Judgment:
Abdul Hadi, J.
1. O.S.A. Nos. 86 of 1982 and 88 of 1982 arise out of the judgment and decree dated December 20, 1979, in C.S. No. 101 of 1976, on the file of this court. The plaintiffs in the said suit, namely, the Southern India Bearing Distributors Association and Canara Bank are the appellants in O.S.A. No. 86 of 1982 and the third defendant-insurance company is the appellant in O.S.A. No. 88 of 1982. The suit is for a decree for a sum of Rs. 5,89,072 with interest thereon. The first defendant is Navlomour, charterers of vessel S. S. Sumadija, Bucharest, Romania, represented by their agents in India, the South India Corporation Agencies Private Limited, Madras-600 001. The trial court gave a decree against D-3 alone for the abovesaid full sum claimed and decree for Rs. 11,181.56 against D-1. The trial court negatived the suit claim against D-2, namely, the trustees of the port of Bombay. Therefore, O.S.A. No. 86 of 1982, has been filed by the abovesaid plaintiffs praying for decree against all the defendants as prayed for in the plaint. Aggrieved by the decree for the total sum, D-3 has filed O.S.A. No. 88 of 1982.
2. C.S. No. 101 of 1976, was tried along with another connected suit, C.S. No. 545 of 1978, where the plaintiff is different but the defendants are the same as in C.S. No. 101 of 1976. The plaintiff in C.S. No. 545 of 1978, is one Lala Gopikrishna Gokuldoss. Both the plaintiffs in C.S. No, 546 of 1978, and the first plaintiff in C.S. No. 101 of 1976, have imported ball bearings from Romania and the said goods were shipped from Bucharest, Romania to Madras through the abovesaid vessel S. S. Sumadija, owned by the abovesaid Navlomour, the first defendant in C.S. No. 101 of 1976, who is the second defendant in C.S. No. 546 of 1978 (hereinafter referred to as 'the carrier'). The second plaintiff-bank in C.S. No. 101 of 1976, only financed the import of the goods and the plaint in the said suit says that the suit is filed by the second plaintiff also 'to avoid any technical defence'.
3. Admittedly, though the goods were to be delivered at Madras, the carrier delivered the goods only at Bombay port on March 16, 1975, to the Bombay Port Trust who is the second defendant in C.S. No. 101 of 1976, and the first defendant in C.S. No. 546 of 1978 (hereinafter referred to as 'the port trust'). The plaintiff in C.S. No. 546 of 1978, has imported 201 cases of ball bearings and the first plaintiff in C.S. No. 101 of 1976, has imported 461 cases of ball bearings from Romania. In C.S. No. 546 of 1978, out of the abovesaid 201 cases, the complaint in the said suit is that nine cases were not delivered to the plaintiff therein. In C.S. Nos. 101 of 1978, and 546 of 1978, admittedly the said goods while they were stored at the port trust godown caught fire on September 24, 1975. In C.S. No. 101 of 1976, the abovesaid sum of Rs. 5,89,072 with interest is claimed as damages and in C.S. No. 546 of 1976, a sum of Rs. 17,590.60 with interest, is claimed as damages. In C.S. No. 546 of 1976, a decree has been given for the abovesaid sum of Rs. 17,590.60 only against the third defendant and in so far as the carrier is concerned, only a decree for Rs. 1,178.15 was given. In this suit also, the port trust has been exonerated and no decree was given against it. The above said decree for Rs. 1,178.15 against the carrier was for short-landing of two cases out of the abovesaid nine cases and, so far as damages due to fire was concerned, only D-3 insurance company was made liable for the abovesaid sum of Rs. 17,590.60. Likewise, in C.S. No. 101 of 1976, also, the abovesaid decree for Rs. 11,181.56 was for short-landing of 20 cases out of the abovesaid 461 cases and as for the damages due to fire, only D-3 was made liable.
4. O.S.A. No. 87 of 1982, is also by D-3 against the judgment and decree in C.S. No. 1978. The carrier has also filed cross-objections in O.S.A. No. 86 of 1982, and O.S.A. No. 87 of 1982. The said cross-objections are against the respective decrees given against the carrier for the above referred to Rs. 11,181.56 and Rs. 1,178.15, respectively, for short-landing of goods in each of the two cases.
