Case: Shipping Corporation of India Limited and Another Vs. Nissar Export Corporation

Respondent is a private limited company carrying on business in export and import. The first appellant is the Shipping Corporation of India Limited, Bombay while the second respondent (sic appellant), a private limited company, is its agent. The respondent obtained a written shipping order for shipping 5000 packages of onions and moved the entire cargo alongside the steamer M. V. "Chidambaram", which was berthed at North Quay of the Madras Port on October 28/29, 1973. The cargo was intended to be exported to Malaysia. It appears that while the loading operations in regard to some other cargo were going on, there were showers at the Madras Port, light or heavy we do not want to say. The case of the respondent is that while the cargo was being loaded on a "first come first served" basis and as his turn was due near about the midnight of October 31, 1973, the shipping company, the first appellant, announced that in accordance with the instructions of its agent the second appellant, loading of the Madras cargo would be stopped by giving preference to the cargo from Nagapattinam. The case of the respondent is that Nagapattinam cargo was given a "preferential and discriminatory treatment", as a result of which his cargo was not accepted for loading. The respondent sold the onions in the local market thereafter as a result of which, according to him, he suffered a loss, for the recovery of which he brought the present suit on the original side of the Madras High Court.3. On the pleadings of the parties the learned Trial Judge framed six issues, one of which, namely, issue No. 4 was as to whether there was discrimination in shutting out the respondents cargo. After considering the entire evidence in the case the learned Judge dismissed the suit.4. The respondent filed an appeal before a Division Bench of the Madras High Court against the decision of the learned single Judge. The Division Bench by its judgment dated April 3, 1979, set aside the judgment of the Trial Judge and remanded the suit to him for disposal in the light of the observations contained in its judgment. It is this order of remand which is challenged by the appellants in this appeal.

Reasoning:
It is true that none of the paragraphs of the written statement refers expressly or numerically to paragraph 6 of the plaints but that is a matter of form and not of substance. The various averments contained in paragraphs 5 and 7 to 10 of the written statement are specifically directed at the averments made in paragraph 6 of the plaint. The case made out by the respondent in paragraph 6 of the plaint is that the appellants gave a discriminatory preference to the Nagapattinam cargo and refused to accept the Madras cargo without any valid reason. The appellants have given specific and elaborate reasons as to why it became necessary to load Nagapattinam cargo before completing the loading of the Madras cargo.We are unable to understand how, in view of these averments in the written statement, it can be said that the allegations made by the respondent in paragraph 6 of the plaint have not been traversed by the appellants. We are of the opinion that those allegations have been fully and effectively traversed by the appellants and therefore the learned Trial Judge was justified in disposing of the suit on the basis of the issues framed by him in the suit.9. We might mention that thedid not contend in the trial Court, that the allegations contained in paragraph 6 of the plaint were not traversed by the appellants and should therefore be deemed to have been admitted. No objection was raised to the learned Trial Judge raising an issue on the matters stated in paragraph 6 of the plaint. We do not think that the respondent should have been permitted in these circumstances to raise for the first time in the appeal the contention that a part of his claim must be deemed to have been admitted for the reason that it was not traversed in in the written statement.