1. MAHMOOD HUSSAIN, J.---This judgment will dispose of the two appeals filed by the defendant- appellant arising out of two suits being Money Suits Nos. 12/5 and 13/6 of 1957/1960.
2. These appeals on behalf of the defendant arise out of suits filed for realisation of damage in respect of consignments of the plaintiff-respondent.
3. Money Suit No. 12 of 1957 was for realisation of Rs. 25,674-15-0 being the amount of proportionate, loss suffered by the plaintiff-company for the damage of 370 bags out of 1000 bags of rape seeds insured with the defendant-company for a sum of Rs. 69,395. Money Suit No. 13 of 1957 is for realisation of Rs. 16,793-2-0 for the damage of 485 bags of rape seeds out of another consignment of 1000 bags similarly insured with the defendant-company for Rs. 69,250. The suits were tried analogously and disposed of by one judgment.
4. The two consignments of rape seeds comprising 1030 bags each were shipped from Karachi. One consignment was delivered at Chalna Anchorage, Khulna by B/L. No. 92 and the other consignment was delivered at Chittagong being B/L. No. 151 as per s. s. Pakistan Prosperity. These were insured with the defend--ant-company under the Marine Policies bearing Nos. K-1867 and K-1827 (being Money Suit No. 12 of 1957) and another Marine Policies bearing Nos. K-1868 and K-1829 (being Money Suit No. 13 of 1957). The ship reached Chittagong on 19-3-1954 and at Chalna Anchorage on 14-4-1954. During the voyage the master of the vessel experienced bad weather and he feared damage to cargo due either to sea water or for want of proper ventilation. The master of the vessel made a note of protest at Chittagong on 19-3-54 and extended the same on 15-4-54 at Chalna Anchorage. The plaintiff's case was that the damage and loss had been caused by perils of the seas or such other similar perils. It is either due to heavy rough cyclonic action of the seas or it may be due to closing of ventilation by the Master in order to save the cargo from the sea water, which had generated heat and caused the whole thing to be charred and damaged. That the damage was ascertained by the Lloyd after the arrival of the ship at the Port of destination and it was found that 485 bags of rape-seeds out of the consignment delivered at Chittagong was damaged to the extent of 50%. That 370 bags of rape-seeds as delivered at Khulna were damaged. That the chemical test was held by Dr. M. Rahman which revealed that the damage was not by sea water.
5. The plaintiff thereafter asked for the sample of the consignment for further chemical test in London but that was refused by Messrs James Finlay & Co. Thereafter the plaintiff submitted claim to the carriers who repudiated the same. Thereafter the plaintiff made claim against the defendant insurance Company who also repudiated and as such the plaintiff filed the above suits.
6. Defendant-company contested the suits alleging that consign--ments of rape-seeds of the plaintiff were shipped on board `Pakistan Prosperity' from Karachi in wet and immature condition which caused spontaneous combustion and sweating in holds resulting in damage due to inherent vice for which the defendant is not liable under the terms of the Insurance Policy. That the contract of Insurance is vitiated as the plaintiff deliberately failed to disclose the material facts relating to the condition of seeds at the time of shipment and that the plaintiff is not entitled to get any relief against the defendant as he failed to take action against the carriers in terms of the bailee clause incorporated in the Insurance Policies.
7. The learned Subordinate Judge after hearing the parties decreed the suits with costs.
8. The appellant before us has preferred these appeals against the said judgment and decrees and the learned Advocate Mr. S. M. Hussain urged the following grounds:--- "(2) For that the learned Court below erred in holding that the damage to the consignment in suit was caused by a peril of the sea or "some other peril" insured against and hence that the defendants-appellants were liable to compensate the plaintiff-respondents under the policy of insurance.
(5) For that the learned Court below having found that the loss of the consignment in suit was partial, ought to have held that the defendants-appellants were exempt from liability by virtue of the "Common Memorandum Clause" in the Policy of Insurance.
(7) For that the learned Court below ought to have held that the defendants-appellants were liable, if at all, only for such damage for which carrier was not liable and the learned Court below erred in holding the defendants-appellants liable for the entire damage in respect of which .The plaintiffs-respondents claimed compensation without assessing the extent of the carrier's liability.
(8) For that the learned Court below ought to have held that the defendants-appellants were exempt from liability on account of the fact that the damage to the consignment in suit took place while in the custody of the carrier, and the learned Court below erred in holding that the carrier was not liable in view of "Clause (c) of section 2" of the Carriage of Goods by Sea Act, 1925, and erred further in so holding without any evidence on record.