5. Since one of the issues, namely, issue No. 5 in C.S. No. 101 of 1976, and issue No. 2 in C.S. No. 546 of 1978, is, whether this court has jurisdiction to try these suits or whether the court Romania alone can try the suit as pleaded by the common carrier, we take up the said issue first. On this issue, the learned trial judge has held that this court has jurisdiction to try the suits. Learned counsel for the carrier argued that the learned judge was in error in holding so. As per the terms of the relevant bill of lading 'any dispute arising under the bill of lading shall be decided in the country where the carriers have their principal place of business and laws of the such country will apply'. Hence, according to the written statement of the carrier, the suit ought to have been filed in Romania, where the carrier is having its principal place of business. The learned trial judge in this regard relied on the decision in Black Sea State Steam-ship Line v. Minerals and Metals Trading Corporation of India Limited : (1970)1MLJ548 and held that this court has jurisdiction to try these suits. In the above decision, it has been held that despite the contract between the parties that the disputes will be subject to the jurisdiction of the courts in a particular country to the exclusion of other courts, the enforcement of such a contract by courts in India is not imperative, and that in the case of foreign jurisdiction clause, the question is not so much of freedom of contract, the parties being bound by their choice as of expediency in the light of what may be called the rule of balance of convenience and the ends of justice in the particular circumstances of the case. In the said case, the plaintiff sued at Madras the agents of the shipping company for short delivery and on facts it was held that though the clause in the bill of lading, restricting the forum, might be valid, still having regard to the fact that the claim was small and the shipping company had its agents at Madras and there was no difficulty in collecting the necessary facts and the applicable, the courts in Madras will have jurisdiction to try the case. But, learned for the carrier in the present case argues that the said decision turned on its facts particularly that the claim therein was a small cause one. Instead he cites the decision in British India Steam Navigation Co. Ltd. v. Shanmughavilas Cashew Industries : 1990(48)ELT481(SC) , and urges us to follow the same. But, we find that the said Supreme Court decision also does not say that in such a situation, the parties are absolutely bound by the relevant terms in the bill of lading regarding jurisdiction. Even the aforesaid Supreme Court decision only observes as follows (at page 496) :
'Parties to a contract should be bound by the jurisdiction clause to which they have agreed unless there is some strong reason to the contrary :
In the present case also, the carrier has a local agent, namely, the South India Corporation Agency P. Ltd., Madras, to represent it in the abovesaid suit. This is indeed a strong reason to hold that the balance of convenience and the ends of justice sustain the jurisdiction of this court to entertain and dispose of those suits. Therefore, we confirm the findings of the learned trial judge on the abovesaid jurisdiction question. Further, these suits were filed more than fifteen years ago and if adverse findings were to be given against the plaintiff after fifteen years on the question of jurisdiction, it will cause great hardship to the plaintiff. The plaintiff cannot be now asked to go all the way to Romania to take legal action against the carrier.
Then, learned counsel for the carrier also argues that the carrier cannot be made liable at all in view of section 42 of the Major Port Trusts Act, 1963, particularly sub-section (7) therein. The relevant provisions of section 42(2) and 42(7) run as follows :
'42.(2) A Board may, if so requested by the owner, take charge of the goods for the purpose of performing the service of services and shall give a receipt in such form as the Board may specify.'
'42.(7) After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage which may occur to them shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or transhipped.'
6. (The Board referred to above is the Board of Trustees constituted under the abovesaid Act for the Bombay port as per section 2(b) of the said Act.) In this connection, section 43(2) also may be seen. It runs as follows :
'43.(2) A Board shall not be in any way responsible for the loss, destruction or deterioration of, or damage to, goods of which it has taken charge, unless notice of such loss or damage has been given within such period as may be prescribed by regulations made in this behalf from the date of taking charge of such goods by the Board under sub-section (2) of section 42.'
