1. This suit has been filed for the recovery of Rs.1,10,000 against the defendants jointly and severally to be paid to the plaintiff with costs of this suit and interest at the rate of fifteen per cent. Per annum from the date of the suit till recovery.
2. The brief facts as per plaint are that the defendant No.1 which is a foreign shipping company and carries on the business of transporting goods from one port to another port by sea-going vessels owned and/or chartered by it through its agent who is defendant No.2 in the present suit. The defendant No.3 is a Limited Company carrying on business of general insurance in Pakistan. The defendant No.1 received 28 pallets containing. 14000 pieces of wood veneer as per Invoice No. SCT/119/77, dated 29-8-1977 at the port Kelong (Mylasia with marks given in the Bill of Lading No.4017, dated 26-8-1971 to be carried by their vessel 'JOHNSON HALE' to Karachi. The said goods were imported by the plaintiff under a valid import licence and against payment through confirmed Credit No.77/069/RTBB/339, dated 11-6-1977 opened through Allied Bank of Pakistan Limited, Rawalpindi. After making payment to the bank the documents were duly endorsed and delivered to the plaintiff. The said goods were insured by the plaintiff with the defendant No.3 under Marine Cover Note No.70379 for Rs.1,10,000. The vessel Johnson Hale arrived at Karachi on 19-9-1977 and discharges its cargo under the care and custody of the K.P.T. Who received the same as Bailee of the defendants Nos. l and 2. The goods as specified in the Bill of Lading were discharged from the said vessel. The clearing agent M/s. United Shippers who were appointed by the plaintiff as the clearing agent for the purpose of completing customs and port formalities did not receive the said goods from the defendants Nos. l and 2 and/or by their bailee the K.P.T. Accordingly the clearing agent by a letter dated 2-12-1977 gave a notice of the non-delivery of the goods to the defendant No.2 and the K.P.T. Subsequently the clearing agent found some pallets lying in the shed of the K.P.T.
3. In damaged condition under nil marks and numbers and on inspection found that they did not belong to the plaintiff as they were not in accordance with the invoice. The K.P.T. By their letter dated 28-12-1977 informed the plaintiff's agent that 28 pallets have short-landed from the vessel and again by another letter dated 2-8-1978 confirmed the short-landing and accordingly amendment dated 25-7-1978 was made in the Final Outturn Report of the vessel. This information was also communicated by their letter dated 6-8-1978 to the plaintiffs' agents. On the basis of this information the agents lodged a claim with the defendant No.2 for Rs.93,468 being C & F value of the goods. This claim was repudiated by the said defendant vide their letter dated 15-8-1978.
4. Hence the present suit was filed claiming from the defendants Nos. l and 2 a sum of Rs.93,468 being C & F value of the goods and against defendant No.3 a sum of Rs.1,10,000 being the insured value of the goods.
5. Notices were issued to the defendants and a joint written statement of defendants Nos. l and 2 was filed on 21-10-1979 and written statement of defendant No.3 was filed on 27-5-1979. . On the basis of pleadings the following consent issues were adopted:-- "(1)Is the suit barred by limitation ?
6. (2)Whether the consignment covered by Bill of Lading in suit was discharged from the vessel at Karachi ?
7. (3)Were the plaintiffs not entitled to be delivered the consignment in suit?
8. (4)Whether the plaintiff has no insurable interest in the consignment in suit?
9. (5)Whether the plaintiff committed breach of the terms and conditions of the Insurance Policy, if so, what is the effect?
10. (6)Has the plaintiff no cause of action against defendant No.3?
11. (7)What loss has the plaintiff suffered and which of the defendants is / are liable to make good the suit loss?
12. (8)Reliefs?"
13. The plaintiff examined Munir Ahmed a partner of the clearing and forwarding agents, i.e. United Shippers and Khalid Iqbal Attorney of the plaintiff. Muhammad Aziz Traffic, Supervisor of K.P.T. And Muhammad Tahir, Assistant Collector of Customs. The defendant examined David manyal a director of defendant No.2 I have heard Mr. Ghulani Abbas Pishori for the plaintiff and Mr. Shamsul Arfin Qureshi, Advocate for the defendant and perused the record. My findings are as under:--- Issue No. l Admittedly the ship had arrived at Karachi Seaport on 19-9-1977 end the suit was filed on 18-9-19'78 i.e. Within one year from the date of the arrival of the ship and short landing of the cargo. Mr. Ghulam Abbas Pishori has submitted that under Article 30 of Limitation Act the suit is to be filed within one year. This fact has not been disputed by Mr. Arfin. The suit having been filed within a year is within time. The answer to this issue is accordingly.
