1. ' The plaintiff has brought this suit for recovery of Rs,55,461.08 with costs and interest on the averments made on the plaint which briefly stated are as follows:-
1. That the plaintiff imported 115 Unitized Maser Coils weighing 2,25,430 lbs. On board the ship s.s. "Harappa" from U.S.A. Under the Bill-of-Lading No, 3, dated 22-4-1971. The abovementioned ship is owned by the defendant No,l. The consignment was insured with the defendant No,2 under Marine Insurance Policy No, 22411/M for a total sum of Rs,99,000 against loss and/or shortage of various items, described in the said policy. The plaintiff has further pleaded that the defendant 14o.1 charged the freight for the whole of the consignment with the marks and numbers given in the bill of lading and was under an obligation to carry the same from the port of New Orleans to Karachi.
2. The said ship arrived at the port of Karachi on 8th April, 1971.
3. ' The plaintiff through their agents were given the delivery of only 63 Unitised Master Coils weighing 1,22,535 lbs. While 6 Unitised Master Coils weighing 11,670 lbs. Still remained in the custody of the defendant No,3, namely, the Karachi Port Trust. Thus, according to the plaintiff, the delivery of 46 Unitised Master Coils weighing 89,880 lbs. Was not given. According to the plaintiff these 46 Unitised Master Coils of 115 were short landed.
4. ' The plaintiff further pleaded that under its instructions the survey was carried out, of the part of the consignment delivered to it by the Karachi Port Trust/defendant No,3 and the surveyors found that 46 Unitised Master Coils weighing 89,880 lbs. Were short landed. After the claim was lodged with the defendant No,1 through its letter dated 19-4-1972 and finding that its claim was not being settled, the plaintiff brought the suit for recovery of Rs, 55,461.08, the details of which claim have been given in para. 13 of the plaint.
2. The defendants have filed their written statement separately. Their case briefly stated is that the consignment consisting of 69 bundles said to have contained mild steel wire rods with the marks mentioned and said to weigh 22,430 lbs. Were accepted for carriage on s.s. "Harappa" from New Orleans to Karachi as per terms and conditions setforth in the bill-of-lading dated 27-4-1971.
5. According to the defendant No,1 the carriers, the particulars in the bill-,of-lading were inserted by the Forwarding Agent of the shippers but the defendant No,1/the carrier, however, was neither aware of the contents of the bundles in question nor their condition, quantity, weight and value. It was expressly denied by the defendant No,1 that 69 bundles in question contained 115 Unitised Master Coils weighing 2,25,430 lbs. At the time of shipment. It is also the case of the defendant No,1 that the ship on its arrival at the port of Karachi on 8-7-1971, discharged her import cargo including the consignees 60 bundles in good order and condition in the custody of the Karachi Port Trust the defendant No,3. The other allegations made and the claim of the plaintiff was denied, the details of these averments in defence I need not go into in view of the issues framed in suit which reflect the pleadings of the parties.
3. I, may, however, refer to the plea of the defendant No,2 who have denied their liability to pay any amount under the Marine Insurance Policy. They have denied that they have no personal knowledge about the description, quantity, quality weight, value or other details of the consignment which details in the policy were mentioned on the sole information supplied by the insured. The defendant No,2 further pleaded that they had never insured "115 Unitised Master Coils weighing 2,25,430 lbs." It is also their case that the entire consignment was delivered in the custody of the Port Trust who in its turn delivered the same to the Clearing Agents of the plaintiff and a clean receipt was issued to the defendant No,1 and the Karachi Port Trust. ' The contents of the survey report were also disputed.