7. Learned counsel in this regard also relied Shipping Corporation of India Ltd. v. Union of India, : AIR1976AP261 . In the present case, exhibits D-46 and D-47 are the relevant tally sheets by which we find that the carrier has entrusted the goods to the port trust at Bombay. So, it is contended that only the port trust in liable and not the carrier. The above referred to Shipping Corporation of India Ltd. v. Union of India, : AIR1976AP261 , observed as follows (at page 267) :
'In other words, from the moment the receipt is given, it is the Board that becomes responsible for the loss, destruction or deterioration of the goods and its liability is described to be that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, vide sub-section (1) of section 43. In this context, we are the opinion that the notice contemplated by sub-section (2) of section 43 should be given a limited meaning in the sense that the notice contemplated therein has to be given to the Board by the shipper/carrier to whom the receipt has been issued and the object of the said sub-section is to decide and dispose of any objections with respect to the correctness of the receipt issued promptly and immediately after the goods are received by the port authorities. We are not prepared to construe the said sub-section as absolving the Board of its liability for loss or destruction altogether vis-a-vis the consignee on account of the shipper/carrier not having given the notice required by the said provision. Obviously, the said receipt is issued soon after the goods are shifted from the ship and the receipt is issued to the master of the ship and he alone will be in a position to raise any objections with respect to the correctness of the said receipt. Situations may perhaps arise where the board itself may seek to rectify or modify the contents of the receipts soon after the receipt of goods. The consignee cannot be aware of the date of the shifting of the goods or the date of issue of the receipt to the master of the ship. The regulations fix a period of five days for giving the notice contemplated by the said sub-section. It may not be possible for the consignee, who may be in any part of India, even to know that such a receipt has been given and, therefore, we are of the opinion that the said notice has to be given only by the person who receives the said receipt and not by the consignee and that the non-giving of such notice does not absolve the Board of its liability for any loss or destruction vis-a-vis the consignee. It is no doubt true that sub-section (2) of section 43 refers to the receipt given under sub-section (2) of section 42 and, therefore, the argument of learned counsel for the Board appears to be prima facie plausible that if the notice is not given within five days, the Board is not responsible for any loss whatsoever occurring for whatever reason, but on a closer consideration of the matter, we reject the said contention. To illustrate the fallacy of the said argument, it is sufficient to give one example. Take a case where the goods may be given which may be proper and no objection therefor may have been raised in that behalf. After five days and before the consignee received the goods from the port authorities, there may be fire or any other accident resulting in loss or destruction of the said goods. Could it be contended that in such a case the port authorities would not be responsible because notice of damage has not been given within five days of the issue of the receipt under sub-section (2) of section 42 Similar instances can be multiplied to show the fallacy of the said argument. On this reasoning of ours, therefore, it is the Board that is responsible for the loss occasioned to the plaintiff and not the shipper/carrier. This conclusion of ours is consistent with the opinion expressed by a Division Bench of this court referred to above.'
8. We also concur with the view expressed in the above decision regarding the interpretation to be put to section 42(7) of the said Act in the light of section 43(2) thereof. With reference to the above referred to submission of learned counsel for the carrier, learned counsel for the first plaintiff (the first appellant in O.S.A. No. 86 of 1982 and the first respondent in O.S.A. No. 88 of 1982) did not place before us any argument contra. On the other hand, he only contends that the port trust acts only as agent of the carrier and that it has not discharged its onus to prevent the abovesaid fire. Further, he also says that the carrier should not have simply entrusted the goods to the port trust, but when it wanted to discharge the goods at Bombay itself despite despite the fact that it was bound by the contract to deliver the goods at Madras, it should have made its own other arrangements to store the goods at Bombay in some other godown under its control and thereby could have avoided the loss due to fire. Learned counsel points out that the defence of the carrier regarding the abovesaid accident points out that the defence of the carrier regarding the abovesaid accident is that the said accident was only an 'act of God' or 'inevitable accident'. But, learned counsel contends that the said fire accident cannot be called as an act of God or inevitable accident at all. In this regard, he also cited P. K. Kalasami v. K. Ponnuswami, AIR 1962 Mad 44, where it has been held that an act of God will be an extraordinary occurrence due to natural causes which is not the result of any human intervention which could not be avoided by any amount of foresight and care, e.g., a fire caused by lightning, but that, an accidental fire though it might not have resulted from any act of or omission of the common carrier, cannot be said to be an act of God. Regarding this contention, on the interpretation of the term 'act of God', we no doubt agree that the said fire accident cannot be termed as an act of God or as an inevitable accident. But, in view of section 42(7) of the abovesaid Act and agreeing with the interpretation given, in the above referred to Shipping Corporation of India Ltd. v. Union of India, : AIR1976AP261 , we hold that the carrier cannot be made liable for the loss due to fire in respect of the abovereferred to 441 cases in C.S. No. 101 of 1976, and the abovereferred to 7 cases in C.S. No. 546 of 1978. The carrier will of course, be liable for the abovereferred to short-landing of 20 cases in C.S. No. 101 of 1976, and 2 cases in C.S. No. 546 of 1978. No doubt, learned counsel for the carrier contends that there was no plea by the plaintiff in C.S. No. 101 of 1976 of the abovesaid short-landing and that hence no relief could be given for short-landing. This cannot be accepted. Apart from the fact that the port trust itself pleaded the said short-landing, the short-landing in both the suits is borne out by documents, viz., exhibit D-55, in respect of the abovesaid 20 cases in C.S. No. 101 of 1976 and exhibit D-51, in respect of the abovereferred to two cases in C.S. No. 546 of 1978. Further, as already stated, an issue also has been framed in the respective suits regarding the short-landing and there is no surprise element to the carrier regarding this aspect. Therefore, there is nothing wrong in the court giving relief in this regard.
