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Petitioner: MESSRS ABDUL LATIF-ABDUL SHAKOOR MADRASWALLA, KARACHI VS Respondent: MESSERS JUDGMENT
Court Name: Sindh High Court Judge(s): Saeeduzzaman Siddiqui Title:MESSRS ABDUL LATIF-ABDUL SHAKOOR MADRASWALLA, KARACHI vs MESSERS
JUDGMENT
Reported As: PLD 1981 Karachi 367 Result: Appeal dismissed Judgment JUDGMENT The plaintiff has brought this suit against the defendant, a carrier, for recovery of a sum of Rs. 28,429.55, with costs and interest at 6 % per annum from the date of the suit till the amount is paid, on account of alleged shortage of 62 md. 21. Srs. And 8 chatank turmeric in 116 bags amounting to Rs. 4,539.55, short delivery and short landing of 113 bags of turmeric (76 bags round and 37 bags finger) valued at Rs. 21,258, and quality difference, damages, survey etc. Assessed at Rs. 2,62,000. The admitted facts in the case are that the plaintiff had shipped a consignment of turmeric per s. s. "Pakistan Prosperity" from Chittagong bearing the marks "Madraswala Best Karachi" under Bill of Lading No. 33 dated 25-3-1964, issued by the defendant at Chittagong which showed shipment of 570 bags turmeric. However, at Karachi, the port of destination, only 546 bags were discharged by the defendant and a substantial number thereof were without the shipping marks "Madraswala Best Karachi". The plaintiff therefore, initially, accepted delivery of 341 bags only by the shipping marks and further took delivery of 116 bags under examined delivery after survey of the goods, but delivery of 89 bags was not taken. The case of plaintiff with regard to the 89 bags is that these were short landed at Karachi, and a certificate to that effect was given to the plaintiff by K. P. T. Authorities. The defendant on the other band contended that 89 bags of turmeric were available at the K. P. T. Shed but the plaintiff refused to take delivery thereof on the ground that the bags contained Nil/ wrong marks. With regard to difference of 24 bags between the numbers mentioned in the Bill of Lading and the quantity discharged at Karachi Port, the case of defendant is that whereas the Bill of Lading showed shipment of 570 bags, the actual number of bags loaded on the ship were only 546. With regard to the claim of shortage in 116 bags, damage, quality difference
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and survey fee, the defendant pleaded no liability to that as well. The defendant accordingly relieved their liability for the claim in the suit. The following consent issues were adopted by the Court on 10-3-1965:- "(1) Whether the plaintiffs have right to sue in respect of the bags in question? (2) How many bags and under what terms and conditions were they accepted by the defendants for shipment per s. s. Pak Prosperity for carriage from Chittagong to Karachi? (3) Whether the contents of bags and their conditions, quality, quantity, weight and values were known to the defendants? (4) Whether the goods were shipped in good order and condition and if not are the defendants relieved from liability? (5) Whether the defendants committed any breach of contract or other obligations in law and in accordance with the terms and conditions of the relevant bill of lading? - (6) Whether defendants discharged the bags in question in the same order and conditions overside into lighthers? (7) At what stage the responsibility of the defendants ceased in respect of goods in question and whether these defendants are liable? (8) Whether the alleged damage and/or loss in weight and/or non--delivery of plaintiff's bags occurred in the custody of Karachi Port Trust and if so are the defendants responsible for the same. (9) Whether the plaintiffs and/or Messrs Wali Muhammad & Sons declined to take delivery of 89 bags lying under Nil marks at Juna B under and if so what is its effect? (10) Whether the suit as -framed is not maintainable? (11) Whether the suit is bad for non joinder of necessary parties to the suit ? (12) Whether plaint is not properly signed and verified? (13) Whether the suit is barred under Article 111, clause (6) of the Carriage of the Goods by Sea Act? (14) To what relief if any are plaintiffs entitled? On 24-10-1966 when this suit came up for evidence before a learned Single Judge of erstwhile High Court of West Pakistan, Karachi Bench, the learned counsel for the parties dropped Issues Nos. 1 and 13, Issue No. 5 was reframed, Issues Nos. 6, 7 and '8 were admitted by the learned counsel as relating to the same subject-matter namely responsibility of defendant subsequent to the discharge of goods from the ship, Issues Nos. 10 and 12 were modified and one issue was framed in their place. As a result for this order the following issues were framed by the Court:- "(1) How many bags and under what terms and conditions were they accepted by the defendants for shipment per s. s. `Pakistan Prosperity' for carriage from Chittagong to Karachi? (2) Whether the contents of bags and their condition, quality, quantity, weight and value were known to the defendants? (3) Whether the goods were shipped in good order and condition and if not are the defendants relieved from liability? (4) Whether the defendants have short delivered the goods by 113 bags, and whether there was shortage in contents of 116 bags by Mds. 62-21-8 ? (5) Whether defendants discharged the bags in question in the same order and condition over side into lighthers? (6) At what stage the responsibility of the defendants ceased in respect of goods in question and whether these defendants are liable? (7) Whether the alleged damage and/or loss in weight and/or non. Delivery of plaintiffs bags occurred in the custody of Karachi Port Trust and if so are the defendants responsible for the same? (8) Wether the plaintiffs and/or Messrs Wali Muhammad & Sons declined to take delivery of 89 bags lying under Nil marks at Juna Bundei and if so what is its effect?
