1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.251 OF 2009 IN NOTICE OF MOTION 4071 OF 2005 IN SUIT 1326 OF 2001 Maersk India Pvt. Ltd. (Formerly known as CMB Shipping & Transport Agencies India Pvt. Ltd. ..Appellants. Vs. The Board of Trustees of Jawaharlal Nehru Port Trust & Ors. ..Respondents. Ms.Fereshte Sethna with Ms.Nidhi Singh i/b. Dunmorr Sett for the Appellants. Mr.Dinesh Pednekar with Mr.Girish Thakur i/b. Advani & Co. for Respondent no.1. CORAM: B.H. MARLAPALLE AND S.J. VAZIFDAR, JJ. DATED : 24TH JULY, 2009 P.C. :- Admit. With the consent of the parties, heard finally. 2. The Appellant is Defendant no.2. Respondent no.1 is the Plaintiff. Respondent nos.2 and 3 are Defendant nos.1 and 3 2 respectively. 3. This is the second Defendant’s Appeal against an order of the learned Single Judge, dismissing the Notice of Motion taken out by it for having the suit dismissed as against itself or to have its name deleted from the record of the suit. 4. The suit is filed to recover a sum of Rs.2,96,87,812.35 together with interest at 18% per annum on the sum of Rs. 2,35,17,778.35. Defendant no.2 / the Appellant was formerly known as CMB Shipping & Transport Agencies Pvt. Ltd. Defendant no.3 is Samrat Shipping & Transport Systems Pvt. Ltd. 5. According to the Plaintiffs, all the three Defendants are bound and liable to pay the claim in suit. The Plaintiffs seek to recover the sale deficits i.e. the short realisation pursuant to the auction of the suit consignment in respect of its claim for demmurage/ground rent. 6. In paragraph 4 of the plaint, it is alleged that Defendant no.2 was the shipping agent of eleven containers in which the goods arrived. Further, according to the Plaintiffs, Defendant nos.1 and 2 i.e. Respondent no.2 and the Appellant were responsible for clearing the said goods on payment of the Plaintiffs’ charges but that they have failed and neglected to clear the said goods and abandoned the same in the Plaintiffs’ premises. 7. The Appellant contended in the Notice of Motion that in view 3 of the provisions of Section 230 of the Indian Contract Act, 1872, it is not liable for the claim in suit. According to the Appellant, it was at all material times, an agent acting on behalf of a disclosed principal viz. CMB Transport, N.V., Belgium and/or Torbay Ltd. of Hong Kong. It was further contended that in view of section 230 of the Indian Contract Act, 1872 and in view of the judgment of a learned Single Judge of this Court in Midland Overseas v. m.v. “CMBT Tana” & Ors., 1999(3) ALL MR, 662, it was not liable for the claim in suit. The learned Judge inter- alia held that the judgment is impliedly overruled by the judgment of the Supreme Court in Cochin Frozen Food Exports (P) Ltd. v. Vanchinad Agencies & Ors., (2004) 13 Supreme Court Cases, 434. The learned Judge also held that the judgment of another learned Single Judge of this Court in The Board of Trustees of Jawaharlal Nehru Port Trust v. Continental Float Glass Ltd. & Ors. dated 6.4.2009 in Notice of Motion No.4071 of 2005 in Suit No.1326 of 2001 is also impliedly overruled by the said judgment. 8. Section 230 of the Indian Contract Act, 1872 reads as under :- “230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal. 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 4 contract shall be presumed to exist in the following cases :- (1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad; (2) where the agent does not disclose the name of his principal; (3) where the principal, though dislcosed, cannot be sued.” 9. Ms.Sethna pointed out that the learned Judge had not considered a point of distinction between the judgments of this Court and section 230 on the one hand and the judgment of the Supreme Court on the other. She submitted that in the present case there was no contract for the sale or purchase of goods, in which the Appellant was involved. She submitted therefore that the presumption under section 230 did not apply. 10. Ordinarily, we would have considered this submission ourselves in Appeal. However, the learned counsel appearing on behalf of the Respondent, submitted that in any event the Appellants Notice of Motion ought to be dismissed in view of the provisions of section 2(O) of the Major Port Trusts Act. He submitted that this point was in fact raised on behalf of Respondent no.1, the Plaintiff in the affidavit in reply and before the learned Single Judge but that it was not considered. 11. We do not intend entertaining any dispute as to whether the 5 point was raised before the learned Single Judge or not. The order speaks for itself. 12. We are however of the view that considering that the suit as against the Appellants is likely to be dismissed in the event of the Appeal succeeding without the other contentions raised by the Plaintiff/Respondent no.1 being considered, the ends of justice required that the same ought to be considered. 13. As we intend remanding the matter, for this reason, we think it appropriate that the learned Single Judge also decides the issue raised in respect of section 230 afresh. It is clarified that all the contentions of the parties are kept open. 14. In the circumstances, we set aside the judgment of the learned Single Judge and remand the matter for a fresh decision. We reiterate that all the contentions of the parties are kept open. 15. The Appeal is accordingly disposed of but with no order as to costs. (S.J. VAZIFDAR, J.) (B.H. MARLAPALLE, J.)