9. Then, regarding the liability of the port trust, learned counsel for the first appellant in O.S.A. No. 86 of 1982, argues that the trial judge erred in not granting a decree against the port trust also for the loss due to the abovesaid fire. He points out that the port trust has not discharged its onus to prevent the abovesaid fire accident. According to him, all that the learned trial judge has found is that the port trust has taken all steps to put out the fire after it broke out. But the learned judge has not gone into the question as to why the fire occurred and whether necessary precautions were taken by the port trust for storing the abovesaid goods in the godown in question, without there being any negligence or want of care on its part. In this connection the said learned counsel points out the following evidence given by DW-1, the only witness examined on the side of the port trust, viz., the Assistant Fire Officer, and contends that the said evidence has not been considered at all by the learned trial judge.
Q. What is the nature of the fire
A. Very very serious fire ...
Q. Have you got any idea about the area of the shed in which these ball bearings were stored by the Bombay Port Trust
A. It is 400 feet length and 120 feet width. The height is 61 to 62 feet ...
Q. According to you what will be the cause of fire
A. As I said earlier, Sir, the cause of the fire could not be ascertained.
Q. Can you say, any internal combustion anywhere or by throwing of the ignited light the fire could have been started
A. I don't suppose it.
Q. You ruled out the possibility of internal combustion as well as external self-ignition. You also said that there is no possibility of throwing of light anywhere
A. Yes.
Q. Then how could the fire accident occur
A. I agree that it is very difficult to ascertain.
Q. Could it be due to short-circuit
A. It cannot be said so because time and again installations were checked by the mechanical engineers.
Q. Is there any possibility of uninsulated wires
A. I cannot say ................................
Q. You cannot also give out the nature of the articles stored in the shed where the fire was first noticed according to information
A. As I said earlier, I reported there at 2.15 p.m. in the afternoon only, after 7 hours of the fire accident. Therefore, I cannot say anything about the goods stored there in that shed ...................
Q. How many extinguishers are there
A. There are 25 extinguishers, distributed in 4 storeys. That is each portion will have 4 to 6 extinguishers provided .................
Q. Sir, just a small enquiry, you can give the area of the shed clearly. In your experience for such an area what would be the type of fire extinguisher used to prevent the fire in the entire area and how many equipment should be there
