1 IN THE HIGH COURT OF BOMBAY AT GOA APPEAL FROM ORDER NO.99 OF 2008. Costa & Company Pvt. Ltd. A Company having its registered office at P.O. 16, Aquem Alto, Margao, Goa-403 601 represented herein by its Director, Mr. Roque Francisco Ivo Da Costa Azaredo, aged 41 years, married, son of Dr.Francisco Xavier Ivo da Costa Azaredo, businessman, resident of H.No.248, St. Joaquim Road, Borda, Margao, Salcete, Goa. .... Appellant. Versus German Express Shipping Agency (India) Pvt. Ltd., A Company having its office At Sapt Building, 3rd Floor, 18, J. N. Heredia Marg, Bellard Estate, Mumbai-400 001. And having its Branch Office at No.108/109/110, First Floor, Tower No.01, Anand Towers, Airport Road, Chicalim, Vasco-da-Gama, Goa, represented by its Branch Manager, Mr. Vinnu Jo Mathew, major of age, resident of No.108/109/110, First Floor, Tower No.01, Anand Towards,Airport Road, Chicalim, Vasco-da-Gama, Goa. ..... Respondent. Mr. Sudin Usgaonkar, Advocate for the appellant. 2 Mr. M. S. Khandeparkar, Advocate for the respondent. CORAM :- C. L. PANGARKAR, J. DATE OF RESERVING THE JUDGMENT : 7 TH JANUARY, 2009. DATE OF PRONOUNCING THE JUDGMENT:13 TH JANUARY, 2009 . JUDGMENT : 1. Rule, returnable forthwith. Heard with consent of the parties. 2. This appeal is filed by the original plaintiff since its application for temporary injunction, is rejected. 3. The facts in nutshell, are given as follows : The plaintiff/ appellant is a Company engaged in canning business since 1885 and is in process of setting up a piggery unit. For the purpose of setting up of said piggery unit, the plaintiff had placed an order for supply of certain machinery from Denmark. The machinery was to be supplied by Proagria Landbrug A/S and Sunds Alfa Betonvarefabrik A/s. The manufacturer of the machinery wanted to know Port which is the nearest Port in India as well as in Denmark for 3 dispatch of such machinery. The plaintiff was, therefore, in touch with the defendant Company and sought a quotation from it for transfer of the machinery from a Port in Denmark to Mormugao. The defendant on behalf of its principal, informed the plaintiff the ports. The plaintiff was also informed that the plaintiff would be required to pay Rs.1800 U.S. Dollars. The plaintiff even informed the defendant that the goods would be ready in the 43rd week for dispatch. The plaintiff furnished the defendant name and contact details of the supplier – manufacturer. The plaintiff even furnished agreement number 243365. The manufacturer informed that the goods were ready for transport to Aarhus Port and the Manufacturer was awaiting the advise regarding the transport. The plaintiff submits that neither the defendant nor its principal ever informed the plaintiff as to what would be the costs for transporting the goods from factory to the nearest Port in Denmark. The plaintiff submits that the defendant's principal transported those goods from the factory to Aarhus Port for being put on the vessel and made demand of 1400 Euro Dollars. The plaintiff submits that such a demand of 1400 Euro Dollars, is unjustified and exorbitant. It is the contention of the plaintiff that the plaintiff was always under impression that the contract was F.O.B. i.e. Free On Board. The plaintiff lodged protest that it is not liable to pay 1400 Euro Dollar as claimed by the defendant and the goods should be immediately transported to Mormugao. Instead of doing so, it is alleged that the defendant informed the plaintiff that if the 4 money is not paid, the plaintiff would be required to pay damages and the goods will be liable for confiscation and sale. The plaintiff, therefore, apprehends that the defendant may confiscate the goods or to sale the same, which will cause irreparable loss to the plaintiff. 4. The defendant submits that it is the plaintiff, who supplied the information to the principal and accordingly, the goods were transported from factory to the Port. The defendant contends that the plaintiff had not made any arrangement for transportation of goods from factory to the Port. There was no agreement between the suppliers and the plaintiff with regard to that. M/s. Hapag Lloyd AG, who is principal of the defendant, had transported those goods from factory to the Port. According to this defendant, the dispute is between the plaintiff and M/s.Hapag Lloyd AG, who had actually transported the goods. The defendant is merely an agent and, therefore, according to the defendant, it cannot be sued. It is further contended that the defendant has merely communicated the instructions received from the principal to the plaintiff with regard to auction of the machinery, if the charges are not paid. The defendant further contends that, therefore, it is not liable to any of the plaintiff's claim. 