The Board of Trustees of Jawaharlal Nehru Port Trust Vs. Continental Float Glass Ltd. and ors. - Court Judgment

Excerpt:
- - 5. the purport and intent of the law relating to the liability as well as the entitlement of agents set out in section 230 of the act, can be paraphrased as follows: (iv) this entitlement as well as liability would be on behalf of the principal and not in his own name. the disclosed principal as well as the agent were sued. the order only relates to what ordinarily is the rights as well as the liabilities of an agent under a contract where a principal is disclosed. that suit was filed against the principal as well as the agent.orderroshan dalvi, j.1. this notice of motion is taken out by defendant no. 2 for having the suit dismissed against defendant no. 2 or to delete the name of defendant no. 2 from the record of this suit. the suit is filed by the jawaharlal nehru port trust (jnpt). it is filed against defendant no. 1 who is stated to be the owner/consignee of the consignment in suit and defendant nos. 2 and 3 who are the shipping agents through whom the consignment was brought in containers and stored in the plaintiff's premises.2. paragraph 3 of the plaint shows that upon the goods landing in the port and unloading its cargo, which is brought into the custody of the plaintiff, the plaintiff is entitled to charge and levy the ground rent and other charges for the storage whilst the goods remained in the premises of the plaintiff. the owners or its agents are required to remove / clear the goods. until they are cleared / removed, the charges are paid to the plaintiff. the plaintiff has sought to recover such charges.3. the averments in paragraph 4 of the plaint show that defendant no. 1 imported the suit goods. defendant no. 2 was the shipping agent for the containers in which the goods arrived. the plaintiff claims that defendant nos. 1 and 2 were responsible for clearing / removing the goods upon the payment of the plaintiff's charges.4. in paragraph 3 of the affidavit in support of the notice of motion, defendant no. 2 claims that one m.v. cmb merit was to be the agent of one cmb transport of belgium under the agency agreement dated 1.7.1992. defendant no. 2 was appointed agent in the place and stead of the said cmb merit. defendant no. 2 claims that being such agent, it was acting on behalf of and at the behest of the said disclosed principal viz. cmb transport of belgium. defendant no. 2 acted as the agent on behalf of the said cmb transport of belgium who was its disclosed foreign principal. defendant no. 2 claims that since its principal was disclosed, it cannot be sued as agent. defendant no. 2 has disputed any liability in respect of discharging the cargo for making payment until clearance of the goods at the port in the suit. it is upon the plea that an agent of a disclosed principal cannot be sued that this notice of motion is taken out. the notice of motion is, therefore, taken out under section 230 of the indian contract act, 1872 (the act). section 230 of the act runs thus:230. agent cannot personally enforce, nor be bound by, contracts on behalf of principal. in the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.presumption of contract to contrary. such a contract shall be presumed to exit in the following cases:(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;(2) where the agent does not disclose the name of his principal;(3) where the principal, though disclosed, cannot be sued.5. the purport and intent of the law relating to the liability as well as the entitlement of agents set out in section 230 of the act, can be paraphrased as follows:(i) an agent is not bound by the contract on behalf of the principal.(ii) an agent, therefore, cannot be sued on behalf of the principal.(iii) if there is an agreement to the contrary in the contract of agency, the agent would be entitled to enforce the contract himself or he is personally bound by the contract himself.(iv) this entitlement as well as liability would be on behalf of the principal and not in his own name. hence after being entitled to a particular right under the contract or after being held liable for a particular duty under the contract, the agent would have to account for the right to the principal and be entitled to recover the liability from the principal respectively.(v) the aforesaid points relate to contracts of agency made in india for commercial contracts entered into by the agent on behalf of the principal in india and enforceable in india.(vi) even if there is no contract to the contrary relating to the enforcement of contracts or the liability under the contracts of the agent on behalf of the principal, such a contract is presumed to exist for a foreign principal or when the principal, though an indian principal, is not disclosed or where the principal, though an indian principal, cannot be sued.(vii) hence when the agency contract is between an indian agent and a foreign principal and that principal is disclosed in the contract entered into by the agent with the third party also the agent would be entitled to personally enforce that contract and also be bound by such contract.