Ganoo R.Y., J.
1. The plaintiffs have filed, the suit for recovery of US Dollars 84870/-along with interest at the rate of 12% per annum from the date of filing of the suit till realisation. By prayer Clause (b) plaintiffs want that vessels, namely defendant No. 1, defendant No. 2 and defendant No. 3 along with their hull, engine, tackle, machinery, boats, apparels and other paraphernalia be arrested till the plaintiffs' claim to the extent of US Dollars 84870 along with interest is satisfied. By prayer Clause (c) plaintiffs want that the aforesaid vessels namely defendant No. 1 and defendant No. 2 be detained condemned and sold and the sale proceeds thereof be applied towards plaintiffs' claim in the suit. Plaintiffs have also sought costs in terms of prayer Clause (h). Defendant No. 1 is the vessel by name M. v. OOCL ABILITY, defendant No. 2 is another vessel M. v. KUO WEI defendant No. 3 is vessel/vessels that are sister ships of defendant No. 1 or defendant No. 2 or any other vessels belonging to defendant Nos. 4 to 8. Defendant No. 4 is a company organised under the Foreign Laws and doing its business through its agent namely defendant No. 5. Defendant No. 5 is joined in its capacity as agent of defendant No. 4. Defendant No. 6 is a company who had issued Multimodal Transfer Document and according to the plaintiffs defendant No. 6 was agent of defendant No. 4. According to plaintiffs defendant No, 7 is the division of defendant No. 6 and they have been joined in their capacity accordingly. Defendant No. 8 is a foreign company with whom plaintiffs had entered into suit agreement as regards sale of sesame, more particularly set out in the invoices which are at Exhibits P-5 to P-8.
2. It is the case of the plaintiffs that pursuant to the sale contracts at Exhibit P-1 to P-4 plaintiffs agreed to sale sesame of various quantities as set out in the invoices which are at Exhibit P-5 to P-8 to defendant No. 8, According to plaintiffs defendant No. 4 issued mates receipts which are at Exhibit P-9 to P-12 and subsequently defendant No. 6, in their capacity as agent of defendant Nos. 4 and 5 are said to have executed Bills of Lading which are at Exhibit P-13 to P-15 and one bill of lading in regard to invoice No. P-8 is executed by the Company by name Ever Trans Shipping Services Ltd. which bill of lading is at Exhibit P-16.
3. According to plaintiffs, the goods were to be delivered to the defendant No. 8 at the address mentioned in the cause title and more particularly set out in the bills of lading at Exhibit P-13 to P-16. It is also the case of the plaintiffs that the bills of lading were to be routed through the bank and defendant No. 8 were to pay the costs of the goods to the bank and get the bills of lading and retire the goods from the port. According to the plaintiffs Oriental Bank of Commerce was the bankers operating in India and the plaintiff's had forwarded the original bill of lading to the Oriental Bank of Commerce and that appropriate endorsements were passed on the; documents at Exhibit P-33 to P-35 thereby showing that the endorsements were paused enabling the said bankers namely Bank of Communication, Hongkong Branch to receive monies on behalf of plaintiffs. The document at Exhibit P-33, P-34 and P-35 in the submission of the plaintiffs are the documents by which it is clear that Oriental Bank of Commerce had passed necessary endorsement directing that money should be paid to the Bank of Communications and the Bills of Lading should be handed over to defendant No. 8 upon payment of costs of the goods. It is the case of the plaintiffs that the plaintiffs Bankers returned the bills of lading at Exhibit P-13 to P-16 as unpaid bills of lading and thereafter plaintiffs made enquiries with the defendant No. 8 and defendant No. 8 accepted that they received the suit goods. It is the case of the plaintiffs that plaintiffs called upon the defendant No. 8 to pay the costs of the goods and the defendant No. 8 promised to pay the costs of the goods. Plaintiffs admit that no payment was ultimately made by the defendant No. 8. It is the case of the plaintiffs that though Bills of Lading issued by defendant No. 6 at Exhibit P-13 and P-15 and, the Bill of Lading at Exhibit P-16 issued by Evertrans Shipping Services Ltd., were lodged with the bank, on account of collusion between defendant Nos. 4 to 8, and the goods came to be delivered to defendant No. 8 without payment of costs of the goods and to that extent plaintiffs have suffered loss in terms of money.
4. I have perused the plaint. It is the positive case of the plaintiffs that defendant 6 issued bills of lading at Exhibit P-13 to P-15 and Evertrans Shipping Services Pvt. Ltd. issued bill of lading at Exhibit P-16 in the respective capacity as agent of defendant Nos. 4 and 5 and because mates receipts were issued by defendant No. 4 they are liable to pay costs of the goods. According to the plaintiffs as defendant No. 6 issued Bills of lading they are liable to pay costs of suit goods. According to the plaintiffs defendant Nos. 5 and 7 are also liable to pay costs of these goods as they acted as agents of defendant Nos. 4 and 6 respectively. The plaintiffs also expect defendant No. 8 to pay costs of the goods as they had received the goods across the port. The writ of summons came to be served on the respective parties except defendant No. 8.
5. Learned Counsel for the plaintiffs had to concede that till the stage of hearing of the arguments, defendant No. 8 was not served. What is the consequence of this will be considered while delivering the reasons and appropriate order shall be passed hereunder.
6. It is seen that defendant Nos. 1 to 3 have been joined as formal parties, this being the suit instituted by the plaintiffs under the Admiralty and Vice Admiralty jurisdiction of this Court. In view of this even if the Court comes to the conclusion that defendant Nos. 4 to 8 are liable to pay against the suit no decree is required to be passed against the defendant Nos. 1 to 3.
7. Suit summons came to be served upon the defendant Nos. 4 to 7 as stated earlier. The defendant No. 4 have filed written statement. Defendant No. 5 have also filed their written statement, Defendant Nos. 6 and 7 have filed a common written statement. Since defendant Nos. 8 were not served, there is no question of filing written statement by the defendant No. 8.