4. The Karachi Port Trust, who has been joined as defendant No,3 has taken number of legal pleas about the maintainability of the suit and then proceeded to plead that the ship s.s. "Harappa" arrived on 9-7-1971 and discharged consignment of 60 bundles. It is their case that they were neither concerned nor aware of the contents of the said consignment of 69 bundles. According to these defendants, 12 bundles were received by them/the Karachi Port Trust in defective condition out of the 69 bundles which were manifested under Index No,3. A different consignment of 600 Coils manifested under index No,4 was also received. It is the case of the defendant No,3 that they received the entire consignment in bundles and not in Coils as mentioned in the plaint and the same was accounted for in the ships P.O.R. As well as F.O.R. No, T/AE/7/6971, dated 30th August, 1971 and no shortage was recorded. The defendant No,3 further pleaded that Messrs Ahmed Ebrahim Agency, the Clearing Agents of the plaintiff submitted delivery documents and cleared 63 bundles on 30-9-1971 under 7 gate passes. They further pleaded that by endorsement made on the reverse of the sub-delivery order the said Agents acknowledged receipt of the said 63 bundles in good order and condition. It is further pleaded that the said defendant No,3 received the consignment in question in bundles and not by weight or number of Coils and hence they delivered the consignment by bundles and offered the remaining consignment, namely, 6 bundles and that they were only responsible and bound to deliver the consignment in bundles as were received by them and that they had neither any concern nor were they aware of the contents, quantum, quantity and quality of the consignment in question.
5. On the pleadings of the parties issues were framed by the Court on 14th May, 1973. The learned Judge while adopting the proposed issues filed by the defendants Nos. 1,2 and 3 also directed that the issues Nos. 1 and 2 as suggested by the plaintiffs, may be added. The two issues suggested by the plaintiff, which were directed to be added, are numbered by me for the sake of convenience hereinbelow as issues Nos. 3-A and 3-B. The issues framed in the suit would thus read as follows:- "(1) Whether the suit is misconceived, bad in law and not maintainable against the defendant No,3?
(2) Whether the suit is barred by Limitation under section 87 of the Karachi Port Trust Act?
(3) Whether the plaintiffs have right to sue in respect of the bundles in question?
6. (3-A) Whether the consignment of 115 Unitised Master Coils weighing 2,25,430 lbs. Belonging to the plaintiff was shipped on board defendant No,1 s vessel s.s. "Harappa"?
7. (3-B) Whether there was any short landing of 46 Unitised Master Coils?
(4) How many bundles of mild steel wire rod were accepted by defendants No, 1 for shipment per s.s. Harappa under bill of lading No,3, dated 27-4-1971 and whether entire quantity of bundles was discharged ex above ship in the custody of defendants Nos. 3?
(5) Whether defendants are liable for alleged non-delivery of any number of bundles?
(6) Whether shipper furnished particulars of the consignment in question in the bill of lading and if so what is its effect?
(7) Whether the contents of the Survey Report issued by the Surveyors are correct and binding on the defendants No, 1?
(8) Whether consignees Messrs Ahmed Ebrahim Agency removed their bundles from Karachi Port Trust shed without notice of loss and damage and if so what is its effect?
(9) Whether the suit is bad for non joinder of the shippers and their Forwarding Agents?
8. ' Whether plaintiff have any cause of action against the defendants?
9. ' To what reliefs if any are plaintiffs entitled?
10. ' The plaintiffs in the suit examined (1) Niaz Baqar, P.W.1 (Exh. 6), Director of the plaintiff Company,
(2) Muhammad Siddiq, P.W.2 (Exh. 7), Proprietor/Partner of Ahmed Ebrahim Agency, Clearing & Forwaring Agents, and (3) Ali, P.W.3 (Exh. 8) Weighment 'Clerk at Mauripur Road, Public Weigh- Bridge. On behalf of defendant No,3, the Karachi Port Trust, were examined (1) Mr. S.H.A. Jafri, D.W.1 (Exh. 9), Traffic Inspector and Jahan Bakht, D.W.2 (Exh. 16). The parties have also produced number of documents besides oral evidence. My findings on the issues with reasons are as follows:- ' Re: Issues Nos. 1 and 2: ' These issues involve questions of law which I need not discuss here while disposing of the suit in view of the findings reached below resulting in dismissal of the suit. The' questions of law involved are left open to be decided in other appropriate cases.