(9) For that the learned Court below ought to have held that the relief claimed by the plaintiffs- respondents against the defendants-appellants could not be granted without deter--mining the liability of the carrier, and ought to have dismissed the suit in the absence of the carrier as a party to this suit.
(10) For that the learned Court below ought to have held that the plaintiffs-respondent's claim was not maintainable as the plaintiffs-respondents had failed to sue the carrier as required by the terms of the policy of insurance, and erred in holding that the plaintiffs-respondents were not obliged to prosecute proceedings against the carrier unless the defendants-appellants advanced money to them for that purpose."
9. Admittedly the consignments were landed and delivered in Chittagong between 22-3-54 and 29- 3-54 and the other consign--ment was landed and delivered in Chalna between 18-4-54 to 5-5- 54 and the plaintiff applied for survey in respect of consign--ment in Chittagong on 5-5-54 and the survey was held on 7/8-4-54 and similar application was made for survey for the consignment delivered in Chalna on 15-4-54 and the survey was held on 5-5-54 and the survey report in respect of both the consignments are dated 21-5-54. It appears that the plaintiff by his letter dated 11-9-54 Exh. 5 lodged a claim against Messrs James Finaly & Company Ltd. (Ship's representative) with copy to Messrs Shaw Wallace (Pak.) Limited, Chittagong representative of the defendant Insurance Company. Thereafter the plaintiff wrote to Messrs Shaw Wallace& Co. (Pak.) Ltd. By a letter dated 23-10-54 Exh. 5(a) and lodged a claim in respect of two consignments and forwarded along with the letter, Lloyd's Survey Report, Bills of Lading and other papers and requested them to settle up the claim and send a cheque at an early date. On 11-11-54 Messrs James Finlay & Co. Ltd., repudiated the claim of the plaintiff vide Exh. 5(O). The plaintiff thereafter by a letter dated 27-12-54 Exh. 5(R) made a claim against the defendants and requested them to settle the claim at the earliest and along with the letter they forwarded certain papers in support of their claim and in reply to this letter Exh. 5(R), the defendant gave a reply dated 29-12-54/4-1-55 and in which it was stated that the matter is receiving their attention and that they shall revert in due course. Then the plaintiff wrote another letter dated 7-3-55 Exh. 5(T) requesting the defendant to expedite the settlement of the claim at the earliest. On the 11th March 1955, the defendant gave a reply Exh. 5(U) in these terms "We thank you for your letter RTC/CLM/30.27 of the 7th instant and in reply have to advise you that we are awaiting instructions from our principals regarding disposal of your above claim. We shall revert in due course."
10. Thereafter it appears that the plaintiff wrote another letter dated 4th July 1955, Exh. 5 (V) to which the defendant replied on the 5th July 1955, Exh. 5 (W) and stated:- "We thank you for your letter Ref. RTC/CLM/30-27 dated 4th instant and have to advise you that we have not received any instructions from our principals regarding the disposal of the above claim.
11. We have, however, sent a reminder to this effect and shall revert as soon as we hear from them."
12. Thereafter the plaintiff wrote another letter on the 18th August 1955 Exh. 5 (X). The contents of this letter are: "It is regretted that in spite of our repeated reminders nothing has been done so far to settle our claim mentioned above.
13. We are extremely sorry to note that in spite of giving our entire business to you, our claims are allowed to lie in abey--ance. We take a very serious view of this and unless you settle our claim immediately we will be compelled to take step to safeguard our interest.
14. Please reply at your earliest." rd August 1955 Exh. 5 (Y) stated that they have not yet received instruction from Karachi and that they will revert as soon as they hear from them, then again on the 19th October 1955 the plaintiff wrote another letter to the defendant Exh. 5 (Z) for expediting the settlement of the claim. The plaintiff further stated:- "We cannot wait any longer and if there be any further delay we will be compelled to give our papers to our lawyer to do the needful."
15. Thereafter we find a reply from the defendant on 24th October 1956 vide Exh. 5 (Z) (1). In this letter the defendant repudiated the claim of the plaintiff in the following terms:- "In this connection, we would advise you that the claim in question is not admissible under the above policies for the following reasons:-
(1) All policies covered W. A. Risks only.
(2) Claims are due to heating and/or fresh water damage and .Are not covered by the policy conditions.