8. Defendant No. 4 have disputed the claim of the plaintiffs and have contended that there is no privity of contract between the plaintiffs and the defendant No. 4. In fact, according to them there is no contract between the plaintiffs and the defendant Nos. 4 and 5. According to them, the plaintiff's directly contacted defendant Nos. 6 and 7 as defendant No. 6 were the shipping agents as set out in the sale contract at Exhibit P-1 to P-4. According to them, this defendant No. 6 and 7 were never agents of defendant No. 4 and that defendant No. 5 were the agent of defendant No. 4. It is the case of the defendant No. 4 that defendant No. 6 were Multimodell transport agents and those contracts were contract of affreighment between plaintiffs and defendant Nos. 6 and 7. It is also the case of the defendant No. 4 that they were not the owners of the vessels namely defendant Nos. 1 and 2 and the vessels came in their custody on account of Charter Party Agreement. According to defendant No. 4 Contract of Privity was between the plaintiffs on one hand the defendant Nos. 6 and 7 and hence there was contract was between the plaintiffs and the defendant Nos. 6 and 7. It is also the case of defendant No. 4 that defendant No. 5 had issued mates receipts but that does not constitute contract of carriage or impose duty of care upon the defendant No. 4 to properly carry and deliver the said cargo. It is denied by the defendant No. 4 that the plaintiffs had submitted to the bankers the documents. It is also denied by the defendant No. 4 that defendant No. 4 in collusion with the defendant Nos. 6 and 7 delivered the goods to the defendant No. 8 without making payment to the bankers. It is also denied by the defendant that defendant No. 4 caused losses to the plaintiffs. With these points, defendant No. 4 have prayed for dismissal of the suit and have of-course prayed for costs.
9. Written statement was filed by defendant No. 5. Defendant No. 5 have contended that as defendant No. 4 were principals of defendant No. 5 and since that relationship was disclosed as between plaintiffs and defendant Nos. 4 and 5, defendant No. 5 being agents of disclosed principal defendant No. 5 are not liable to pay damages in accordance with the provisions of Section 230 of the Contract Act. It is also contended by the defendant No. 5 that there is no independent cause of action against defendant No. 5 and hence defendant No. 5 are not liable to pay suit claim.
10. Written statement came to be filed by defendant Nos. 6 and 7. According to them, plaintiffs have in terms admitted that defendant Nos. 6 and 7 were agents of defendant No. 4 and hence that would disclose the case that defendant No. 6 are the agent of the disclosed principal namely defendant No. 4 and therefore the defendant Nos. 6 and 7 are not liable. According to the defendant Nos. 6 and 7 without the knowledge of defendant Nos. 6 and 7, Express Talent Holdings Ltd., Hongkong issued fresh set of bills of lading in respect of the suit goods to defendant No. 8. According to the defendant Nos. 6 and 7 Express Talent Holdings Ltd. were the delivery agents and hence issuance of bills of lading by Express Talent Holdings Ltd., was completely illegal and unauthorised and defendant Nos. 6 and 7 are not bound by or liable for the action of the Express Talent Holdings Ltd. According to defendant Nos. 6 and 7, on account of the bills issued by the Express Talent Holdings Ltd., the goods were delivered to defendant No. 8 at Kaohsiung, Taiwan by said C.L. Taiwan Ltd., According to defendant Nos. 6 and 7 Express Talent Holding Ltd., ought to have been joined as necessary party and thus suit is liable to be dismissed.
11. It is also the case of the defendant No. 6 that the defendant No. 6 were only shipping agents and that on learning about issuance of bills of lading by Express Talent Holding Ltd., they had warned plaintiffs accordingly and as such according to defendant Nos. 6 the plaintiffs knew the entire transaction and therefore the defendant Nos. 6 and 7 are not liable. The allegations of mis-delivery in collusion with defendant Nos. 4 and 5 are denied. The allegations of loss to the plaintiffs is also denied and subject to the aforesaid stand the defendant Nos. 6 and 7 have denied allegations levelled against them.
12. On the basis of the pleadings as aforesaid, issues came to be framed and following are the issues on which the trial proceeded
Issues Findings1. Whether the plaintiffs In theprove that they are entitled affirmativeto maintain the suitagainst all the defendants?2. Whether the plaintiffs In the negativeprove that the defendantNos. 6 & 7 have acted asdisclosed agents/constituentson behalf of the defendantNos. 4 & 5?3. If the answer to the Does not surviveabove is in the affirmative,whether the defendant No.6 & 7 are liable for thealleged loss of goods ordamage claimed by theby the plaintiffs in respectof the said alleged loss?4. Whether the plaintiffs In the negativeprove that the defendantNo. 6 have made numerousmisrepresentations to theplaintiffs as alleged?5. If the answer to the Does not surviveabove is in the affirmativewhether the plaintiffs provethat the plaintiffs wereinduced to enter into thecontract with the defendantNos. 1, 2 and 4 on the basisof the allegedmisrepresentation?6. Whether the plaintiffs In the negativeprove that the multimodaltransport documents issuedby the defendant No. 7 werenot in conformity with theplaintiffs requirments andtrade and caused losses tothe plaintiffs as alleged?7. Whether the plaintiffs In the negativeprove that the defendantNo. 7 issued the multimodaltransport document incollusion and connivancewith other defendants?8. Do the plaintiffs prove In the negativethat they have privity ofContract with the defendantNo. 4? In the absenceof privity of Contractwhether the plaintiffsprove that they have anycause of action againstthe defendant No. 5?9. If the above issued is Does notin the affirmative, do the surviveplaintiffs prove that thedefendant No. 4 as theprincipals of defendantNos. 6 & 7 empowered thedefendant Nos. 6 & 7 toissue the multimodaltransport documents?10. Do the plaintiffs prove In the negativethat the defendant No. 5being the agent of a disclosedprincipal viz. DefendantNo. 4 is liable to pay theplaintiffs claim?11. Do the plaintiffs prove In the negativethat the defendant Nos. 4and 5 are liable for breachof contract of carriage andduty of care?12. Whether the plaintiffs In the negativeprove that the issuance ofthe Mates receipt by thedefendant No. 5 eitherconstitutes contract as betweenthe plaintiffs and thedefendant Nos. 4 & 5 orimposes a duty of care uponthe said defendants toproperly carry and deliverthe cargo?13. Whether the plaintiffs In the negativeprove that there was collusionand/or connivance betweenthe defendants in misdeliveringthe cargo?14. Whether the plaintiffs In the negativeprove that the defendantshave misdeliviered the cargo?15. Whether the defendant In the affirmativeNos. 6 and 7 prove that ExpressTalent Holdings Ltd., Hongkongare a proper and necessaryparty and hence theirnon joinder in the suit rendersit non maintainable againstthe defendant Nos. 6 & 7 ?15A. Whether the defendant Does not surviveNos. 6 & 7 prove that theclaim of the plaintiffs shouldbe against CLT Taiwan Ltd.?16. Whether the plaintiffs In the negativeprove their claim of US$84870?17. Whether the defendant Does not surviveNo. 4 proves that this Courthas jurisdiction?18. Whether the defendant Does not surviveNo. 4 proves that suit isbarred by limitation?19. What Orders and what As per orderreliefs? below
13. At the stage of recording of evidence, on behalf of the plaintiffs Mr. Yogesh Belani, representative of the plaintiffs came to be examined as P.W. 1, Mr. Suchir K. Saha, employee of Liladhar Passoo Pvt. Ltd. was examined as P.W. 2. M/s. Liladhar Passoo Pvt. Ltd. were the forwarding agents in regard to the suit goods. On behalf of the defendant No. 4 and defendant No. 5, Mr. Rajendra Kurup, employee of the defendant No. 5 came to be examined as D.W. No. 1. Mr. K.V. Harindran, Assistant Manager of defendant No. 4 was examined as D.W. No. 2. Mr. Kiran Talwadekar Accounts Executive of the defendant No. 5 was examined as D.W. 3., Mr. Kunal Sen, Sales Executive as defendant No. 4 was examined as D.W. 4. It is required to be mentioned that no evidence came to be placed before the Court on behalf of the defendant Nos. 6 and 7.