11. ' Re: Issue No, 3: ' This issue has not been pressed. Accordingly it is held that the plaintiffs have right to sue in respect of the claim in suit.
12. ' Re: Issues Nos. 3-A and 3-B: ' The evidence brought on record shows that as per bill-of-lading dated 27th April, 1971 (Exh. P/1) sixty-nine (69) bundles of mild, steel wire rods were shipped on board the vessel s.s. "Harappa" from New Orleans, L.A. For discharge at Karachi Port. The particulars furnished by the shipper as to the description of the goods/packages in the bill-of-lading were as follows: - "69 BINDING CONTAINING: ' 115 COILS: MILD STEEL WIRE RODS."
13. ' The dispute under these issues relate to the number of bundles which were shipped and if all the said bundles were delivered from the ship in the custody of Karachi Port Trust. The counsel for the plaintiff argued that instead of 2,25,430 lbs. Consisting of 115 coils they were delivered 63 coils weighing 11,670 lbs. On the other hand the Advocates for the defendants argued that the quantity shipped consisted of 69 bundles which were discharged by the ship, out of which 63 bundles were delivered to the plaintiffs, who, however, did not take delivery of the remaining 6 (six) bundles. They denied that 69 bundles shipped consisted of the Weight alleged. They further argued that 69 bundles were discharged by the ship out of which 63 bundles were received by plaintiffs' clearing agent and that non-delivery of six (6.) bundles was due to plaintiffs own wrongful omission and absolved them from any liability whatsoever.
14. ' The main argument, on which the learned Advocate for the plaintiff laid emphasis, was that the number of coils delivered to its clearing agent was only 63 as against 115 coils shipped and the weight of these 63 was lesser than that which is mentioned in the bill-of-lading.
15. ' In view of the controversy thus raised it becomes relevant to find out (I) if 69 bundles were discharged by the ship in the custody of Karachi Port Trust, and. Mr if the goods delivered to the plaintiff consisted of 63 bundles or 63 coils. On the questions thus arising may at the very outset refer to the disposition of Mr. Niaz Baqar, P.W.i (Exh. 6), who is the Director of the plaintiff's company.
16. The said witness stated:- "......It is correct that the Bill of Entry submitted by the Clearing Agent the consignment was shown consisting of 69 bundles. (The witness voluntarily says that although the quantity was mentioned as 69 bundles but it was also shown as containing 115 Master Coils and marks and numbers were shown as 115)."
17. ' Yet at another place in cross-examination to Mr. A. Rauf, Advocate for defendant No,2, the same witness stated:- "I cannot say whether the assignment was shipped in coils or in bundles from the port of shipment.
18. It is correct that 69 bundles were discharged at Karachi Port and were handed over to the K.P.T. By the Shipping Company."
19. ' The witness further stated:- "We are not aware that out of total consignment of 69 bundles 12 bundles were received by the K.P.T. In a damaged condition. We have received 63 Master Coils not 63 bundles. I see the gate passes relating to the consignment and say that they contain the description of bundles as well as number of coils."
20. ' It would be important to note here that the plaintiff's abovenamed witness in the statement reproduced above after having admitted that 69 bundles had been received in the custody of K.P.T.
21. From the ship tried to introduce a story that in the fact the plaintiffs had received 63 Master Coils and not 63 bundles and in support thereof relied upon the gave passes relating to the said consignment by stating that therein the number of coils were also shown.
22. ' A perusal of the gate passes Exh. D/1 (these are given in number and are of 30-9-1971) the relevant entries made however read as follows:- "Description No of Packages & Binding Nos.
23. "DescriptionNo of Packages & Binding Nos.
24. M. S. Wire 12 bundles Coils Wire12 bundles Coils 6 bundles Coils 6 bundles Coils 6 bundles Coils 9 bundles Coils 12 bundles ' Relevant fact in the first place to be noticed in these gate passes is that in the gate pass at Serial No, 1 the description of the goods is given as "M.S. Wire" but the same have not been described as "Coils" though 12 bundles are shown in it. The other fact to be observed is that in the remaining passes though under the column description terms 'Coils' have been used but their numbers are not given, yet in all these six passes also the numbers of the bundles delivered are shown.