16. Further, before the partnership of the Rahmania Trading Co. Dissolved, our Principals' Karachi Office discussed these claims with the Karachi representative (of Rahmania Trading Co.) and it was clearly understood by them that no liability attached to the Company and the claim was repudiated.
17. We trust that we have clarified the whole position."
18. So, from these correspondences it will appear that the plaintiff made all frantic efforts to get the claim settled by the defendant who in their turn without either denying the claim or admitting the claim was simply asking them (the plaintiff) to wait and that they would reply on getting proper instruction from the head office in Karachi.
19. It may be noted that the claim of the plaintiff in respect of the consignments admittedly should have been barred on 29-3-55 and 5-5-55 respectively. Messrs James Finlay (carrier's representative) repudiated the claim of the plaintiff on 11-11-54 and the plaintiff after this repudiation by the carrier lodged this claim against the Insurance Company (Messrs Shaw Wallace) on the 27th December 1954 vide Exh. 5 (R) and again sent a reminder for settling the claim on 7th March 1955, vide Exh. 5(T). So it will appear that the plaintiff took all steps within the period of limitation for filing a suit against the carrier. But the defendant gave a reply neither repudiating nor admitting the claim of the plaintiff. It was stated that the matter is receiving their attention and they would revert in due course.
20. Now in this context we should refer to Exh. A the Insurance Policy which contains a clause under the heading "Institute Cargo Clauses (W. A)" Clause 8 runs thus: "Notwithstanding the warranties contained in this clause it is agreed that in the event of loss or of damage to the goods by a peril or perils insured against by this policy for which the carrier or bailee denies or fails to meet his liability the under--writers shall advance to the assured as a loan without interest a sum equal to the amount they would have been liable to pay under this policy but for the above warranties, the payment there of to be conditional upon and only to the extent of any recovery which the assured may receive from the carrier or bailee. It is further agreed that the assured shall with all diligence bring and prosecute under the direction and control of the underwriters such suit or other proceedings to enforce the liability of the carrier or bailee as the underwriters shall require and the underwriters agree to pay such proportion of the costs --and expenses of any such suit or proceedings as attach to the amount advanced under the policy."
21. Now the plaintiff when he lodged his claim on 27-12-54 against the defendant after the repudiation of the carrier on 11-11-54 which was within the time of the filing of the suit against the carrier, the defendant did neither advance a loan to the plaintiff as required of him under the clause in order to enable the plaintiff to pursue his cause against the carrier nor repudiate the claim. It may be noted that under the above clause 8 the plaintiff made himself bound to bring and prosecute under the direction of the defendant such suit or other proceedings to enforce the-- liability against the carrier as the defendant-company would require of him.
22. This clause 8 is very much relied upon by the learned Advocate appearing for the plaintiff- respondent in order to make out a case that he entered into an agreement with the Insurance Company who undertook to indemnify the plaintiff in case of such contingency as occurred in the present case. The plaintiff---company entered into an agreement with the defendant only on a consideration that as and when the carrier refused to make any payment the defendant would take step to pursue the cause against the carrier and since the defendant-company was given due notice of the refusal by the carrier within the period of' limitation and the defendant-Company remained silent, there was-- no more any duty on the plaintiff to pursue his cause against the-- carrier.
23. Mr. Ahmed Sobhan has argued that the plaintiff entered into --the agreement with Insurance Company only on the consideration that the Insurance Company would give proper aid in case the --plaintiff is faced with such denial by the carrier. Clause 8 as quoted above indicated that the Insurance Company took upon it a responsibility to pursue the cause to fasten the liability oft the carrier through the plaintiff and the Insurance Company, having failed to comply with the terms of the agreement it remains no more a duty on the plaintiff to pursue his own cause independent of the defendant against the carrier. In the normal routine course, the Insurance Company has no cause of action---against the carrier company. But because of the clause 8 the-- responsibility of enabling suing the plaintiff to sue the carrier fell upon the Insurance Company and if the Insurance Company failed to give a proper reply when the plaintiff repeatedly demanded, it cannot be said that the plaintiff was still under duty to file such suit against the carrier when particularly the repudia--petition by the defendant was made after the period of limitation. The purpose for which this policy was effected by the plaintiff was only for certain relief in normal course of commercial transaction and in view of the fact that the Insurance Company, failed to repudiate the claim of the plaintiff before the period of limitation there remains nothing for the plaintiff to bring a suit against the carrier.