14. Considering the entire record, following are the important exhibits which figure in the trial. Exhibits P-5 to P-8 are the sales contract between the plaintiff on one hand and defendant No. 8 on the other and these sales contract disclose various terms and conditions and also the status of the defendant No. 6 as Buyer's Shipping agents and Oriental Bank of Commerce as bankers. Exhibit P-5 to P-8 are the invoices issued by the plaintiffs in the name of defendant No. 8 and consignee to these invoices were To Order* i.e. to say specific name of defendant No. 8 was not included as consignee, however, the person who was to pay the bill to the bank would be able to get delivery of the goods. Exhibit P-9 to P-12 are the mates receipts concerning the four consignments in regard to which invoices at P-5 to P-8 were received. P-13 to P-15 are the bills of lading issued by defendant No. 6 in regard to suit goods. P-16 is the bill of lading issued by M/s. Evertrans Shipping Services Pvt. Ltd. in regard to part of the suit goods i.e. 1800 bags of sesame, and the notified party was defendant No. 8 and consignee was To Order. P-17 onwards are the various documents which were required to be submitted for the purposes of complying with the various rules and regulations as regards export of the suit goods. P-33 to P-35 are the documents which indicate the costs of the goods, the person to whom the goods are to be sold, the bankers through whom the goods were to be attended to etc. and in particular, on the reverse of these three documents, an endorsement is appearing executed by Oriental Bank of Commerce, thereby giving directions that the payment should be made to Bank of Communication, Hongkong. This endorsement is of relevance as monies were to be paid to Bank of Communication at Hongkong so that the said monies could have been ultimately paid to the plaintiffs. Exhibit D-1(A) and D-2(A) are the two original bills of lading issued by defendant No. 4 forming part of letter received by defendant No. 4. Along with the bills of lading were enclosed the two letters which were issued by defendant No. 6 in favour of defendant No. 4 directing defendant No. 4 to deliver the goods covered by these two bills of lading to CLT Taiwan Ltd. Defendant No. 4 have not been able to produce the third bill of lading. However, in the evidence led on behalf of the defendant No. 4 there is reference to that. D-1 to D-3 are the Xerox copies of the bills of lading issued by defendant No. 4 wherein defendant No. 6 is shown as shipper and consignee is seen as CLT Taiwan Ltd. D-4 and D-5 are the two letters received from defendant No. 6, addressed to defendant No. 4 directing defendant No. 4 to deliver the suit goods covered by those two bills of lading to CLT Taiwan Ltd. Defendant No. 4 have not been able to produce the third bill of lading (Xerox copy) as also concerned letter said to have been issued by defendant No. 6 in favour of defendant No. 4 ordering defendant No. 4 to deliver the suit goods covered by the said bill of lading to CLT Taiwan Ltd. D-9 collectively are the receipts issued by defendant No. 4 in regard to shipment charges paid to defendant No. 4 and according to defendant No. 4 these receipts clearly go to show that the shipment charges were paid by defendant No. 6 as defendant No. 6 were the buyer's shipping agent.
15. It is required to be mentioned that the evidence in the present suit came to be recorded before the Commissioner. It must be mentioned that before the matter was referred to for recording of evidence, the various documents on which the respective parties wanted to rely upon were not marked as exhibit/for identification and that is how the Commissioner proceeded with recording of evidence. It is at the stage of arguments respective learned Counsels went through the various documents and all the aforesaid documents and some other documents came to be marked as Exhibits and it must be specifically mentioned that all the aforesaid documents which have bearing on the decision of the matter were referred to by the respective Counsels and therefore the same will be referred to while deciding the suit.
16. With the assistance of the learned Counsels on both the sides, I have considered the rival submissions. In the first place, it may be convenient to deal with certain issues which do not really call for any detailed discussion.
REASONS
Issue No. 17.
16-A. This reates to the question as regards jurisdiction of the Court and the burden was on the defendant No. 4 to deal with this issue. It must be mentioned that learned Counsel for the defendant No. 4 had not pressed this issue at the stage of arguments and accordingly Issue No. 17 does not survive.
Issue No. 18.
17. So far as this issue is concerned, learned Counsel for the defendant No. 4 had not pressed this issue which pertains to the question of limitation and that is how the Issue No. 18 does not survive.
Issues Nos. 1 to 16.
18. Keeping in view the facts of the case and evidence before the Court the issues at Serial Nos. 1 to 16 can be discussed together.
19. At the outset it is required to be mentioned that defendant Nos. 1 and 2 are not liable to pay the suit claim. Even if it is accepted for a moment that the plaintiffs case is proved against the other defendants no decree in terms of money can be passed and defendant Nos. 1 and 2 and the suit will have to be dismissed so far as defendant Nos. 1 and 2. Same is the position as regards be dismissed so far as defendant No. 3.
20. The plaintiffs have joined defendant No. 8 in their capacity as purchaser of the suit goods. Plaintiffs have led evidence to show that the suit goods were delivered to defendant No. 8. As defendant No. 8 were joined as party defendant, it was the duty of the plaintiffs to serve defendant No. 8. The record shows that no effective steps were taken by the plaintiffs to serve defendant No. 8. It must be mentioned that in the course of arguments, learned Counsel for the plaintiffs had to concede that for whatever reasons defendant No. 8 have not been served. If this is the position, the suit will have to be dismissed against defendant No. 8 for want of prosecution. Appropriate Order shall be passed hereunder.
