1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 1291 OF 2009 IN SUIT NO. 205 OF 2009 Kores (India) Ltd. ... Plaintiff. V/s. British Airways Worlds Cargo and Ors. ... Defendants. Mr. Mohankumar K. for the Plaintiff. Mr. E.P. Bharucha, Sr. Counsel i/b. M/s. Mulla & Mulla for Defendant 1. Ms. Sneha S. Dwivedi for Defendant 3. CORAM : S.C. DHARMADHIKARI,J. DATED : 21st NOVEMBER 2009. P.C. :- This is a Chamber Summons by Defendant No.1 seeking dismissal of the Suit on the ground that the plaint does not disclose any cause of action. It is also their case that this Suit appears from the statements in the plaint to be barred by the law in question namely the Carriage by Air Act 1972. 2. The Chamber Summons states that the Suit is filed for recovery of a sum of Rs.28,88,320/- with interest on the sum of Rs.16,62,375/- at 18% from 6th December 2008 till payment and costs. It is contended that the Suit is filed for the loss alleged to have been suffered by the Plaintiffs as a result, inter-alia, of the goods consigned by them for shipment to Sao Paulo in Brazil having been delivered to an Airport known as “Viracopos” instead of “Gaurulhos” mentioned in the Air Way 2 bill. According to the First Defendant, the Plaintiff alleged that the consignee thereupon was unable to clear the goods. 3. After referring to the cause of action in the plaint in brief, it is urged by the First Defendant that the matter of liability of a Air Carrier for the loss or destruction of or damage to, any cargo during carriage by Air is governed by the provisions of the Carriage by Air Act, 1972 to the exclusion of all other laws in force in India. It is contended that the Act is the statutory ratification by India of the Warsaw convention as amended by the Hague Protocol on 28th September 1955. This is an international convention governing the liabilities of Air Carrier vis-a-vis the passengers and the consignors/consignees of cargo shipped during international carriage by air. It is urged that the Act has two Schedules containing the Rules which ought to have statutory effect in cases, to which they respectively apply. In the present case, the rules contained in the second schedule to the Act are applicable as the places of departure as well as of destination as mentioned in the Airway Bill in question, were both situated in countries which had ratified the above convention. 4. It is, therefore, urged that in the present case, Rule 30 is the governing rule. The alleged cause of action in the plaint and the relief sought against the First Defendant are on the basis that the Cargo ought to have arrived on 14th October 2004 and/or in any case, the carriage stopped at that time. The Suit ought to have been filed within a period of two years 3 from 14th October 2004. If the Suit is brought after October 2006, which admittedly is the position, then, the right to claim damages stands statutorily extinguished. This is not a period of limitation but an extinguishment of the right to sue. In such a case, the cause of action does not survive. 5. Mr. Bharucha, learned Senior Counsel appearing on behalf of Defendant No.1, in support of this Chamber Summons, after inviting my attention to the relevant statutory provisions including Order VII Rule 11 of C.P.C. strenuously contended that the provision in the subject enactment is Pari Materia to the Indian Carriage of Goods by Sea Act, 1925. The relevant provisions therein in the Schedule is Article 6. Although not providing for extinction of the right, yet, it has been so construed by the Hon’ble Supreme Court in a decision reported in AIR 1960 S.C. Page 1058 (East and West Steamship Co. V/s. S.K. Ramalingam). He submits that this decision has been followed by the Division Bench of the Kerala High Court, by a learned Single Judge of the Delhi High Court, and by another learned Judge sitting singly at Calcutta. In all these decisions, the view taken is that this is not a period of limitation as was contended but an extinguishment of the right itself. If the right to claim itself no longer survives, then, the plaint does not disclose any cause of action or in any event, it is barred by the relevant statutory provisions. Once it is so barred, then the Court should proceed to dismiss the Suit as against the First Defendant. The provisions of the Civil Procedure Code enable the Court to exercise this power and it 4 is not necessary for the First Defendant to file a written statement raising this objection. If the objection is raised in on an application of the present nature, nothing prevents in law to the Court from exercising this power. In any event, the Hon’ble Supreme Court in a decision reported in (2003) 1 SCC page 557 (Saleem Bhai & Ors. V/s. State of Maharashtra & Ors.) has held that Order VII Rule 11 of C.P.C. can be invoked by this Court at any stage before the Trial. Therefore, Mr. Bharucha submits that the instant Chamber Summons is maintainable. 