1. ' QAISER IQBAL, J.---The plaintiffs have filed suit for recovery of Rs,84,11,540/84 against the defendants.
2. ' The brief facts leading to the case are that a consignment of a complete plant of machinery for manufacture of heavy duty polythelene bags, stowed in 14 containers was imported by Messrs Farmaish Industries Limited, Karachi, from Italy for delivery at the port of Karachi a sum of Italian Liras 105,22,740 being C&F price of the consignment was paid to the importers by the suppliers Messrs FranceFerri S.P.A. Rome, Italy under the Letter of Credit, dated15-3-1987, opened to Industrial Development Bank of Pakistan. The consignment was shifted by the supplier at the port of Ravenna, Italy in good order and condition on board of vessel HOISTON SAILOR under Bill of Lading No,034, dated 31-10-1983, the consignment was insured with the plaintiffs under a policy in lieu of Cover Note, the vessel arrived at the port of Karachi, landed the consignment in the custody of the defendants as bailees on 10-11-1983 under IGMNo,2371/1983. A dispute arose between Custom Authorities and the importers, which was settled, the importer and their appointed clearing agents Messrs Qadri Shippers Limited, approached the representative of the defendants over delivery of the consignment on the basis of the delivery order issued by local agents of the vessel Messrs Anchor Shipping and Trading Limited, they demanded exorbitant amount towards wharfage, demurrage, storage charges, the matter was ultimately referred to the Ministry, Government of Pakistan, the amount was reduced to a considerable extent.. The plaintiff on the request of the importers appointed Messrs Amanat Khan and Company and Messrs Mustafa Hyder and Company surveyors to carry out the survey of the consignment found that five Packages bearing Nos. 7/43, 9/43, 13/43, 16/43 and 17/43 were missing from the containers. The survey was held in presence of the defendants representative to confirm the Missing of five packages, assured that the shortage will be returned by the concerned department of the defendant and would arrange a search for the missing packages to be traced out. On 23-10-1986, the importers took over the delivery of the consignment, relying that the shortage noted down by the representatives of the defendants to the utter surprise the importers, received a letter of the Traffic Officer of the defendant, dated 9-12-1986 that the clearing agents of the importers had taken delivery of the full consignment in good order. The importer had suffered a loss due to the missing of five packages and on the defendant's failure to make the loss good, the plaintiffs under the insurance policy settled the dispute by paying Italian Liras 64,17,59,432 (amounting to Rs,84,11,540/84) upon being subrogated to all rights and remedies of the insured, the plaintiffs are entitled to claim the suit amount on account of the missing of the five packages.
3. ' The defendants filed the written statement denied the plaintiff's claim that the consignment of 43 packages was landed at the port of Karachi by the ship arrived on 18-11-1983 in 14 containers was delivered to the defendant. In Para-6 of the written statement, it is specifically stated that at the time of the customs examination, the containers were stuffed and re-stuffed under the supervision and arrangement of Messrs Qadri Shippers Limited, clearing agents of the plaintiffs, with the necessary seal, wherefrom the clearing agents took delivery on23-10-1986 under the clear receipt.
4. It is averred that the plaintiffs claim is not sustainable, liable to be dismissed.
5. ' On the pleadings of the parties, following issues were framed by the Court:-
(1) Whether the suit is premature and is barred under section 87 of the KPT Act? .
(2) Whether the suit is bad for non-joinder of the necessary parties?
(3) Whether the suit is barred by Limitation?
(4) Whether the suit is bad for want of full particulars of alleged damages?
(5) Whether the Clearing Agents of the Importers/Plaintiffs took delivery of the goods against clean receipt?
(6) Whether the Plaintiffs suffered alleged loss on account of any act or omission and/or commission on the part of Defendants?
(7) To what relief, if any, the Plaintiffs are entitled to?
6. ' I have heard the learned counsel appearing for the parties, perused the record of the case. My findings on the above issues are as follows:-- Issue No,1 ' The language of section 87 of the Karachi Port Trust Act, the question on which date the accrual of the cause of action against Port TrustAuthorities arises, depends on the facts of each case.