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(9) Whether the suit could be instituted by Messrs Abdul Latif-Abdul Shakoor than by its sole proprietor Ahmed son of Abdullah? (10) Whether suit is bad for non joinder of necessary parties to the suit? (11) To what relief if any are plaintiffs entitled?" On 30-11-1966 while bearing an amendment application moved by the plaintiff in the suit after close of evidence, the learned Single Judge dismissed the suit as not maintainable. However, the judgment of the learned Single Judge was set aside by the L. P. A. Bench on 27-10-1973 and the case was sent back for retrial. The learned counsel made a joint statement before me, when the suit came up for final arguments, that in view of the decision of L. P. A. Bench Issues Nos. 9 and 10 above as framed on 12-10-1966 stand finally decided. In view of this statement of the learned counsel, I will now proceed to decide only Issues Nos. 1 to 8 and 11 framed by the Court on 12-10- 1966. I have heard Mr. Nasim Farooqui and Mr. Hamza I A.I, the learned counsel for the plaintiff and defendant respectively on the above issues and my findings on the issues are as follows:- Issue No. 1: On this issue the plaintiff has mainly relied upon the bill of lading issued by the defendant on 25-3- 1964 in his favour (Exh. 9). The bill of lading issued to the plaintiffs is a clean bill of lading showing shipment of 570 bags turmeric (Haldi) per s. s. "Pakistan Prosperity" The total weight of the consignment is shown as 75.1529 freight ton and the freight emerged by the defendants is at Rs. 46, per ton of 11 Cwt. Amounting to Rs. 3,457.04: No doubt the quantity mentioned in Exh. 9 is 570 bags but it is conceded by the learned counsel for the plaintiff that the entries in the bill of lading are not the conclusive proof of its contents and that defendant could lead evidence to show that the actual quantity shipped on the ship was. Different from the one shown in the bill of lading. The defendant has contended that the total quantity of cargo shipped per s. s. "Pak Prosperity" vide Exh. 9 was only 546 of turmeric. In view of the entry in the bill of lading showing shipment of 570 bags of turmeric from Cittagong, the burden of proof that the actual quantity shipped was only 546 rested entirely on the defendant. The defendant in order to prove its contention has produced in evidence the original mate's receipts Exhs. 25 to 28. According to the entries in the mate's receipts the total quantity of bags loaded on the ship against the Bill of Lading No. 33, is only 546 bags of turmeric under the marks and number "Madraswalla Best". In Exh. 27 which is one of the mate receipts there is a note recorded by the shipper to the following effect:- "Shipper's claim 24 bags shipped which have not been tallied due to careless tally. Shippers undertake and indemnify the ship against all losses and claim etc. For non-delivery at destination, if found may be delivered." Apart from mate's receipts, the defendant has also relied upon Exh. 50, a letter written by Haroon Habibulla the shipping agent of plaintiff, in connec--petition with the shipment of consignment of plaintiff to defendant. In this letter (Exh. 50) which is dated 25-3-1964 the endorsement made on Exh. 27 was confirmed and .It was further stated that defendant will be indemnified against all losses for issuing a clean bill of lading for 570 bags of turmeric and if the excess 24 bags shown in the bill of lading are not available for delivery at the Port of destination the shipper or the consignee will not make any claim in respect thereof. The defendant has also relied upon the Export General Manifest Exh. 72 and Import Manifest Exhs. 72 and 78, Bill of entry for consumption filed by the plaintiff's clearing agents at Karachi (Exh. 14), the statement of P. W. 2 Umrao Beg (Exh. 46) a K. P. T. Supervisor to show that the quantity of the bags shipped per s. s. "Pak Prosperity" and discharged at Karachi were only 546 bags. Mr. Nasim Farooqui, the learned counsel for the plaintiff contended that the letter (Exh. 50) cannot be considered in evidence firstly for the reason that it is not proved and secondly the alleged indemnity contained in it was in excess of the authority conferred on the agent and therefore, is not binding on the plaintiff. The learned counsel also '