21. It must be mentioned that learned Advocate Mr. Narichani and learned Counsel Mr. Umesh Shetty appearing on behalf of respective defendants had contended that if the plaintiffs have not served defendant No. 8 i.e. that party to whom the suit goods came to be delivered then the suit should be dismissed against defendant Nos. 4 to 7 respectively. According to these learned Counsels the plaintiff's have not prosecuted the suit against the defendant No. 8 and it is quite possible that plaintiffs have received monies from defendant No. 8, but then plaintiffs have chosen to prosecute the suit against defendant Nos. 4 to 7 and make effort to recover costs of the suit goods again. In so far as this submission is concerned, I am not inclined to accept this argument. In the first place, defendant Nos. 4 to 7 have not been able to place on record adequate evidence to show that costs of the goods have been paid by the defendant No. 8 to the plaintiffs. Hence the suspicion, lurking in the mind of the defendant that plaintiffs have received the monies from the defendant No, 8 and they have been prosecuting the suit against defendant Nos. 4 to 7 to recover the amount again cannot be accepted. The argument advanced by learned Counsel Mr. Narichania and Mr. Umesh Shetty that because suit summons was not served against defendant No. 8 the suit cannot be prosecuted against defendant Nos. 4 to 7 also cannot be accepted. The Court will have to consider the merits of the matter and decide the same.
22. It is required to be mentioned that the plaintiffs themselves have come out with a positive case that in the entire transaction the defendant No. 5 has acted as agent of defendant No. 4. The plaintiffs themselves have admitted in the plaint that defendant No. 7 is division of defendant No. 8. If these are the admissions coming from the plaintiffs, no liability can be fastened upon the defendant No. 5 because defendant No. 5 will have to be treated as agent of owners part. As such the suit will have to be dismissed against the defendant No. 5.
23. In so far as defendant No. 7 is concerned, if it is the case of the plaintiffs that defendant No. 7 is division of defendant No. 6, undoubtedly defendant No. 7 has no independent existence and therefore if at all the decree is passed, it can be passed only against defendant No. 6 and not against defendant Nos. 4 and 7. Even if it is found that defendant No. 7 is a division of defendant No. 6 the suit cannot be decreed against the defendant No. 7. Appropriate orders shall be passed hereunder.
24. It is required to be mentioned that the defendant No. 6 in their written statement have taken a positive stand that without the knowledge of the defendant Nos. 6 and 7 Express Talent Holdings Ltd. Hongkong issued by fresh set of bills of lading in respect of the suit goods in favour of Canadian Cereals Ltd. defendant No. 8 and the goods came to be delivered to defendant No. 8 by delivery agent CLT Taiwan Ltd. It is required to be mentioned that one can say that till such time defendant Nos. 6 and 7 file written statement, plaintiffs could restrict their knowledge of the facts arising out of these transaction to say that defendant No. 4 to defendant No. 7 were liable in regard to the delivery of the suit goods and upto that point not joining Express Talent Holdings Ltd. or the other agent CLT Taiwan can be considered as proper. However, once the defendant No. 6 disclosed their stand that Express Talent Holdings Ltd. as well as CLT Taiwan Ltd., were concerned in the suit transactions, it was imperative for the plaintiffs to amend the plaint and join these two parties as party defendant so that some more light could have been drawn on the entire transaction. Non joining of these two companies will also have to be considered while deciding the case of the plaintiffs.
25. It is required to be mentioned that the plaintiffs have approached this Court with a positive case that three bills of lading came to be issued by defendant No. 6 which are at Exhibit P-13 to P-15 and one bill of lading came to be issued so far as Evertrans Shipping Services Ltd., in regard to the part of consignment i.e. 1800 bags of sesame. It has been the case of the plaintiffs that the defendant No. 4 directed plaintiffs to approach defendant No. 6 as their agent and called upon the plaintiffs to get bills of lading from defendant No. 6. Even if this is accepted for a limited purpose, still that would explain issuance of bill of lading by defendant No. 6 to the extent of P-13 to P-15. In the entire claim there is no specific explanation coming from the plaintiff as to under what circumstances the fourth bill of lading Exhibit P-16 came to be issued by Evertrans Shipping Services Pvt. Ltd., and as to why the said company is not joined as a party defendant like defendant No. 6. Even at the stage of leading evidence, plaintiffs witness P.W. 1 Mr. Yogesh Belani did not give appropriate evidence as to under what circumtances Evertrans Shipping Services Pvt. Ltd., issued fourth bill of lading at Exhibit P-16. This will mean that the plaintiffs admit that in the entire process Evertrans Shipping Services Pvt. Ltd., were concerned in regard to the transaction with defendant No. 6. However, why they have not been joined as party defendant is not known. If this is the position, the claim of the plaintiffs can be considered only in regard to the three invoices which are covered by invoices at Exhibit P-5, P-6 and P-7, as invoice at Exhibit P-8 is corresponding to Bill of Lading at P-16. That would mean that if at all the case of the plaintiffs is to be granted, it can be granted in regard to the costs of the goods which are recovered by invoices at Exhibit P-5, P-6 and P-7.
26. The plaintiffs have heavily placed reliance on the bills of lading which are at Exhibit P-13 to P-15 and the plaintiffs have also referred to mates receipts which are at P-9 to P-12. Since I have indicated that the plaintiffs would not succeed in regard to the part of the goods i.e. goods pertaining to 1800 bags of sesame covered by invoice P-8, it may not be necessary to deal with the relevant invoice. At the same time, it will have to be observed that P-9 to P-12 are the mates receipts issued in regard to four consignments and those have been issued by port authorities at the instance of defendant No. 4. P.W. 2 Suchir Saha was examined on behalf of the plaintiffs. He happened to be employee of Leeladhar Passoo Fowarders Pvt. Ltd. He has clearly admitted that the mates receipts were issued by Nhava Sheva Port Authorities. Of course this was with the concurrence of defendant No. 4. Following is the chart showing the date of the mates receipt, number of bags with invoice number, date of issue of Bill of Lading and date on which the cargo was shipped on board.