7. ' The learned counsel appearing for the plaintiff has contended that under section 87 of the Karachi Port Trust Act, no suit shall commence against any person for anything done or purported to have been done without giving such person one month's previous notice in writing of the intended suit and of the cause, thereto, nor after six months from accrual of the cause of action. Meaning thereby, that one month's previous notice has to be served upon the defendant, the suit shall be filed within six months from the accrual of cause of action. The suit was filed on 3-8-1987, one month's notice, dated 30-6-1987 (Exh. 6/N) under section 87 of the Karachi Port Trust Act, was served upon the defendant which was replied on 18-7-1987 vide Exh.6/9, thus the requirements were duly complied with. The second condition of section 87 of the Karachi Port Trust Act, provides that the suit has to be filed within six months from the accrual of the cause .Of action of such suit. It is an admitted position that the entire consignment was discharged by the vessel into the custody of the defendant, remained for about threeyears due to dispute with Customs Authorities, after the dispute was resolved, the importer proceeded to take delivery, the defendant demanded exorbitant amount towards wharfage, demurrage, storage charges the matter was referred to the concerned ministry and the charges were considerably reduced. The delivery of the consignment was effected on 23-10-1986, five packages were found missing. The Deputy Conservation KPT forwarded the matter to Traffic Manager KPT through its' letter, dated 9-12-1986, took a stand that the entire consignment was delivered to the clearing agent under a clear receipt.
8. The cause of action to file a suit is a question of fact, which can be adjudicated or determined on facts of each case. In the case of Haji Adam v. Levant Line and 2 others (PLD 1959 W.P. Karachi Page 369), the following rule has been enunciated:-- "No hard and fast rule can be laid down in connection with the accrual of the cause of action against the Port Trust Authorities, it depends on the facts of each case."
9. The dispute between the parties commenced when the consignment was short delivered by KPT to clearing agent of importer on 23-10-1986, subsequent thereof, after taking the delivery of the consignment vide letter, dated 10-11-1986 Exh.6/G, the Deputy Conservation KPT vide Exh.6/F informed about the 5 missing packages, whereby the defendants had informed that the entire consignment was delivered to the clearing agent under clean receipt, which amounted to a refusal by the defendant vide Exh.6/H, as such the starting point of the limitation is the date of the refusal by the KPT. The suit was required to be filed within six months i.e, 9th June, 1987 as the High Court was closed for summer vacation from 6th June, 1987 till 2nd August, 1987, therefore, the suit tiled on 3-8-1987 was within time. In support thereof, reliance is placed on 1987 CLC Page 961.
10. ' In view of the above circumstances, the suit as framed and filed is maintainable in law. Issue No,1 is answered accordingly.
11. Issue No,2.
12. The learned counsel appearing for the defendant has contended that the suit is not maintainable for want of impleading the necessary parties including the importers and clearing agent. Order I Rule 9 C.P.C. Provides that no suit shall be defeated for reason of the misjoinder or non-joinder of the parties and the Court may deal in suit with the matter in controversy, so far as it guards rights and the interest of the parties actually before it and shall dispose of the suit provided, it effectually resolve controversy in suit. The defendant ought to have taken the objection of misjoinder or non- joinder of the parties at theearliest possible opportunity. The non-joinder of the importers and the clearing agents are not necessary as the plaintiffs being insurance company stands subrogated by virtue of letter of subrogation Exh.61L, so far as, the clearing agent is concerned, he was acting for and on behalf C of the importer, therefore the suit cannot be defeated for non-joinder of the parties as their absence is not per se fatal to the case in the event of the subrogation by the importer in favour of the plaintiffs, the status of the importer and clearing agent ought to have been that of pro forma defendants and of no consequence. In his view of the matter, Issue No,2 is answered accordingly.
13. Issue No,3 It is a settled principle of law of limitation that it commences with an existing cause of action and unless the cause of action for the suit has arisen, limitation for such suit cannot begin to run. The period of limitation prescribed by Article 31 of the Limitation Act for filing the suit under Article 31 of the Limitation Act, is one year, commences from the date when the goods ought to have been delivered.
14. ' The learned counsel for the plaintiff has contended that the period of one year prescribed under law started from the date when the .Defendant finally refused the claim of the plaintiff on 9-12-1986 vide Exh.G/H. The suit was filed on 3-8-1987. In this connection, reliance is placed on the case of National Insurance Corporation v. PNSC reported in (1985 CLC Page 360), the relevant portion is reproduced herein under:-- "From the above documents it is sufficiently established that the matter was under negotiation with regard to the delivery of the two missing cases until 1-8-1982 when the Karachi Port Trust issued a short landing certificate to the consignee confirming the short landing of these two cases. There is nothing on record to show that after 1st August, 1982, there was any further promise on the part of the defendant to trace out the said two missing cases and offer their delivery to the consignee. In these circumstances it is obvious that the consignee had notice on 1-8-1982 when the short landing certificate was issued to them by Karachi Port Trust, that the defendant was not in a position to offer them the delivery of the two missing cases and therefore, the period of limitation started running on 1st August, 1982."
