JUDGEMENT MAJIDA RAZVI, J.- The Plaintiff has filed this suit for the recovery of Rs.3,49,472/-, along with the interest pendentelite and future at 15% per annum, praying for a decree in the said amount against the defendants.
2. The brief facts, as per the plaint, leading to the filing of the present suit are that the consignee, M/s. Thai Jute Mills Limited (hereinafter referred to as 'the Consignee') imported 3481 bales, each containing 400 pounds of raw jute from Bangladesh under 11 Bills of Ladings, the details of which are mentioned in para 1 of the plaint. The said bales were shipped on board the vessel 'S,S.' 'PAN JN AD' belonging to Defendant No. 1. The said vessel arrived at the Port of Karachi on or about 20-1- 1977 and discharged the subject cargo into the custody of Karachi Port Trust, the defendant No. 2 herein, who acted as bailee/agent of defendant No.1. The Consignee retired the shipping documents in respect of the subject cargo through the negotiating bank and on their surrendering the Bills of Lading, the defendant No. 1 issued Delivery Order to Defendant No. 2 of for giving delivery of the goods to the Consignee. On the basis of this Delivery Order, the Consignee demanded delivery of the said 3481 bales from defendant No.2 who delivered only 2778 bales, out. Of which 1335 bales were damaged by fire while they were in the custody of defendant No.2. As to the balance of 703 bales, the defendant No. 2 issued two Short Landing Certificates No. T/AE/SLR/1816/77/7920 AND T/AE/SLR/1303/5648 dated 12-9-1977 and 24-7-1977 respectively (Exh.
5/12 & 5/133 respectively). No receipt as prescribed under section 37 of the KPT Act was issued in respect of the said bales by the defendant No. 2 and,, as such, according to the plaintiff, the defendant No. 1 is liable for non-delivery of the said 703 bales of raw jute. The said cargo was insured with the plaintiff under Policies No. M-77/176787, M-76/176340 and M-76/177762 for a total sum of Rs. 16,03,300.00. On account of the said nondelivery of the 703 bales, the Consignee lodged a claim of Rs. 3.49,472/- with the plaintiff who was obliged to pay the same to the Consignee under the above Policies and the plaintiff settled the claim of the Consignee of the said amount under a Letter of Subrogation. The plaintiff has therefore, filed the present suit against the defendants for the non-delivery of 703 bales for which it had settled the claim of the Consignee by paying an amount of Rs.3,49,472/-.
3. Notices were issued to the defendants who filed their Written Statements dated 12-9-1978 and 15-5-1978. Both the defendants, while admitting the Bills of Lading and the number of bales shipped and the delivery of the same by the vessel to the KPT at Karachi, have denied all the allegations. It is pleaded that the short landing certificates were issued due to oversight by def. No.2.
On the basis of the pleadings of the parties the following Issues were framed: "1. Whether the plaintiffs have right to sue in respect of the bales in question?
2. Whether the suit is barred against defendant No. 2 by section 87 of the KPT Act, 1886?
3. Whether the two alleged short landing certificates issued by the defendant No. 2 are correct and binding on the defendant No. 1?
4. Whether consignee, bales were discharged in full in the custody of Defendant No. 2?
5. Whether consignee failed and neglected to arrange clearance of their bales from the defendants No.2?
6. Whether the defendants are liable for alleged nondelivery of bales?
7. What is the quantum of loss suffered by the consignee/plaintiffs?
8. To what reliefs, if any, are the plaintiffs entitled to?"
4. On 21-8-1995, when the case came up for arguments the counsel for the plaintiff was absent and, as such, he was given an opportunity to file written arguments, which have been filed on behalf of the plaintiff on 23-8-1995.
5. The plaintiff examined Habib Sultan, an officer of the consignee and Asif Raza, an officer of the plaintiff. Defendant No. 1 failed to examine any witness although they filed Affidavit-in-Evidence of Muhammad Haider while Defendant No. 2 examined their representative Muhammad, Tahir.
6. I have heard the learned counsel Mr. Iqbal Siddiqui and Salman Hamid on behalf of defendants No. 1 and 2, and have perused the written arguments on behalf of the plaintiff and the documents and record of this case and my findings are as under: Issue No. 1.
7. As per plaint and the deposition of Habib Sultan (Ex. 5), the goods were short landed by 703 bales. He produced out of 11 invoices 7 in original and photo copies of 4. According to him, M/s. Thai Agencies Ltd. Were acting as their Clearing Agents. He produced two short landing certificates (Reports) as Exh. 5/12 and 5/13, issued by KPT and the various letters exchanged between them and the consignee as Exh. 5/14 to 5/20 demanding the payment of compensation for 703 bales short landed. Finally, the Agents gave a no objection for the payment to consignee which is Exh.5/22. He further deposed that after receiving Exh. 5/22, they paid Rs.3,49,472/- to the consignee under letter of subrogation which is Exh. 5/23 and deposed that though separate receipt is not there but the consignee acknow-ledged. The same on the reverse of the cheque.
In cross-examination, he admitted that the policy documents were submitted to the insurance company at the time of satisfaction of the claim and if needed he could produce photo-copies of the same. He denied the suggestion that 2378 bales were delivered and not 2778 bales. He also denied that refund was not made by the K.P.T, in regard to short landed goods or that they were informed by the K.P.T, that the remaining cargo was available to be lifted or that the consignee deliberately did not lift the remaining cargo. He admitted that only one cover was issued for all policies as is the practice. He denied that no cover was issued. However, he admitted that he did not ascertain the Provisional Out Turn Report. Further that the consignee did not give any notice to K.P.T, before institution of the suit. He also denied that the short landing certificates (Reports) were issued by K.P.T, due to oversight.