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attempted to argue that the manner and the circumstances under which letter (Exh. 50) is produced, in the case, give rise to strong suspicion that the letter was collusively obtained by defendant after the institution of the suit in order to defeat the claim of the plaintiff. The learned counsel accordingly contended that the letter (Exh. 50) should not be received in evidence. The letter (Exh. 50) was produced in evidence by D. W. 1 M. A. Salam, the Branch Manager of defendant at Chittagong (Exh. 54). He categorically stated in his examination-in-chief that he recognises the signature of the forwarding agent of plaintiff on Exh. 50 and that it was given by him (forwarding agent of plaintiff) to the defendant. The only objection raised by the learned counsel at the time of production of Exh. 50 related to insufficiency of stamps thereon. In the cross-examination no questions was put to the witness (Exh. 54) challenging the authenticity of Exh. 50 or the authority of the agent to issue the same. I therefore, fail to see how it can now be argued when it was not the case of plaintiff at the time of production of document in evidence, that it was issued by his agent without any authority or in excess of the authority. I equally fail to see how an argument as to the collusive nature of Exh..50 could be raised now by the plaintiff when it was not suggested so, at the time the evidence was recorded. I will therefore for the present only consider the objection raised by the plaintiff at the time of production of Exh. 50 with regard to insufficiency of stamps. The objection is that the letter (Exh. 10) is an indemnity bond and therefore should be stamped accordingly. Before considering the above objection of the plaintiff, I will reproduce here the contents of Exh. 50 which are as follows:- "Messrs Karachi Steam Navigation Co. Ltd., Khaliq Mansion, Strand Road, Cittagong. Dear Sirs, Sub. Consignment of Turmeric (Haldi) shipped per s. s. "Pakistan Prosperity' for Karachi, Marks Madraswa la Best." We have received 4 mate's Receipts Nos. 2, 3, 4 and 70 dated 18th and 25th March, 1964, covering 546 bags turmeric (Haldi) by marks "Madraswala Best Karachi" with the qualified remarks. The remarks of mate's Receipt No. 4 reading as under:-- "Shippers claim 24 bags shipped which have. Not been tallied due to careless tally. Shippers undertake and indemnify the ship against all losses and claims etc., for non-delivery at destination, if found may be delivered. We confirm these remarks and undertake to indemnify you the loss by giving us clean B/L for 570 bags turmeric, if 24 bags in excess are not available for delivery ex the vessel at the port of destination, no claim whatsoever will be preferred either by Shippers or consignees. Yours faithfully, Haroon Habibullah (Sd.) Illegible Proprietor." "(5) "bond" includes- (a) any instrument whereby .a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be; (b) any instrument attested by a witness and not payable. To order or bearer, whereby a person obliges- himself to pay money to another; and (c) any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another; Considering the contents of Exh. 50, in the light of the above definition of `Bond', I am- unable to agree with the learned counsel for the plaintiff that document Exh. 50 is an indemnity Bond and therefore liable to be stamped as such. By letter Exh. 50, the remarks made on Mate's receipt Exh. 27 were confirmed by the shipping agent of plaintiff and it was further stated that in case of non- delivery of the excess 24 bags of turmeric mentioned in the bill of lading at the port of destination the shipper or the consignee will not make any claim in respect thereof. This statement contained in letter Exh. 50, in my view is not sufficient to make the letter an indemnity Bond. Apart from it, the
