1. ' This suit has been filed by the plaintiffs for recovery of Rs.70,100. Briefly the facts are that the plaintiffs are the Insurance Corporation as well as Secretaries of the National Co-Insurance Scheme. In the year 1973 M/s. Shakargang Mills Limited imported 86 packages containing plant machinery and equipment for Sugar Factory from Rotterdam to Jhang via Karachi as per Invoices issued by the foreign exporters. The said consignment was accepted by the defendants per their vessel m.v. Bagh-e-Karachi under duly issued bill of lading. The consignment was also insured under the policy issued by the National Co-Insurance Scheme. The said vessel arrived at Karachi on 4-5-1971 and the consignment discharged was found to be short by 6 packages. However, subsequently 3 packages were traced and delivered to the consignee while the remaining 3 packages were not traceable and were ultimately declared to be short landed ex the above vessel.
2. The consignee made their claim with the defendants who offered to compensate them by payment of 300 but the consignee under advice from the plaintiffs, did not accept the offer and also lodged the claim with the plaintiffs. The plaintiffs paid sum of Rs.70,046.81 to the consignees for the said short-landed packages who are said to have issued the letter of subrogation in favour of the plaintiffs. The plaintiffs then on the basis of such letter of subrogation filed this suit.
3. ' The defendants in their written statement admitted the carriage of goods on the said vessel and issuance of Bill of Lading. They, however, claim to have delivered entire consignment to K.P.T. And denied their liability.
4. ' On the pleadings of the parties the following issues were framed;--"(1) Whether the suit, as framed, is maintainable in law?
(2) Whether the suit is barred by limitation?
(3) What were the contents of the packages in question, its quantity, quality, weight and value at the time of shipment?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the Defendants are liable for alleged short-landing of packages in question?
(6) Whether the plaintiffs have right to sue in respect of the packages in question?
(7) To what relief, if any, the plaintiffs are entitled to?"
5. ' The plaintiffs examined two witnesses namely S. Khursheed Alam, Assistant Manager of M/s. Shakargang Mills Ltd. And Zahoor Ali, Officer of the plaintiffs. The first witness produced a number of documents including the Insurance Policy (Exh.6), receipt of payment (Exh.11) and letter of subrogation (Exh.12). On 11-2-1991 the plaintiff's side was closed and the matter was adjourned to 21-2-1991 for evidence of defendants. On this date the learned counsel for the plaintiffs made a statement that he would not lead any further evidence but requested that the matter be fixed for hearing of a preliminary issue "whether the suit is maintainable in law?" The learned counsel for the parties agreed that they will advance their arguments on the above issue on the basis of material already on record and documents produced by them. The matter was then adjourned to 13-3-1991 for hearing of arguments on the above said preliminary issue.
6. ' I have heard Mr. A. Rauf, learned counsel for the plaintiffs and Mr. Nasimuddin Shaikh, Advocate appearing for the defendants. Mr. A. Rauf, has submitted that the National Co-Insurance Scheme, the Consortium of various Insurance companies, was introduced by the Government to under- write big business of insurance and that the said scheme came into force in the year 1971 with 32- member companies of the said consortium. He has further submitted that the plaintiffs are the Secretaries/Managers of the said consortium and as such the insurance policy was issued by the plaintiffs and, therefore, they filed this suit. He has placed reliance on the abovesaid documents viz. Insurance Policy, Receipt and Letter of Subrogation. The insurance policy (Exh.6) shows that it has been issued in the name of National Co-Insurance Scheme which at the end gives the names of members companies and the name of the plaintiffs, Pakistan Insurance Corporation does not transpire in the names of such member companies. On this policy at the bottom there are signatures "for and on behalf of Pakistan Insurance Corportion". The plain reading of this insurance policy would clearly show that the plaintiffs were not "assurers" but they have signed the same as Secretaries of the National Co-Insurance Scheme on behalf of its members. Mr. A. Rauf, learned counsel for the plaintiffs has referred to section 3 (2) of Pakistan Insurance Corporation Act, 1952 and has submitted that the said provisions authorise the plaintiffs to sue and to be sued in their own name. He has further referred to the regulations known as National Co-insurance Scheme Regulations, 1970 which were framed under section 46 of Pakistan Insurance Corporation Act, 1952 and submits that these regulations arc called "National Co-Insurance Scheme Regulations, 1970" and that these regulations show that the managing director of the plaintiffs Corporation will be ex officio Chairman of the Managin Committee of the abovesaid Scheme and that the said scheme will be manage and administered by the Managing Committee which will be presided over by him.
