P L D 1954 Sind 233 (PLP)

LARI, J.‑The plaintiffs have filed this suit for recovery of Rs, 5552‑11‑0 with allegations that on 30th January 1948 the plaintiff's agent delivered 1000 tins of Dalda vegetable product to the defendant‑company at its head office in Bombay for shipment to Karachi and for delivery there to the plaintiffs; the defendants accepted the said goods for shipment to Karachi and sometime in February 1948 the defendant delivered 490 tins of the said Dalda to the plaintiffs at Karachi, but the balance, namely, 510 tins were short landed ; on 20th "October 1948 the defendant informed the plaintiffs that the remaining 510 tins were in their possession at Bombay and offered to deliver the same as soon as practicable; on 18th May 1949 the defendant informed the plaintiffs that 184 out of the 510 tins had arrived and called upon the plaintiffs to clear the same; the plaintiffs went to take delivery of the said 184 tins but they found that all of them were entirely empty and consequently refused to take delivery of the same. The plaintiffs served on the defendant a notice of their claim dated 20th May 1948 in respect of the loss sustained because of non- delivery of the 510 tins and that the defendant refused to pay, and consequently the suit. The defendants filed their written statements. The defendants denied that the plaintiffs' agent delivered 1000 tins of Dalda vegetable produce, and alleged that on 30th January 1948 the defendants company steamer Sonavati was in a hurry to sail and that the defendants were not willing to take the cargo. But the shipper insisted on taking the cargo and consequently the defendants had no time to verify the quantity and the cargo was accepted at the shipper's risk. The defendants further averred that they were not responsible and liable for non‑delivery of the tins and in any case the suit was barred under Article 3, clause (6) of the schedule to the Carriage of Goods by Sea Act. The plaintiffs examined 3 witnesses, Abdul Ghaffar P. W. 1, Abdul Ghani, P. W. 2 and Abdul Razak, P. W.

3. Abdul Ghaffar is a partner in the plaintiffs' firm. He deposed that Abdul Majid is the agent of the plaintiffs' firm in Bombay and he despatched 1000 tins of Dalda on 30th January 1948 from Bombay to Karachi. Every tin weighed 10 lbs. Sonavati arrived in Karachi in the beginning of February 1948 and the plaintiffs were delivered only 490 tins. This matter of short delivery was communicated to the defendant‑company by means of a letter Exh. 5/2 and the defendant‑company told him orally and consequently confirmed by a letter that 510 tins remained behind at Bombay and they would arrange for its shipment by a sub sequent ship. This witness further stated that he reminded the defendant‑company several times but each time he was told that the Bombay Office had not informed which ship was likely to bring the remaining tins. The witness admitted in cross‑examination that he did not personally make enquiries whether the goods were short landed or not. Abdul Ghani P. W. 2 is a merchant who dealt in Dalda in 1948‑49 and was one of the partners in plaintiffs' firm. He deposed that he sold Dalda in Karachi market at the rate of Rs. 11‑1‑0 per tin. Abdul Razak, P. W. 3 is a representa tive of H. M. Arif Brothers who dealt in Dalda in Jodia Bazar, Karachi. He produced bill book, credit note and debit note as well as cash books and ledgers to prove that on 31st March 1948 Dalda was sold at the rate of Rs. 11‑0‑6 per tin. The defendants did not produce any oral evidence. The parties further exhibited certain documents which will be taken note of at proper places. The following issues were framed: (1) Did the plaintiff on 30th January 1948 deliver 1000 tins of Dalda product to the defendant at its head office in Bombay for shipment to Karachi ? (2) How many times were accepted by the defendant for shipment to Karachi ? (3) Was the consignment accepted at Shipper's risk? If so, are the defendants not liable ? (4) Were all 1000 tins put on board the steamer ? (5) How many tins were short landed in Karachi in February 1948 ? (6) Were the plaintiffs on 20th October 1948 informed by the defendants that 510 tins were in the latter's possession in Bombay and did the defendants offer to deliver the same as soon as practicable ? (7) Did the defendants on 18th May 1949 inform the plaintiffs that 184 out of 510 tins have arrived ? (8) Did the defendants repudiate their liability as regards the remaining 326 tins ? (9) Were the said 184 tins empty and were the plaintiffs entitled to ref use to take delivery thereof ? (10) Have the plaintiffs any cause of action ? If so, when did it arise ? (11) Is the plaintiffs' suit barred under Article III, Clause 6 of the Schedule to the Carriage of Goods by Sea Act ? (12) What relief, if any. (13) General. Findings with reasons thereon Issues 1, 2 and 3.‑These issues may be taken together. The plaintiffs rely on bill of lading Exh. 5. 1 which recites that 1000 tins of vegetable product were delived by the agent of the plaintiffs to the defendants. This bill of lading Exh. 5/1 contains a note in the following words: "Senders counting and nil mark accepted at shipper's risk." And the Counsel for the defendant relies on tins note to show that the bill of lading cannot prove that 1000 tins of Dalda were actually delivered to the defendant. There is, however, another note which says: "All the terms, provisions and conditions of the Indian Carriage of Goods by. Sea Act, 1925, and the Schedule thereto are to apply to the contract contained in this bill of lading, and the company are to be entitled to the benefit of all privileges, rights and immunities contained in such Act and the Schedule thereto as if the same were herein specially set out. If anything herein contained be inconsistent with the said provisions, it shall, to the extent of such incon sistency and no further, be null and void." Paras. 3 and 4 of Article 3 of the Schedule to the Indian Carriage of Goods by Sea Act, 1925 are to the following effect: "After receiving the goods into his charge, the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading, showing among other things‑ (a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained in such a manner as should ordinarily remain legible until the end of the voyage. (b) Either the number of packages or pieces, or the quan tity, or weight, as the case maybe, as furnished in writing by the shipper; (c) The apparent order and conditions of the goods: Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received or which he has had no reasonable means of checking.

