P L D 1959 (W (PLP)

CONSTANTINE, J.‑Mr. Lobo for, the appellant restricted the case in appeal to two out of the 12 issues framed in the suit. They are "

3. Are the defendants No. 1 agents of the Charterers of the Martin Carl. If so, is the suit as against them bad in law.

11. To what damages, if any, are plaintiffs entitled and on what basis have they to be assessed ?". The suit was brought by the respondent No. 1 the consignee and importer of 800 cases of Indian salad oil-shipped from Bombay by S. S. "Martin Carl", in order to recover the value of 41 cases short delivered from the appellant company. The plaint alleged in para. 13 that the appellant company was "liable under the terms of the bill of lading executed by the shipping company". The written statement in para. 3 headed "without prejudice" averred that the appellant company were to the knowledge of the plaintiff agents of the Charterers of the ship, and pleaded that no suit could lie against agents of disclosed principals. The written statement when it dealt with the paragraph, of the plaint seriatim stopped short at para. 12 (and did not deal with para. 13) of the plaint. As regards damages the plaint in para. 12 stated particulars as `.`Cost of 41 cases salad oil at Rs. 75 per case". The written statement pleaded "Damages have in this case to be assessed on the invoice value or the market value at the time of the arrival of the ship whichever is less." On issue 3 Lari, J., held, that the Charterers could not be sued in this country ; hence under clause (c) of section 230, Con tract Act, there arose the statutory presumption of a contract of personal liability on the part of the agent. 'the learned Judge stated that the plaintiff argued that the appellant was liable upon 2 further grounds but he came to no decision on these grounds the first of these two grounds, namely, that the appellant was a part carrier, is disclaimed by Mr. Jamiatrai, who shares our ignorance of what is meant by a part carrier. The second ground was based upon clause (d) of section 64 of the Sea Customs Act. The relevant parts of that section read as follows :‑ "

64. The Customs Collector may refuse port‑clearance to any vessel until :‑ (a) the provisions of section 63 are complied with ; (b) all port‑dues and other charges and penalties due by such vessel, or by the owner or master thereof, and all duties payable in respect of any goods shipped therein, have been duly paid, or their payment secured by such guarantee, or by deposit at such rate, as such Customs‑Collector directs ; (c) the ship's agent (if any) delivers to the Customs‑Collector a declaration in writing to the effect that he will be liable for any penalty imposed under section 167, No. 17, and furnishes security for the discharge of the same ; (d) the ship's agent (if any) delivers to the Customs‑Collector a declaration in writing to the effect that such agent is answer able for the discharge of all claims for damage or short delivery which may be established by the owner of any goods comprised in the import cargo in respect of such goods. A ship's agent delivering a declaration under clause (c) of this section shall be liable to all penalties which might be imposed on the master under section 167; No. 17, and a ship's agent delivering a declaration under clause (d) of this section shall be bound to discharge all claims referred to in such declaration." The learned Judge observed that no declaration had been put in evidence. He reserved however his opinion on the question whether "may" meant "shall" : if it did, he thought the presum ption under section 114, Evidence Act would arise that a declaration had been filed. As regards issue 11, the learned Judge relied on the evidence of Hashim, P. W. 5, that the market rate at the material time was Rs. 57 per case and awarded damages on this basis. He did not discuss the question raised by the written statement regarding the basis of assessment of damages. This case is remarkable for the lack of preparation on both sides. It was only when Mr. Lobo shewed us the original bill of lading and when I raised the point that it appears to have been realised that no contract at all had been entered into by the appellant. Mr. Lobo however fairly conceded that he would not now contest the basis upon which the suit had been fought in the lower Court, namely, that the defendants had signed the contract. On the other side, Mr. Jamiatrai conceded that the attention of the learned Judge had not been drawn to section 20 C. P. C. and conceded that the shipping company the principals could have been sued albeit with little chance of securing any fruits in Pakistan from a decree obtained from the Court either here or in India. The question therefore is whether there is any contract imposing personal liability on the agent. Such actual contract there is none, even though it is conceded by Mr. Lobo that the agents signed the bill of lading. The plaintiff has not estab lished any of the three cases given in section 230 of the Contract Act from which a contract of personal liability shall be presumed. The question is whether the Court is entitled to imply any such contract apart from those three cases, and, if so, whether in the present suit ground for justifying such implication exists. In the first place, it is to be remarked that the legislature has recognised that a Tresumption does arise from certain circumstances ; the fact that section 230 directs the Court in A three cases to draw a rebuttable presumption of an implied contract does not displace the ordinary rule that a Court may appropriate cases hold that a term of a contract is implied. That a contract of personal liability may be implied is in accor dance with the principle which Pollock and Mulla 8th Ed. p. 697 state underlies the section :‑ " The test question in cases within the principle of this section is always to whom credit was given by the other party, or, if that cannot be proved as a fact, to whom it may reason ably be presumed to have been given". The learned authors state lower down :‑ " Whether an agent, apart from the cases specially mentioned, is to be taken to have contracted personally, or merely on behalf of the principal, depends on what appears to have been the intention of the parties, to be deduced from the nature and terms of the particular contract and the surrounding circumstances." The course of business for instance may lead to the inference that the agent has made himself personally liable. But the inference which the plaintiff wishes the, Court to draw on this case is one of fact, and is an inference to be drawn from facts, and the burden of pleading and proving an implied contract is upon the plaintiff. He did not plead any contract of personal liability or any facts. He has not, so far as we can see, proved any fact except that the Collector may require a declaration. This by itself is not sufficient ground from which we can infer a contract of personal liability. We have no evidence that such a declaration is commonly required, and we have no evidence that consignees and shipping agents are familiar with the section. We have no evidence of previous dealings and we have no evidence of custom. We, therefore, hold that no contract of personal liability has been proved. Upon the question whether as a matter of construction of section 64 of the Sea Customs Act, the Collector's power is coupled with a‑duty a question left open by Lari, J.‑we think the answer is plain. Clearly as regards subsection (1) of section 64, the Collector has a discretion to allow port‑clearance within a shorter period than 24 hours ; he is not under a duty to insist upon the requirement of section

63. Even supposing that the word "may" may be interpreted differently as regard the different subsections, yet even as regards subsection (d) there may well be cases where an agent's declaration would be unnecessary. We, cannot, therefore, presume that a declaration was actually obtained and we cannot hold that the liability attached by section 64 to such a declaration arose. We, therefore, hold that the plaintiff has not established that the defendant company was liable to be sued in respect of short delivery. As regards the point of damages no doubt no evidence was led regarding the invoice price ; but there was no cross‑examina tion on this point, and we presume that the invoice price was the same as the market rate. The appeal was already dismissed as against the Port Trust with no order as to costs upon Mr. Lobo's statement. The result is that the appeal is allowed as against the respondent‑plaintiff who will bear the costs of the appellant both in appeal and in the trial Court. A. H. Order accordingly.