25. ' The total number of bundles delivered as per these gate passes would come to 63 bundles. The delivery of 63 bundles, therefore, remains established even according to the plaintiff's own witness P.W.1 Mr. Niaz Baqar (Exh. 6), and these gate passes also show that delivery was taken by plaintiff's clearing agent of the items which were 63 bundles.
26. Before dealing with the other oral evidence produced in th case I may refer to other documentary evidence which goes to prove in my opinion conclusively, that 69 bundles were received from the shin by the K.P.T., out of which 63 bundles were delivered to the plaintiffs and that the question of number of coils allegedly short delivered is an afterthought and in any case not proved. The most important document is the one described as "Receipt for Packages Delivered" Exh. D/3. The document is the receipt for packages delivered by K.P.T., the document No,
3. On its front page are the instructions by the concerne Officer of K.P.T. Given on 21-9-1971 to their Delivery Clerk to deliver A packages mentioned in it which arrived per s.s. "Harappa" to Ahmed Ebrahim Agency (plaintiff clearing Agent): "and to return this order completed or at the end of each day's delivery to the ware-house supervisor with columns 'on reverse properly filled in."
27. ' The number of packages to be delivered is shown in it as "69 bundle containing 115 coils", while the description of goods is given as "Coils". Accordingly delivery of cosnignment was made to Ahmed Ebrahim Agency, the Clearing Agents of plaintiff who acknowledged the receipt of 63 bundles "in good order". The acknowledgments, appear on the revers of Exh. D/3 and being relevant are reproduced below:- Sr.No.Date of DeliveryNo. of PackagesMarksRunning No.Cart Ticket No.Signature of Consignees or Clearing AgentSignature of Delivery Clerk 32021/9 10%Acid Emellen Ferrex 10370/7198Nil W/L Sd/- Sd/- 87/730/9 12Bdls Ria9703Sd/- Sd/- 82/2830/9 12 HDA 5240Sd/- Sd/- 29 6 KAP 4197Sd/- Sd/- 30 6 KAT 2595Sd/- Sd/- 31 6 KAT 6936Sd/- Sd/- 32 9 5557 Sd/- Sd/- 33 12 HAD 5240Sd/- Sd/- (Note-- the last seven entries are relevant to this case).
28. ' The plaintiff's Director Mr. Niaz Bagar, P.W.1 (Exh.6) when confronted with these acknowledgment, replied as follows:- "I see Exh.D/3 and say that according to this document the Clearing Agent had taken delivery of only 63 bundles and did not take delivery of 6 bundles which were then available in K.P.T."
29. ' The validity and correctness of the above document Exh.D/3 and the fact that the Clearing Agent had given a clean receipt of 63 bundles and that only 6 bundles remained to be delivered by the K .P.T. , have not been denied.
30. ' The plaintiff examined Muhammad Siddique son of Hashim, P.W.2 Exh.7 who was their Clearing Agent. He in his evidence admitted that as per delivery order Exh.D/3 the total consignment offered for delivery was 63 plus 6 and that on its reverse the receipts (of 63 bundles) bear signatures of this clerk. A perusal of the 'sub-delivery order', Exh.D/3, shows that the representative of the Clearing Agent expressly admitted the receipt of 63 bundles (which arrived on the ship s.s. "Harappa") in good order from Karachi Port Trust and that against each item delivered, signature was made by his clerk in token of acknowledgment of delivery of goods described therein.
31. It is important to mention here that the clerk who had signed this document giving 'clean receipt' for delivery to him 63 bundles and confirming that only 6 bundles remained to be received, was not produced by the plaintiff to explain, as now contended, that 63 coils and not 63 bundles were delivered. Obviously the evidence of this clerk of the Clearing Agent was material. His non- production as a witness, without any explanation, is a strong factor under which I am justified to presume that had he been produced he would not have supported the case which is now tried to be set up by the plaintiff that 63 coils were delivered and not 63 bundles as mentioned in Exh.D/3.