------------------------------------------------------------------------Sr. Date Mate No. of Bill of Date of Date onNo. of Mate Receipt Bags lading issue which cargoReceipt Exh. Exh. No. was shipped------------------------------------------------------------------------1. 7.9.2001 P-9 1080 P-13 8.9.2001 8.9.20012. 31.8.2001 P-10 600 P-14 30.8.2001 1.9.20013. 31.8.2001 P-11 720 P-15 30.8.2001 1.9.20014. 26.10.2001 P-12 1800 P-16 2.10.2001 27.10.2001------------------------------------------------------------------------
27. The plaintiffs have approached this Court with a positive case that the plaintiffs contacted defendant No. 4 who issued the mates receipts and thereafter plaintiffs were told to approach defendant No. 6 for the purpose of getting the bills of lading and the bills of lading were issued by the defendant No. 6. Plaintiffs have examined two witnesses in support of their case. Mr. Yogesh Belani is the representative of the plaintiffs and Mr. Suchir Sana is the employee of Leeladhar Pasoo Forwarders Pvt. Ltd. being forwarding agent. If one peruses the entire evidence, it can be observed that these two witnesses do not name the employee of defendant No. 4 who directed the plaintiffs representative to go to a particular employee of defendant No. 6 and obtain the bills of lading at P-13 to P-15 from defendant No. 6. The evidence given by these two witnesses no doubt states that defendant No. 4 told them that defendant No. 6 is their agent. However, in the absence of the specific person who told the representative of the plaintiffs or to the representative of the forwarding agent that defendant No. 6 is their agent, it would be difficult to accept the case of the plaintiffs that defendant No. 6 was the agent of the defendant No. 4. In my view, after considering the entire evidence of Belani P.W. 1 and Suchir Sana P.W. 2, the case of the plaintiffs that defendant No. 4 directed the plaintiffs' representative to go to defendant No. 6 and obtain bills of lading at P-13 to P-15, as defendant No. 6 were to act as agent of defendant No. 4 is not proved by the plaintiffs. As against this, there has been evidence on record coming from the side of the defendant Nos. 4 and 5 as to how defendant No. 6 directed the defendant No. 4 to release the goods and deliver the same to CLT Taiwan etc. In my view, the burden was on the plaintiffs to show that the defendant No. 6 were acting as agent of defendant Nos. 4 and 5, and the same is not discharged and to that extent the plaintiffs case will have to be rejected.
28. At this juncture itself it will have to be mentioned that the learned Counsel for the plaintiffs had contended that plaintiffs have approached the Court against defendant No. 6 on two counts (i) Defendant No. 6 are responsible to pay the suit claim of the plaintiffs as they were acting as agent of defendant No. 4. (ii) Defendant No. 6 had issued Bill of Lading at Exh. P-13 to P-16 and therefore they are responsible for the goods. In so far as the first count is concerned, I have observed that the case of the plaintiffs that the defendant No. 6 are agent of the defendant No. 4 is not proved by the plaintiffs. Hence the suit claim of the plaintiffs cannot be accepted on that count. Even if it is accepted for a moment that defendant No. 6 were acting as agent of defendant No. 4 defendant No. 6 will have to be styled as agent of disclosed principal because it is the case of the plaintiffs that defendant No. 4 told plaintiffs that defendant No. 6 is their agent. Once defendant No. 6 are styled as agent of disclosed principal defendant No. 6 would not be liable to pay costs of the goods in accordance with the provisions of Section 230 of the Indian Contract Act.
29. Coming to the second count based on the issuance of bill of lading by defendant No. 6, it is required to be mentioned that the plaintiffs have not joined Express Talent Holdings Ltd. as also CLT Taiwan Ltd. as defendants. It is very interesting to note that Belani, P.W. 1 in his examination in chief in terms admits that when the bank returned the bills of lading, plaintiffs made enquiries with defendant No. 8 and defendant No. 8 admitted that the goods were received by them. The evidence on behalf of the plaintiffs is completely silent as to what was the arrangement arrived between the defendant Nos. 4 to 7 so as to see that the cargo came to be delivered to defendant No. 8 without the bills of lading. The plaintiffs have in their plaint averred that defendant Nos. 4 to 8 have colluded and the cargo came to be delivered to defendant No. 8 without monies being paid to the bank. In my view, plaintiffs ought to have given appropriate evidence to show as to in what manner the defendant Nos. 4 to 7 colluded and arranged to deliver the goods to defendant No. 8. At the cost of repetition it is required to be mentioned that when the defendant No. 4 in their written statement came out with case that defendant No. 6 had directed them to deliver the goods to CLT Taiwan as well as when the defendant No. 6 came out with case that Evertrans Shipping Services Ltd., issued separate Bill of Lading and arranged to deliver the goods to CLT Taiwan it was necessary for the plaintiffs to join these two organisations. Plaintiffs should have lead further evidence to show that there was collusion between all the organisations involved in the matter and that is how the plaintiffs have been subjected to fraud. Plaintiffs have chosen not to join Express Talent Holdings Ltd. as also CTT Taiwan Ltd. as party defendants. In the cross-examination conducted by learned Counsel Umesh Shetty that of Mr. Belani, P.W. 1 some admission could be secured by the learned Advocate to bring on record instances in the past where the bills of lading were issued by defendant No. 6 and the goods came to be delivered to defendant No. 8 overriding those bills of lading and there was arrangement between plaintiffs and defendant No. 8 and other organisations to see that the Bills of Lading issued by defendant No. 6 are not brought into transaction and the goods are delivered to defendant No. 8 and cost thereto is satisfied in as much as paid to plaintiffs. Though questions were asked to Belani P.W. 1 in this behalf, Belani has not given any evidence to show that in the past certain arrangements were arrived at between plaintiffs and defendant No. 8. Some evidence is brought on record through defendant No. 4 in the nature of correspondence i.e. documents at Exhibit 10. However, that by itself is also not sufficient to show that there was some arrangement between plaintiffs and defendant No. 8 to deal overriding the normal procedure. The fact remains that the plaintiffs did not make further and better inquiries in the matter after they were told by defendant No. 8 that goods were received by them. In my view, when plaintiffs had done everything to see that the goods are shipped so that they are received by defendant No. 8 and when plaintiffs came to know that defendant No. 8 did receive the suit goods, as the party interested in recovering the cost of the goods from the defendant No. 8 it was necessary for the plaintiffs to investigate as to how the goods came to be delivered to defendant No. 8 particularly when defendant No. 8 had accepted the delivery of the goods and had even promised to pay the costs of the suit goods. In my view, adverse inference will have to be drawn against the plaintiffs for not placing before the Court appropriate evidence to show as to how the goods came to be delivered to the defendant No. 8 when the bills of lading Exhibit P-13 to P-15 were lying with the bankers and when arrangement between plaintiffs and defendant No. 8 was such that those bills of lading at Exhibit P-13 to P-15 were to be received by the defendant No. 8 on payment of costs. It is pertinent to reproduce two questions and respective answers given by Belani, P.W. 1 in so far as aforesaid discussion is concerned.
Q.85. Since you learnt about the misdelivery of the cargo did you seek to get any information as to who had effected this misdelivery of the cargo and where and to whom the cargo was delivered?'