24. It seems to us the Carrier Company has nothing to say whether there was an inherent vice or immature and wet condition of rape-seeds in the consignment. This a matter to be investigated on evidence to be adduced by the plaintiff and the Insurance Company who in order to take advantage of this defence must adduce proper and legal evidence as the plaintiff having obtained a policy from the defendant-company prima facie proved the case of good condition of his consignment. The survey report Exh. B as per item No. 20 runs thus:- "20. Further remarks.-There have been several consignments of damage rape-seed from Karachi arriving at Chittagong during March/April 1954. This damage is due to generation of heat whilst in stow and may be consequence of shipment of rape--seeds in a wet condition or possibly of immature seed which might be accentuated by insufficient ventilation."
25. This report further contains an opinion of the chemist in this terms:- "Samples were drawn and tested to ascertain whether the commodity was damaged by Salt- water and we incorporate Dr. M. Rahman's report to this effect:- "Sufficient quantity of the damaged commodity was treated with distilled water in order to dissolve any chloride present in the sample. The solution obtained was subjected to "SILVER NITRATE" test.
26. Practically no turbidity was served in the sample. I therefore conclude that the cause of damage in this instance was not sea water action."
27. Exhibit B (1) another survey report contains in Item No. 24--"--Further remarks" which runs thus:- "20. Further remarks.-There have been several consign--ments of damaged rape-seed from Karachi arriving at Chalna during April 1954. This damage is due to generation of heat whilst in stow and may be consequence of shipment of rape-seed in a wet condition or possibly of immature seed which might be accentuated by insufficient ventilation."
28. This Exh. B (1) contains the following observation of Port Health Officer as well as of the Chemist under Schedule: "Samples of damaged rape-seed were tested and analysed to ascertain in presence of chloride in the commodity and w& append below Dr. M. Rahman's report to this effect.
29. Sufficient quantity of the damaged commodity was treated with distilled water in order to dissolve any chloride present in the sample. Silver Nitrate test showed negligible turbidity.
30. I therefore conclude that the cause of damage in this instance was not sea water action."
31. Samples of damaged rape-seed were sealed and handed over to Dr. A. A. Shaikh, Port Health Officer, Chalna, whose report we incorporate below: "Please refer to your letter No. `K' 2/63 of 8-5-54, sent to this-- office with samples of rape-seed. On an outward examination without chemical analysis all the samples mentioned in your above quoted letter appear to be badly damaged, it is advised that they should not be used for human consumption.
32. (Sd.) A. A. Shaikh, Port Health Officer, Chalna, Khulna."
33. Exhibit G is a report of the Port Health Officer, Chittagong in respect of a consignment of rape-seed Exh. s. s. "Pakistan Prosperity" dated 30-9-54 that the damage might probably be because immature rape seeds were put into bags for shipment at Karachi.
34. Another report of Hatch Surveyor in respect of s. s. "Pakistan Prosperity" held on 1-4-54 is Exh. G (1) shows that he examined the holds and found no cause for the damage which would be attributed to the vessel and he continued saying "I am of the opinion that the cargo was not in sound condition when tendered for shipment; damage apparently caused by excessive moisture in the cargo thereby causing same to heat up."
35. Reports Exhs. B, (B) 1, G and G (1) clearly exonerated the carrier from liability. The plaintiff-company served a noticed on the defendant with a copy of the survey report well in time and the defendant could easily pursue the cause under the terms of the Insurance Policy against the carrier but did not do so. If the defendant-company could reply in time and not on 24th October 1956, the plaintiff could then take steps for recovery of the damages from the carrier company, but the defendant cannot take such stand now.
36. The protest notes dated 19-3-54 and 30-3-54 respectively clearly show that the vessel experienced bad weather moderate to rough sea water on deck and the Master of the ship s. s. "Pakistan Prosperity" feared damage to cargo. These protest notes by the Master of the Ship go to show that the vessel experienced bad weather and it was all the more necessary for the defendant to watch the conditions of the consignment after it was landed since the defendant was also given a notice of the damaged condition of the consignment by the plaintiff on 2-4-54 vide Exh. 5 (d).
37. It appears from Exh. 5 (f) dated the 3rd April 1954, copy of which was served on the defendant as well as on the Superin--tendent of Jetties by the plaintiff that the plaintiff wanted Steamer Survey.