4. Such a bill of lading shall be prima facie evidence of the receipt by the carrier of the goods as therein des cribed in accordance with paragraph 3 (a), (b) and (c). The effect of these 2 clauses is that the carrier has to mention either the number of packages or the quantity in the bill of lading, and once they are entered, such a bill of lading shall be prima facie evidence of receipt by the carrier of goods as therein described. Any stipulation in the bill of lading contrary to clauses 3 and 4 quoted above shall be null and void. I am, therefore, of the opinion that the bill of lad ing Exh. 5/1 is prima facie evidence of the number of tins delivered to the defendants. There is no evidence on the side of the defendants to rebut the contents of the ‑bill of lading. I, therefore, hold that the plaintiffs did deliver 1000 tins of Dalda to the defendants on 31st January 1948 and they were accepted by the defendants for shipment to Karachi. The stipulation as to at shipper's risk is not enforceable in so far as the number of packages delivered is concerned. Issues Nos. 4 anal 5.‑The plaintiffs' counsel relies on the statement of Abdul Ghaffar, P. W. 1, who states that only 490 tins were delivered to him and that the defendants informed him that the remaining tins were at Bombay and they would be informed subsequently as to which ship was likely to bring them. The reply of the defendant‑company on this point is contained in letter, dated 17th July 1948. Exh. 5/7. It says ; "We are informed that 510 tins are short landed and seems to be shut out at Bombay," The oral testimony of defendant I read in the light of the letter Exh. 5/7, shows that all the 1000 tins were not put on board the steamer and only 490 tins were landed in Karachi in February 1948. The issues are decided accord ingly. Issue 6.‑Evidence relating to this issue consists of the oral testimony of Abdul Ghaffar P. W. 1 and the letter of the defendants, dated 17th July 1948. The only inference from the un-contradicted oral testimony and letter Exh. 5/7, can be that it was represented by the defendants to the plaintiffs that 510 tins were still in Bombay. The issue is decided accord ingly. Issues 7, 8 and 9.‑The defendants did send a letter to the plaintiffs on 18th May 1949 and the relevant portion of this letter Exh. 5/9 may be quoted below:‑ "With reference to the above, we have to inform you that 184 tins are lying at Native Jatty ready for delivery. Please arrange an early clearance of the same..." There is no doubt that 184 tins were offered for delivery by the defendants, but there is nothing on the record to show that these things belonged to the consignment booked for Karachi by the plaintiff. The oral evidence led by the plaintiffs clearly proved that the 184 tins offered were empty. The defendants having failed to prove that the 184 tins offered were part of the consignment, and it being proved by the defendants that these tins were empty, the plaintiffs were entitled to decline acceptance of the said tins. It is clear from the plaintiffs' letter, dated 18th May 1949 Exh. 5/9, that they repudiated their liability as regards the remaining tins. The issues are decided accordingly. Issue 10.‑In view of my findings under the foregoing issues, the plaintiffs are entitled to be compensated for the loss of 510 tins. Issue 11.‑This is the most contested issue in the case. The defendants' case is that 1000 tins were delivered to them under bill of lading Exh. 5/1, and the ship admittedly arrived sometime in February 1948 when 490 tins were delivered to the plaintiffs. Para. 6 of Article 3 of the schedule to the Carriage of Goods by Sea Act lays down that carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered. It is contended that the undelivered tins numbering 510 were part of the same consignment, and those tins should also have been delivered in February when the ship arrived in Karachi and the 490 tins were delivered. The suit, however, was filed on 18th March 1950 more than a year thereafter, and consequently the suit was barred in view of the provision of clause 6 of Article 3 of schedule to the Carriage of Goods by Sea Act. Reliance was placed by the learned counsel for the defendants on cases reported in A I R (1931) Sind 124, and A I R (1952) Saurashtra

