaintiffs disappear from the transaction. That is to say they would have disappeared but for the happening of an untoward event and the subsequent refusal by the defendants to pay the bill on maturity. The " Barenfels" appears to have been captured in the Mediterranean and taken as prize into j Alexandria. Eventually she was sent on her voyage to Madras, her original port of destination, and the defendants obtained possession of their goods. But they refused to pay the plaintiffs interest between the date of maturity and the date of the taking of the goods as well as the small sum of Rs. 10, notarial charges. Having regard to the true nature of C. I. F. contracts about which I entertain no doubt, it appears to me that upon these minor heads the defendants have no case. They obtained all that they were entitled to obtain under the c. I. F. contract when the bill was presented to them for acceptance, that is to say, good shipping documents. They accepted against them and thereafter the risk was entirely their own and they were not entitled to refuse payment on maturity, and having refused payment on maturity they are clearly liable for overdue interest after that date. And that, I think, sufficiently disposes of the claim in this suit in respect of the first cargo.