1 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 ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION SUIT SUIT SUIT NO.78 NO.78 NO.78 OF 1998 OF 1998 OF 1998 1.M/s 1.M/s 1.M/s Ramji Lal Rajinder Prasad, Ramji Lal Rajinder Prasad, Ramji Lal Rajinder Prasad, a Partnership Partnership Partnership firm, registered under Partnership firm, registered under Partnership firm, registered under Partnership Act Act Act and having their office at 4066, Naya and having their office at 4066, Naya and having their office at 4066, Naya Bazar, Bazar, Bazar, Delhi - 110 006. Delhi - 110 006. Delhi - 110 006. 2.2.2. M/s National Insurance Company Limited a M/s National Insurance Company Limited a M/s National Insurance Company Limited a Body Body Body corporate subsidiary of General Insurance corporate subsidiary of General Insurance corporate subsidiary of General Insurance Corporation Corporation Corporation of India having their Registered of India having their Registered of India having their Registered Ofrfice Ofrfice Ofrfice at 3, Middleton Street, Calcutta - 700 at 3, Middleton Street, Calcutta - 700 at 3, Middleton Street, Calcutta - 700 071 071 071 and one of their Delhi C.O. No.XIX, and one of their Delhi C.O. No.XIX, and one of their Delhi C.O. No.XIX, Laxmi Laxmi Laxmi Tower, Nainiwala Bagh, Azadpur Tower, Nainiwala Bagh, Azadpur Tower, Nainiwala Bagh, Azadpur Commercial Commercial Commercial Complex, Delhi-110 033 and their Complex, Delhi-110 033 and their Complex, Delhi-110 033 and their Mumbai Mumbai Mumbai D.O. No.XII, at Sheel Chamber, 3rd D.O. No.XII, at Sheel Chamber, 3rd D.O. No.XII, at Sheel Chamber, 3rd floor, floor, floor, Cawasji Patel Street, Mumbai-400023. Cawasji Patel Street, Mumbai-400023. Cawasji Patel Street, Mumbai-400023. ...... Plaintiffs Plaintiffs Plaintiffs vs vs vs M/s M/s M/s Sany Shipping Pte Ltd Sany Shipping Pte Ltd Sany Shipping Pte Ltd A foreign shipping Company,incorporated foreign shipping Company,incorporated foreign shipping Company,incorporated inin in SINGAPORE and having their Head Office SINGAPORE and having their Head Office SINGAPORE and having their Head Office atatat 101, Cecil Street, 24-09 Tang Eng Building 101, Cecil Street, 24-09 Tang Eng Building 101, Cecil Street, 24-09 Tang Eng Building SINGAPORE-069533 SINGAPORE-069533 SINGAPORE-069533 and carry on their business and carry on their business and carry on their business inin in Mumbai through their Agents M/s Mumbai through their Agents M/s Mumbai through their Agents M/s Galaxy Galaxy Galaxy Multimodel Systems Private Limited, Multimodel Systems Private Limited, Multimodel Systems Private Limited, Room Room Room No.20/21, Hansraj Damodar Trust Building, No.20/21, Hansraj Damodar Trust Building, No.20/21, Hansraj Damodar Trust Building, 2nd 2nd 2nd floor, 12/14,Goa Street, Ballard Estate, floor, 12/14,Goa Street, Ballard Estate, floor, 12/14,Goa Street, Ballard Estate, Mumbai-400 Mumbai-400 Mumbai-400 038. 038. 038. ...... Defendants Defendants Defendants Mr.V.S.Amin Mr.V.S.Amin Mr.V.S.Amin for Plaintiff for Plaintiff for Plaintiffs CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J DATED DATED DATED : 30th July, 2007 : 30th July, 2007 : 30th July, 2007 ORAL ORAL ORAL JUDGMENT JUDGMENT JUDGMENT 1.1.1. The suit is listed under the caption The suit is listed under the caption The suit is listed under the caption "undefended "undefended "undefended suits for ex parte decree". Learned suits for ex parte decree". Learned suits for ex parte decree". Learned counsel counsel counsel appearing appearing appearing for the plaintiff has tendered on for the plaintiff has tendered on for the plaintiff has tendered on record record record affidavit affidavit affidavit in lieu of examination-in-chief of in lieu of examination-in-chief of in lieu of examination-in-chief of Ms.Maithili Ms.Maithili Ms.Maithili Kulkarni, Assistant Manager of the 2nd Kulkarni, Assistant Manager of the 2nd Kulkarni, Assistant Manager of the 2nd Plaintiff. Plaintiff. Plaintiff. The said affidavit is marked X for The said affidavit is marked X for The said affidavit is marked X for identification identification identification and is taken on record. Alongwith and is taken on record. Alongwith and is taken on record. Alongwith the the the affidavit, the plaintiffs have tendered the affidavit, the plaintiffs have tendered the affidavit, the plaintiffs have tendered the 2 original original original documents documents documents along with a list. The original along with a list. The original along with a list. The original documents documents documents along with the list are marked Y (colly) along with the list are marked Y (colly) along with the list are marked Y (colly) for for for identification and the same are taken on identification and the same are taken on identification and the same are taken on record. record. record. 