6. He relies upon the following decisions to support his above submissions :- 1. AIR 1974 Kerala 136 (Union of India V/s. S.S. Navigation Co.). 2. AIR 1984 Delhi 396 (Rajasthan Handicrafts Emporium, New Delhi V/s. Pan American World Airways & Ors). 3. AIR 1988 Calcutta 155 (National Insurance Co. Ltd. V/s. M/s. Navrom Constanza). 7. On the other hand, Mr. Mohankumar K., learned Counsel appearing on behalf of the Plaintiff contended that this is a Suit filed not only against the First Defendant but against the Insurance Company and Defendant No.2. They have not made any such application. He submits that the First Defendant is an Overseas Carrier, who was entrusted the consignment whereas the Second Defendant is the Agent of the First Defendant, who received the consignment, The Third 5 Defendant is an Insurance Company, who issued the Transit Insurance Cover for export shipment of 500 kgs. of consigment consisting of 12 drums containing 500 kgs. AMBROXOL – HCL to Brazil. 8. It is his submission that the consignment was entrusted with specific instructions as are referred to in paragraphs 7 and 8 of the plaint. 9. In paragraph 9 of the plaint it has been stated that the consignment did not reach the destination and on account of the non-arrival of the consignments, the foreign buyer did not retire the documents from the bank against the payments. Thereafter, the Plaintiffs approached the Agent and made enquiries regarding the whereabouts of the consignments. The Plaintiffs were provided with a copy of the letter dated 19th November 2004 of the First Defendant whereby the Plaintiff was informed that the consignment was delivered on 13th October 2004 to Ropson West Cargo at 08.40 hours as per the information which was found to be erroneous. The Plaintiffs alleged that on account of the inordinate delay in reaching the consignment at its destination, the foreign border stopped responding to the Plaintiffs for retiring the documents. Therefore, for the safe delivery of the consignments, the necessary amendment in the Airway Bill was sought as per letter dated 16th December 2004 and the name of the consignee was amended. The Plaintiffs alleged that thereafter, by letter dated 17th December 2004, the Office 6 of Defendant No.1 informed the Director of Defendant No.2 for the first time that the consignments entrusted to British Airways Flight was forwarded from Mia onwards to UPS Flight No.6196 on 12th October 2004 and as per the information in the letter, the UPS has given the delivery of documents only to the consignee and not the consignments. At that stage, the Plaintiff was informed that the consignments were at Sao Paulo and on custom hold due to the problem with consignee’s Import Licence. 10. In paragraph 13 of the plaint, it is alleged that Defendant No.2 suggested that it was not possible for Defendant No.1 to carry the consignments further from VCP Airport to the destination on account of lot of hassles. Therefore, Defendant No.2 opined that if the Plaintiff has authorized British Airways to bring back the consignments to Bombay since the foreign buyers are not interested in taking the goods on account of inordinate delay. The Plaintiffs, therefore, authorized the British Airways to carry the consignments from UPS VCP to Mumbai. 11. Thereafter, the formalities for re-export are referred to in paragraphs 14 to 16 of the plaint. The E-mail and other correspondence are referred to in paragraphs 17 to 22 of the plaint. In paragraphs 23 and 24, this is what is alleged :- “ 23. The Plaintiffs state that the Plaintiffs instructed his Advocate to issue demand notice for 7 recovery of claim amount of Rs.25,46,512/- together with interest @ 18% from the date of Airway Bill till the payment of said amount and accordingly, a legal notice dated 09.05.2005 was sent to Defendant Nos. 1 and 2. The Plaintiffs state that the Plaintiffs shall rely the said demand notice dated 09.05.2005 as and when produced before this Hon’ble Court. The Plaintiffs state that Defendant No.1 acknowledged the legal notice dated 09.05.2005 by their reply dated 18.05.2005 to the Advocate of the Plaintiffs informing that British Airways are prepared to offer compensation. The Plaintiffs state that Defendant No.1 the British Airways prepared to offer US $ 10,880/- in full and final settlement of the claim submitted with Defendant No.1 Airways. Hereto annexed and marked as Exhibit – P the copy of said reply dated 18.05.2005 also suggesting the Plaintiffs the claim be pursued with the Insurer. 