38. The plaintiff took all steps that were required of him under the "Important Notice" pasted in the Insurance Policy and he was all through diligent to pursue the cause. But it appears that the defendant showed no such diligence, on the reverse the defendant kept the plaintiff waiting and waiting until the final repudiation of the claim made after the period of limitation on 24-10-56 Exh. 5
(Z) (1). The plaintiff was meticulously following the conditions incorporated in the Insurance Policy Exh. A, whereas the defendant failed to show proper diligence which was required of him in a case of such commercial nature. So, on this count we find that the defendant is guilty of gross negligence in disposing the claim of the plaintiff: Mr. S. M. Hussain, learned Advocate for the appellant wanted to argue that unless the plaintiff can bring his case within the terms perils of the sea as per terms of the Insurance Policy, the plaintiff cannot lay his claim against the defendant without first establishing his case against the carrier. It seems to us that clause 8 under the heading "Institute Cargo Clauses (W. A)" of the Insurance Policy gives an option to the plaintiff to ask for the assistance of the defendant-company who took upon itself the responsibility of assisting the plaintiff for establishing the claim against the carrier, when the carrier refused the claim. Under the clause the Insurance Company shall advance to the assured as a loan without interest a sum equal to the amount they would have been liable to pay under the Policy. The word "shall" has been used and it seems to us that the duty cast upon the defendant has not been discharged and in that view of the matter the perils of the sea on which the learned Advocate for appellant lay emphasis for proof can be of no help to him.
39. "Touching the Adventures and perils which the said Company is contended to bear, and does take upon itself in this voyage; they are of the seas, Men of War, Fire Enemies, Pirates, Roverse, Thieves, Jettison, Letters of Mart and Counter-mart, Surprisals, Takings at Sea Arrests, Restraints, and Detain--ments of all kings, Princes and peoples of what Nation. Condition of Quality so ever Barratry of the Master and Martners and of all other Perils, Losses and Misfortunes that have or shall come the Hurt, Detriment or damage of the subject-matter of this Assurance. And in case of any loss or Misfortune, it shall be lawful to the Assured, their Factors, Servants, and Assigns, to sue, labour, and travel for, in and about the Defence, Safeguard and Recovery of the said subject--- matter of Assurance, without prejudice to the Assurance; to be charge whereof the said Company will contribute according to the Rate and quantity of the sum herein Assured. And it is especially declared and agreed that no acts of the Assurer or Assured, in recovering, saving or preserving the property assured, shall be considered as a waiver or acceptance of abandonment."
40. From the above it will appear that the defendant took upon itself the responsibility of the liability "of all other perils, Losses and Misfortune."
41. Now the categorical statement on behalf of the defendant is that the repudiation was made on behalf of the defendant by reasons of inherent vice and further he stated "There is a report as advised by the Head Office to show that the rape-seeds shipped by Pakistan Prosperity were immature. That this report has not been filed nor I have seen this report". So from this evidence it is clearly found that the defendant took up the stand not on the proof of perils of sea but only on the ground that the claim could not be accepted by them due to inherent vice.
42. It is no doubt true that in a case of this nature the carrier is made a party to fasten the liability, but on the facts as disclosed in the present case and the stand defendant took on the inherent vice and immature wet condition of rape seeds, there remains no responsibility on the plaintiff to bring a suit against the carrier when the carrier refused. Furthermore when the defendant company who entered into an agreement with the plaintiff to advance a loan for the purpose of prosecuting the cause against the carrier failed to give any reply to the repeated demand of the plaintiff, the suit against the defendant is quite maintainable.
43. The defendant was supplied with the survey report on 23rd October 1954, vide Exh. 5(A), but the defendant failed to repudiate the claim earlier than the 24th October 1956, and that repudiation indicate that the defendant discussed the matter with the representative of the plaintiff in Karachi and it was under--stood that there was no liability attached to the Company but the defendant failed to adduce any evidence in support of such statement in Exh. 5(Z)(1). In the said Exh. 5(Z)(1) the defendant repudiated the claim asserting that the claims are due to heating and/or fresh water damage and not covered under the policy conditions. This cause for repudiation the claim of the plaintiff could have been made known to the plaintiff before so that the plaintiff could bring a suit against the carrier. The defendant---company failed to take steps in time and it is after a lapse of two years, that the defendant-company repudiated the claim.
