1986 PLP 635 (MLD)

30/9 12Bdls ????? " ????? " Ria??? 9703 Sd/- Sd/- 82/28 30/9 12??? " ????? " ????? " HDA 5240 Sd/- Sd/- 29

6???? " ????? " ????? " KAP 4197 Sd/- Sd/- 30

6?? " ????? " ????? " KAT 2595 Sd/- Sd/- 31

6??? " ????? " ????? " KAT 6936 Sd/- Sd/- 32

9??? " ????? " ????? " ???????? 5557 Sd/- Sd/- 33

12 ???" ????? " ????? " HAD 5240 Sd/- Sd/- ?(Note‑‑ the last seven entries are relevant to this case). The plaintiff's Director Mr. Niaz Baqar, P.W.1 (Exh.6) when confronted with these acknowledgment, replied as follows:‑ "I see Exh.D/3 and say that according to this document the Clearing Agent had taken delivery of only 63 bundles and did not take delivery of 6 bundles which were then available in K.P.T." The validity and correctness of the above document Exh. D/3 and the fact, that the Clearing Agent had given a clean receipt of 63 bundles and that only 6 bundles remained to be delivered by the K.P..T., have not been denied. The plaintiff examined Muhammad Siddique son of Hashim, P.W.2 Exh.7 who was their Clearing Agent. He in his evidence admitted that as per delivery order Exh.D/3 the total consignment offered for delivery was 63 plus 6 and that on its reverse the receipts (of 63 bundles) bear signatures of this clerk. A perusal of the 'sub‑delivery order'. Exh.D/3, shows that the representative of the Clearing Agent expressly admitted the receipt of 63 bundles (which arrived on the ship s.s, "Harappa") in good order from Karachi Port Trust and that against each item delivered, signature was made by his clerk in token of acknowledgment of delivery of goods described therein. It is important to mention here that the clerk who had signed this document giving 'clean receipt' for delivery to him 63 bundles and confirming that only 6 bundles remained to be received, was not produced by the plaintiff to explain, as now contended, that 63 coils and not 63 bundles were delivered. Obviously the evidence of this clerk of the Clearing Agent was material. His non‑production as a witness, without any explanation, is a strong factor under which I am justified to presume that had he been produced he would not have supported the case which is now tried to be set up by the plaintiff that 63 coils were delivered and not 63 bundles as mentioned in Exh.D/3. I may also observe here that the plaintiff's witness Muhammad Siddique son of Hashim, P.W.2 Exh.7 who was the General Manager of Ahmed Ebrahim Agency, the Clearing Agents, in his evidence tried to support the case of the plaintiff by stating that a shortage of 46 coils was found about which he informed only the importer. He, however, admitted that no notice of alleged short landing was given by him (the Clearing & Forwarding Agent) to the Karachi Port Trust or the Shipping Company. The witness also admitted that at no time he asked for a ship survey of the consignment. The learned counsel for the plaintiff then referred to the evidence of one Ali son of Mohsin, P.W.3 Exh.8, who was weighment clerk' at Mauripur, Road Public Weigh‑ Bridge. He produced Weighment Certificates which are marked Exh.8/1 to Exh.8/7, they are all, dated 30th September, 1971. These receipts, however, were not admitted by the Advocates for the defendants. In view of the denial of these receipts, it was for the plaintiff to have proved the same by examining the proper persons who issued arid executed them. This witness admitted that 5 certificates were signed by one Muhammad Siddique, who is no more in the employment and the other two certificates were signed by one Jannat Khan. Since the executants of these receipts have not been examined, in the circumstances, the same cannot be treated as proved and thus their contents cannot be read. Reference may also be made here to the Certificate of Inspection issued by General Superintendent Co. (Pakistan) Ltd., dated 25th October, 1971. This certificate has been issued by one Mr. J.N. Craddock and is relied upon by Mr. Mustafa Lakhani, Advocate in support of the plaintiff's case that there was shortage in delivery in the consignment as claimed in the suit. This report is not admitted by the defendants amongst others for the reasons, (i) that this survey was carried out ex parte without notice to any of the defendants, (ii) that the survey was carried out in the godowns of the plaintiffs, and (iii) that it was a belated survey and it is not known what happened to the goods between 30th September to 26th October, 1971 when the survey was allegedly conducted. Without further going into these objections which are not without force it would be important to note here that in this report at page 2 it is stated that the plaintiff received 63 bundles. Only 6 bundles in the said report are shown to have been short delivered to the plaintiffs. The portion, to which reference has been made, reads as follows:‑