Asif Raza whose Affidavit-in-Evidence was filed, works as Insurance Executive Assistant General Manager with the plaintiff and has been associated with insurance business for more than 38 years. He deposed that the consignment was discharged in the custody of KPT from where the consignee took the delivery of goods directly. He also deposed that an application under Order XII, Rule 8, CPC was made for the production of the documents in possession of Defendant No. 1 but the same were not produced by the said defendant. In cross-examination, he deposed that they verified about the short landing of 703 bales from the two short landing certificates issued by the Defendant No. 2 in respect of the same. He expressed his ignorance to the suggestion that they were issued due to oversight. He confirmed the payment of Rs. 3,49,472/- to the consignee and issuance of letter of subrogation and loss vouchers in favour of the plaintiff with rights to recover from the defendants. According to him the primary liability of payment of loss is on the defendant No. 1 as a carrier and equally on defendant No. 2 as the statutory bailee. He also deposed that the consignee did not lodge the claim for bales which were damaged by fire while in the custody of defendant No. 2. He denied the suggestion that neither the disputed consignment was ever insured by the plaintiff company or the plaintiff made any payment to the consignee. He deposed that usually documents filed by the clients are not doubted and in case there is any doubt, the same is verified through investigation. He denied that the claim was in collusion with the consignee without making payment to them.
After going through the evidence of the above two witnesses and the documents produced, it is clear that the goods were insured by the consignee with the plaintiff who are the insurers/subrogagees. The original letter of subrogation has been filed. Section 135-A of the transfer of Property Act is very clear and authorises/allows assignment of rights. The assignee thus becomes entitled to sue in his/its own name.
As such, the Issue No. 1 is answered in the affirmative.
Issue No. 2.
8. The defendant No. 2 has raised the Preliminary Objection that the suit is barred by section 87 of the Karachi Port Trust Act, 1886. Section 87 of the Act is a mandatory provision which is as follows: "87. No suit shall be commenced against any person for anything done or purporting to have been done; in pursuance of this Act, without giving to such person one month's previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit.
And, in the case of a suit for damages, if tender of sufficient amends shall have been made before the suit was brought, the plaintiff shall not recover more than the amount so tendered and shall pay all costs incurred by the defendant after such tender."
Habib Sultan, in his deposition, admitted that no notice of filing of this suit was served on the KPT as is stipulated in section 87 of the KPT Act. Asif Raza, a representative of the plaintiff, deposed that defendant No. 2, who acted as statutory body; is liable to pay the claim amount.
Affidavit in Evidence of Muhammad Tahir was filed on behalf of defendant No. 2 (KPT) as Exh.
7. He produced carbon copy of preliminary Out Turn Report (OTR) (Exh. 7/2/1) and twelve delivery orders showing the delivery of consignment on different occasions and the final OTR as Exh. 7/5. He also deposed that a notice under sections 50 and 50-A of the KPT Act, along with the list of the uncleared cargo was issued to the consignee.
In cross-examination he admitted that at the time of unloading the cargo a representative of ship and one of KPT were present and the Provisional OTR prepared after the completion of the unloading of the ship. He confirmed that provisional OTR did not show any short landing and the short landing certificates were wrongly issued by the KPT. He further averred that the KPT wrote to the agent of the Shipping Company about the uncleared cargo. However, the notice sent by the KPT to the consignee was not published in any gazette. He also admitted that no refund was made to the consignee in respect of the uncleared cargo, and that there is no set procedure for rectifying the mistake committed by the KPT employees in wrongly issuing any document. He claimed that the consignee was informed of this mistake when they came to claim the refund for the purported short landed goods.
At the very outset I may mention that during the arguments I enquired from Mr. Salman Hamid in regard to the auction of the said goods and as to the price of the goods so auctioned. His answer was that the goods were auctioned and the amount so recovered was adjusted against whatever outstanding dues were in respect of the said goods. However, it was not clarified as to how much money was recovered and what were the dues against which this amount was adjusted. The notice served on the consignee was not proved. No letters were produced to prove that the consignee was informed that short landing certificates were issued by mistake nor they were cancelled. The witness in his affidavit-in-evidence stated that the bales were mostly defaced and in loose condition. But the Preliminary OTR shows "various marks as per Book".
The contradiction remained unexplained.
In the above circumstances, where negligence and contradiction reign supreme, I was of the opinion that the Def. No. 2 could not even avail the protection of Section 87 of the KPT Act as was held in the case of M/s. Eastern Insurance Co. Ltd. Vs. Trustees of the Port of Karachi (PLD 1975 Kar.
425). But in the written arguments submitted on behalf of the plaintiff, under Issue No. 2, the plaintiff had stated that "it does not press this issue against the def. No. 2" that means it is relinquishing or giving up its claim against the defendant No. 2. As such, the suit against defendant No. 2 is dismissed.
In view of the discussion hereinabove and the evidence led, I answer the issues Nos. 3 and 4 in the affirmative and issue No. 5 in negative.
Issue No. 6.
9. The plaintiff has already submitted that they do not want to press the issue No. 2 as against the defendant No. 2. As to the liability of defendant No. 1 (the Shippers) the stand of KPT (defendant No.2) is that the entire cargo was discharged and the short landing certificates were issued by mistake. The provisional OTR also does not disclose the short landing. As such, I hold that the defendant No. 1 is not liable for nondelivery of the bales.
Issues No. 7 and 8.
10. The plaintiff had produced the original letter of subrogation showing the payment made therein as of Rs. 3,49,472/-. I hold that the said amount to be the loss suffered by the plaintiff. But since the plaintiffs have stated that they do not press issue No. 2 against the defendant No. 2 and as such have given up their claim against the said defendant, and the defendant No. 1 has already been held not liable for nondelivery of goods, this suit is accordingly dismissed. However, there will be no order as to costs.