Mayar (H.K.) Ltd. & Ors vs Owners & Parties, Vessel M.V. Fortune ...

The plaintiffs have also alleged that the defendants also acted in breach of their contract entered into with A-1 being the shipper under the aforesaid six bills of lading. The defendants have acted in breach of the Charter Party Agreement entered with A-1 by failing and neglecting to carry on board the vessel from the loading point to the discharge port, the agreed quantity of logs. As the logs were not delivered, all the plaintiffs are entitled to claim from the defendants the proportionate value and expenses incurred on account of the said missing 456 logs which is approximately valued at Rs. 1,30,19,688.44p. as per the particulars stated hereinbelow :

The plaintiffs have also claimed from the defendants interest on the aforesaid sum at the rate of 24 per cent per annum until realization of the entire sum from the defendants. The plaintiffs have prayed for the arrest of the vessel along with her tackle, apparel and furniture. On 27.3.2000 itself, the learned Single Judge of the Calcutta High Court passed an order that it appears that the claim of the plaintiffs arises out of short-landing of the goods as mentioned in the affidavit of arrest amounting to a total sum of Rs.1,30,19,688.44p. The vessel in question is a foreign vessel and does not have any assets within the jurisdiction of the Court. The said vessel is now lying at Kidderpore Dock and if the said vessel is allowed to ply from the said dock then the decree that may have been passed in the suit in favour of the plaintiffs will frustrate the proceedings, as the defendant-respondents have no assets within the jurisdiction of the Court and in view thereof the Marshall is directed to arrest the said vessel M.V. Fortune Express along with her tackle, apparel and furniture. It was made clear in the order that if the said vessel furnishes a bank guarantee for the amount mentioned in the order, with the Registrar, Original Side, High Court, Calcutta, they will be at liberty to apply before the Court for vacation of the order. On 12.4.2000, the Punjab National Bank, Calcutta, submitted a letter of intent before the Registrar, High Court, Original Side, Calcutta regarding furnishing of the bank guarantee on behalf of the defendant-respondents seeking order of the court for release of the vessel. On submission of the letter of intent for furnishing the bank guarantee on behalf of the owners and parties interested in the vessel, i.e., the respondents, dated 12.4.2000, the learned Single Judge of the Calcutta High Court on 12.4.2000 itself has passed an order releasing the vessel from arrest vacating the order of arrest dated 27.3.2000. The order was passed without prejudice to the rights and contentions of the owners of the vessel that the suit is not maintainable. On 17.5.2000, the Punjab National Bank furnished the bank guarantee binding itself and the defendants for the payment of the amount of Rs.1,30,19,688.44p. The guarantee incorporated a term that the defendants and the Bank do thereby submit themselves to the jurisdiction of the Court.

On 7.7.2001, the defendants filed an application purported to be under Order VII Rule 11 of the Code of Civil Procedure 1908 (for short "the Code") alleging therein that the suit filed by the plaintiffs is liable to be dismissed in limine and as a consequence thereof the bank guarantee is liable to be released, on the grounds that as per Clause 3 of the Bill of Lading (for short "BOL") the court having jurisdiction to entertain the suit, is the court of the carrier's country and thus the Calcutta High Court has no jurisdiction to entertain the suit; that the contract for carriage was for deck cargo and, therefore, liability of the carrier was excluded by application of Clause 2 and Clause 9 read with Clause 19 of BOL and the same being binding on the plaintiffs the defendants are not at all liable for payment of the damages; and that the suit does not disclose any cause of action. The learned Single Judge by his order dated 1.7.2002 dismissed the application filed by the defendants for dismissal of the suit relying on the decision of this Court in Chittaranjan Mukherji vs. Barhoo Mahto, AIR 1953 SC 472, that the defendants having received a favourable order from the Indian court cannot turn around and challenge the jurisdiction of the very court at a later stage. It was also held that for application of Clause 9 of BOL and exonerating the carrier from its liability and responsibility, it would be necessary to prove that the loss or damage is the result of any act, neglect or default on account of any servant of the carrier who is in the management of the deck cargo, which is a matter of evidence and cannot be ascertained at the preliminary stage.

*[This period may, however, be extended if the parties so agree after the cause of action has arisen:

.. the place designated as the principal place of business of the corporation in its certificate of incorporation."