-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Suit No.365 of 2000 1. M/s Godrej Soaps Limited and another ..Plaintiffs vs. 1. M/s Bill Black Agency Inc. and another ..Defendants Ms.S.S.Dwivedi i/b Mr.P.N.Sadarangani for plaintiffs. None for defendants. CORAM: S.J.KATHAWALLA J. CORAM: S.J.KATHAWALLA J. CORAM: S.J.KATHAWALLA J. 5th January, 2009 5th January, 2009 5th January, 2009 P.C. P.C. P.C. 1. The present suit is filed for an order and decree against the defendants to pay to the plaintiff no.2 a sum of Rs.2,79,141/- with interest thereon at the rate of 18% p.a. from the date of filing of the suit till realisation. Written statement is filed by defendant no.2. However, defendant no.1 despite being served as set out in the affidavit of service dated 30th June, 2008, has not appeared before the Court and have also not filed its written statement. In view thereof by an order dated 17th September, 2008 the suit as regards defendant no.1 is transferred to the list of undefended -2- suits, and has come up for passing of an exparte decree against defendant no.1. 2. The learned counsel appearing for the plaintiff has tendered on record an affidavit of one Murlidhar Anant Onkar, Manager of Plaintiff no.2 dated 5th December, 2008. The said affidavit is taken on record and marked ‘X’ for identification. The plaintiffs have also filed the original documents i.e. original invoices, bill of lading, survey report and the letter of subrogation and xerox copy of the letter dated 28th April, 1999 addressed by the plaintiffs to defendant no.2 submitting their claim along with acknowledgement of defendant no.2. The facts as deposed are briefly set out hereunder. 3. The first plaintiff is a limited company. Second plaintiff is a subsidiary of the General Insurance Corporation of India and carrying on business as Insurers. The first defendant is a shipping company and the second defendant is the agent of defendant no.1. 4. It is stated that the plaintiffs consignment came from the port of new orleans, American port in the vessel "M.T.SPIRIT" which -3- arrived at the Mumbai Port on or about 22nd January 1999 and started discharging the plaintiff cargo on the 22nd or 23rd January 1999. The said vessel completed discharge of the cargo on board the said ship on or about 23rd January 1999. The plaintiffs had appointed M/s Intertek Testing Services, Surveyors and Assessors to survey the suit consignment while the same was in the said ship and was being landed at the Port of Bombay and to supervise round the clock and survey the entire discharge operations at the Port of Bombay. The Surveyors have submitted their survey report dated 3rd February, 1999 confirming that the defendants out of the suit consignment have delivered 32.792 M.T.short. The survey was carried out in presence of the ship’s surveyors and customs authorities. 5. It is stated in the plaint and in evidence that the first plaintiffs by their letter dated 28th April, 1999 duly lodged the claim with the defendants to pay Rs.2,79,141/- being the loss suffered by the plaintiffs for the shortage/short landing of 32.792 M.T. The defendants neither replied to the said letter nor settled the plaintiffs’ claim. As the suit -4- consignment was insured with plaintiff no.2, plaintiff no.1 also lodged the monetary claim upon plaintiff no.2, as the suit consignment was insured with plaintiff no.2. The claim of plaintiff no.1 was therefore settled by plaintiff no.2 for which plaintiff no.1 issued a letter of subrogation dated 24th September 1999 in favour of plaintiff no.2. 6. I have perused the averments made in the plaint and the documents filed alongwith the affidavit of evidence. The documents at Exh-1 shows the quality, quantity and valve of the consignment. The document at Exh-2 shows that defendant no.1 has acknowledged receipt of the said consignment in order and condition and in securely packed condition and undertook to carry safely and deliver the said consignment to the plaintiffs in like condition. The document at Exh-3 proves that the defendant out of the suit consignment delivered 32.792 M.T. short. The document at Exh-4 shows that the 1st plaintiff has lodged his claim with defendants to pay Rs.2,79,141/- being the loss suffered by the plaintiffs for shortlanding of 32.792 M.T. and the defendants have received the said letter. The document at Exh-5 shows that the plaintiff -5- no.2 as insurer of the said consignment has settled the claim of plaintiff no.1. 7. There is no contest by the defendant no.1 and what is stated in the affidavit of evidence has gone unchallenged. There is no reason why the case made out by the plaintiffs should not be accepted. By prayer clause (a), the plaintiffs have prayed for a decree in the sum of Rs.2,79,141/- for the loss caused to the plaintiffs for short landing of 32.792 M.T, with interest thereon at the rate of 18% p.a. on Rs.2,79,141/- from the date of suit till payment or realisation. The prayer made deserves to be granted. 8. Hence, the suit is decreed against defendant no.1 in terms of prayer clause (a). (S.J.KATHAWALLA J.) (S.J.KATHAWALLA J.) (S.J.KATHAWALLA J.)