2.2.2. The 1st plaintiff is a registered firm and 2nd The 1st plaintiff is a registered firm and 2nd The 1st plaintiff is a registered firm and 2nd plaintiff plaintiff plaintiff is an insurance company. The defendants is an insurance company. The defendants is an insurance company. The defendants are are are shipping company having Management, Control shipping company having Management, Control shipping company having Management, Control Possession, Possession, Possession, coverage of m.v "Mantis" and carrying coverage of m.v "Mantis" and carrying coverage of m.v "Mantis" and carrying on on on the business of carriers of goods by sea for the business of carriers of goods by sea for the business of carriers of goods by sea for consideration. consideration. consideration. The defendants are carrying on The defendants are carrying on The defendants are carrying on business business business in Mumbai through their agents M/s Galaxy in Mumbai through their agents M/s Galaxy in Mumbai through their agents M/s Galaxy Multimodel Multimodel Multimodel Systems Pvt.Ltd. According to the case Systems Pvt.Ltd. According to the case Systems Pvt.Ltd. According to the case of of of the plaintiffs, the shippers M/s Sineximco Pte the plaintiffs, the shippers M/s Sineximco Pte the plaintiffs, the shippers M/s Sineximco Pte Ltd Ltd Ltd having their office at Singapore sold to the having their office at Singapore sold to the having their office at Singapore sold to the 1st 1st 1st plaintiff certain goods for total sum of US $ plaintiff certain goods for total sum of US $ plaintiff certain goods for total sum of US $ 234,987.37. 234,987.37. 234,987.37. The defendant issued their bill of The defendant issued their bill of The defendant issued their bill of lading lading lading evidencing that the consignment was shipped evidencing that the consignment was shipped evidencing that the consignment was shipped inin in a sound condition for its safe and timely a sound condition for its safe and timely a sound condition for its safe and timely delivery delivery delivery at Mumbai port. Invoice dated 21st at Mumbai port. Invoice dated 21st at Mumbai port. Invoice dated 21st January, January, January, 1997 was presented by the shipper to the 1997 was presented by the shipper to the 1997 was presented by the shipper to the 1st 1st 1st plaintiff through State Bank of Mysore, plaintiff through State Bank of Mysore, plaintiff through State Bank of Mysore, Nayabazar, Nayabazar, Nayabazar, Delhi-6. The 1st plaintiff paid the Delhi-6. The 1st plaintiff paid the Delhi-6. The 1st plaintiff paid the amount amount amount under the said invoice and the bill of under the said invoice and the bill of under the said invoice and the bill of lading lading lading and thus obtained title to the consignment. and thus obtained title to the consignment. and thus obtained title to the consignment. 3.3.3. The goods were entrusted to the defendants as The goods were entrusted to the defendants as The goods were entrusted to the defendants as owners owners owners and/or charterers of "Mantis" m.v. for its and/or charterers of "Mantis" m.v. for its and/or charterers of "Mantis" m.v. for its carriage. carriage. carriage. The Bill of lading shows that 16181 bags The Bill of lading shows that 16181 bags The Bill of lading shows that 16181 bags of of of toor whole were shipped to the plaintiffs in toor whole were shipped to the plaintiffs in toor whole were shipped to the plaintiffs in 3 sound sound sound condition condition condition for timely delivery at Mumbai Port. for timely delivery at Mumbai Port. for timely delivery at Mumbai Port. The The The consignment arrived at Mumbai Port. The consignment arrived