(viii) hence such agent can be sued by the other contracting party upon the liability incurred by the foreign disclosed principal under a contract entered into by such foreign disclosed principal with the third party.6. the specific statutory presumptions have much merit. when a principal is resident abroad, it would be difficult for a party in india to sue the principal by service of notice, writ of summons and other proceedings, etc. similarly it would be cumbersome for such foreign party to be sued in india when the foreign party has appointed and is represented in india by an agent appointed by him. similarly if the agent does not reveal who is his principal or the fact that he is acting for another, he alone can be sued. similarly also if the other contracting party cannot sue the principal, he must be held entitled to sue the agent whom he has dealt with consequently, usage of trade and customs as also the provisions of statute are seen to have been made for commercial expediency.1. defendant no. 2 claims that, as an agent, it is not bound by contracts made by it on behalf of its principal. defendant no. 2 only sought to transport the goods of its principal sold from another country to india i.e. from one port to another which landed in the port of the plaintiff. ordinarily, under section 230 of the act, defendant no. 2 would not incur any personal liability if its principal, who is disclosed, can be sued. however, the legal liability is different if the principal is a foreigner as in this case.2. it is argued on behalf of defendant no. 2 by ms. sethna that the plaintiff can and must sue the disclosed principal though the disclosed principal is a foreigner. if the plaintiff cannot sue such principal, the plaintiff must aver under what circumstances and why such disclosed principal cannot be sued. if such averment is not made, the agent of such disclosed foreign principal in india cannot be sued. this aspect may be a question of law to be decided at the final hearing of the suit. in this notice of motion, which would require the rights of the plaintiff and defendant no. 2 to be agitated and disposed of finally, the only aspect to be considered is whether in the suit as it stands, the plaintiff having not sued the foreign disclosed principal, can sue the agent in india of such principal. the principal of defendant no. 2 is not sued. the plaintiff ordinarily would not be entitled to sue defendant no. 2 as the agent because the principal of defendant no. 2 has been disclosed. this is the prime mandate of section 230 of the act. this is subject to a contract to the contrary between the agent and the principal. even if there is no contract to the contrary between the agent and the principal, in the case of a foreign disclosed principal the party in india is put to a choice to sue the foreign disclosed principal or to sue his agent in india. the plaintiff has exercised that choice and option. the plaintiff has sued the agent and not the principal, though disclosed, but who is 'a merchant resident abroad', a foreigner.3. this suit is filed by jnpt for recovery of charges upon uncleared goods sold by the party in a foreign country to a party in india.. this liability incurred under the major port trusts act for the shipping contracts under which the containers carrying the goods exported by a foreign party came into the port of the plaintiff. for the purpose of discharge of those goods the liability is sought to be enforced, inter alia, against defendant no. 2. whether or not defendant no. 2 would be liable for the claim in suit is quite another matter. defendant no. 2 contends that defendant no. 2 is sued as an agent in the place and stead of its principal though the principal was disclosed to the plaintiff. it is only in that regard that this notice of motion is taken out. hence the only aspect to be considered in this notice of motion is whether defendant no. 2 could be sued or cmb transport of belgium could be sued in its place and stead.4. the plaintiff's advocate has relied upon a judgment in the case of cochin frozen food exports (p) ltd. v. vanchinad agencies and ors. (2004) 13 scc 434 in which the requirement under section 230 exception (1) has been considered. it is held that the only requirement is that the principal should be resident abroad and if that is so, even if such principal is disclosed the agent could be sued by the third party. it was observed that the high court holding that since the name of the foreign principal was disclosed and it had been made a party before it, the suit was not maintainable against an indian agent was an incorrect proposition of law. hence in that case though the foreign principal was disclosed and made a party since the principal was a foreigner, the agent in india was held liable to be sued.5. ms. sethna has relied upon the case of midland overseas v. m.v. 