5. The learned Judge of the Trial Court found that the goods were transported upon instructions given by the plaintiff. The plaintiff 5 was liable to pay said charges and was, therefore, not entitled for injunction whatsoever and further it is found that in view of the provisions of Section 230 of the Contract Act, the defendant could not be sued, holding so, the application for temporary injunction, was rejected. 6. I have heard the learned Counsel for the appellant and the respondent. Following undisputed facts need to be noted before going into the controversy. The plaintiff requested the defendant's principal to quote the transportation charges from Denmark to Goa. The defendant by email dated 27.09.2007 quoted the charges of 1800 U.S. Dollars either from Port Aarhus or Copanhegau in Denmark to Mormugao. These charges, therefore, were quoted for transportation of goods by ship from one Port to another and they do not include any charges of transportation from factory to the Port or from Mormugao to the factory of the plaintiff. 7. The dispute essentially relates to charges of transportation of goods from factory premises to the Port Aarhus. The defendant is making the demand of 1400 Euro Dollar for the transportation of goods from factory to Port and the plaintiff essentially disputes the quantum. According to the plaintiff, the charges of 1400 Euro Dollar, are exorbitant since the distance between the factory and the Port, is said to 6 be only 80 Kilometres. It is the contention of the plaintiff that if the defendant was charging 1800 U.S. Dollars for transportation of goods all the way from Denmark to Goa, the local charges of 1400 Euro Dollars, are extremely exorbitant. 8. Mr. Usgaonkar, learned Counsel for the plaintiff contends before me that in fact there was no contract of plaintiff either with the defendant or its principal to transport the goods from factory to Port. There was no settlement of any charges. He submits that in the absence of such contracts or settlement of charges from factory to Port, neither the defendant nor its principal had any business to collect goods from the factory and bring it to the Port. He submits that the defendant did it without instructions from the plaintiff. The defendant has no right to make exorbitant demand of 1400 Euro Dollar. 9. Two things need to be seen to resolve this controversy. The plaintiff seems to be suppressing from the Court the terms of contract entered between the plaintiff and supplier. The plaintiff also did not make it clear in pleading as to what were the terms of the contract of supply with regard to transportation from the factory to Port. This suppression appears to be deliberate. The letters placed on record, show that the plaintiff itself was not clear about the disputed local transportation. If the email dated 22.10.2007 is seen, it would be clear 7 that the defendant makes query with the plaintiff as to the details regarding who will provide bill of lading and to whom the invoice for collection of local Denmark charges be sent to it. The plaintiff on 23.10.2007 sends an email that invoice for Denmark local charges is not quoted. Same day, once again, defendant sends an email seeking information as to the name, phone, email I.D. and fax number of the person to whom the invoice is to be sent. To this, the plaintiff on the same day, sends a reply by email informing the defendant that both invoices from both the suppliers are on F.O.B. Basis. This was first time that the plaintiff came out with F.O.B. case. Now if the plaintiff knew that the delivery to it was F.O.B, there was no question of the plaintiff asking the defendant to send the invoice to it. If it is F.O.B., the plaintiff could have very well placed the document on record. It suppresses it. If there was F.O.B. Contract, it could have instructed its supplier to deliver the goods at Aarhus Port. There is not even a single document on record showing that the plaintiff had ever informed its supplier to deliver the goods F.O.B. at Aarhus Port. The plaintiff has suppressed this document and, therefore, an inference has to be drawn that there was no F.O.B. contract between the plaintiff and its supplier. The