at Mumbai Port. The consignment arrived at Mumbai Port. The clearing clearing clearing agents of the 1st plaintiff while taking agents of the 1st plaintiff while taking agents of the 1st plaintiff while taking delivery delivery delivery of the said consignment found that 4378 of the said consignment found that 4378 of the said consignment found that 4378 bags bags bags were landed in torn and slack condition and were landed in torn and slack condition and were landed in torn and slack condition and were were were mixed with dirt and other foreign matter. mixed with dirt and other foreign matter. mixed with dirt and other foreign matter. Accordingly, Accordingly, Accordingly, the Port Trust Authorities issued the Port Trust Authorities issued the Port Trust Authorities issued Remark Remark Remark List Certificate dated 5th April, 1997 to List Certificate dated 5th April, 1997 to List Certificate dated 5th April, 1997 to the the the clearing agents of the 1st plaintiffs stating clearing agents of the 1st plaintiffs stating clearing agents of the 1st plaintiffs stating that that that out of 16181 bags of toor whole, 4378 bags out of 16181 bags of toor whole, 4378 bags out of 16181 bags of toor whole, 4378 bags were were were landed in torn and slack condition. At the landed in torn and slack condition. At the landed in torn and slack condition. At the request request request of the 1st plaintiffs through their of the 1st plaintiffs through their of the 1st plaintiffs through their clearing clearing clearing agents. a joint survey of the torn and agents. a joint survey of the torn and agents. a joint survey of the torn and slack slack slack condition of the bags and refiling was condition of the bags and refiling was condition of the bags and refiling was carried carried carried out by M/s Cargo Control Services out by M/s Cargo Control Services out by M/s Cargo Control Services Corporation, Corporation, Corporation, Mumbai on behalf of the defendants. Mumbai on behalf of the defendants. Mumbai on behalf of the defendants. The The The said surveyors submitted a report dated 4th said surveyors submitted a report dated 4th said surveyors submitted a report dated 4th April, April, April, 1997 and confirmed the shortage/damage in 1997 and confirmed the shortage/damage in 1997 and confirmed the shortage/damage in 2552 2552 2552 bags of toor whole. bags of toor whole. bags of toor whole. 4.4.4. The 1st plaintiff lodged a claim on 15th April, The 1st plaintiff lodged a claim on 15th April, The 1st plaintiff lodged a claim on 15th April, 1997 1997 1997 with with with the defendant’s agents in Mumbai claiming the defendant’s agents in Mumbai claiming the defendant’s agents in Mumbai claiming a sum of Rs.5,18,677.50 being the loss suffered by sum of Rs.5,18,677.50 being the loss suffered by sum of Rs.5,18,677.50 being the loss suffered by the the the 1st plaintiff. The 1st plaintiff had insured 1st plaintiff. The 1st plaintiff had insured 1st plaintiff. The 1st plaintiff had insured the the the aforesaid consignment with the 2nd plaintiff aforesaid consignment with the 2nd plaintiff aforesaid consignment with the 2nd plaintiff against against against transit risk from the port of loading to transit risk from the port of loading to transit risk from the port of loading to Mumbai Mumbai Mumbai and accordingly a policy of insurance was and accordingly a policy of insurance was and accordingly a policy of insurance was issued issued issued by the 2nd plaintiff on 20th January, 1997. by the 2nd plaintiff on 20th January, 1997. by the 2nd plaintiff on 20th January, 1997. 5.5.5. The 1st plaintiff lodged its claim in the sum The 1st plaintiff lodged its claim in the sum The 1st plaintiff lodged its claim in the sum 4 of of of Rs.4,00,341/- to the 2nd plaintiff and the said Rs.4,00,341/- to the 2nd plaintiff and the said Rs.4,00,341/- to the 2nd plaintiff and the said claim claim claim amount has been duly paid by the 2nd amount has been duly paid by the 2nd amount has been duly paid by the 2nd plaintiff plaintiff plaintiff to to to the 1st plaintiff. On 17th June, 1997 the 1st plaintiff. On 17th June, 1997 the 1st plaintiff. On 17th June, 1997 the the the 1st plaintiff executed in favour of the 2nd 1st plaintiff executed in favour of the 2nd 1st plaintiff executed in favour of the 2nd plaintiff plaintiff plaintiff a letter of subrogation and a special a letter of subrogation and a special a letter of subrogation and a special power power power of attorney authorising the 2nd plaintiff to of attorney authorising the 2nd plaintiff to of attorney authorising the 2nd plaintiff to recover recover recover from the defendants loss suffered by the from the defendants loss suffered by the from the defendants loss suffered by the 1st 1st 1st plaintiff. plaintiff. plaintiff. 