32. ' I may also observe here that the plaintiff's witness Muhammad Siddique son of Hashim, P.W.2 Exh.7 who was the General Manager of Ahmed Ebrahim Agency, the Clearing Agents, in his evidence tried to support the case of the plaintiff by stating that a shortage of 46 coils was found about which he informed only the importer. He, however, admitted that no notice of alleged short landing was given by him (the Clearing & Forwarding Agent) to the Karachi Port Trust or the Shipping Company. The witness also admitted that at no time he asked for a ship survey of the consignment.
33. ' The learned counsel for the plaintiff then referred to the evidence of one All son of Mohsin, P.W.3 Exh.1, who was weighment clerk' at Mauripur Road Public Weigh-Bridge. He produced Weighment Certificates which are marked Exh.8/1 to Exh.8/7, they are all, dated 30th September, 1971. These receipts, however, were not admitted by the Advocates for the defendants. In view of the denial of these receipts, it was for the plaintiff to have proved the same by examining the proper persons who issued and executed them. This witness admitted that 5 certificates were signed by one Muhammad Siddique, who is no more in the employment and the other two certificates were signed by one Jannat Khan. Since the executants of these receipts have not been examined, in the circumstances, the same cannot be treated as proved and thus their contents cannot be read.
34. ' Reference may also be made here to the Certificate of Inspection issued by General Superintendent Co. (Pakistan) Ltd., dated 25th October, 1971. This certificate has been issued by one Mr. J.N. Craddock and is relied upon by Mr. Mustafa Lakhani, Advocate in support of the plaintiff's case that there was shortage in delivery in the consignment as claimed in the suit. This report is not admitted by the defendants amongst others for the reasons, (i) that this survey was carried out ex parte without notice to any of the defendants, (ii) that the survey was carried out in the godowns of the plaintiffs, and (iii) that it was a belated survey and it is not known what happened to the goods between 30th September to 26th October, 1971 when the survey was allegedly conducted. Without further going into these objections which are not without force it would be important to note here that in this report at page 2 it is stated that the plaintiff received 63 bundles. Only 6 bundles in the said report are shown to have been short delivered to the plaintiffs. The portion, to which reference has been made, readd as follows: - "GOODS TENDERED 69 bundles (63 at factory 6 FOR INSPECTION in Docks) containing coils of M.S. Wire Rods. (N.S.) Quantity 69 bundles agreed with Customs Entry and Ships declared manifest as per K.P.T. Records)."
35. ' The surveyor in his certificate however in order to justify the alleged claim made in the suit, has proceeded to give his own findings which in my opinion are irrelevant for the purposes of this case.
36. Significant fact, however, is that the certificate confirms that K.P.T. Register shows receipt of 69 bundles. I have already discussed that it has been admitted by the plaintiff's own witness that 63 bundles were delivered to the plaintiff's for which "clean receipt" was given by the plaintiffs Clearing and Forwarding Agents as per Exh.D/3.
37. ' Before concluding the discussion on this part of the issue I may refer here to the evidence produced by the defendants. Mr. S.H.A. Jafri, Traffic Inspector of K.P.T.. Who was working as supervisor in Shed No,11 at East Wharf at the Port at the relevant time. In his evidence this witness stated:- " The ship s.s. "Harappa" arrived at Karachi Port on .9-7-1971. Since I was the Supervisor Incharge of the ship I received the cargo at the Karachi Port from the ship either on the 10th or 11th July, 1971. The cargo in question consisted of 69 bundles marked "Aid Emblem" No,10370/7198 Index No,3. I produce the 'provisional outturn report' of the consignment in question wherein the K.P.T. Has received 69 bundles. This report is marked Exh.10. It bears my signature. Out of these 69 bundles the K.P.T.
38. Received 12 bundles in defective conditions which fact was recorded in our 'defective cargo list' which is produced and marked as Exh.11."
