JUDGEMENT
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(1.)The plaintiff's loss is plain to see; but the form of the claim is questionable. THE appearing defendants say that the plaintiff has barked up a wrong tree in chasing them.
(2.)The claim is for damages. According to the plaintiff, the first defendant' is an agent of the defendant Nos.2, 3 and 4. THE defendant No.2 is part of what the plaintiff describes as the OOCL group that owns several vessels. THE defendant Nos.3 and 4 are foreign companies without any apparent presence in India.
It is the plaintiff's case that the plaintiff shipped shrimps on board the vessel M. V. Tiger Creek. The plaintiff has relied on the relevant bill of lading which is signed by the second defendant on behalf of the third defendant. According to the plaintiff, before the goods reached the discharge port of Southampton in the United Kingdom, the plaintiff's buyers declined to accept the goods; whereupon, the plaintiff obtained another contract from a party in Scotland. The plaintiff says that it advised the defendants (the use of the expression 'defendants' is loosely made in the plaint without always specifying the particular defendant involved) to carry the goods to Felixstowe rather than Southampton, without referring to the minor formalities that were required to be complied with upon the bill of lading indicating that the goods were to be discharged in Southampton.
The goods reached Southampton. The plaintiff abandoned its earlier demand that the goods be carried to Felixstowe. The plaintiff wanted the goods to be sent back to -Calcutta. Correspondence followed between some of the parties and it is the general refrain in the plaint that the plaintiff made demands on the first and second defendants whether for the preservation of the goods or for expeditious steps to be taken for the return of the goods. against the applying defendants.
(3.)Finally, the plaintiff relies on a proforma bill of lading allegedly issued by the defendant No.4. The plaintiff says that notwithstanding such proforma bill of lading, which, according to it, demonstrates a concluded contract, the goods were ultimately destroyed by the authorities in the United Kingdom for which a two-day notice was received from the defendants by the plaintiff. The plaintiff complains that it was due to the acts and conduct of the defendants that the plaintiff lost its goods and not only lost its investment of about Rs.50,00,000/- but was also slapped with a demand to pay a sum in excess of ? 8,000 as costs of destruction of the goods.
The first and second defendants have applied by way of G.A.No.474 of 2009 and G.A.No.581 of 2009, respectively, for rejection of the plaint; at least qua the applying defendants. The two defendants have urged similar grounds. They say that the suit is ex facie barred by the laws of limitation since the claim was launched well after a year of the original bill of lading being issued. The applying defendants say that since there was no concluded contract as to the return of the goods, the time has to be reckoned from the date of the Calcutta-Southampton bill of lading and a period of more than one year had elapsed from the time that the goods had reached Southampton before the suit was instituted. It is the applying defendants' alternative case that, in any event, the bill of lading made the laws of England applicable to the transaction between the third defendant and the plaintiff and on the basis of the applicable laws, the claim is barred by limitation. However, the applying defendants fairly concede that they have not cited the English law which has to be regarded as an issue of fact.
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