2003 PLP 3314 (YLR)

(a) A declaration that the Bill of Lading No.PG/KAR‑08 dated 29‑4‑1993 (Annexure 'A') is the genuine legal, valid bill of lading and title document, and plaintiff being holder is entitled to the goods. (b) A decree for U.S. Dollars 204,753.18 (currently equivalent to Pak Rs.61,42,595.40) with compensation/interest at 15 % per annum from the date of Bill of Lading i.e. 29‑4‑1993 at quarterly rests against the defendants jointly and severally. (c) Direction for recovery of decretal amounts from the security amount (i.e. Bank Guarantee) already lying in this Honourable Court in Suit No.396 of 1993 in lieu of subject Oil (499.398 M. Tons). (d) Costs; and (e) Such other appropriate orders as considered appropriate or necessary by this Honourable Court in the interest of justice. "

3. Learned counsel for the defendants 1 and 2 submitted an application under Order 7, Rule 11, C.P.C., praying for rejection of plaint. The main grounds urged for rejection of plaint were as follows:‑‑ (i) That the plaintiff is not the endorsee of the Bill of Lading as such has no cause of action to file the suit; (ii) that the suit is barred by time.

4. During the course of arguments, it was admitted by all the learned Advocates for the parties that, the plaintiff/appellant was fourth endorsee of the Bill of Lading and he endorsed the same in favour of respondent No.4 Messrs Devon Industries. The learned Single Judge while deciding the application for rejection of plaint observed that the last endorsee is respondent No.4, Messrs Devon Industries. The learned Single Judge further observed that by issuance of Trust Receipt in favour of appellant/plaintiff's bank, annexed to the plaint, the shipping documents were delivered to the Devon Industries. The learned Single Judge on the basis of these observations held that, the appellant/plaintiff is not the endorsee of Bill of Lading and as such, has no cause of action to file the suit against the carrier for non delivery of the goods.

5. On the point of limitation, it was urged by the learned counsel for respondent No.1 that admittedly the suit has been filed beyond the period of one year from the date when the goods ought to have been delivered and therefore, by virtue of the provisions contained in Article 31 of the Limitation Act, the suit was barred by time. Reliance in this regard was placed on the cases of (1) Deutsche Dampschieeffaharts‑Gesellschaff and others v. Central Insurance Company Ltd., Karachi PLD 1975 Karachi 819 and (2) National Insurance Corporation v. Pakistan National Shipping Corporation 1997 CLC 908.

6. On behalf of appellant/plaintiff it was contended that, Article 115 of the Limitation Act, was attracted to the facts and circumstances of the case wherein a limitation period of three years is provided. In support of his contention reliance was placed on the judgment of Dacca High Court in the case of Messrs Karachi Steam Naviation Company Ltd. v. Messrs Abdul Rehman Abdul Gani, PLD 1960 Dacca

173. The learned Single Judge ultimately held that Article 31 of the Limitation Act was applicable to the facts and circumstances of the case alleged in the plaint. The period of limitation under this Article is one year and suit has been filed beyond the period of limitation, therefore, the suit was barred by limitation. Consequently, the plaint was rejected.

7. Aamer Aziz Saiyid, learned counsel for the appellant has submitted that, so far, the issue pertaining to the endorsement in favour of Messrs Devon Industries is concerned, the learned Single Judge has not considered the facts in right perspective. He has submitted that nowhere it has been stated in the plaint that Messrs Devon Industries is the endorsee. He has further submitted that even otherwise mere endorsement without delivery of Bill of Lading shall not confer any title on Devon Industries. He has further maintained that, the Bill of Lading was endorsed by the plaintiff in favour of Devon Industries with the condition that Messrs Devon Industries shall make payment to the plaintiff‑Bank. Messrs Devon Industries did not fulfill their commitment with the result that Bill of Lading was never handed over to Devon Industries and consequently the Bill of Lading remained with the plaintiff, copy whereof has been produced by the plaintiff alongwith the plaint. Aamer Aziz Saiyid, learned counsel for the appellant has forcefully argued that, the learned Single Judge has held that Messrs Devon Industries were the final endorsee on wrong appreciation of facts. It is urged that this observation is beyond the contents of the plaint and the annexures appended thereto.

8. As regards the period of limitation, Mr. Aamer Aziz Saiyid has stated that the plaintiff did not file the suit for compensation, for non‑delivery or for delay in delivering the goods as envisaged under Article 31 of the First Schedule to the Limitation Act, but has filed suit claiming compensation for malfeasance and misfeasance on account of fraud committed by Messrs Devon Industries, by issuing the second Bill of Lading which is a fake document. Thus, the period of limitation provided in Article 36 of the First Schedule to the Limitation Act is attracted. The suit has been filed admittedly within a period of two years from the commission of malfeasance/misfeasance and consequently, the suit is not barred by limitation.

9. On the other hand, Mr. Muhammad Naim learned counsel for the respondent No.1 and Mr. Mazhar Imtiaz Lari, learned counsel for respondent No.6, have contended that the learned trial Court has rightly held that the appellant/plaintiff is not the endorsee of the Bill of Lading. However, during the course of arguments Mr. Lari conceded that, mere endorsement on the Bill of Lading without handing over the document physically to Devon Industries by appellant/plaintiff who is admittedly an endorsee of Bill of Lading shall not confer any right or title in the Bill of Lading on Devon Industries. He has conceded that the Bill of Lading is in possession, of the appellant/plaintiff.

