Case: Ttk Biomed Limited Vs. Arebee Star Maritime Agencies Private Limited &amp; Others

allowing the above Notice of Motion, whereby the Plaint is rejected against Defendant No.6, and he submitted that the said issue of limitation ought to have been decided at the trial, after allowing the parties to lead evidence. 13. Mr. Sancheti for original Defendant Nos.5 and 6 contended that the learned Single Judges order was fully justifiable, as the suit claim against the above Defendants is clearly barred by law of Limitation and that there is no cause of action against them. Mr. Sancheti pointed out that in the facts and circumstances of the case in Mahajan Silk Mills Pvt. Ltd., the learned Single Judge was of the view that the plea of suit being barred by law of limitation could be decided only by leading evidence as the same was not clear from plaint itself. 14. Mr. Sancheti, the learned Counsel for Respondent Nos.1 and 2 very categorically contended that the suit claim is ex-facie barred by law of limitation, as the same is very clear from the pleadings in the plaint. There is a clear failure on the part of the Plaintiff to file a suit within either 9 months or one year as per the provisions of Clause 23 of the Bill of Lading dated 09/10/1996, paragraph 6 of Article III of the Rules Relating to Bills of Lading, (Schedule to The Indian Carriage of Goods by Sea Act, 1925) respectively, results in the Plaintiffs remedy and rights being extinguished. Further, Mr. Sancheti strongly relied on the judgment of the Honble Supreme Court in the case of East and West Steamship Co. Vs. S.K. Ramalingam Chettiar, (AIR 1960 SC 1058 ), wherein the Honble Supreme Court held that paragraph 6 of Article III of the Indian Carriage of Goods by Sea Act, 1925 provides full immunity to carriers from all liability, if a suit is not instituted for recovery of the amount of loss that is caused within one year, and the suit is thereafter barred, and in fact the right to claim gets extinguished. The relevant part of the judgment reads as under: 18. It is worth noting in this connection that while paragraph 5 makes it clear that loss there means loss to the carrier and paragraph 8 speaks of loss or damage to or in connection with the goods, the Legislature has in the 6th paragraph of this Article left the words "loss or damage" unqualified. The object of the rule however being to give immunity to the carriers and the shippers from claims of compensation made by the owners of the goods in respect of loss sustained by them it will be unreasonable to read the words "loss" in that paragraph as restricted to only loss "of the goods". When the object of this particular paragraph and the setting of this paragraph in the Article after the previous paragraphs are considered there remains no doubt whatsoever that the learned Judges of the Bombay High Court were right in their conclusion that the loss or damage in this paragraph is a wide expression used by the Legislature to include any loss or damage caused to shipper or consignee in respect of which he makes a grievance and in respect of which he claims compensation from the shipping company. 19. The argument that loss due to failure to deliver the goods is not covered by this clause is merely to be mentioned to deserve rejection. The very use of the words "the date on which the goods should have been delivered" clearly contemplates a case where the goods have not been delivered. The clause gives the owner of the goods one years time to bring the suit the year to be calculated from the date of the delivery of the goods where the goods have been delivered and from the date when the goods should have been delivered where all or some of the goods have not been delivered........................................................... 15. Mr. Sancheti also strongly relied on clause 3 of paragraph 6 of Article III of the Schedule to the Indian Carriage of Goods by Sea Act, 1925, which reads as under: "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." 16. Mr. Sancheti, the learned Counsel for Defendant No.6 pointed out that as per the averments in the plaint, the wrongful delivery was effected by Defendant No.6 in March, 1997. Hence, the suit should have been instituted within one year from March, 1997 and as the present suit has been instituted in October, 1999, it would be clearly barred by law of Limitation. Mr. Sancheti contended that the right to sue itself got extinguished after a year. 17. Thereafter, Mr. Sancheti referred to and relied upon Saleem Bhai Vs. State of Maharashtra (2003) 1 SCC 557 ) to contend that the application under Order VII Rule 11 of the Code of Civil Procedure should be decided only on the basis of averments in the Plaint, and there is no need of written statement and the said application should not be postponed to the stage of trial. 18. After hearing both the learned Counsel, it is explicitly clear from the pleadings in the Plaint itself, that the suit is filed against Defendant No.6 much after the expiry of one year. There is absolutely no ambiguity and there is no evidence needed for establishing the same. 19. In the light of East & West Steampship Co. Case as held by the Honble Supreme Court, the Appellants right to sue itself gets extinguished after a lapse of one year after the delivery of the goods. 20. Saleem Bhais case also makes it clear that the application under Order VII Rule 11 of the Code of Civil Procedure should be decided on the basis of pleadings in the Plaint and need not wait till the trial.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]18. After hearing both the learned Counsel, it is explicitly clear from the pleadings in the Plaint itself, that the suit is filed against Defendant No.6 much after the expiry of one year. There is absolutely no ambiguity and there is no evidence needed for establishing the same. 19. In the light of EastWest Steampship Co. Case as held by the Honble Supreme Court, the Appellants right to sue itself gets extinguished after a lapse of one year after the delivery of the goods. 20. Saleem Bhais case also makes it clear that the application under Order VII Rule 11 of the Code of Civil Procedure should be decided on the basis of pleadings in the Plaint and need not wait till the trial.