104. These two cases no doubt support the contention of the learned counsel for the defendant that where part of a consignment is delivered, the date when the remaining consignment should have been delivered should be the date of part delivery. I am in agreement with these cases so far as they go, but there is a complication so far as the facts of this case are concerned, and this conflict arises out of representation made by the defendants in their letter Exh. 5/7. It said: "We are informed that 510 tins are short landed and seems to be shut out at Bombay." The un-contradicted oral evidence of Abdul Ghaffar, P. W. 1 goes further. It says: "Subsequently I myself reminded the defendant‑company several times. Each time I was told that the Bombay office had not yet informed as to which ship was likely to bring the remaining things." And I have to consider whether in the event of such a representation, can the date of delivery of part of the con signment be deemed to be the date on which the goods should have been delivered as contemplated by clause 6 of Article 3 of Schedule to the Carriage of Goods by Sea Act. I may note that according to the terms of the bill of lading, the defendants were not under on obligation to carry the goods by the same steamer. The learned counsel for the plaintiffs referred to Article 31 of the Limitation Act where somewhat similar language is used. According to this Article, starting point for limitation against a carrier for compensation for non- delivery or delay in delivery of goods, is the date when the goods ought to be delivered. In interpreting Article 31, question has arisen before High Courts as to when the goods ought to be delivered where part of consignment is delivered on one date, and promises for delivery are made in respect of the remaining part of the consignment. I may refer to the case of the Governor‑General in Council, New Delhi v. S. G. Ahmed (A. I. R. 39 (1942) Nag. 77.). The facts of this case were that the plaintiff booked his luggage consisting of 5 packages including a black trunk containing articles of his kit. Four packages were delivered on 13th June 1942 and promise of subsequent delivery was made than a year after 15th June 1942 and it was contended that the limitation began to run from 13th June 1942 when four packages were delivered, as it must be held that the fifth package should also have been delivered on that date Considering this point his Lordship observed:‑ "The only question is when the railway company failed to deliver the goods. It is no doubt true that in one sense the railway failed to deliver the goods when on the 13th June 1942 they handed over to the plaintiff only 4 out of the 5 packages entrusted to their care. But it cannot be overlooked that for sometime the railway authorities themselves were hoping to deliver the remain ing packages and were making enquiries all along the route. Numerous letters have been exhibited in the case, which go to show that the railway authorities kept on assuring the plaintiff that inquiries we're being made and that he would learn the result of the inquiries in due course. In such cases it is not fair to expect the plaintiff to rush to Court with a suit without waiting for the result of the inquiries. Limitation can therefore begin only when there was a definite statement by the railway authori ties that they were not in a position to deliver the goods." The above observations find support from other cases reported in 45 All. 43, (1947) Cal. 98, and (1946) Mad.

133. The facts of this case are much stranger than the case quoted above. In this case 490 tins were delivered in Feb ruary 1948 and as to the test, the information given to the plaintiffs was that the consignment was short landed. The letter of the defendants Exh. 5/7 suggested that the entire consignment had not been loaded in the ship and they would be sent subsequently by another ship. The question is whether in such circumstances it should be held that the starting point is the date when 490 tins were delivered, or when the defendants made it clear that the goods were not available. In cases where no date for delivery is fixed, it is a question of fact in each case when a consignment should be expected to be delivered. Ordinarily if part of a con signment is delivered on a particular date, it must be presumed by the plaintiff that remaining Consignment should also have been delivered on that date, but when it is ascertained that the other portions of the goods were not loaded in the ship and might be subsequently loaded in another ship; would be unreasonable to suppose that in such an event also, the date of delivery should be deemed to be the date when part of the consignment was delivered. It would amount to putting premium on misrepresentation. I am accordingly of the opinion that in the particular circumstances of the case February 1948 cannot be deemed to be the date when the 510 tins should have been delivered. The defendants denied their liability for the first time on 18th May 1949, and the period of one year according to law must start on that date. In this view of the matter the suit is not barred by the provisions of clause 6 of Article 3 of the Schedule to the Carriage of Goods by Sea Act. Issue 12.‑The plaintiffs have claimed Rs. 5,227‑8‑0 on account of cost price of 510 tins of Dalda at the rate of Rs. 10‑4‑0 per tin, and they have further claimed Rs. 325‑3‑0 on account of expenses. It is established from the evidence of Abdul Ghani, P. W. 2 and Abdul Razak, P. W. 3 that Dalda was being sold in the market in the month of March at the rate of ks. 11‑0‑6 per tin. In view of this, the claim of the plaintiff is reasonable. The plaintiffs are entitled to succeed. The result is that the suit succeeds and I decree the suit as prayed, but I order that the parties shall bear their own costs in as much as the point of bar of clause 6 men tioned above was not free from difficulty. A. H. Suit decreed.