'cmbt tana' and ors. 1999(3) all mr 662 under section 230 of the act in which it was held that when the agent was contracting in the name of the principal he cannot be sued upon such contract since he cannot personally enforce or be bound by such contract under the section. hence it is held that ordinarily such agent contracting in the name of his principal cannot sue or be sued upon such contracts. in that case it was observed that the agent acted as the general agent for the disclosed principal. the disclosed principal as well as the agent were sued. the agent was sued as defendant no. 1. the disclosed principal was sued as defendant no. 2, the agent carrying on business in bombay on behalf of the 2nd defendant. the order does not show that the 2nd defendant was an indian principal or a foreign principal. the order only relates to what ordinarily is the rights as well as the liabilities of an agent under a contract where a principal is disclosed. in fact, the order sets out the first part of section 230 of the act, but not the presumptions/exceptions thereto.it is clear that if an agent acts on behalf of the indian principal who is disclosed the agent, cannot be sued. hence ordinarily the agent cannot be sued. only if the agent acts on behalf of a foreign principal, he can be sued. the aforesaid order in midland overseas (supra) goes thus far.ms. sethna states that that was a case of a foreign principal (since she had appeared in that case). if that is so, the judgment in the case of midland overseas (supra) must be taken to have been impliedly overruled by the judgment in the case of cochin foreign foods (supra).12. in a further order of the learned single judge of this court in notice of motion no. 2699 of 1998 in admiralty suit no. 35 of 1995 dated 14th january 1999 also section 230 has been considered. that was an application for striking off the name of the agent upon the plea that there was no cause of action disclosed against the agent in the plaint. in that case also the principal was disclosed. the suit was for recovery of the damages to the cargo during transit in a ship. it was observed that the plaintiff justified suing defendant no. 3 though the plaintiff could not sue him under section 230 of the act and the plaintiff's case would not fall within the third presumption / exception to section 230 of the act. hence naturally if the case does not fall within the third presumption or exception i.e. if the principal, who is disclosed, can be sued, the agent cannot be. in this case, the principal being a party from belgium, the case falls within the first exception to section 230 of the act.13. in the order in notice of motion no. 3811 of 1999 in suit no. 2805 of 1991, dated 6th september 2001 also relied upon by ms. sethna, the contention, which was taken, was that there was no cause of action disclosed against the agent. that suit was filed against the principal as well as the agent. the principal was an incorporated company in greece. the agent was a registered company in india. it was observed that defendant no. 2 was acting as the agent of the vessel of the 1st defendant. the 1st defendant's vessel was a disclosed principal. since defendant no. 2 was the agent of defendant no. 1, who was disclosed and sued defendant no. 2, could not be sued under section 230 of the act. in this case, the disclosed foreign principal has not been sued. the plaintiff has sought to fall within exception (1) of section 230 of the act by not suing the 'merchant resident abroad'.1. it may be mentioned that the judgment in the case of cochin frozen food exports (p) ltd. (supra) delivered much later in 2004 and holding as erroneous view of the high court that since the name of the foreign principal was disclosed the suit could not be instituted against the agent must be taken to have impliedly overruled the order of the learned single judge of this court in the aforesaid notice of motion in which the agent was allowed not to be sued because the principal was sued. hence even if the principal is sued, as per the observations of the supreme court in cochin frozen food exports (p) ltd. (supra), the agent in india of such foreign principal can be sued.2. ms. sethna on behalf of defendant no. 2 has also relied upon a judgment in the case of steel authority of india ltd. v. transworld marine ltd. and anr. : air1982cal161 . it was a case of the plaintiff having shipped certain steel plates owned by defendant no. 1 who was the company incorporated under the laws of taiwan and who exported the goods from taiwan to calcutta. the ship sank. it was alleged that it was unseaworthy. the liability thereof was upon the foreign shipping company. the foreign ship owner was sued. his agent in calcutta, who was stated to be only the protecting agent, was also sued as agent, defendant no. 2 in that case. in that case the foreign disclosed principal was sued as defendant no. 1 and the indian agent was sued as defendant no. 2. it was held that the principal having been sued, the plaintiff was not entitled to sue the agent at the same time. it was observed that the plaintiff cannot sue both the principal and the agent. in this case, the plaintiff has not sued the foreign disclosed principal. the plaintiff has only sued the indian agent. under exception to section 230 of the act, the action is maintainable. however, the indian agent, the 2nd defendant, may claim on merits that he is otherwise not liable which aspect can be adjudicated at the time of the trial.16. this is not a fit case for striking off the name of defendant no. 2 from the record of the suit in the absence of the disclosed foreign principal of defendant no. 2 even before trial. hence the notice of motion is dismissed. no order as to costs.1. the name of defendant no. 2 has changed. by consent, the present name of defendant no. 2 shall be incorporated in the title of the plaint.