A. Per 1000 sq. ft. there must be one extinguisher.'
10. The said learned counsel for the first appellant in O.S.A. No. 86 of 1982, specifically points out that according to DW-1, while the total area of the godown in which the abovesaid goods were stored is 400' x 120' that is 48,000 square feet and one fire extinguisher for every 1000 square feet is necessary (that is, on the whole 48 fire extinguishers are necessary for the entire godown), in reality there were only 4 to 6 extinguishers in the said godown. Further, when a specific question was put to him as to the nature of the article stored in the godown, he only said that he cannot say about it. Further, when a question was put as to whether any possibility is there of 'uninsulated wires', he only said, 'I cannot say'. Thus, according to learned counsel it is clear that the port trust has not taken the care required by it to prevent any such fire as has happened. Further, learned counsel also points out that DW-1 also admitted that there was a committee of enquiry appointed for the abovesaid fire accident and that the learned trial judge also finds that the enquiry report relating to the said fire had not been produced. Learned counsel points out that if there is such a report, an adverse inference should be drawn against the port trust in accordance with section 114 of the Evidence Act, particularly illustration (g) therein. Learned counsel also points that as per exhibit D-58, the fire report, severe damage due to fire occurred in respect of the goods stored in the second and third floor of the abovesaid four storeyed godown building and the suit ball-bearings were stored only in those second and third floors along with chemicals, cardboards, films, nylon yarn in boxes, paper rolls, cases containing books and general cargo which are easily combustible. In this regard, DW-1 also admitted as follows :
Q. When the fire fighting was going on was the cargo stored in the storeys removed and separated
11. A. The cargo stored in the second and third floors were almost damaged. The cargo from the ground and first floor were mainly affected by fire fighting water. These floors were intact and no fire was there and it could not reach the first and ground floor.'
12. Further, the said counsel also points out that DW-1 admitted that though the fire was seen first at about 7.15 a.m. he came on the scene only at 2.15 p.m. and that in the morning one S. K. Usman and one Ramveer of the city fire brigade were present and that those two persons were not examined. Learned counsel also relies on the following passage in Union of India v. Rajendra Mills Ltd. [1971] 2 MLJ 41, :
'The question is whether the defendant in this case has exonerated itself by showing that it has taken due care and caution in the carriage of the goods. From the evidence discussed above, it seems to us that the railway has not discharged the onus by showing that all possible care and caution has been taken in this case .... From this it is clear that the consignment of the cotton bales was placed in a wagon which was not actually tested to be watertight ... Though DW-6, the train examiner, has deposed that after the fire was extinguished there was a mechanical examination of the wagon, that he found the wagon without any defect and that he immediately released the traffic for reloading, it is difficult for us to believe that there was such a thorough examination as spoken to by this witness for, if there was no defect in the wagon, fire should have originated from inside from spontaneous cumbustion, which is not the case put forward by the defence in this case, or the railway must have done something or other or something must have happened inside the wagon which let to the fire. We are left in this case with the doubt as to the origin or the cause of the fire. In this connection, we have to note that there was a departmental enquiry conducted on the cause of fire by the Traffic Inspector some time after the fire was put out and this is spoken to by DW-2, the assistant station master at Balharsha. The said enquiry should have thrown some light as to the cause of the fire. But that report of the enquiry officer is not before the court. The enquiry officer who could have thrown considerable light on this question has not also been examined. It is not known who were all the witnesses who were examined in the said enquiry and what was the result of the enquiry. In the absence of the examination of the enquiry officer who enquired into the cause of the fire immediately after it occurred, we are not prepared to hold that the fire was only accidental. The defendant cannot be held to have discharged its onus of showing that it had exercised all reasonable care and caution in dealing with the suit consignment. In the circumstances we are of the view that the principle of res ipsa loquitur and the presumption under section 114(g) of the Evidence Act may be applied to the facts of this case.'
13. The other decision relied on by counsel is Union of India v. Udho Ram and Sons, : [1963]2SCR702 , where also it was held that when there is no evidence given as to the extent of protection taken by the railway protection police, the loss of the goods in transit was held to be due to the negligence of the railway administration.
14. We see considerable force in the argument of learned counsel for the first plaintiff, first appellant in O.S.A. No. 86 of 1982, in view of the evidence above noted and the observations made in the above decisions. Therefore, there is no reason to exonerate the port trust, as the trial judge has done. The port trust also is liable for the loss sustained by the first plaintiff in C.S. No. 101 of 1976, due to the abovesaid fire accident. Learned counsel for the port trust also could not submit anything very seriously to controvert the abovesaid arguments of learned counsel for the first plaintiff. No doubt, he drew our attention to section 120 of the Major Port Trusts Act (based on which an issue also has been framed by the learned trial judge in C.S. No. 546 of 1978, though there is no such specific issue in C.S. No. 101 of 1976). The said section 120 runs as follows :
'No suit or other proceeding shall be commenced against a Board or any member or employee thereof for anything done, or purporting to have been done, in pursuance of this act until the expiration of one month after notice in writing has been given to the Board or him stating the cause of action, or after six months after the accrual of the cause of action.'