Ans. As I have already stated I am still not clear but would like to add, plaintiffs handed the cargo to defendant Nos. 1 to 8 and are still unpaid sellers.
Q.86. You just said that the plaintiffs handed over the cargo to defendant Nos. 1 to 8. Sometime back you said that the clearing agents handed over the cargo to defendant Nos. 4 and 5 who have issued the Mate Receipts. Which of the statement is correct?
Ans. Both are correct.
Further evidence of Belani, P.W. 1 clearly goes to show that no efforts were made by the plaintiffs to investigate as to how the goods came to be delivered to defendant No. 8. In my view, in a situation like this, certainly adverse inference will have to be drawn against the plaintiffs for not placing before the Court appropriate evidence. If this is the position, then the case of the plaintiffs is required to be seen with suspicion so far as defendant No. 6. This discussion would support the stand of the defendant No. 6 which is reflected in the cross-examination of Belani P.W. 1 so as to suggest that there was some kind of arrangement between the plaintiffs and defendant No. 8 to see that the bill of lading which are to be treated across the bank are to be given a go by and the goods are to be dealt with in any other manner. To that extent adverse inference is required to be drawn against the plaintiffs.
30. I now come to the question as to what happened so far as the issuance of Mates receipts and related aspects. Mr. Suchir Saha, P.W. 2, employee of the forwarding agent has admitted that the Mate Receipts were given by defendant No. 6 and for which bills of lading were given to the plaintiffs. He also admits that the Mates Receipts were issued by Nhava Sheva Port Authorities and he also admits that the plaintiffs had requested defendant No. 6 to issue Bill of Lading dated 30.8.2001 to fulfil the requirement of the contract. In this connection reference can be made to the table which is mentioned in the earlier part of the judgment and the learned Counsel Mr. Narichania had drawn my attention to the fact that in so far as two bills of lading i.e. Exhibit P-14 and P-15 the date of issue was shown as 30.8.2001 and the date of shipping on board was 1.9.2001. He had also pointed out that the Bills of Lading at Exhibit P-14 and P-15 were against the mates receipts at Exhibit P-10 and P-l 1 which had the date as 31.8.2001. These two points are required to be noted to say that some arrangements were arrived at between plaintiffs and defendant No. 6 to bring into existence Bills of Lading at Exhibit P-l3 to P-15, it was argued by learned Counsel Narichania that if the mates receipts P-10 & P-ll were on 31.8.2001 then how is it that the bill of lading will have date as 30.8.2001 because as per the standard procedure the mates receipts is first prepared and thereafter Bill of Lading is prepared. In so far as the Bills of Lading Exhibit P-14 and P-15 Suchir Saha has stated that these dates were put, in order to suit the requirements of the contract. All this will mean that the Bills of Lading at Exhibit P-14 and P-15 were prepared by the defendant No. 6 at the desire of the plaintiffs and not in connection with the mates receipts issued by defendant No. 4. Suchir Saha, P.W. 2 also admits that the containers were obtained from defendant No. 4. In my view, the evidence of Belani P.W. 1 and Suchir Saha P.W. 2 if considered clearly indicates that the mates receipts were issued by defendant No. 4, containers were supplied by defendant No. 4. As defendant No.' 6 were shippers as reflected in the shipping agreement at P-1 to P-4 mates receipts were issued by Nhava Sheva Port Authorities and the Bills of Lading which were subsequently sent to the bank were issued by defendant No. 6. It would be worthwhile to consider the evidence of D.W. 1 Mr. Rajesh Kurup, D.W. 2 Mr. Harindran, D.W. 4 Mr. Kunal Sen together. Reading the evidence of these three witnesses it is clear that the mates receipts at Exhibit P-5 to P-9 came to be issued by defendant No. 4. As against these mates receipts three bills of lading came to be issued by defendant No. 4 which have serial numbers 75437210, 75437200 and 75438130. These bills of lading are undoubtedly signed by Mr. Rajesh Kurup and he admits that he signed these bills of lading on behalf of the defendant No. 4 as per the instructions of Mr. Harindran, D.W. 2. It is also seen that defendant No. 6 issued three cheques for Rs. 14010, Rs. 14010 and Rs. 126090/- in favour of defendant No. 4 being the freight charges and the receipts were issued by defendant No. 4 which are at Exhibit D-9. It is also seen that these three bills of lading came to be issued by defendant No. 4 went into the hands of defendant No. 6. It is required to be mentioned that the Xerox copies of these bills of lading were produced by defendant No. 4. Out of these three bills of lading the numbers of which are mentioned in the earlier part of the judgment, two bills of lading i.e. xerox copies came to be produced by defendant No. 4 in the course of evidence which are marked as D-4 and D-5. It is also seen that defendant No. 6 issued letters in favour of defendant No. 4 in regard to the goods covered by the Bills of Lading issued by defendant No. 4 to deliver the goods to CLT Taiwan Ltd. at Keelung. This is being stated on the basis of the documents namely D-l to D-3. D-4 and D-5 are the two letters issued by defendant No. 6 and defendant No. 4 through their witness, have candidly accepted that third letter could not be produced by them. A perusal of these two letters would go to show that the defendant No. 4 were positively instructed by the defendant No. 6 to deliver the goods to CLT Taiwan Ltd. at Keelung.
Evidence on behalf of the defendant No. 4 through their witness is clear to show that the goods came to be delivered to CLT Taiwan Ltd. at Keelung. This is how defendant No. 4 who are said to have issued the mates receipts have shown that they have done their part of job in accordance with the directions given by the defendant No. 6 in terms of the letters at Exhibit D-4 and D-5 and one more letter which could not be produced and therefore defendant No. 4 have acted as per the instructions of the shippers namely defendant No. 6. My attention was drawn to the Bills of Lading produced by defendant No. 4 at Exhibit D-1 to D-3 where the name of CLT Taiwan Ltd. was shown as consignee and the name of the shipper was shown as Kutch Shipping Agency Pvt. Ltd., namely defendant No. 6.
31. If this is the position so far as the dealing at the hands of defendant No. 4 and defendant No. 5, it is abundantly made out by defendant No. 4 that goods came to be delivered to CLT Taiwan Ltd. as per the instructions of defendant No. 6. The net effect of this would be defendant No. 4 who were acting as per the instructions of defendant No. 6, who were admittedly the shipping agents of the plaintiffs, the plaintiffs now cannot make grievance that defendant No. 4 acted contrary to the dealing which were to be done and therefore no liability can be fastened upon the defendant No. 4. Similarly, no liability can be fastened upon defendant No. 5 who were agent of the disclosed principal namely defendant No. 4.