6.6.6. The original documents namely invoice dated The original documents namely invoice dated The original documents namely invoice dated 21st 21st 21st January, 1997 Bill of Lading dated 21st January, 1997 Bill of Lading dated 21st January, 1997 Bill of Lading dated 21st January January January 1997, remark list certificate dated 5th 1997, remark list certificate dated 5th 1997, remark list certificate dated 5th April, April, April, 1997 issued by Mumbai Port Trust, survey 1997 issued by Mumbai Port Trust, survey 1997 issued by Mumbai Port Trust, survey report report report dated 4th April, 1998, letter dated 15th dated 4th April, 1998, letter dated 15th dated 4th April, 1998, letter dated 15th April, April, April, 1997 by the 1st plaintiff lodging its claim 1997 by the 1st plaintiff lodging its claim 1997 by the 1st plaintiff lodging its claim with with with the the the defendant’s agent in Mumbai, the letter of defendant’s agent in Mumbai, the letter of defendant’s agent in Mumbai, the letter of subrogation subrogation subrogation dated 17th June, 1997 executed by the dated 17th June, 1997 executed by the dated 17th June, 1997 executed by the 1st 1st 1st plaintff in favour of the 2nd plaintiff and a plaintff in favour of the 2nd plaintiff and a plaintff in favour of the 2nd plaintiff and a special special special power of attorney dated 17th June, 1997 power of attorney dated 17th June, 1997 power of attorney dated 17th June, 1997 executed executed executed by the 1st plaintiff in favour of the 2nd by the 1st plaintiff in favour of the 2nd by the 1st plaintiff in favour of the 2nd plaintiff plaintiff plaintiff have been duly proved by the evidence of have been duly proved by the evidence of have been duly proved by the evidence of Ms.Maithili Ms.Maithili Ms.Maithili Kulkarni. The claim in the suit is Kulkarni. The claim in the suit is Kulkarni. The claim in the suit is also also also duly proved by the said affidavit. There is duly proved by the said affidavit. There is duly proved by the said affidavit. There is no no no written statement filed by the defendants. In written statement filed by the defendants. In written statement filed by the defendants. In view view view of the evidence led by the plaintiffs, a case of the evidence led by the plaintiffs, a case of the evidence led by the plaintiffs, a case isisis made out for passing a decree in favour of the made out for passing a decree in favour of the made out for passing a decree in favour of the plaintiff. plaintiff. plaintiff. However, further interest will have to However, further interest will have to However, further interest will have to be be be granted at 12 % p.a. granted at 12 % p.a. granted at 12 % p.a. 7.7.7. Hence, the suit is decreed in terms of prayer Hence, the suit is decreed in terms of prayer Hence, the suit is decreed in terms of prayer 5 clauses clauses clauses (a) and (b) with modification that further (a) and (b) with modification that further (a) and (b) with modification that further interest interest interest will be at the rate of 12 % p.a. from the will be at the rate of 12 % p.a. from the will be at the rate of 12 % p.a. from the date date date of filing of the suit till realisation/payment of filing of the suit till realisation/payment of filing of the suit till realisation/payment of of of the decretal amount. the decretal amount. the decretal amount. 8.8.8. The plaintiff will be entitled to refund of The plaintiff will be entitled to refund of The plaintiff will be entitled to refund of court court court fees if any as per rules. fees if any as per rules. fees if any as per rules. Certified Certified Certified copy is expedited. copy is expedited. copy is expedited. (A.S.Oka, (A.S.Oka, (A.S.Oka, J) J) J) 6