10. The learned Advocates for the respondents Nos. 1 and 6 have contended that, every suit for compensation against carrier, on whatever ground is governed by Article 31 of the First Schedule to the Limitation Act, 1908. They have submitted that Article 31 being specific shall exclude the applicability of any other Article, which is general in nature. In support of their contention Muhammad Naim, has placed reliance on a Full Bench Judgment of Madras High Court in the case of Jaldu Venkatasubba Rao v. The Asiatic Steam Navigation Company ILR 1915 Madras 1 and a Division Bench decision of Calcutta High Court in the case of Madras Steam Navigation Co. Ltd. v. Shalimar Works Ltd. AIR 1915 Calcutta 681.

11. We have carefully considered the contentions raised by the learned Advocates for the parties and the material placed on record.

12. We are persuaded to agree with the submission of Mr. Aamer Aziz Saiyed, learned counsel for the appellant that, the learned Single Judge while holding that respondent No.4 Messrs Devon Industries is the final endorsee has traveled beyond the averments contained in the plaint. The learned Single Judge has considered the documents annexed with the plaint but in doing so has fallen in error by considering a single factor in isolation and out of context. It is established principle of the appreciation of facts as well as the interpretation of statutes that, no fact or law is to be considered in, isolation and out of context. For the purpose of deducing the correct conclusion, it is absolutely necessary to consider the totality of the facts and the context in which a particular fact takes place or is alleged to have occurred. Applying this principle, we find that, the facts alleged by the plaintiff in its totality are that the Bill of Lading was endorsed in favour of Messrs Devon Industries Ltd., subject to fulfillment of conditions enumerated in the letter written by the appellant Bank dated 20th May, 1993 Annexure 'K' with the plaint and Messrs Devon industries had agreed to accept the terms and conditions enumerated in the Annexure ' K' vide their letter Annexure 'L' with the plaint. However, the conditions accepted were not fulfilled and consequently, the appellant Bank continued to hold right and title in the Bill of Lading as the last endorsee. The genuineness or otherwise of these documents is a matter of evidence and no conclusive findings can be given in respect of the question of fact, while considering the rejection of plaint under Order 7, Rule 11, C.P.C. The finding of the learned Single Judge on the point of endorsement of the Bill of Lading is not sustainable in the fact and law and is liable to be set aside. We would like to clarify that the observations made in this judgment are purely tentative and shall have no bearing on the decision of the suit after recording of evidence by the trial Court.

13. So far, the issue pertaining to the period of limitation is concerned, we are of the opinion that, the rulings on which Mr. Muhammad Naim, Advocate has placed reliance are relevant in a suit filed for compensation, for non‑delivery or delay in delivering the goods. They are relevant in respect of a suit which is based on a cause of action arising under the Bill of Lading which embodies the terms of the contract on which the goods are carried. The moot point for g consideration in this case for the purpose of determining the applicability of Article 31, in the First Schedule to the Limitation Act is, whether the cause of action arises under the Bill of Lading in possession of appellant/plaintiff and whether the suit is in respect of compensation for non‑delivery or delay in delivery of the goods under the Bill of Lading in possession of the appellant/ plaintiff. We are of the considered opinion that there is force in the contention of Aamer Aziz that the appellant/plaintiff has not sought any compensation against carrier for non‑delivery or delay in delivering the goods, ought to be delivered under the Bill of Lading in possession of the appellant/plaintiff. The suit has been filed seeking a declaration that the Bill of Lading in possession of the appellant/plaintiff is genuine, legal and valid title of document, in the background of two Bills of Lading in the field and the consequential relief which has been sought is not of the compensation for non‑delivery or delay in delivery of goods, but on account of malfeasance/misfeasance by issuance of second Bill of Lading which is a fake document. We find substance in the contentions and hold that, the provisions contained in Article 31 of the First Schedule to the Limitation Act providing specific period of limitation of one year shall be attracted if compensation is claimed for non delivery or delay in delivery of goods, meaning thereby, that, when the compensation for non‑delivery or delay in delivery of goods arises under the Bill of Lading in possession of the plaintiff. However, if the suit is based on cause of action other than the conditions specified in Article 31 of the Limitation Act, then the period of limitation prescribed in Article 31 shall not be attracted. In our opinion, the period of limitation pertaining to the compensation on account of malfeasance and misfeasance as alleged by the appellant/ plaintiff in this case is governed by Article 36 of the Limitation Act which provides a period of limitation of two years. The suit has been admittedly filed within a period of two years from the alleged malfeasance/misfeasance and consequently the suit has been filed within the period of limitation prescribed in law. The finding of the learned Single Judge to the contrary is not sustainable.

14. Consequent to the above findings, the impugned order of the learned Single Judge dated 11‑11‑1998 is set aside and the S case is remanded back to the learned Single Judge for further proceedings on merits. The appeal is allowed accordingly. M.B.A./S‑322/K Case remanded.