P L D 1961 Dacca 132 (PLP)

AKBAR, J.‑This appeal is by defendant No. 1 M/s. Muham madi Steamship Company Ltd., (hereinafter referred to as the Company).

2. The plaintiff Messrs Abdul Rahman, Abdul Gani filed the suit under appeal for refund of Rs. 30,724‑2‑0 paid to the Company under the following circumstances: In May, 1952, the plaintiff‑firm imported from Karachi coconut oil, rapeseeds, Soda Ash, Cotton yarn etc. The said goods were shipped at Karachi on the Steamship `Al Hussaini' and `Al Murtaza Ali' for carriage to Chittagong, and the plaintiff at the time of ship ment paid freight in respect of the entire cargo covered by all the Bills of Lading. On representation of the Company that Lighter may have to be used for unloading the cargo at Patenga Anchorage at Chittagong the plaintiff paid Rs. 30,724‑2‑0 at the rate of Rs. 20 per freight ton to meet the Ligtherage and demurrage charges, if any. As the two steamships had not to take the help of any lighter to discharge the cargo at Chittagong Port and as also they had not to pay any demurrage charges, the plaintiff‑firm claimed a refund of the said sum Rs. 30,724‑2‑0 which, according to them, was lying in deposit with the Company but the Company failed and neglected to refund the said sum notwithstanding repeated demands. Hence they filed this suit for the refund of the said amount.

3. They made the Company defendant No. 1 and the Agent of the Company defendant No. 2 in the suit. The said defendants contested the suit by filing separate written statements.

4. The main defence of the Company was that the contracts were made at Karachi and hence the Chittagong Court had not jurisdiction to try the suit and that the said amount or any part thereof was not kept with them in deposit as alleged by the plaintiff. The further craved reference to the Bills of Lading and also to the relevant Shipping orders to ascertain the terms of the contract between the parties. The Agent denied liability for the said sum.

5. The learned Judge who tried the suit found (1) that the Court bad jurisdiction to try the suit ; (2) that the amount realised at the rate of Rs. 20 per freight ton for lighterage and demurrage was not. a part and parcel for the freight ; (3) that as admittedly no lighter was used at the outer anchorage for disembarking the cargo and as the Company had also not to pay any demurrage the plaintiff firm was entitled to get the refund of the amount deposited with the Company; and (4) that defendant No. 2 was not a necessary party in the suit.

6. In this view of the matter, the learned Judge decreed the suit in full against the Company and dismissed it as against their Agent, defendant No. 2.

7. The Company has, therefore, filed this appeal against the judgment and decree of the learned Judge.

8. Mr. S. R. Pal, the learned Advocate for the appellant, has raised the following two points in this appeal ; (1) that the amount claimed in the suit was really a part and parcel of the freight agreed upon as consideration for contract of affreightment ; and (1) that in view of the endorsement under "Freight" in the Bills of Lading the plaintiff was not entitled to this amount. The said endorsement is to the following effect ; "Its. 20 per freight ton for lighterage and demurrage" Identical questions arose in United Oriental Steamship Company and another v. Abdul Rahman Abdul Gani First Appeal No. 67 of 1955, and I observed : "From the fact that the amounts are mentioned in the freight column, Mr. Pal has attempted to argue that the parties must have intended that the amounts were to be treated as freights. We are unable to accept this contention. Obviously the freight fixed by the Government under section 6 of the Control of Shipping Act, 1947, (Act XXVI of 1947), had been charged by the Steamship Co. The amounts paid as freight are clearly mentioned in the Bills of Lading. The purpose for which additional amounts were taken are also clearly stated therein. Hence there is no basis for an assumption that the Steamship Company, in violation of the Shipping Act, had charged these additional amounts as freights:"

9. This also to a great extent finds support from the evidence of D. W. 1 B. K, Vazir Ali, the Manager of the Company. In examination‑in‑chief, he stated "It was made clear to the shipper that lighterage and demurrage was part and parcel of the freight, that it was not a deposit and further that it was not refundable." In cross‑examination he says : If we had realised any freight illegally we would have been prosecuted." He then says "We did not include the additional charge in the freight because the freight is the basic rate of charge. We did call it additional charge because we want to be more accurate. The additional charge was meant for lighterage and demurrage and for no other head of charge." He further says that :" "A freight is paid for carriage of goods from Port of Shipment to Port of destination." The above shows that the amount deposited at the rate of Rs. 20 per freight ton was not a part and parcel of the freight. From the mere fact that this amount was mentioned in the Bills of Lading, it cannot be said that it was a part and parcel of freight. When the plaintiff‑firm claimed refund of the amount paid for lighterage and demurrage, Mr. R. K. Vazirally, the Manager of the Company, wrote as follows: "We have for acknowledgment your Letter No . . . . . . dated the . . . . . . in connection with the above mentioned subject, and have to advise you that no refund is due in respect of shipments made by you on the above‑named vessel as the additional charge of Rs. 20 per ton was in the nature of an additional charge and not a deposit. This was made quite clear at the time of issuing shipping orders which had been endorsed "Rs. 20 per ton for lighterage and demurrage will be levied." "Apart from this, the additional charge of Rs. 20 per ton has been shown on Bills of Lading under the rate and freight columns and has been included in the total freight payable which clearly implies that this was an additional charge and not refundable deposit." Now the Bills of Lading show that either at the rate of Rs. 61 or Rs. 48 per ton was paid as freight charge and an additional sum at the rate of Rs. 20 per freight ton was charged for lighterage ‑and demurrage. In view of the above clear statement we are unable to accept the Company's contention that the latter amount was included in the freight. Furthermore, the following explana tion of the Company to the Controller, of Shipping as contained in their letter dated the 3rd January 1953, does not also seem to be satisfactory: Dear Sir, This additional charge was in the nature of a fixed standard increase in the freight rate to cover increased handling charges and was charged to all shippers at the time irrespective of the fact whether their cargo was to be lightered or not. In view of the increasing handling costs of Pakistani vessels during 1952, it bad become necessary to enhance charges for shipment effected on our vessels at the time and a standared fixed rate of Rs. 20 per ton was made which was considered adequate to cover this increase. If the said sum was a part of the freight, they could have easily mentioned it as such in the Bills of Lading and then there would have been also no necessity for saying that this sum was charged for lighterage and demurrage. Hence the following observations summerising the conclusion in the case of United Oriental Steam ship Company are fully applicable to this case : "From the above, it is evident that the Shipping Company were not entitled to charge this additional amount as freight, and as a matter of fact they did not do so is clear from the Bills of lading and the evidence of Mr. Mehdi. It would, there fore, be absurd to suggest that this additional sum would acquire legal character of freight, because it is mentioned as a second item after freight in the Bills of lading. Now, freight is a reward payable to the carrier for the safe carriage and delivery of goods at the destination. Hence, by no stretch of imagination, these additional sums could be treated as freight."

10. For the reasons stated above, we are unable to hold that the sum claimed in the suit was charged as an additional freight.

11. No other point was raised in this appeal.

12. As admittedly the Company did not use any lighter with regard to these shipments they must refund the amount which they had taken to meet the above contingency. Hence the learned Judge was justified in decreeing the suit of the plaintiff.

13. In the result, we affirm the judgment and decree of the Trial Court and dismiss this appeal with costs. ASIR, J.‑I agree. K. B. A. Appeal dismissed.