IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION SUIT SUIT SUIT NO.370 OF 1998 NO.370 OF 1998 NO.370 OF 1998 M/s.Faqir Chand Vinod Kumar & Co & Anr. ...Plaintiffs Versus M/s.Black Sea Shipping Co. (BLASCO) ...Defendants Ms V.S. Amin i/by Shri V.D.Amin & Co for the Plaintiffs. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : AUGUST 13, 2007. : AUGUST 13, 2007. : AUGUST 13, 2007. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: 1. The suit is listed under the caption of "Undefended Suits for Exparte Decree". 2. According to the case of the Plaintiffs, the Defendants are a Shipping Company incorporated in Ukraine and having management, control, possession and coverage of a ship M.V."Arkadiy Gaidar". The Defendants are carrying on business of carriers of goods by sea for consideration. They are carrying on that business in Bombay through their agents M/s.J.M.Baxi and Company. 3. M/s.Karim’s International (H.K.) Limited having its office at Hongkong sold to the first Plaintiff 2419 (119.670 M.T.) bags of Chinese red kidney beans 1996 crops for a total consideration of US $ 46,671.30/-. The goods were entrusted to the Defendants as the owners ... 2 ... and/or chaterers of steamship M.V."Arkadiy Gaidar" for its carriage and safe delivery from the Port of Dalian, China to Bombay. The Defendants issued their bill of lading dated 23rd November, 1996 evidencing that 2419 bags of Chinese red kidney beans were shipped in sound condition for its safe and timely delivery at Bombay Port. 4. According to the Plaintiffs the said bill of lading was endorsed by the shipper in favour of the State Bank of Mysore, Delhi for negotiation. The said bankers endorsed the said bill of lading in favour of the first Plaintiff for the value received by them. Thus, the first Plaintiffs became the owner of the goods which were entrusted to the Defendants. Invoice dated 26th November, 1996 was issued by the suppliers in respect of 2419 bags through bank. The first Plaintiffs made payment of the amount due under the said invoice against the negotiation of the said invoice and bill of lading to the State Bank of Mysore, Delhi and obtained the title to the consignment. 5. The first Plaintiffs had appointed M/s.V.Arjoon, Mumbai as their clearing agents for taking delivery of the consignment. When the said clearing agents took the delivery of the consignment, they found that most of the ... 3 ... bags were in torn condition. The authorities of the Bombay Port trust issued a Remark List Certificate dated 17th February, 1997 stating that out of 2419 bags, 427 bags were landed in torn and slack condition. On the request of the first Plaintiffs, a joint survey of the bags and refilling was carried out by a surveyors. The said surveyors M/s.Ericson & Richards (Surveyors) Pvt. Ltd, submitted a report dated 29th January, 1997 and confirmed that there was a damage to 938 bags of Chinese red kidney beans. At the instance of the second Plaintiffs who were the insurers of the consignment, M/s. Inspection and Consulting Services Bureau, Bombay also carried out survey and submitted a report confirming the report of the other surveyors. 6. The first Plaintiffs by their letter dated 17th July, 1997 lodged a valid monitory claim for Rs.2,37,704/- resulting from shortage of the contents and damage caused to the consignment. The said claim was lodged with the Defendants’ agents in Bombay. There was no response from the Defendants. 7. As per the policy of insurance, the second Plaintiffs paid a sum of Rs.1,42,093/- to the first Plaintiffs. After receiving all the amount, the first Plaintiffs executed in favour of the second Plaintiffs a ... 4 ... letter of subrogation and special power of attorney on 12th November, 1997. The present suit is filed for recovery of the said amount with interest. 8. The Plaintiffs have filed on record an affidavit in lieu of examination in chief of Mrs Maithili Mohan Kulkarni, Assistant Manager of the second Plaintiffs. The said affidavit is marked "X" for identification and is taken on record. The Plaintiffs have also tendered on record seven documents alongwith the list. The said documents alongwith the list are marked "Y" (collectively) for identification and the same are taken on record. In the aforesaid affidavit it is stated that the original invoice dated 26th November, 1996, the original bill of lading dated 23rd November, 1996, the original remark list certificate dated 17th February, 1997 and the original survey report submitted by M/s. Ericson & Richards (Surveyors) Pvt Limited, Bombay have been misplaced and/or lost. It is therefore, submitted in the affidavit that secondary evidence of the said documents of photocopies thereof may be permitted to be adduced. Similar averments have been made in respect of the claim lodged by the Plaintiffs on 17th July, 1997. Considering the statement on oath that the originals of the aforesaid documents have been misplaced, the Plaintiffs are entitled to lead secondary evidence of ... 5 ... the said documents. The Plaintiffs have produced the letter of subrogation dated 12th November, 1997 and special power of attorney of the same date executed by the first Plaintiffs in favour of the second Plaintiffs. The aforesaid documents have been duly proved by the affidavit of the said witness. There is no written statement filed by the Defendants. Hence, the claim of the Plaintiffs for recovery of sum of Rs.1,46,093/- has been duly established. The Plaintiffs have prayed for further interest at the rate of 18% per annum. Considering the facts and circumstances of the case, interest will have to be awarded at the rate of 9% per annum. 9. Accordingly, suit is decreed in terms of prayer clauses (a) and (b) with a modification that interest payable will be at the rate of 9% per annum from the date of filing of the suit till the date of payment or realisation. 10. The Plaintiffs will be entitled to refund of court fees, if any, as per rules. 11. Certified copy is expedited. JUDGE JUDGE JUDGE