14. Issues Nos.2 and 3 Since these two issues are inter-related I will deal with them together. Mr. Munir Ahmed a representative of the Clearing and Forwarding Agent of the plaintiff in his examination-in-chief stated that the goods were not delivered to them by the K.P.T. As the consignment was not traceable at the K.P. T. Shed. They wrote letters to the K.p.T. To ascertain khere abouts of the goods and he produced Exhs. 5/12, 5/13 .Md 5/14 in support of his submissions. He also deposed that the agents also wrote letter (Exh.5/16) to the Insurance Company informing them that the gods were not traceable. He also averred that in response to the letters, K.P.T. Confirmed that the goods were short landed and he produced several letters and outturn report being Exhs.5/17 to 5/23. He also averred that the value of the subject consignment was Rs.95,347 as the same was entered into the Bill of Entry and this included C & F value plus insurance plus one per centlanding charges. He further deposed that they had received information that some of the goods under nil mark were found by the K. P. T. But on their inspection they found that the said goods did not conform to the marks of their subject consignment. In his cross-examination he confirmed that except Exh.5/16 they had not written any other letter nor they had lodged any claim with the Insurance Company.
15. According to him, the agents had applied for delivery of the goods within one week of the arrival of the vessel. He confirmed the contents of Exh.5/15 which is a letter from M/s. Hegge & Co. (Pakistan)
16. Limited, dated 15-8-1978 informing the said agents that the ship had discharged their cargo and the same was delivered to the K.P.T. And also confirms the deposit of Bill of Lading on 27-11-1977 and collecting delivery order. The said letter further reveals that the K.P.T. Outturn report dated 28-12- 1977, reflected that 28 pallets wood veneer were lying at P.9 T.S. No.8 but that the consignment was under nil marks and numbers. Anyhow by this letter shippers repudiated the claim of the plaintiff.
17. He denied that the entire goods as per Bill of Lading had arrived at Karachi Port and were discharged. He further averred that as the goods were not according to the documents the same were not lifted by them. He also denied that this is a case of short delivery.
18. Next witness Khalid Iqbal an attorney of the plaintiff confirmed the contents of the plaint in his examination-in-chief. In cross-examination he admitted that he was giving evidence on the basis of the record. He also admitted the letter written by the defendant No.2 which was a notice from the K. P. T. That in case the goods are not lifted the same will be put to auction but he averred that the goods were not lifted because they were not according to the invoice. He further admitted that the goods were insured with the defendant No.3 and also produced cover note but no insurance policy was produced and that the plaintiff did not lodge any claim with the Insurance Company.
19. The next witness Muhammad Aziz, Traffic Supervisor K.P.T. Stated in his examination-in-chief that it is the practice of the K.P.T. That after every five years. They destroy the documents and as such he could not produce all the documents pertaining to the case. He confirmed issuance of Exhs.5/18, 5/19, 5/22 and 5/23 and admitted the Exh.5/23 which is original short landing report certificate issued by the K.P.T. In his cross-examination he admitted that in case of short landing the Custom Authorities impose a fine on the vessel. He also admitted that in Exh.5/19 against Index No.53 the figure 28 is mentioned and it als6 reveals that these goods are lying at P-9 i.e: plaint No.9 Transit Shed No.8 and that the notice under section 50-A of the K.P.T. Act was issued which bear the signature of Noor Khan the then Assistant Traffic Manager (West) of the K.P.T. However, he showed ignorance if notice was issued, to the Clearing Agents of the plaintiff. He further averred that although in Exh.5/19, 28 pallets were shown at Index No.53 but subsequently amendment was made (Exh.5/20) in the outturn report and as such entry of Exh.5/19 was reversed and the same sent to both the Assistant Collector of Customs Import and M/s. Hegge & Company, but showed his ignorance if any acknowledgement receipt of these letters was received by them. He admitted that final checking was done after about seven-and-a-half months as this is the difference in dates on the two documents exhibited as Exhs.5/19 and 5/20.