defendant's contention is that both the suppliers had refused to pay to the defendant's principal saying that delivery was exfactory. Had there been contract of F.O.B. between the plaintiff and supplier, the supplier would have paid to the defendant or would have itself made an 8 arrangement to transport the goods from factory to the Port. If it was the F.O.B. contract, the plaintiff could have informed the defendant in the first instance itself, that it need not worry about the transportation from factory to the Port and that the supplier would take care and it comes under F.O.B. contract. On the other hand, in response to the defendant's query on 22.10.2007 by email, the plaintiff informs initially to send invoice for collection of local Denmark charges to it. Prima facie, therefore, it appears that the plaintiff itself wanted the defendant to take care of the transportation of goods from factory to Port. It is for this reason, it asks the defendant to send the invoice to it. The plaintiff did not ask about the probable expenditure for such handling. The contention of the learned Counsel for the plaintiff / appellant that the defendant and its principal transported the goods from factory to Port without instructions, cannot be accepted. The learned Judge of the Trial Court, rightly negatived the contention. 10. Shri Khandeparkar, learned Counsel for the respondent submits that the defendant is a sub-agent and not principal. Copy of agreement of agency, is placed on record. It makes it clear that the defendant is a sub-agent and not even the agent. It is clear from the correspondence that the name of the principal, was disclosed to the plaintiff. For instance, when the defendant quoted the rate on 27.9.2007, it is mentioned in email that rates are of Hapag freight. Even 9 the address of Hapag was informed to the plaintiff. Thus, the principal was certainly known to the plaintiff. Section 230 of the Contract Act, therefore, needs to be looked into. Shri Usgaonkar submits that the bar of Section 230 would not apply as according to him the case falls under presumption number (1). Shri Khandeparkar submits that Section 230 is applicable to the facts of the case and the case does not fall under presumption number (1). He relied on the decision of this Court in the case of Midland Overseas Versus M.V. “CMBT Tana” and Ors. reported in 1999(3) All Maharashtra Report 662. It is held by this Court as follows : 6. on these admitted facts which have been pleaded by the plaintiffs themselves in the plaint the question that arises for determination is whether any cause of action has accrued against the 3rd defendants who had only acted as agents or and on behalf of 2nd defendants. The agent cannot personally enforce nor be bound by contracts on behalf of principal. Ordinarily an agent contracting in the name of his principal cannot be sued on such contracts. The agent in such circumstances is also not entitled to sue in his name. This position emerges from Section 230 of Contract Act which reads thus : “230. In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.” Presumption of contract to contrary. Such a contract shall be presumed to exist in the following cases.” 10 8. Accordingly, suit is dismissed against defendants no.3 and Office is directed to make an endorsement to that effect in red ink in the title of the plaint against the name of 3rd defendants. 11. There is no reason for me to take different view as the facts of even reported case, are almost identical. Shri Usgaonkar submits that the suit is instituted against the present defendant because there is previty of contract between plaintiff and defendant alone and not between the plaintiff and M/s. Hapag Lloyd AG. The submission is not correct as in the instant case, the principal has been disclosed by the sub-agent. Had the principal not been disclosed, then perhaps the argument could have been accepted. Prima facie, it appears that the goods were transported from factory to the Port on instructions of the plaintiff and there was, in fact, no F.O.B. sale of the goods. This makes it clear that the plaintiff has not come with clean hands. The party, who does not come with clean hands, is not entitled to equitable and discretionary relief. The learned Judge of the Trial Court, therefore, has not committed any error in rejecting the prayer for temporary injunction. There is no substance in the appeal. It is dismissed. 12. Rule is discharged. C. L. PANGARKAR, J. SMA 11