15. The contention of learned counsel for the port trust is that within the time limit stipulated in the abovesaid section, the suit has not been filed. But his contention cannot be accepted. The fire accident took place on September 24, 1975, and the notice contemplated in section 120 has been given in exhibit P-7, dated December 13, 1975, so far as C.S. No. 101 of 1976, is concerned and the suit C.S. No. 101 of 1976, has been filed on March 16, 1975. So, C.S. No. 101 of 1976, is within time, that is, it has been filed before six months after the accrual of the cause of action, viz., the abovesaid fire accident on September 24, 1975. But so far as C.S. No. 546 of 1978, is concerned, nobody represented the plaintiff therein, who is the first respondent in O.S. No. 87 of 1982, before us. At any rate, as against the finding of the learned trial judge that the port trust is not liable at all for the suit claim, there is no appeal by the plaintiff in C.S. No. 546 of 1978, and hence, the said finding has become final. That apart, we also find that the said suit was filed only on April 21, 1976, that is beyond the abovesaid six months stipulated in section 120 of the Major Port Trusts Act. Therefore, also the port trust is not liable for the suit claim in C.S. No. 546 of 1978.
16. So far as the liability of the third defendant-insurance company is concerned, its learned counsel argues that as per the policy of insurance, exhibit P-23 in the case of C.S. No. 546 of 1978, and exhibit P-1 in the case of C.S. No. 101 of 1976, the insurance cover is given 'warehouse to warehouse' and that hence, once the goods have reached the warehouse of the port trust at Bombay, there can be no liability fastened on to the insurance company if loss occurs to the goods due to fire on September 24, 1975, long after the goods reached the said warehouse of the port trust at Bombay. Learned counsel also points out one clause in the insurance policy which runs as follows :
'If the transit is on a maritime routine, the insurance terminates on the expiry of 60 days at the latest after discharge of the cargo from the overseas vessel in the final port of discharge ...'
17. But, this contention cannot be accepted since as per the policy the goods have to be delivered at Madras. So, Madras port alone can be considered as the 'final port of discharge'. The learned counsel also argues relying on E. I. D. Parry (India) Ltd. v. Far Eastern Marine Transport Co. Ltd. : (1988)1MLJ144 that the insurance company can repudiate claims under policies of insurance when it is deprived of its right of indemnity against the carrier. In the above-said decision, it has been no doubt held as follows (at page 152) :
'Under the law of insurance, the right of the insurer on payment of the loss to the assured is to be subrogated to the rights of the assured so as to enable the insurer to proceed against the third party and indemnify itself. It is, therefore, incumbent upon the assured to keep alive his remedies against the carrier or other third party and any default committed by the assured either by allowing the remedy to get time barred or by abdicating or abandoning his rights against the carrier or the third party for indemnity. In such cases, it is open to the insurer to repudiate the liability under the policy' ...
18. But, we have already held that the port trust is liable in C.S. No. 101 of 1976, for the abovesaid loss due to fire. We have also confirmed the liability of the carrier in both the suits so far as the above referred to goods short-landed. Therefore, the insurance company will also be liable in C.S. No. 101 of 1976. Even according to the above passage quoted, the first plaintiff in C.S. No. 101 of 1976 has kept alive his remedies against the carrier so far as short-landing is concerned, and against the 'other party', viz., the port trust, in respect of the goods lost due to fire. But, in so far as C.S. No. 546 of 1978 is concerned, we have already held that the port trust is not liable for the claim made in the said suit. Therefore, applying the above referred to E. I. D. Parry (India) Ltd. v. Far Eastern Marine Transport Co. Ltd. : (1988)1MLJ144 , we hold that the third defendant-insurance company is also not liable so far as the above referred to seven cases of goods which are lost due to fire accident, though the insurance company is liable for the other two cases short-landed, for which the carrier has also been held to be liable.