Judgment:
ORDER

Roshan Dalvi, J.

1. This Notice of Motion is taken out by Defendant No. 2 for having the Suit dismissed against Defendant No. 2 or to delete the name of Defendant No. 2 from the record of this Suit. The Suit is filed by the Jawaharlal Nehru Port Trust (JNPT). It is filed against Defendant No. 1 who is stated to be the owner/consignee of the consignment in Suit and Defendant Nos. 2 and 3 who are the shipping agents through whom the consignment was brought in containers and stored in the Plaintiff's premises.

2. Paragraph 3 of the Plaint shows that upon the goods landing in the Port and unloading its cargo, which is brought into the custody of the Plaintiff, the Plaintiff is entitled to charge and levy the ground rent and other charges for the storage whilst the goods remained in the premises of the Plaintiff. The owners or its agents are required to remove / clear the goods. Until they are cleared / removed, the charges are paid to the Plaintiff. The Plaintiff has sought to recover such charges.

3. The averments in paragraph 4 of the Plaint show that Defendant No. 1 imported the suit goods. Defendant No. 2 was the shipping agent for the containers in which the goods arrived. The Plaintiff claims that Defendant Nos. 1 and 2 were responsible for clearing / removing the goods upon the payment of the Plaintiff's charges.

4. In paragraph 3 of the Affidavit in support of the Notice of Motion, Defendant No. 2 claims that one m.v. CMB Merit was to be the agent of one CMB Transport of Belgium under the Agency Agreement dated 1.7.1992. Defendant No. 2 was appointed agent in the place and stead of the said CMB Merit. Defendant No. 2 claims that being such agent, it was acting on behalf of and at the behest of the said disclosed principal viz. CMB Transport of Belgium. Defendant No. 2 acted as the agent on behalf of the said CMB Transport of Belgium who was its disclosed foreign principal. Defendant No. 2 claims that since its principal was disclosed, it cannot be sued as agent. Defendant No. 2 has disputed any liability in respect of discharging the cargo for making payment until clearance of the goods at the Port in the suit. It is upon the plea that an agent of a disclosed principal cannot be sued that this Notice of Motion is taken out. The Notice of Motion is, therefore, taken out under Section 230 of the Indian Contract Act, 1872 (the Act). Section 230 of the Act runs thus:

230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal. In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.

Presumption of contract to contrary. Such a contract shall be presumed to exit in the following cases:

(1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(2) where the agent does not disclose the name of his principal;

(3) where the principal, though disclosed, cannot be sued.

5. The purport and intent of the law relating to the liability as well as the entitlement of agents set out in Section 230 of the Act, can be paraphrased as follows:

(i) An agent is not bound by the contract on behalf of the principal.

(ii) An agent, therefore, cannot be sued on behalf of the principal.

(iii) If there is an agreement to the contrary in the contract of agency, the agent would be entitled to enforce the contract himself or he is personally bound by the contract himself.

(iv) This entitlement as well as liability would be on behalf of the principal and not in his own name. Hence after being entitled to a particular right under the contract or after being held liable for a particular duty under the contract, the agent would have to account for the right to the principal and be entitled to recover the liability from the principal respectively.

(v) The aforesaid points relate to contracts of agency made in India for commercial contracts entered into by the agent on behalf of the principal in India and enforceable in India.

(vi) Even if there is no contract to the contrary relating to the enforcement of contracts or the liability under the contracts of the agent on behalf of the principal, such a contract is presumed to exist for a foreign principal or when the principal, though an Indian principal, is not disclosed or where the principal, though an Indian principal, cannot be sued.

(vii) Hence when the agency contract is between an Indian agent and a foreign principal and that principal is disclosed in the contract entered into by the agent with the third party also the agent would be entitled to personally enforce that contract and also be bound by such contract.

(viii) Hence such agent can be sued by the other contracting party upon the liability incurred by the foreign disclosed principal under a contract entered into by such foreign disclosed principal with the third party.

6. The specific statutory presumptions have much merit. When a principal is resident abroad, it would be difficult for a party in India to sue the principal by service of notice, writ of summons and other proceedings, etc. Similarly it would be cumbersome for such foreign party to be sued in India when the foreign party has appointed and is represented in India by an agent appointed by him. Similarly if the agent does not reveal who is his principal or the fact that he is acting for another, he alone can be sued. Similarly also if the other contracting party cannot sue the principal, he must be held entitled to sue the agent whom he has dealt with Consequently, usage of trade and customs as also the provisions of statute are seen to have been made for commercial expediency.