7. From the above the learned counsel has submitted that the plaintiffs were competent to file this suit. He has also referred to the provisions of section 125 and 141 of the Contract Act which provide for the safeguard of the rights of the indemnity holder. Reliance has been placed by the learned counsel on the case of New Jubilee Insurance Co. Ltd., Karachi v. Messrs American Orient Lines Inc., New York and 2 others PLD 1977 Karachi 569 wherein it was held that marine policy can be assigned under section 135- A, Transfer of Property Act, upon payment for loss of goods, the insurer has by operation of law subrogated to al rights and remedies of the insured person even without assignment of the police of insurance.
8. ' Mr.. Nasimuddin Shaikh, Advocate appearing for the defendants has submitted that in the first instance the abovesaid regulations came into force in the year 1970 while, as argued by Mr. A. Rauf, the National Co-Insurance Scheme was instroduced in the year 1971. Moreover, the learned counsel has, submitted that these regulations have never been published in any officiaf Gazette. Learned counsel for the defendants has further submitted that section 3, subsection (2) of the Pakistan Insurance Corporation Act would apply only to those cases which fall within the purview of the Act itself whereas the abovesaid scheme has nowhere been mentioned in the Act. He has made a reference to, section 2(g) of Pakistan Insurance Act 1952 which defines the scheme as under:- "(g) "Scheme" means any Export Credits Guarantee Scheme prepared by the Central Government, the principal object of which is to give credit guarantees for the purposes of any business connected with the export of goods from Pakistan or any manufacture, treatment or distribution of goods, or rendering of services or other matters conducive to the export trace of Pakistan;"
9. ' From the above definition it may be observed that the word 'scheme' as used in the Act would mean the scheme pertaining to export credit guarantee only and not the scheme in suit.
10. ' After having considered the abovesaid submissions of the learned counsel it may be observed that there is nothing on record to show if the National Co-Insurance Scheme was made under any statutory provisions of law and as such it can safely be said that the said scheme does not have any statutory force. This point was dealt with in some earlier cases of this Court. In case of Pakistan Insurance Corporation v. Pan-Islamic Steamship Co. (1988 CLC 1373) Ajmal Mian, J. (as his Lordship then was) dealing with the same point and with reference to section 230 of the Contract Act and also referring to a judgment in the case of Pakistan Insurance Corporation v. Pakistan National Shipping Corporation (Suit No.343/71 decided on 18-8-1987) and also the case of Pakistan insurance Corporation v. M/s. United Liner Agencies (1988 CLC 425) has held that the plaintiffs corporation is not competent to sue on basis of right of subrogation in respect of the insurance covers issued by, the companies who were members of the scheme.
11. ' It may further be observed that in the present case the receipt Exh.11 issued by the consignee does not bear any date whereas the letter of subrogation (Exh.12) is dated 28-9-1989 which is almost 15 years after filing of the suit. This letter of subrogation also mentioned the word ''you" on the body but it does not show as to whom this letter was issued or addressed. Be that as it may, in view of the abovesaid discussion and cited case law the only conclusion that can be drawn is that the case of the present plaintiffs is hit by the provisions of section 230 of the Contract Act which reads as under:-- "230. Agent cannot personally enforce nor be bound by. Contracts on behalf of principal.--In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.
12. Presumption of contract to contrary.--Such a contract shall be presumed to exist in the following cases:--
(1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;
(2) where the agent does not disclose the name of his principal;
(3) where the principal, though disclosed, cannot be sued.
13. As discussed above the insurance policy would show that the plaintiffs at the most acted as agent for the companies who were members of the National Co-Insurance Scheme and, therefore, they would not be competent to file the suit in their own name. The mere description in one of the paras of the plaint that the Corporation was acting as a Secretary of the Scheme would not change the above legal position. In view of the above discussion I answer this issue against the plaintiffs.
14. Accordingly the suit is dismissed with no order as to costs.