Case: All Cargo Movers(I) Pvt.Ltd Vs. Dhanesh Badarmal Jain

The parties hereto entered into a contract of carriage. First Respondent approached the appellants which are companies registered and incorporated under the Indian Companies Act for delivery of six consignments valued at US $ 98,715.29 to the original consignee, M/s. Universal Apparels (EPZ), Mombassa, Kenya. By reason of a fax message, Appellants asked their counterparts in Mombassa, Kenya (Walford Meadows) to confirm delivery of consignment asking it to see that the cargo is delivered only against presentation of original Bills ofgoods in question were said to have been delivered by the agent of the petitioner to the original consignee but the same allegedly was rejected on the ground of being inferior in quality. Goods are said to have been delivered to M/s. Fashionette Industries Ltd. Complainant-Respondent issued a notice to the accused persons as also the aforementioned Walford Meadows and M/s. Universal Apparelswith utter disregard to the procedures and practice prevalent internationally, and being fully conscious of the consequences of delivering the consignments without production of the Bills of Lading, you M/s. Walford Meadows Ltd., as agents of the Carrier at Mombassa Ltd. effected delivery of the consignments covered under the aforesaid original bills of lading to the consignees, without their producing the Bills of Lading. That my clients are shocked at your act of negligence, which is contrary, violative and in breach of your duties under the Contract andwas, thus, attributed to the agencies in delivering the cargo without the original Bill of Lading. It was also alleged that the carriers and their agent have committed a breech of carriage and acted in violation of their contract and obligation. A claim for a sum of US$ 84,353.31 was made. In the said notice, it wasyou, M/s. Walford Meadows, sent a fax dated 19.9.1996 to M/s Universal Apparels, copy of which was faxed to my clients by you M/s All Cargo Movers (India) Pvt. Ltd. By the said fax, you M/s Walford Meadows Ltd. have clearly pointed out the procedures to be followed in respect of Through Bills of Lading or House Bills of Lading and have admitted that no cargo should be released to the importer without the presentation of the original Bills of Lading. That you, M/s. Walford have gone one step further and stated that you had delivered the consignments to Universal Apparels as a favour, since Universal Apparels were your regular customers etc. etc. and lodged a claim for the value of the said consignments being the amount they have been debited with you, M/s. Allor about 14.9.1996, Mahabir Apparels in a letter addressed to the petitioner company, lodged a statement of claimTREAT THIS AS OUR FORMAL CLAIM FOR RS.27,87,795/- INVOLVEDCONSIGNMENT. YOU ARE HEREBY ADVISED TO LOOK INTO THE MATTER AND GIVE US THE EXACT STATUS OF THE ABOVE CARGOESagain by a fax message dated 19.9.1996 sent by Darius Macharo to the Universal Apparels, it wasabove shipments were realeased and delivered to you without your showing to us the original Bills of Lading. The procedure of the through bills of lading or house bills of lading (illegible) should be released to the importer without presentation of the original bill of lading. However, this favour was extended to you because1. You are our regular customer.2. To save you for heavy post storage charges which you would ((illegible) you were to wait until you got the original bill from your supplier.3. You needed the material very urgently as you were out of stock.We have now been advised by our Principals, All Cargo that your supplier Mahavir Apparels is demanding US Dollar 84,353.31 from us as we released the goods in absence of the original B/L. (illegible)Please revert now as we have to advise our Principal in India before close of business today. In the meantime we are holding all your shipments until this matter iscopy of the said fax message was sent to the appellant herein: All Cargo India, Mumbai.Attn : Vevek Kele We shall come back to you with full details upon receiving reply from Universal Apparels. Cargo was released without Bankbare perusal of the aforementioned letters/notices would clearly indicate that no allegation had been made at the material time that it was the appellant who had caused delivery of theis furthermore not in dispute that a suit has been filed by the respondent herein in the Original Side of the Bombay high Court which has been marked as suit No.1861 ofthe said suit, the following have been arrayed asACE Lines Ltd. a company Incorporated under Foreign Laws, Having its office at 29 Bis Mere Bathelemy Street, Port Louis, Mauritius.2. All Cargo Container Lines Ltd. A company incorporated under Foreign laws having its office at 29, Bis Mere, Bathelemy Street, Port Louis Mauritius.3. All Cargo Movers (India) Pvt. Ltd. A company incorporated in India Under the Companies Act, 1956 And having its office at 204, National Insurance Building, Dr. D.N. Road, Bombay - 400001.4. M/s Walford Meadows Limited, A company incorporated under Foreign Laws having its office at 1st American Bank Building, 2nd Floor, No.1 Avenue,defendant Nos.1 to 3 are alleged to be inter-related/sister companies, the fourth defendant is said to be their agent. In the said suit, neither the aforementioned M/s. Walford Meadows Ltd. nor M/s. Universal Apparels have been implicated as parties. Plaintiff in the said suit averred that entrustment of the six consignments have been made to Mahabir Apparels. The case made out in the plaint by the first respondents is asrespective ships carrying the said six consignments sailed from the Port of Bombay on different dates and arrived at Mombassa. The 3rd Defendants addressed 2 fax messages dated 30.8.1996 and 2.9.1996 to the 4th Defendant specifically instructing them to deliver the said six consignments only against presentation of original Bills of Lading. The Plaintiff is crave leave to refer to and rely upon the aforesaidplaintiff immediately addressed a fax dated 11.9.1996 to the 3rd Defendant (with a copy to M/s. Harilal Bhawanji) questioning the legality, propriety in giving delivery of the cargo without production of the Bills of Lading. The plaintiff also pointed out that they had not given any written permission to give delivery of the cargo without production of the Bills of Lading. The Plaintiff whilst emphasizing that the matter was very serious informed the 3rd Defendant to inform their Mombassa Agents not to release the goods without production of the original Bills of Lading in respect of their consignments. The plaintiff craves leave to refer to and rely upon the said correspondence when produced.

Reasoning:
We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.