1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1331 OF 2008 IN SUIT NO.674 OF 2003 M/s.Tata Engineering & Locomotive Co.Ltd. & Anr. .. Plaintiffs Versus M/s.Dongnama Shipping Co.Ltd. and Anr. .. Defendants Ms.S.S.Dwivedi for plaintiffs Mr.S.Menon i/b. A.Mehta Laljee & Co. for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 14th January 2009. P.C. . This is a notice of motion praying for dismissal of the suit against defendant No.2 for want of cause of action. 2. Learned Counsel appearing in support of the motion contended that the plaint averments would go to show that original plaintiff No.1 had 2 imported the consignment, details of which are more particularly described in the plaint. Plaintiff No.2 is the Insurer. First defendant is shipping company and defendant Nos.2 to 4 are the Agents of defendant No.4 in India. 3. It is not necessary to refer to the plaint allegations in great details, save and except referring to paras 2 and 3 wherein, it has been stated that the consignment was entrusted to first defendant at a Port in Korea. The Bill of Lading was issued by the first defendant and, thereafter, it was their duty to deliver the consignment at the port of destination. 4. In the entire plaint, save and except stating that the goods were delivered in damaged condition and the plaintiffs are, therefore, entitled to recover the claim from the defendants, it has not been set out as to how the defendant No.2 is liable independently that of 3 the first defendant. From the averments in the plaint and more particularly paras 1 to 3 and 12, according to learned Counsel, it is apparent that the second defendant has been sued as Agent of disclosed principal and in such circumstances, the principle laid down in Section 230 of the Contract Act and the Ruling of a learned Single Judge of this Court (R.M.Lodha, J - As His Lordship then was), reported in A.I.R. 1999 Bom 401 (Midland Overseas Vs.m.v.CMBT Tana) would apply. 5. On the other hand, learned Counsel for plaintiff would contend that the second defendant had been entrusted with the responsibility by the first defendant in terms of the contract to deliver the consignment. Once the consignment has been delivered in damaged condition, as certified by the Port Trust, then, both defendants are liable to make good the loss. More so, when the second defendant’s 4 representative was present for the survey. 6. Upon perusal of the plaint, with the assistance of both learned Counsel, so also the notice of motion, affidavit in support and reply, I am of the opinion that the law laid down by this Court in the above decision would apply to the facts and circumstances of the case. The plaint averments and the principle laid down in section 230 would show that the plaintiffs are suing the second defendant in their capacity as the local agent of the first defendant with whom they had entered into a contract and entrusted the consignment to them. The second defendant has been sued in his capacity as an Agent. The very same facts were noted in learned Single Judge’s decision and the learned Single Judge held that in the light of section 230 of the Contract Act, the Agent cannot personally enforce nor is bound by the contracts on behalf of principal. Ordinarily an Agent contracting in 5 the name of principal cannot be sued on such contracts. The Agent also is not entitled to sue in his name is the principle culled out from section 230. Considering the law laid down in the decision and section 230, the same will have full application to the facts and circumstances of the present case. There is no alternative but to allow the notice of motion. It is accordingly made absolute in terms of prayer clauses (a) to (c). Registry to take steps accordingly and strike off the name of second defendant from the plaint. 7. Needless to state that this order does not in any manner touch the merits of the controversy, insofar as, the plaintiffs and other defendants are concerned and all contentions and pleas in that behalf are kept open. Similarly, this order does not prevent the plaintiffs from requesting the Court to summon second defendant as witness and this Court can pass appropriate 6 orders in accordance with law, after such a request is made. (S.C.Dharmadhikari, J)