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letter Exh. 50, can otherwise be considered as an admission of the shipper that 24 bags of turmeric were shipped short. The learned counsel for the plaintiff was unable to point out any rule of law which could prevent consideration of Exh. 50 as an admission for short shipment of cargo. Coming now to the contention of the learned counsel that Exh. 50 was issued by the shipping agent without any authority vesting in him, I have already pointed out earlier that it was not the case of plaintiff at the time of production of Exh. 50 in Court, but considering the argument as now raised by the learned counsel for the plaintiff that under section 227 of the Contract Act only such part of an agent's acts could bind the principal for which he. Had the authority I am inclined to consider this argument as well. Before resort could be had to section 227 of Contract Act, it must be shown what authority was given by the principal to the agent and how it was exercised in excess of that. It should also be kept in mind while considering the contention regarding lack of authority on the part of an agent that an agent having authority to do an act has authority to do any lawful thing which is necessary in order to do such act. The plaintiff's witness Exh. 62 has said in his evidence that Haroon Habibullah who wrote Exh. 50 was the forwarding agent of plaintiff at Chittagong. It is also stated that the agent was authorised to forward the goods and ship them. This statement of plaintiff's witness was recorded on 26-10-1966 while the statement of defendant's witness (Exh. 54) who produced Exh. 50 was recorded on 18-10-1966. There was no cross-examination to defendant's witness who produc--ed Exh. 50, to the effect that Exh. 50 was written without authority of plaintiff by the forwarding agent. Neither any effort was made by the plaintiff to examine the agent nor any attempt was made to amend the plaint and . Implead him .As a defendant in the suit for having given such an undertaking without authority from the plaintiff. In my view, in these circumstances, and in view of the fact that Haroon Habibullah was admittedly entrusted by the plaintiff with the work of forwarding a consignment of turmeric bags to Karachi, and if at the time of shipment it was found that consignment consisted of only 54 6 bags as against 570 bags declared in the B/L, the endorsement made by him and confirmed in Exh. 50, cannot be described as one falling outside the scope of authority of a forwarding agent. It is quite possible that in the absence of such an undertaking by Haroon Habibullah, the defendant might not have accepted the consignment for shipment, which - would have caused greater loss to plaintiff. For these reasons I hold that Exh. 50 is admissible in evidence and is not a document which was written ' by the forwarding agent of plaintiff in excess of the authority given to him by the plaintiff. This act of plaintiff's forwarding agent could legitimately be described as one covered by section 188 of the Contract Act. The learned counsel have not addressed any argument on the question of terms and conditions of shipment of consignment. The bill of lading contains the terms and conditions of shipment. No evidence to the contrary was referred. I, therefore, hold that the terms - and conditions of shipment were those which were mentioned on the bill of lading. I accordingly hold that only 546 bags of turmeric were shipped per s. s. "Pak Prosperity" for carriage from Chittagong to Karachi, on the terms and conditions mentioned in the bill of lading. Issue No. 2: The bill of lading (Exh. 9) issued to plaintiff by the defendant does not contain any endorsement regarding condition, quality, quantity and value of each bag. It however gives the general description of cargo as Turmeric (Haldi) and the total weight as 75.1529 Freight Tons. Similarly the mate's receipts (Exhs: 25 to 28) also indicate only the number of bags and general description of cargo. The learned counsel for the plaintiff was unable to -point out anything on record to show that the defendant were aware about the contents, quality, quantity and value of each bag. I accordingly hold that defendant were only aware that the consignment generally contained turmeric (Haldi) and the total weight of the consignment was 75.1529 Freight tons. . Issue No. 3: .