39. ' The witness further stated:- "M/s. Ahmed Ebrahim Agency lodged the clearing documents on 21-9-1971 and took delivery of 63 bundles in good order and condition. The delivery order is already exhibited as Exh.D/3. The remaining 6 bundles of the consignment remained with us as the Clearing Agent did not take delivery of the same."
40. ' The other witness Jannat Bakht, D.W.2 Exh.16, who was-the Provisional Out Turn Clerk in 1971 with the K.P.T. In his evidence admitted that the documents Exh.10 and Exh.11 were prepared by him in his own hand writing and that Exh.10 shows that 69 bundles were discharged with the K.P.T. By the ship s.s. "Harappa" and that he had noted the fact that out of the said consignment 12 bundles were discharged in defective condition. Mr. Mustafa Lakhani, Advocate did not cross-examine this witness.
41. ' We have already seen above that from the K.P.T. The Clearing Agent of the plaintiff received 63 bundles in good order and condition. No dispute as to the number of coils or weight of the consignment received by the said agent was raised in respect of these 63 bundles when the same were delivered to and acknowledged by the Clearing and Forwarding Agent for having received them in good order and condition. The remaining 6 bundles, the plaintiff refused to accept and as per evidence on record, the same on account of non-clearance were forwarded by the K.P.T.
42. Authorities to the Customs Authorities who disposed of the same under the authority conferred upon them under the Customs Act, 1969.
43. ' Mr. Mustafa Lakhani, Advocate then argued that the plaintiff was entitled to receive 115 coils of the weighment mentioned in the bill-of-lading.
44. ' Answer to the question thus raised in my opinion depends upon the finding if 63 bundles were delivered to the plaintiff or only 63 coils were delivered, as according to the plaintiff under the bill- of-lading (Exh.P.1) 69 bundles containing 115 coils weighed 2,25,430 lbs. I have already discussed above and given the finding that 69 bundles were discharged by the ship in the custody of K.P.T.
45. Who deliverd 63 bundles to the plaintiff's clearing agent as per clean receipt (Exh.D/3) issued by the latter. Neither any dispute about the shortage in weight was then raised nor notified to K.P.T., which in the normal course would have been done if there was alleged short delivery.
46. ' I may also mention here that the evidence of plaintiff's witnesses (i) Niaz Baqar, P.W.1 (Exh.6).
47. Director of plaintiff company, and (ii) Muhammad Siddique, P.W.2 (Exh.7), Clearing Agent of plaintiff on this question is no relevant as none of these persons were present when the delivery was taken from K.P.T. And clean receipt (Exh.D/3) was issued by the representative of the Clearing Agent acknowledging receipt of 63 bundles in good order and that only 6 bundles remained to be delivered.
48. ' The evidence of Ali son of Mohsin, Weighment Clerk, P.W.3 (Exh.8) is x inadmissible as he had neither weighed the material nor had issued the weighment ships (Exh.801 to 8/7).
49. ' The last evidence of the plaintiff in this respect is that one J.N. Craddock, Consulting Engineer, who claims to have surveyed the alleged consignment on 25-10-1971 as per Survey Certificate Exh.9/1 and Exh.9/2 which are signed by Mr. Farooq All Shah, Director of General Superintendence Company Limited. These certificates were exhibited subject to objection of the defendant's Advocates. It is not explained why the executant of these certificates was not examined. I have already discussed above the reasons for which this alleged survey does not help the plaintiff and I need not repeat the same. Significant fact, to which I may, however, refer, is that this witness (surveyor) for purposes of mentioning the alleged weight of the consignment received by the plaintiff and of which survey was conducted totally relied upon the weighment made at Mauripur Road Public Weigh-Bridge and the weighment slips issued by it, which were produced in Court by Ali son of Mohsin, P.W.3 (Exh.8) which I have already held as inadmissible. Thus, the weight of the consignment, stated to have been received by the plaintiff in the survey report based as it is on inadmissible documents (i.e. Exh.8/1 to Exh.8/7) and no independent weighment having been made by the surveyor himself, cannot be relied upon in support of the plea that the consignment received weighed only 1,22,535 lbs. And that the remaining six bundles weighed 11,670 lbs. (for which also there is no evidence). Moreover this surveyor has given a totally different version by stating that 69 bundles which according to the bill of lading (Exh.P/1) contained 115 coils in fact contained 276 coils though it is admitted in the report that: "Quantity 69 bundles agrees with Customs Entry and Ship's declared manifest as per K .P.T. Record."