19. Learned counsel for the insurance company also relied on General Traders Ltd. v. Pierce Leslie (India) Ltd., : AIR1987Ker62 to contend that the carrier in the present case has not effected an effective discharge when it discharged the goods at the Bombay port itself without taking them to Madras port as per the respective bills of lading and that hence the responsibility of the carrier had not come to an end with the discharge of the goods at Bombay as stated above. So, learned counsel contends that the carrier also must be made liable. But the facts in the above referred to General Traders Ltd. v. Pierce Leslie (India) Ltd., : AIR1987Ker62 , were different from our case. There, the goods were not entrusted to the port trust as in the present case. In the present case, in view of the fact that goods have entrusted to the port trust by the carrier and receipts have been obtained as per section 42(2) of the Major Port Trusts Act, section 42(7) applies as already stated and that hence the carrier is not liable for the loss due to the fire which happened long after. The facts in Goverdhandas Kalidas v. New Dholera Steamships Ltd., : AIR1965Ker51 , relied on by the said counsel, are all different and hence the said decision also is not applicable to the present case. Assam Roadways v. National Insurance Co., : AIR1979Cal178 , relied on by the same counsel will also not apply to the present case since the carrier in the present case has entrusted the goods to the port trust as stated above and the carrier cannot be held to be negligent in this regard in vies of the abovesaid section 42(7).
20. The said counsel also relied on Trustees, Madras Port Trust v. Home Insurance Co. Ltd. : (1968)2MLJ497 for fixing the liability on the port trust. In the said decision, it has been held that when the port trust takes charge of the goods, the responsibility of the port trust for loss, etc., is that of bailee and the burden of proof is on such bailee-port trust to disprove negligence. This decision no doubt arose under the Madras Port Trust Act, 1905, which, along with the old Bombay Port Trust Act of 1879, and Calcutta Port Trust Act of 1890, was replaced by the abovesaid Major Port Trusts Act, 1963. However, similar provisions are there in the Major Port Trusts Act as already noted. We have also earlier agreed with the interpretation but by the Andhra Pradesh High Court in the above referred to Shipping Corporation of India Ltd. v. Union of India, : AIR1976AP261 , on the abovesaid sections 42(7) and 43(2) of the Major Port Trusts Act. The abovesaid Shipping Corporation of India Ltd.'s case, : AIR1976AP261 , is also cited by learned counsel for the insurance company.
21. Learned counsel for the second plaintiff-bank only adopts the argument of learned counsel for the first plaintiff. But the second plaintiff cannot have a decree against the defendants since it has no cause of action against the defendants.
22. At the end, it must also be pointed out that though the plaintiffs in C.S. No. 101 of 1976, claim a decree only for Rs. 5,89,072 with interest thereon, the decree that has been given by the learned trial judge is for the abovesaid sum of Rs. 5,89,072 against the third defendant and for an additional sum of Rs. 11,181.56 against the first defendant. Actually speaking, even according to the conclusions of the learned trial judge, a decree for Rs. 11,181.56 should have been given jointly and severally against defendants Nos. 1 and 3 and a separate decree as against the third defendant for Rs. 5,89,072 minus Rs. 11,181.56, that is, for Rs. 5,77,890.44, should have been passed. A similar error is there in the judgment in C.S. No. 546 of 1978 also.
23. We also feel that the learned judge could have allowed interest at 6% per annum from the date of the respective suits. But, since no ground has been raised in the memorandum of grounds in O.S.A. No. 86 of 1982, claiming interest, nor any court fee paid thereon and since no appeal itself has been filed by the plaintiff in C.S. No. 546 of 1978, we are not awarding interest.
24. In the result, the judgment and decree of the trial judge in C.S. No. 101 of 1976, are modified by decreeing the suit in favour of the first plaintiff therein against defendants Nos. 1 and 3 therein jointly and severally for Rs. 11,181.56 and against defendants Nos. 2 and 3 therein jointly and severally for a a sum of Rs. 5,77,890.44 together with further interest at 6% per annum from this date on both the abovesaid respective amounts and costs (in both the above cases proportionately). So, O.S.A. No. 86 of 1982, is partly allowed with proportionate costs. O.S.A. No. 88 of 1988 is dismissed; however, in the circumstances of the case, no costs. The judgment and decree in C.S. No. 546 of 1978, is modified by decreeing the suit in favour of the plaintiff therein only for Rs. 1,178.15 against defendants Nos. 2 and 3 therein jointly and severally together with further interest at 6% per annum from this date and proportionate costs. So, O.S.A. No. 87 of 1982, is partly allowed with proportionate costs. The respective cross-objections in O.S.A. Nos. 86 of 1982, and 87 of 1982, are dismissed; however, in the circumstances of the case, no costs.