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There is no endorsement with regard to the condition of bags in the bill of lading. The endorsement of "S. N. R. For torn, damage and shortage of contents" mentioned both on Mate's receipt and bill of lading is conceded by the learned counsel for the defendant as a general statement not referable to any particular bag or bags of the consignment. It is also very fairly admitted by the learned counsel. That such endorsements are to be found generally on all bills of lading. In the mate's receipts, Exhs. 26 and 28, however there are 2 endorsements regarding the bags. On Exh. 26, the endorsement states: "39 bags water stained before shipment" while on Exh. 28 the endorsement is: "Bags Second Hand". Apart from these two endorse--ments, the learned counsel for the defendant was unable to point out any thing in the evidence to show that-the bags were in damaged conditions at the time of shipment. The two endorsements referred to above are also not sufficient to conclude that the goods were not shipped in good order and condition: I accordingly hold that the goods were shipped to good order and condition. The latter part of this issue need not be answered in view of the affirmative finding on the first part of the issue. Issue decided accordingly. ' Issues Nos-4 and S: I will deal with both these issues together. I have already held under Issue No. 1 that the total quantity. Of the bags containing turmeric shipped per s. s. "Pak Prosperity" under bill of lading No. 3.3 dated 25-3-1964 was 546 bags and not 570 bags. It is in the evidence that 546 bags were discharged at Karachi. The defendant however, failed to prove that they discharged the cargo in the same condition and order in which it was entrusted to them for shipment at Chittagong. The admitted position is that the entire cargo of plaintiff shipped per s. s. "Pak Prosperity" was under the mark "Madraswa lla Best Karachi". The evidence on record show that all the 546 bags discharged at Karachi did not bear the mark "Madraswala Best, Karachi", under which they were admittedly shipped. It is the case of the plaintiff that out of the 546 bags of turmeric discharged at the Karachi Port the pla intiff took delivery of 341 bags initially by mark and this fact is admitted by defendant as well. The plaintiff claim to have accepted delivery of another 116 bags under examined delivery after survey of goods. With regard to the remaining 89 bags, the contention of the plaintiff is that these bags were. Never offered to him by the defendants by the mark "Madraswala Best Karachi" and those found lying at the K. P. T. Shed did not carry the shipping mark of plaintiff. It is further contended that the 116 bags delivered to plaintiff under examined delivery after survey were also short in contents by 62 md., 21 srs. And 8 chatanks. The defendant on the other hand contends that the entire cargo of 546 bags was discharged at Karachi, but it is admitted in the written statement that out of the total quantity of 546 bags discharged at Karachi only 341 bags carried the shipping marks of plaintiff while the remaining 205 bags were without mark. Therefore, there can be no dispute that the cargo discharged by the defendant at Karachi partly carried the mark of the plaintiff and partly it was discharged under a wrong or nil mark. The plaintiff has examined Umrao Beg, a Supervisor of the K. P. T. (Exh. 46). This witness stated in his evidence that out of the total quantity of the plaintiff's consignment of 546 bags discharged at Karachi Port, only 341 bags were found to bear clearly the shipping marks of the plaintiff and therefore delivery of these 341 bags was given to plaintiff and Karachi Port Trust initially issued a certificate showing 205 bags landed at Karachi Port without any mark. It is further stated by this witness that later on a request received from the defendant the K. P. T. Allowed the defendant's workers to separate these 205 bags and then it was found that out of these 205 bags the shipping mark of plaintiff could be despaired on another 116 bags and accordingly examined delivery of these 116 bags were offered to the plaintiff who took the same after -survey. Ultimately 89 bags were found to carry no marks according to the witness, and therefore the K. P. T. Finally issued a short-landing certificate (Exh. 24) dated 16-7- 1964 in respect of these 89 bags. The evidence of this witness was attempted to be challenged in the cross-examination by the learned counsel for defendant and number of searching questions were asked, but no headway could be made. It is conceded by the learned counsel for the
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defendant that f the plaintiff, shipped the cargo under particular mark, he was entitled to delivery thereof under the same mark. I therefore feel no difficulty in holding that where goods were shipped under a particular mark, they must be discharged at the port of destination under the same mark and if the cargo is discharged at the port o destination under a different mark, it could not be treated as a proper discharge of the cargo. In so far the shortage of contents of 116 bags I concerned, the plaintiff has relied upon the report of Surveyor (Exh. 5/1). The witness (Exh. 5) who produced report Exh. 5/1 did not state in his evidence as to how the shortage was worked out. However in the report (Exh. 5!1) it is shown to have been worked out by taking the gross weight of 116 bags of turmeric from Invoices produced in evidence by the plaintiff and therefrom subtracting the gross weight of 116 bags found at the time of survey. This method of calculation cannot be accepted for two reasons. Firstly, it has come in evidence that the weight of each bag varied from 120 lbs. To 180 Ibs. Secondly the invoices relied upon by the surveyor did not disclose the weight of each bag. There is no evidence on record to show that these 116 bags were those weighed more than 1201bs. Each. I will therefore, for calculating the shortages adopt the minimum weight of each bag 120 lbs. Each and subtract therefrom the total weight of 116 bags found at the time of survey. Accordingly the total weight of 116 bags @ 120 lbs. Each comes to 13920 lbs. The total weight of 116 bags found at the time of survey according to Exh. 5/1, works out about 9912 lbs. The difference there--fore comes to 4008 Ibs. Which when converted into maunds and seers comes to about 48 mds. And 28 srs. I accordingly hold that 89 bags of plaintiff's cargo of turmeric under the…
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