15. ' In the case of Abdul Jalil Chowdhury v. The Muhammadi Steamship Co. Ltd. And others, reported in PLD 1961 SC 340, on the above issue it has been observed as under:-- ' We may point out that Article 31 of the Limitation Actis in almost identical terms with Clause (6), and we see no reason to. Place on this clause an interpretation different from that which has been placed on Article 31. There are large number of decisions under this Article wherein it has been held that limitation starts only when the Railway Authority either refuses or expresses its inability to give delivery. There was almost a consensus of opinion on the point in pre-partition India and after partition the game view was taken in the West Pakistan High Court vide Firm Muhammad Saddiq Imam Din v. The Federation of Pakistan, a decision of S.A. Rehman, C.J. And A.R. Changez, J. Where a number of cases are cited. Unfortunately, these decisions do not explain the basis on which the conclusion could be reached, for Article 31 does not speak either of refusal or of inability to delivery but all these decisions can be shown to be correct on the ground that is these cases there was correspondence going on between the carrier and the consignee, to take delivery, so that there was impliedly an extension of time till there was refusal to give delivery or expression of inability to do so."
16. ' In the present case, it appears that the consignee as well as plaintiff had written a letter to the Karachi Port Trust, about the missing of five packages, the defendants' representatives made efforts to search and deliver the same ultimately the defendant took summersault, set-up case in letter, dated 9-12-1986, the entire consignment was delivered under clear receipt to the clearing agent of the importer. Consequently, the suit ought to have been filed within one year from the said date, thus the suit was filed within the period of limitation. Issue No,3 is answered accordingly.
17. Issue No,4.
18. ' Onus to prove the above issues vested with the defendants, not pressed, requires no finding.
19. Issues Nos.5 & 6 ' The defendants have consistently setup the case that on 2-10-1986, the entire consignment was delivered to the clearing agent against clear receipt, the question of missing packages is an afterthought. The defendants in their evidence produced three documents/clear receipts, which shows that delivery of consignment was taken over by clearing agent, admitted by the plaintiffs' witness in his cross-examination as under:-- "It is in my knowledge that the suit consignment after re-stuffing was delivered to the clearing agent of the plaintiffs against clearreceipt on 23-10-1986, thus there is no iota of evidence that the consignment was not delivered in entirety to the clearing agent."
20. ' It is contended by Mr. Mazhar Lari that after discharge of the consignment at Karachi Port on arrival of the ship, the responsibility of the carrier had come to an end, the consignment was delivered in the custody of the defendant. The consignment after being discharged on KPT was surveyed on 12-3-1986 Exh.6/D and 25-11-1986 Exh.6/E, after the lapse of three years 5 packages were found missing. It is revealed from survey report Exh.6/E, that the delivery of 14 containers were taken over from the defendant on 23-1-1986 with the assistance of their consignment representative, the contents of the containers were checked and 05 packages were found short, brought to the notice of KPT staff. Chief Surveyor requested the defendant to provide a shortage certificate or record the same in KPT register before the delivery is taken. The Defendant staff present on the site at the time of survey did not response. The importer also informed the defendant vide Eh.6/F, dated 25-10-1986 about the short delivery of consignment, the defendant vide its letter, dated 9-12-1986 informed the importer that the consignment was properly stuffed in the containers, delivery of 14 containers was taken by clearing agent on 23-11-1986 under clean receipt, no complaint was lodged at the time of delivery for missing packages. The same position is spelled out from Exh.6/I. On the basis the joint survey report of surveyors Mustafa Hyder and Company and Amanat Khan and Company Exh.6/J, dated 14-7-1987, it was revealed that five cases out of entire consignment were found missing, the loss was ascertained, the payment was made by the plaintiffs to the importers, under letter of subrogation. The correspondence exchanged between the importer and the defendant suggests, that the representative of defendant at the time of survey did not note that factum of shortage of consignment, between 24- 5-1984 to 26-10-1986.
21. ' P.W. Liaquat Ali Khan deposed that after the consignment was discharged in the custody of the defendants, the dispute arose between the Custom Authorities and the importers regarding chargeable customs duty and sales tax, consignment was opened by the Customs, Authorities, packed in 43 packages, after completion of the examination locked and seal the containers with all packages intact.
22. ' There is ample evidence on record to suggest that the carrier had discharged the entire consignment in the custody of the Karachi Port Trust, being a statutory bailee of the carrier. The importer addressed a letter, dated 25-10-1986 to the Deputy Conservator of the defendants apprised him about the factum of missing five packages as per promise, when the consignment was delivered to the importers clearing agent. The defendants' letter, dated 23-11-1986 appears to be outcome of malice, assufficient evidence has been produced to arrive at the conclusion that there was tampering, proper coverage was not provided to the containers on top, on account of ineffective security measures by the defendant, five packages were found missing, out of entire consignment delivered to the defendant by carrier.
23. ' As a result of the above discussion, the plaintiff's suit is decreed against the defendants with cost.