32. Now the question is whether defendant No. 6 who are said to have issued bills of lading at Exhibit P-13 to P-15 are liable. The case of the plaintiffs that defendant No. 6 were acting as agent of defendant No. 4 is already negatived by me. The next question is whether merely because defendant No. 6 issued the bills of lading, namely P-13 to P-15, whether they should be made liable. Learned Counsel Mr. Ashwin Shankar appearing on behalf of the plaintiffs had submitted that the bills of lading at Exhibit P-13 to P-15 were sent to the bank and they were returned to the plaintiffs without payment and therefore the defendant No. 6 ought to have explained the whereabouts of the goods and as to how the goods reached defendant No. 8 and other related aspects.
33. Learned Counsel Mr. Umesh Shetty appearing on behalf of the defendant No. 6 had contended that once the plaintiffs have approached this Court with a case that the defendant No. 6 were the agent of defendant No. 4 and have acted in that capacity it will not be open for the plaintiffs to turn back to the mere fact of issuance of bills of lading and rely upon the bills of lading for the purpose of fixing the liability upon the defendant No. 6. According to learned Counsel Mr. Umesh Shetty, if at all the plaintiffs wanted to make defendant No. 6 liable merely on the ground that defendant No. 6 were the persons who had executed the bills of lading, appropriate pleadings ought to have been made and in the absence of appropriate pleadings the plaintiffs cannot make defendant No. 6 liable merely on the ground that they have executed the bills of lading. Learned Counsel Umesh Shetty had relied upon the judgment namely in the case of (Lodd Balamukundas v. K. Kothandapani and Ors.) reported in A.I.R. 1971 Mad 422. Learned Counsel Mr. Umesh Shetty had drawn my attention to paragraph 7 and 8 of the said judgment and had submitted that in the absence of proper pleadings it will not be open for the plaintiffs to rely upon the simple fact of issuance of bills of lading by defendant No. 6. He had also relied upon the judgment in the case of (Sanjay Chandrakant Mehta v. Malaben Sanjay Mehta) reported in : 2000 (4) Bom.C.R. 207 : 2000 (3) All.M.R. 781 to contend that the evidence must be in consonance with the pleadings and the Court cannot look into the new case which is developed subsequently.
34. I have considered the point involved in the matter. In my view, if the plaintiffs have approached this Court with positive case that defendant No. 6 acted as agent of defendant No. 4 and if plaintiffs have failed to make out their case, defendant No. 6 cannot be held liable as agent of defendant No. 4 and to that extent the case of the plaintiffs cannot be accepted.
35. Now comes the question as to whether merely on issuance of bills of lading P-13 to P-16 defendant No. 6 should be made liable. It is true that defendant No. 6 have not examined any witness to show how Express Talent Holdings Ltd. who were shown as delivery agents in the bills of lading issued by them managed to issue another set of bills and managed to deliver the goods to defendant No. 8 through their agent CLT Taiwan. Still it was for the plaintiffs to bring on record appropriate evidence as discussed earlier as to how the goods came to be received by defendant No. 8 when the bills of lading at Exhibit P-13 to P-15 were lying with the bank. I have already commented upon the conduct of the plaintiffs in not joining aforesaid two organisations namely Express Talent Holdings Ltd. and CLT Taiwan. It is also required to be mentioned that the plaintiffs felt satisfied with the bills of lading at Exhibit P-13 to P-15 which were actually issued by defendant No. 7 i.e. Dattar Lines which happens to be the division of defendant No. 6 and that the said bills of lading were signed on behalf of defendant No. 6 and the relevant portion of the bill of lading is as under:
For Kutch Shipping Agency Pvt. Ltd. Sd/-as agent
As against this, if one peruses the bills of lading which are at Exhibit D-1 to D-3 it is clear that the said bills of lading are signed by the employee of defendant No. 5 for defendant No. 4. This will show that the bills of lading which are at Exhibit D-1 to D-3 were issued by defendant No. 4 duly signed by employee of defendant No. 5. The term 'As agent' appearing on bills of lading at P-13 to P-15 does not throw light as to who were the principal of defendant No. 6 when the said bills of lading were signed by defendant No. 6 as agent. It may be mentioned that plaintiffs who are in the business of export cannot be said to be ignorant about the manner in which the transaction is done and if plaintiffs accepted these bills of lading at Exhibit P-13 to P-15 signed by somebody for Kutch Shipping Agency Pvt. Ltd. i.e. defendant No. 6 and that too as agent, certainly there was something which was within the specific knowledge of the plaintiffs and in that case it was neeessary for the plaintiffs to explain in detail as to how they accepted these three bills of lading issued by defendant No. 6.
36. Perusal of these bills of lading at Exhibit P-13 to P-15 nowhere shows that they were issued by defendant No. 6 in their capacity as agent of defendant No. 4. If it was the case of the plaintiffs that they approached defendant No. 6 in their capacity as agent of defendant No. 4 it was obligatory upon the plaintiffs to insist that bills of lading duly signed by the defendant No. 6 would mention that they are signed by the Officer of defendant No. 6 in his capacity for and on behalf of the defendant No. 6 and as agent of defendant No. 4. In my view, the fact that plaintiffs accepted Bills of Lading at Exhibit P-13 to P-15, plaintiffs were knowing as to in what circumstances these incomplete bills of lading were issued by defendant No. 6 and plaintiffs were fully aware of the fact as to what is going to happen to the suit goods. I am observing this because despite the stand taken by the defendant No. 6 in written statement about Express Talent Holdings Pvt. Ltd. and C.L. Taiwari Ltd., he backed and plaintiffs did not join these organisations. Perusal of exhibit P-13 to P-15 clearly go to show that the delivery agents in regard to those bills of lading were Express Talent Holdings Ltd. This will go to show that Express Talent Holdings Ltd., were undoubtedly concerned in regard to the goods in question and therefore it was obligatory upon the plaintiffs to join Express Talent Holdings Ltd. at the outset so that the actual dealing in regard to the suit goods could have come to the light.
37. For the reasons mentioned aforesaid, even if it is accepted for a moment that the plaintiffs could sue defendant No. 6, for having issued bills of lading at Exhibit P-13 to P-15 the claim of the plaintiffs cannot stand and to that extent plaintiffs case cannot be accepted on the ground that defendant No. 6 issued bills of lading for said goods at Exhibit P-13 to P-15.
38. I have already indicated that defendant No. 7 being a division of defendant No. 6 cannot be made liable independent of defendant No. 6 hence there is no question of fixing the liability against defendant No. 7.
