1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUMMONS FOR JUDGMENT NO. 317 OF 2008 IN SUMMARY SUIT NO. 489 OF 2008 M/s. LCL Agencies (I) Pvt. Ltd. ....Plaintiff Versus M/s. Pearl Carpet Exports & Ors. ....Defendants Ms. Bharti Narichania i/b. M/s.Vibha Jurisconsult & Co., Advocate for the Plaintiff. Ms. Swati Lad i/b. M/s. Apex Law Partners, Advocates for Defendant Nos. 3 to 5. CORAM : R. V. MORE, J. DATE : 5th FEBRUARY, 2010. P.C. : Heard learned Counsel for the Plaintiff and Defendant Nos. 3 to 5. None appears on behalf of Defendant Nos. 1 & 2 inspite of service of writ of summons. Affidavit of service to that effect is also filed by the Plaintiff. 2. The Plaintiff has filed suit against Defendants for recovery of an amount of Rs. 69,373/- together with further interest on the principal amount of Rs. 55,740/- at the rate of 18% p.a. from the date of filing of the suit till realisation thereof. 2 3. The Plaintiff is a private limited company. The 1st Defendant is a sole proprietary concern of which 2nd Defendant is the sole proprietor. The 3rd Defendant is a partnership firm and Defendant Nos. 4 and 5 are the partners of the Defendant No.3- firm. 4. It is the case of the Plaintiff that in the month of April, 2005, the 1st and 2nd Defendants through Defendant Nos. 3 to 5 entrusted the Plaintiff with their export consignment viz 155 Rolls of Indian Handmade Woolen Carpets for carriage from Port of Nhava Sheva to Montreal, Canada. The Plaintiff arranged for carriage of the said consignment on board the vessel m.v. “Hotaka Maru” and issued Multimodal Transport Bill of Lading dated 21st April, 2005, evidencing Contract of carriage in respect of the said consignment. The Defendants agreed and undertook to pay the freight and other destination charges in respect of the said consignment to the Plaintiff in the event of Consignee failing to do so. 5. The Plaintiff issued invoice dated 23rd April, 2005 for Rs. 62,736/- towards Ocean Freight, THC, Documentation etc. payable for carriage of the said consignment and the Defendants issued cheque for Rs. 6986/- and this amount under the cheque is already adjusted towards payment of THC and documentation charges. 3 6. The Consignee failed to clear consignment and therefore, the Canadian Customs Department proposed to auction the consignment. It is also Plaintiff's case that they time and again informed the Defendants to instruct their Consignee to clear consignments, but in vain. 7. The Plaintiff filed the aforesaid suit on the averment that Defendants though utilised their service for carriage of the said consignment from the Port of Nhava Sheva to Montreal, Canada, they have paid only Rs.6986/- towards THC and documentation charges but have failed to make payment of Ocean Freight and other charges accrued thereon. The Plaintiff in order to substantiate its claim relied upon Multimodel Transport Bill of Lading annexed at Exhibit "A" to the plaint. 8. I have gone through the said bill of lading. It is made clear under the said bill of lading that the freight charges alongwith destination charges will be on Shipper's Account i.e. Defendant Nos. 1 & 2 if unpaid by the Consignee. I have also gone through the invoice issued by the Plaintiff. The invoice supports the Plaintiff's case made out in the plaint. The Plaintiff also tenders compilation of documents which are referred and relied upon by them in the plaint. The documents at serial nos. 3 to 11 are the copies of emails by the Plaintiff to Defendant No. 2 and Defendant No.2 to Plaintiff, respectively. By these emails, the Defendants were informed that Canada Customs Authorities are likely to auction the consignment for non-payment of the storage and custom duty. I have perused the emails relied upon by the Plaintiff. The said emails 4 substantiate that the Defendant Nos. 1 & 2 entrusted the Plaintiff with their export consignment for carriage from Port of Nhava Sheva to Montreal, Canada and the said consignment reached Montreal - Canada on or about 20th May, 2005 and the Defendants inspite of utilisation of the Plaintiff's service for carriage of the said consignment, failed to pay an amount of Rs. 69,373/-. The Defendant Nos. 1 & 2 have also not come forward inspite of service and contested the plaintiff's claim. The Defendant Nos. 1 & 2 deemed to have accepted the averments made in the suit and the affidavit in support to the summons for judgment. So far as Defendant Nos. 3, 4 & 5 are concerned, the learned Counsel for the Plaintiff makes a statement that she is not pressing any relief against them. The statement is accepted. 9. In the facts and circumstances mentioned above and in view of the provisions of Order 37 Rule 2(3) of the Code of Civil Procedure, 1908, the Defendant Nos. 1 & 2 deemed to have admitted the averments made in the plaint. The suit accordingly is decreed against Defendant Nos. 1 & 2 in terms of prayer clause (a). 10. In view of the above statement made by the learned Counsel for the Plaintiff, the suit against Defendant Nos. 3 to 5 is dismissed. 11. In view of disposal of the suit, the summons for judgment will not survive and therefore, same is disposed of. 5 12. Court fees to be refunded as per the Rules. Sd/- (R. V. MORE, J.)