AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 754
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....d subsidiary of M/s. MSC Mediterranean Shipping Company, SA and is also the steamer agent of M/s. MSC Mediterranean Shipping Company, SA, in India. As an ocean carrier, the responsibility of the plaintiff is to transport the goods from port of loading to the port of discharge in containers seals intact condition. The containers in which goods are carried from port to port belong to the principals of the plaintiff. The plaintiff as an agent of the M/s. MSC Mediterranean Shipping Company, SA is entrusted with the obligation to receive and return the containers to the principal, after the delivery of the cargo stuffed in the containers, to the importers. 2.2. It is the case of the plaintiff that the agent of its principal in China was approached by the 5th defendant to export Shipments of Electricity Calcined Anthracite Coal from Xingang, China to Chennai. The defendants 2 and 3 are importers of the said cargo. The shipment was made under seven bills of lading, dated 25.06.2018. The bills of lading were issued by the Principal of the plaintiff. The said cargo was shipped on board the vessel on 19.06.2018 and 25.06.2018 respectively. The shipments reached Chennai and discharged from t....
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....payable to the plaintiff and hence no delivery order was issued by the plaintiff in their favour. The first defendant illegally without insisting production of delivery order by the plaintiff released the containers to the defendants 2 and 3. The first defendant sent a communication admitting to the release of cargo, without delivery order, on request by defendants D2 and D3. The defendants 2 and 3 colluded with the first defendant and illegally removed the cargo without submitting their requisite documents. Due to illegal release of containers by the first defendant, the plaintiff suffered a loss said to the tune of Rs. 2,93,52,171/- and hence the suit is laid for recovery of said amount. Averment contained in the written statement of the first defendant: 3.1. The plaintiff is only a local agent of the disclosed Foreign principal namely M/s.MSC Mediterranean Shipping Company SA, Geniva and the said Principal has not filed the present suit for alleged loss. The suit filed by the agent without impleading the disclosed principal is not maintainable. 3.2. The defendants 2 and 3 are two different consignees under two different contracts of carriage undertaken by the plaintiff and he....
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....plaintiff. On these pleadings, the 1st defendant sought for dismissal of the suit. 4. The defendants 2 and 3 were set ex-parte on 02.09.2022 and the 5th defendant was set exparte on 22.06.2023. 5. On the basis of the pleadings, the following issues were framed by trial court by order dated 03.09.2021: (i) Whether the plaint presented by an authorized signatory of the plaint is maintainable?; (ii) Whether the suit is barred for non joinder of proper and necessary parties?; (iii) Whether the delivery order issued in the name of the plaintiff is true and valid?; (iv) Whether the first defendant and the fourth defendant colluded to take illegal delivery of the cargo by the second and the third defendants?; (v) Whether the plaintiff is entitled to claim the charges viz., value of the containers, import customs duty for containers, local and detention charges?; (vi) If issue (v) is affirmative, whether the plaintiff is also entitled for interest at the rate of 18% p.a. (vii) whether the first defendant is jointly and severally liable with the other defendants, when the bill of lading and indemnity bonds were issued by the principal of the plaintiff and the other defendant....
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....verseas Private Limited (India) judgment in C.S.No.65 of 2011, for the proposition the person who wish to take delivery of cargo has to first pay the charges of the ship liner and obtain a delivery order from the liner and present it to "CFS". (ii) Sanco Trans Limited Vs. CESTAT, Chennai, reported in 2-17 (350) E.L.T.521 (Mad), for the proposition the Container Freight Station "CFS" is responsible for the contents of the containers; (iii) Amba Lal Umrao Singh Ji Vs. L.Harish Chander and others reported in Manu/PH/0075/1995, for the proposition if the agent does not disclose the name of his Principal, the agent or an undisclosed Principal is entitled to bring a suit to personally enforce the contract entered into by him on behalf of the Principal. (iv) Jaytee Exports Vs. Natvar Parikh Industries Limited and others reported in Manu/WB/0244/2018, for the proposition that delivery of cargo without original bills of lading would give cause of action to maintain a suit for loss and damages. (v) Tashi Delek Gaming Solutions Ltd., and another Vs. State of Karnataka and others reported in (2006) 1 SCC 442, for the proposition in cases where agency is coupled with interest or the rig....
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....riage annexed with Exs.P2 to P8 submitted that the detention charges are payable only to the carrier and therefore, the suit is not maintainable. 8.4. The learned counsel for the defendants further submitted that regarding the agency coupled with an interest, there is no pleading or evidence by the plaintiff and therefore the plaintiff cannot rely on the said principle. Regarding the contention of the plaintiff by referring to statutory duty under Section 148 of Customs Act, the learned counsel for the defendants submitted that the present suit is based on contract. Hence, Section 148 of Customs Act is not applicable. Issue No.2: 9.1. The suit was mainly contested by the first defendant by relying on Section 230 of Indian Contract Act. It is the specific case of the defendants that admittedly, the plaintiff is an agent of the disclosed principal in a Foreign Country and hence in the absence of any contract to contrary, the present suit filed by the plaintiff is not maintainable. 9.2. A perusal of Exs.P2 to P7 bills of lading would suggest that bills of lading were issued by the Principal of the plaintiff namely M/s. MSC Mediterranean Shipping Company SA. In bills of lading, the....
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....closed, cannot be sued." 9.5. A perusal of the above Section would make it clear that an agent cannot personally enforce contracts entered by him on behalf of the principal nor he is personally bound by it. As discussed earlier Exs.P2 to P8 and P21 clearly establish contract of carriage was entered into between the plaintiff's principal and the importer. The role of the plaintiff is that of an agent in port of discharge. There is no evidence available on record to suggest a contract to the contrary. No authorization has been produced by the plaintiff to show that he has been authorized by its principal either by contract or otherwise to sue. It is not the case of the plaintiff that contract was entered into or negotiated by him on behalf the principal. It is clearly disclosed in the plaint M/s. MSC Mediterranean Shipping Company SA is the principal of the plaintiff, therefore, it is clear, the plaintiff is only an agent of the disclosed principal. It is also not the case of the plaintiff that its principal cannot be sued. In such circumstances, none of the instances mentioned under second limb of Section 230 of Indian Contract Act got satisfied. Therefore, the plaintiff is not....
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....f that no delivery order was issued by it in favour of the importers to take delivery of the cargo from first defendant. It is averred by the first defendant in his written statement that delivery order was presented by the importers and based on the same, the goods were delivered. However, no delivery order said to have been issued by the plaintiff was produced by the defendants before this Court. Therefore, this Court takes adverse inference against the defendants for failure to produce the delivery order said to have been issued by the plaintiff and hold that no delivery order has been issued by the plaintiff. Accordingly, Issue No.3 is answered in favour of the plaintiff as against the defendants. 12. Issue No.4: As discussed earlier, there is no evidence on record to show that delivery order was issued by the plaintiff and the same was presented to the first defendant at the time of taking delivery of cargo by the importers namely the defendants 2 and 3. The 4th defendant is the customs agent of defendants 2 an 3. A perusal of Ex.P20-e-mail communication between the plaintiff and the first defendant would suggest the first defendant in his e-mail dated 21.09.2018 clearly adm....