39. Learned Counsel Mr. Umesh Shetty appearing on behalf of defendant Nos. 6 and 7 in the course of arguments had drawn my attention to the provisions of The Multimodal Transportation of Goods Act, 1993 and had tried to contend that bill of lading at Exhibit P-13 to P-15 have been issued contrary to the provisions of the Multimodal Transportation of Goods Act, 1993 by pointing out the various provisions of the said Act. In so far as this aspect is concerned, the said argument cannot be accepted because in the written statement filed by defendant Nos. 6 & 7 there is no challenge put up to the Bills of lading at P-13 to P-15 based on the provisions of the Multimodal Transportation of Goods Act, 1993. It is in these circumstances, the submissions of learned Counsel Mr. Umesh Shetty is required to be rejected.
40. Keeping in view the aforesaid discussion, I am inclined to observe that the plaintiffs case so far as defendant Nos. 4 to 7 cannot be accepted on either count and that appropriate finding will have to be recorded in regard to each and every issue mentioned aforesaid keeping in view the aforesaid discussion. Hence, I now record my findings on the issue.
Issue No. 1 : I have already observed that the plaintiffs could institute suit against defendant Nos. 1 to 7 and to that extent the issue is answered in the affirmative.
Issue No. 2 : So far as issue No. 2 is concerned there is no evidence to show that plaintiffs have proved that defendant Nos. 4 and 5 told plaintiffs to approach defendant Nos. 6 and 7 as their agent and to that extent plaintiffs have failed to discharge the burden cast on them. Hence Issue No. 2 is answered in the negative.
Issue No. 3 : Keeping in view the answer to issue No. 2 in the negative, Issue No. 3 does not survive.
Issue No. 4 : This issue will have to be answered in the negative because it has been the case of the plaintiffs that it is defendant Nos. 4 and 5 represented to plaintiffs that defendant Nos. 6 and 7 are their agents, which case is not proved. It is true that the plaintiffs accepted the bills of lading from the defendant No. 6, however, that is not on the basis of the misrepresentation and that is how the issue No. 4 will have to be answered in the negative.
Issue No. 5 : Issue No. 5 does not survive in view of answer to issue No. 4 in the negative.
Issue No. 6 : Plaintiffs have not been able to show that multimodal transport documents issued by defendant Nos. 6 and 7 were not in conformity with the plaintiffs requirements. In fact, evidence of Belani P.W. 1 clearly shows that plaintiffs called upon defendant No. 6 to issue bills of lading at Exhibit P-13 to P-16 so as to be in conformity with the contract and therefore it cannot now be said by plaintiffs that bills of lading at P-13 to P-15 were not in confirmity with the plaintiffs. Accordingly, Issue No. 6 is answered in the negative.
Issue No. 7 : is answered in the negative as no evidence is placed by the plaintiffs to show that there was collusin between defendant Nos. 4 and 5 on the one hand and defendant Nos. 6 and 7 on the other. '
Issue No. 8 : will have to be answered in the negative as record clearly goes to show that defendant No. 4 were the carriers and had taken possession of vessels namely defendant Nos. 1 and 2 on the basis of the Chater party and further the evidence on record clearly goes to show that defendant No. 6 were the shippers and defendant No. 4 acted on the basis of instructions of defendant No. 6 and delivered the goods to CLT Taiwan. There is no question of cause of action against agent of disclosed principal.
Issue No. 9 : does not survive in view of the findings on Issue No. 8
Issue No. 10 : is answered in the negative because defendant No. 5 was the agent of the disclosed principal and as such defendant No. 5 cannot be made liable in accordance with the provisions of Section 230 of the Indian Contract Act.
Issue No. 11 : is answered in the negative as I have observed that defendant Nos. 4 and 5 had acted on the basis of instructions given by defendant No. 6 which instructions were contained in letters at Exhibit D-4 and D-5.
Issue No. 12 : is answered in the negative in as much as I have given reasons as to how defendant No. 4 acted upon mates receipts and ultimately delivered the goods to CLT Taiwan on the basis of written instructions from defendant No. 6.
Issue No. 13 : will have to be answered in the negative in as much as I have observed that the plaintiffs have not been able to bring on record cogent evidence to show that there was collusion between defendant Nos. 4 to 7.
Issue No. 14 : will have to be answered in the negative in as much as the plaintiffs have accepted that defendant No. 8 had received the goods and no evidence is placed before the Court to show as to how the goods came to be misdelivered to defendant No. 8 in the wake of the evidence given by witness as on behalf of defendant No. 4 that the goods were duly delivered to CLT Taiwan as per the instructions of the shippers, namely defendant No. 6.
Issue No. 15 : will have to be answered in the affirmative in as much as plaintiffs ought to have joined Express Talent Holdings Ltd. as well as CLT Taiwan after written statement on behalf of defendant No. 6 was placed on record. In my view, these two organisations were necessary parties and non joining of these two parties atleast at after filing of written statement by defendant No. 6 resulted in non joinder of necessary party and accordingly issue No. 15 will have to be answered in the affirmative.
Issue No. 15-A : does not survive in view of answer to issue No. 15.
Issue No. 16 : Keeping in view the findings to issue No. 1 to 15 plaintiffs suit will have to be dismissed and therefore issue No. 16 is answered in the negative. Keeping in view the finding on Issue Nos. 1 to 18 plaintiffs suit will have to be dismissed and appropriate order shall be passed hereunder:
41. On the question of costs learned Counsel on behalf of defendant Nos. 4 and 5 and defendant Nos. 6 and 7 had submitted that if the Court comes to the conclusion that the plaintiffs suit is required to be dismissed, the defendant Nos. 4 to 7 should be awarded costs. In so far as this aspect is concerned, it is required to be mentioned that the plaintiffs had not made any efforts to serve defendant No. 8 though plaintiffs had knowledge that the goods were received by defendant No. 8. It is also required to be mentioned that the plaintiffs did not take any steps to bring on record evidence to show as to under what circumstances, the goods were delivered to respondent No. 8 and the plaintiffs were satisfied with the mere fact that bills of lading at Exhibit P-13 to P-15 were returned by the banker to plaintiffs. All these shortcomings on the part of the plaintiff's makes me to hold that the plaintiffs should be saddled with costs of the suits and accordingly the suit will have to be dismissed with costs. For the reasons mentioned aforesaid, I pass the following decree:
ORDER
i. Plaintiffs suit is dismissed.
ii. Plaintiffs do pay to defendant Nos. 4, 5, 6 and 7 costs of this suit.