1. Defendant No. 2 claims that, as an agent, it is not bound by contracts made by it on behalf of its principal. Defendant No. 2 only sought to transport the goods of its principal sold from another country to India i.e. from one Port to another which landed in the Port of the Plaintiff. Ordinarily, under Section 230 of the Act, Defendant No. 2 would not incur any personal liability if its principal, who is disclosed, can be sued. However, the legal liability is different if the principal is a foreigner as in this case.

2. It is argued on behalf of Defendant No. 2 by Ms. Sethna that the Plaintiff can and must sue the disclosed principal though the disclosed principal is a foreigner. If the Plaintiff cannot sue such principal, the Plaintiff must aver under what circumstances and why such disclosed principal cannot be sued. If such averment is not made, the agent of such disclosed foreign principal in India cannot be sued. This aspect may be a question of law to be decided at the final hearing of the Suit. In this Notice of Motion, which would require the rights of the Plaintiff and Defendant No. 2 to be agitated and disposed of finally, the only aspect to be considered is whether in the Suit as it stands, the Plaintiff having not sued the foreign disclosed principal, can sue the agent in India of such principal. The principal of Defendant No. 2 is not sued. The Plaintiff ordinarily would not be entitled to sue Defendant No. 2 as the agent because the principal of Defendant No. 2 has been disclosed. This is the prime mandate of Section 230 of the Act. This is subject to a contract to the contrary between the agent and the principal. Even if there is no contract to the contrary between the agent and the principal, in the case of a foreign disclosed principal the party in India is put to a choice to sue the foreign disclosed principal or to sue his agent in India. The Plaintiff has exercised that choice and option. The Plaintiff has sued the agent and not the principal, though disclosed, but who is 'a merchant resident abroad', a foreigner.

3. This Suit is filed by JNPT for recovery of charges upon uncleared goods sold by the party in a foreign country to a party in India.. This liability incurred under the Major Port Trusts Act for the shipping contracts under which the containers carrying the goods exported by a foreign party came into the Port of the Plaintiff. For the purpose of discharge of those goods the liability is sought to be enforced, inter alia, against Defendant No. 2. Whether or not Defendant No. 2 would be liable for the claim in suit is quite another matter. Defendant No. 2 contends that Defendant No. 2 is sued as an agent in the place and stead of its principal though the principal was disclosed to the Plaintiff. It is only in that regard that this Notice of Motion is taken out. Hence the only aspect to be considered in this Notice of Motion is whether Defendant No. 2 could be sued or CMB Transport of Belgium could be sued in its place and stead.

4. The Plaintiff's Advocate has relied upon a judgment in the case of Cochin Frozen Food Exports (P) Ltd. v. Vanchinad Agencies and Ors. (2004) 13 Scc 434 in which the requirement under Section 230 Exception (1) has been considered. It is held that the only requirement is that the principal should be resident abroad and if that is so, even if such principal is disclosed the agent could be sued by the third party. It was observed that the High Court holding that since the name of the foreign principal was disclosed and it had been made a party before it, the Suit was not maintainable against an Indian agent was an incorrect proposition of law. Hence in that case though the foreign principal was disclosed and made a party since the principal was a foreigner, the agent in India was held liable to be sued.

5. Ms. Sethna has relied upon the case of Midland Overseas v. m.v. 'CMBT Tana' and Ors. 1999(3) ALL MR 662 under Section 230 of the Act in which it was held that when the agent was contracting in the name of the principal he cannot be sued upon such contract since he cannot personally enforce or be bound by such contract under the section. Hence it is held that ordinarily such agent contracting in the name of his principal cannot sue or be sued upon such contracts. In that case it was observed that the agent acted as the general agent for the disclosed principal. The disclosed principal as well as the agent were sued. The agent was sued as Defendant No. 1. The disclosed principal was sued as Defendant No. 2, the agent carrying on business in Bombay on behalf of the 2nd Defendant. The order does not show that the 2nd Defendant was an Indian principal or a foreign principal. The order only relates to what ordinarily is the rights as well as the liabilities of an agent under a contract where a principal is disclosed. In fact, the order sets out the first part of Section 230 of the Act, but not the presumptions/exceptions thereto.