44. The Officer of the defendant-company examined as witness is D. W. 1 who stated that he entered into the service of the defendant in May 1958, that is, during the pendency of the suit filed by the plaintiff. He was not the appropriate person to prove as to how the party entered into the agreement in respect of the consignment. The plaintiff took steps to get the sample from the carrier company in order to get it examined by an expert in London, but the carrier company refused to give the sample. So the plaintiff was vigilant and was taking all possible steps to prove his case. The grounds taken by the defendant in repudiating the claim of the plaintiff could be made known to the plaintiff long before the period of limitation, but defendant failed to do so.
45. Clause 8 in Insurance Policy, Exh. A under heading "Institute Cargo Clauses W. A having not been complied with by the defendant, we hold that the defendant failed to do his part as contemplated under the said clause. The plaintiff was all along kept under the hope that he would get a favourable reply but the defendant failed to do so even on repeated reminders. The plaintiff in order to show that in similar consignment carried by the said Steamer s. s. "Pakistan Prosperity", the Insurance Company made payment, as per Exhs. 2 and 2 (a). The plaintiff examined two witness P.
46. Ws. 2 and 3 to show that Messrs Ishaque Hazi Sukkur Hazi Jamal & Co. Were paid by the Eastern Federal Union Insurance Company for the loss incurred by them in respect of rapeseeds insured. So the plaintiff thought that when for similar consignment carried by the same ship, that is, s. s. "Pakistan Prosperity." The Insurance Company made payment the defendant-Company would also make the payment. It appears from the correspondence that the plaintiff was kept in the hope that he would be given proper reply to his claim and ultimately when his cause of action became barred as against the carrier, the defendant-company repudiated the claim of the plaintiff. So, for the laches of the defendant to give a reply in time, the defendant must be made liable for the loss incurred by the plaintiff.
47. The basis for the exemption of liability as claimed by the defendant under tile insurance Policy has not been substantiated by evidence and similarly the repudiation on the basis of immature and wet condition of rape-seeds has not been sub--stantiated. The defendant having failed to discharge the onus of proving the case or immature and wet condition of rape-seeds, in our view, he (defendant) is liable for the entire damage although the damage took place when in custody of the carrier. There was no necessity for determining the liability against the carrier since the defendant repudiated the claim after the period of limitation for bringing a suit by the plaintiff against the carrier. The conditions of the Insurance Policy go to show that the plaintiff entered into an agreement only for a safeguard in case of loss or damage incurred in respect of the consignment carried by the carrier. The liability of the Carrier has been shared by the Insurance Company by the term incorporated in clause is mentioned above. The failure on the part of the defendant to keep the claim alive against the carrier on giving proper instruction to the plaintiff, in our view, make the defendant company alone responsible and in that view of the matter defendant-company cannot get any relief whatsoever in the facts ---and circumstances of the present case.
48. The principle of law enunciated in the case of Canada Rice Mills Ltd. v. Union Marine and General Insurance Co. Ltd. (AIR 1941 P C 68) as cited before us is not disputed. The loss due to peril of sea is a question of fact and it is to be decided on evidence adduced by the parties. Similarly the cause for which the damage occurred has to be determined by common sense principles and their Lordships of the Privy Council in the said case on the basis of the finding of the Jury held that the loss was due to perils of the sea since the ventilators were closed due to heavy weather.
49. D. W. 1 stated "The seeds shipped were immature and the resultant damage is covered by the risk."
50. This witness admitted that: the Insurance Company will be, liable for loss total, constructive and partial. In the present case there is a partial damage as appear from the survey report Exhs. B and B(1). The learned Advocate for the appellant does not challenge the quantum of damage. So the defendant-company is liable for the partial damage and we do not find any reason to interfere with the finding of the learned Subordinate Judge who held the defendant-company liable for the damage under the policy of Insurance.
51. It may be noted that in the cases cited before us we do not find any reference to the second and third paragraphs of clause 8 under the heading "Institute Cargo Clauses (W. A.)". The; parties entered into a contract and when the plaintiff paid a premium on certain consideration and when that consideration has not been given due weight by the defendant when it was brought to its notice, in due time, we are of the view that the defendant-Company cannot exonerate from its liability by an evasive reply during the period when the cause was alive against the carrier. Since the repudiation was made after the period of limitation to pursue the cause against the carrier, in our view, the defendant-company cannot exonerate its responsibility. In that view of the matter we find no reason to interfere with the judgment and decree passed by the learned Subordinate Judge.
52. BAQUER, J.---I agree.