24. The Plaintiffs state that the Plaintiffs through their Advocate’s counter reply dated 15.06.2005 informed Defendant No.1 that the Plaintiffs are not inclined to accept the settlements for US $ 10,880/- since even the basic value of the consignments was insured for US $ 35,750/-. Hereto annexed and marked as Exhibit – Q the copy of Plaintiffs’ Advocate’s counter reply dated 15.06.2005.” 8 12. The Plaintiffs had informed thereafter Defendant No.1 by their Advocate’s letter dated 9th August 2005 that the Insurance Company is demanding information regarding the present status of the consignment from the carriers. The Plaintiffs received the letter from Insurance Company that the present status of the consignments would enable them to process the claim. All throughout, Defendant No.1 sent the reply and repeated the offer of settlement of claim and advised the Plaintiffs to pursue their claim for the balance of the insured amount with the Insurer. 13. It is, thereafter, pointed out in the plaint as to how the documents were forwarded to Defendant No.3, who had issued a Marine Insurance Policy. The correspondence, therefore, ensued and the claim is also made against the Insurer. 14. It is in this context that I must appreciate these submissions of the learned Counsel for the Plaintiffs who relies upon paragraph 38 of the plaint and the affidavit in reply to the present Chamber Summons. He submits that the decree is sought against Defendant Nos.1 to 3 jointly and severally as per the allegations in the plaint. For the purposes of the present application, this Court will have to assume that whatever has been set out in the plaint is correct. It is on demurrer that the application can be decided. 15. It is not possible to accede to the submissions of Mr. 9 Bharucha that it is only the disposal of the Criminal Revision Application by the Sessions Court at Thane quashing a process issue in Criminal Complaint that the Plaintiffs decided to institute the Suit. He urges that this Court must proceed to hold that as far as the First Defendant is concerned, the right is extinguished within a period of two years from the date stipulated for delivery that is 12th October 2004 and the Criminal Proceedings would not save the bar of limitation in any manner. 16. In my view, in the peculiar facts of this case, it cannot be said that the claim is only against the carrier. Further, it cannot be held that it is a claim only because the compensation is claimed for the consignment not reaching the destination. It is also a case based on the limited offer made by the First Defendant to settle the claim. The allegations in the plaint must be seen and read as a whole. It is not possible to just pick up one paragraph here and there so as to appreciate the cause of action against the Defendants. If the goods had not reached the destined place, it is Defendant No. 1, who are stated to have approached the Plaintiffs after repeated correspondence and made an offer for settlement of their claim. The amounts offered are not accepted in full and final settlement. The cause of action is based on the fact that the Plaintiffs were informed by the First Defendant that they would offer a sum and for the balance, the Plaintiffs must make a claim against the Insurance Company. This is a how in the peculiar facts the claim for compensation must be seen. 10 It is also arising out of the fact that after the goods did not reach the destined port. there were offers and counter offers made for settlement of the claim. In such circumstances, I am not in a position to accede to the submission that this claim stands totally extinguished as urged and the Court must proceed to exercise the discretion under Order VII Rule 11 of the C.P.C. and grant prayers (a) and (b) in the Chamber Summons. 17. It is not as if the First Defendant has no remedy. They can raise all pleas as raised in the Chamber Summons at an appropriate stage. It is not as if merely because this Chamber Summons is rejected that the Court has expressed its final opinion in so far as this aspect of the controversy. It is only that at the thresh-hold, I am not inclined to exercise my jurisdiction under Order VII Rule 11 of the C.P.C. 18. In the result, the Chamber Summons fails. It is accordingly dismissed. Since the decisions relied upon are rendered in the peculiar facts of those cases, it is not necessary to decide any wider controversy and more particularly, based on the provision of Indian Carriage of Goods by Sea Act, 1925 and the decisions of the Supreme Court and that of the Kerala, Delhi and Calcutta High Court. That controversy can be gone into at a later stage and all pleas in that behalf are kept open. (S.C. DHARMADHIKARI,J.)