50. ' The report of surveyor as to number of coils (276) being inconsistent even with the plaintiff's own plea in the plaint and the evidence cannot be allowed to be relied upon to enable the plaintiffs to set up a totally new case.
51. ' For the reasons discussed above these issues are answered in the negative.
10. Re: Issues Nos. 4 and 5: ' Under the Issue No,4 in view of the findings given above by me under the Issues Nos.3-A and 3-B, it is held that 69 bundles of Mild Steel Rods were accepted by the defendant No,1 for shipment on the vessel s.s. "Harappa" and that the same were discharged in the custody of the defendant No,3/K.P.T.
52. ' Under issue No,5 it is held that for the reasons already stated above, none of the defendants is liable for non-delivery of the remaining 6 bundles as it was the plaintiff, who neglected to take delivery of the same consequent to which they were disposed of by the Customs Authorities in accordance with the law.
53. ' H. Regarding Issue No, 6: ' A reading of the bill of lading shows that the shipper had furnished particulars of the consignment in question in the said bill of lading (Exh .3/1) . As regards the effect of those particulars is concerned, the presumption would be that the same were correctly stated. So far as the present case is concerned, I have already held 'that 63 bundles were duly delivered to the plaintiffs by the K .P. T. And that the delivery of remaining 6 bundles were not taken by the plaintiffs deliberately. For the non-delivery of these 6 bundles, therefore, none of the defendants is responsible.
12. Regarding Issue No, 7: ' The survey report has been produced as Exh.9/1. The said survey report was carried out ex parte without notice to any of the defendants at the godowns of the plaintiffs. The survey is stated to have been made on 25th October, 1971, whereas the delivery was given of the 63 bundles to the plaintiffs clearing agent on 31st September, 1971. There is nothing on record to explain as to how the consignment in dispute was handled by the plaintiff during this period. Obviously the report cannot be treated as binding on any of the defendants. On the evidence on record, I have already reached the conclusion that 69 bundles were duly discharged in the custody of K.P.T. By the defendant No,1 and that out of it, 63 bundles were delivered in good order and condition by the K.P.T. To the Clearing and Forwarding Agents of the appellants.
13. Regarding Issue No, 8: ' The material on record as discussed above prove that 63 bundles were delivered, in good order and condition to and were removed by the clearing agents of the consignees from the K.P.T. And that no notice of any loss or damage was given by the consignees or their agents either to the Shipping Company or the K.P.T. In the normal course of business if there was any loss or damage, an immediate notice would have been given and in any case a clear receipt would not have been given by the clearing agent of the consignee. Indeed plaintiff's Director Mr. Niaz Baqir (Ext1.6) in cross-examination to Mr. Zaheeruddin, Advocate for K.P.T. Stated that Mr. Siddique, who was the manager of the clearing agent had informed him that delivery of 6 (six) bundles was not taken as the K.P.T. Was insisting for full receipt of the consignment. In view of this stand an d conduct of the clearing agent, it is obvious that had there been shortage of any nature, as now alleged, the plaintiff's clearing agent would not have issued a clean receipt acknowledging delivery of 63 bundles in good order.
54. ' In the circumstances under this issue I have no hesitation in holding that there was neither any loss or shortage of coils in the 63 bundles which were received by the plaintiff's clearing agent. As regards the remaining 6 bundles there is no evidence that there wasany shortage in them.
14. Regarding Issues Nos. 9 and 10: ' No arguments have been advanced under these issues and accordingly these are answered in the negative.
15. Regarding Issue No, 11: The plaintiffs have failed to prove their case, the suit is therefore, dismissed. In the circumstances of the case there shall be no order as to costs.