20. The evidence of the above three witnesses clearly show that although some cargo was delivered by the ship in the custody of K.P.T. But the same was not in conformity with markings mentioned in the Bill of Lading and as such the agents who had submitted the application immediately after the arrival of the ship did not take the delivery of the goods. The witnesses have also confirmed contents of final outturn report, which was subsequently amended by the K.P.T. And was issued to the agents as well as to the shipping agents. It is strange that the K.P.T. On the one hand had issued a short landing certificate to the parties, which has been confirmed by its witness, and on the other hand they had issued a notice under sections 50 and 50-A of the K.P.T. Act (Exh.7/1 alongwith an Annexure (Exh.7/1/1) showing that the 28 pallets under the marks number National Wood, Karachi as given in the invoice/Bill of Lading were lying with K.P.T. While the Short Landing Report (Exh.5/23) is dated 6-8-1978, the notice issued to M/s. Hegge (Pakistan) Limited is dated 6-6-1978. These two documents show the working of the K.P.T. And negligence of the staff of the said institution in regard to the car. If the cargo was not discharged by the ship as per Bill of Lading then the K.P.T.
21. Could have taken steps immediately to make the ship responsible for non-delivering the cargo, according to the Bill of Lading. But the K.P.T. Took no such steps and as a result the ship was allowed to sail without delivering the cargo according to the marks as per Bill .Of Lading. It was K.P.T. Again which messed the matter by first issuing the short landing certificate and again by issuing notices for the sale of the cargo. As for the plaintiff it had appointed its agents for the delivery of the cargo as per rules who in turn had applied for the delivery of the goods within a week of the arrival of the ship and since payment was made to the bank and all formalities were completed by the plaintiff it had discharged its burden and was entitled to the delivery of the goods. If the said goods were not delivered due to short landing or the mismanagement by the K.P.T. Then the said defendants are liable to compensate the plaintiff. Answer to the two issues are accordingly.
22. Issues Nos.4, 5 and 6: Issues Nos.4, 5 and 6 are related to the insurance policy issued by the defendant No.3 in respect of the subject cargo. Mr. Ghulam Abbas Pishori appearing for the plaintiff while arguing made a statement that they are giving up their claim against defendant No.3 as such these issues are not being dealt with.
23. Issue No.7: Muhammad Tahir, Assistant Collector of Customs (Appraisement), Customs House, Karachi, P.W.4 in his cross-examination admitted that Bond (Exh.8/1) is obtained from Shipping Agents to bind them in respect of claim damages and short landing and excess landing of the goods. However, he showed his ignorance as to the period of validity of this bond. D.W.1 David Manual, Director of defendant No.2 deposed in his examination-in-chief that the agents are appointed for a particular voyage. He confirmed that the consignment was fully discharged from the ship and was kept at plinth No.9 Shed No.8 under the K.P.T. Supervision. According to him, although they informed the plaintiff about the arrival of the cargo but they did not take the delivery of the goods. He denied that there was any short landing or if any notice from the K.P.T. For amendment of the Exh.5/19 was received by them. He further averred that in case of a short landing or excess landing the Custom Authorities penalises the shipping agent but no such notice in respect of subject consignment was received by them. He also confirmed that the certificate is issued for a period of three years. In .His cross-examination he deposed that the customs bond is filed just for the purpose of obtaining licence. He again confirmed that the cargo was discharged by the ship and denied that it was discharged under nil mark. He confirmed that in Exh.5/19 under Index No.53 the quantity manifest is given 28 pallets but quantity landed shows a blank column. He denied having received Exh.5/20 for reversing of entry and stated that if there was a short landing the K.P.T. Should have issued notice to them instead of sending direct notices to the plaintiff.
24. Exh.5/20 which is a letter from K.P.T. For reversing the entry is addressed to the Assistant Collector of Customs as well as to the defendant No.2 and not to the plaintiff and Exh.5/23 is addressed to the United Shippers the agent of the plaintiff. According to the defendants the K.P.T. Acting as the bailee had received the cargo and the same was kept in their shed/bonded warehouse. But it was K.P.T. Again which had issued a Short Landing Certificate. In any event the plaintiff did not receive its goods in spite of due payment and compliance of the formalities.
25. As I have already held under Issues Nos.2 and 3 that the value of the cargo including C & F value was worth Rs.95,347 as per Bill of Entry I hold that the plaintiff is entitled to receive this amount from the defendant jointly and severally along with six per cent. Interest from the date of filing of the suit till payment. If the defendants feel aggrieved they can take suitable action against K.P:T. As permissible under the law.
26. The above are the reasons for passing of the short order passed on 27-9-1995..