It is clear that if an agent acts on behalf of the Indian principal who is disclosed the agent, cannot be sued. Hence ordinarily the agent cannot be sued. Only if the agent acts on behalf of a foreign principal, he can be sued. The aforesaid order in Midland Overseas (supra) goes thus far.

Ms. Sethna states that that was a case of a foreign principal (since she had appeared in that case). If that is so, the judgment in the case of Midland Overseas (supra) must be taken to have been impliedly overruled by the judgment in the case of Cochin Foreign Foods (supra).

12. In a further order of the learned Single Judge of this Court in Notice of Motion No. 2699 of 1998 in Admiralty Suit No. 35 of 1995 dated 14th January 1999 also Section 230 has been considered. That was an application for striking off the name of the agent upon the plea that there was no cause of action disclosed against the agent in the Plaint. In that case also the principal was disclosed. The Suit was for recovery of the damages to the cargo during transit in a ship. It was observed that the Plaintiff justified suing Defendant No. 3 though the Plaintiff could not sue him under Section 230 of the Act and the Plaintiff's case would not fall within the third presumption / exception to Section 230 of the Act. Hence naturally if the case does not fall within the third presumption or exception i.e. if the principal, who is disclosed, can be sued, the agent cannot be. In this case, the principal being a party from Belgium, the case falls within the first exception to Section 230 of the Act.

13. In the order in Notice of Motion No. 3811 of 1999 in Suit No. 2805 of 1991, dated 6th September 2001 also relied upon by Ms. Sethna, the contention, which was taken, was that there was no cause of action disclosed against the agent. That Suit was filed against the principal as well as the agent. The principal was an incorporated Company in Greece. The agent was a registered Company in India. It was observed that Defendant No. 2 was acting as the agent of the vessel of the 1st Defendant. The 1st Defendant's vessel was a disclosed principal. Since Defendant No. 2 was the agent of Defendant No. 1, who was disclosed and sued Defendant No. 2, could not be sued under Section 230 of the Act. In this case, the disclosed foreign principal has not been sued. The Plaintiff has sought to fall within Exception (1) of Section 230 of the Act by not suing the 'merchant resident abroad'.

1. It may be mentioned that the judgment in the case of Cochin Frozen Food Exports (P) Ltd. (supra) delivered much later in 2004 and holding as erroneous view of the High Court that since the name of the foreign principal was disclosed the Suit could not be instituted against the agent must be taken to have impliedly overruled the order of the learned Single Judge of this Court in the aforesaid Notice of Motion in which the agent was allowed not to be sued because the principal was sued. Hence even if the principal is sued, as per the observations of the Supreme Court in Cochin Frozen Food Exports (P) Ltd. (supra), the agent in India of such foreign principal can be sued.

2. Ms. Sethna on behalf of Defendant No. 2 has also relied upon a judgment in the case of Steel Authority of India Ltd. v. Transworld Marine Ltd. and Anr. : AIR1982Cal161 . It was a case of the Plaintiff having shipped certain steel plates owned by Defendant No. 1 who was the Company incorporated under the laws of Taiwan and who exported the goods from Taiwan to Calcutta. The ship sank. It was alleged that it was unseaworthy. The liability thereof was upon the foreign shipping Company. The foreign ship owner was sued. His agent in Calcutta, who was stated to be only the protecting agent, was also sued as agent, Defendant No. 2 in that case. In that case the foreign disclosed principal was sued as Defendant No. 1 and the Indian agent was sued as Defendant No. 2. It was held that the principal having been sued, the Plaintiff was not entitled to sue the agent at the same time. It was observed that the Plaintiff cannot sue both the principal and the agent. In this case, the Plaintiff has not sued the foreign disclosed principal. The Plaintiff has only sued the Indian agent. Under Exception to Section 230 of the Act, the action is maintainable. However, the Indian agent, the 2nd Defendant, may claim on merits that he is otherwise not liable which aspect can be adjudicated at the time of the trial.

16. This is not a fit case for striking off the name of Defendant No. 2 from the record of the Suit in the absence of the disclosed foreign principal of Defendant No. 2 even before trial. Hence the Notice of Motion is dismissed. No order as to costs.

1. The name of Defendant No. 2 has changed. By consent, the present name of Defendant No. 2 shall be incorporated in the title of the Plaint.