"GOODS TENDERED FOR INSPECTION? 69 bundles‑ (63 at factory 6 in? Docks) containing coils of M.S. Wire Rods. (ICS.) Quantity 69 bundles agreed with Customs Entry and Ships declared manifest as per K.P.T. records)." The surveyor in his certificate however in order to justify the alleged claim made in the suit, has proceeded to give his own findings which in my opinion are irrelevant for the purposes of this case. Significant fact, however, is that the certificate confirms that K.P.T. Register shows receipt of 69 bundles. I have already discussed that it has been admitted by the plaintiff's own witness that 63 bundles were delivered to the plaintiff's for which "clean receipt" was given by the plaintiffs Clearing and Forwarding Agents as per Exh.D/3. Before concluding the discussion on this part of the issue I may refer here to the evidence produced by the defendants. Mr. S.H.A. Jafri, Traffic Inspector of K.P.T., who was working as supervisor in Shed No.1l at East Wharf at the Port at the relevant time. In his evidence this witness stated:‑ ?.......... "The ship s.s. "Harappa" arrived at Karachi Port on 9‑7‑1971. Since I was the Supervisor Incharge of the ship I received the cargo at the Karachi Port from the ship either on the 10th or 11th July, 1971. The cargo in question consisted of 69 bundles marked "Aid Emblem" No.10370/7198 Index No.3. I produce the 'provisional outturn report' of the consignment in question wherein the K.P.T. has received 69 bundles. This report is marked Exh.10. It bears my signature. Out of these 69 bundles the K.P.T. received 12 bundles in defective conditions which fact was recorded in our 'defective cargo list' which is produced and marked as Exh.11." The witness further stated:‑

"M/s. Ahmed Ebrahim Agency lodged the clearing documents on 21‑9‑1971 and took delivery of 63 bundles in good order and condition. The delivery order is already exhibited as Exh.D/3. The remaining, 6 bundles of the consignment remained with us as the Clearing Agent did not take delivery of the same." The other witness Jannat Bakht, D.W.2 Exh.16, who was‑/the Provisional Out Turn Clerk in 1971 with the K.P.T. in his evidence admitted that the documents Exh.10 and Exh.11 were prepared by him in his own hand writing and that Exh.10 shows that 69 bundles were discharged with the K.P.T. by the ship s.s. "Harappa" and that he had noted the fact that out of the said consignment 12 bundles were discharged in defective condition. Mr. Mustafa Lakhani, Advocate did not cross‑examine this witness. We have already seen above that from the K.P.T. the Clearing Agent of the plaintiff received 63 bundles in good order and condition. No dispute as to the number of coils or weight of the consignment received by the said agent was raised in respect of these 63 bundles when the same were delivered to and acknowledged by the Clearing and Forwarding Agent for having received them in good order and condition. The remaining 6 bundles, the plaintiff refused to accept and as per evidence on record, the same on account of non‑clearance were forwarded by the K.P.T. authorities to the Customs Authorities who disposed of the same under the authority conferred upon them under the Customs Act, 1969. Mr. Mustafa Lakhani, Advocate then argued that the plaintiff was entitled to receive 115 coils of the weighment mentioned in the bill‑of‑lading. Answer to the question thus raised in my opinion depends upon the finding if 63 bundles were delivered to the plaintiff or only 63 coils were delivered, as according to the plaintiff under the bill‑of‑lading (Exh.P.l) 69 bundles containing 115 coils weighed 2,25,930 lbs. I have already discussed above and given the finding that 69 bundles were discharged by the ship in' the custody of K . P. T . who delivered 63 bundles to the plaintiff's clearing agent as per clean receipt (Exh. D/3) issued by the latter. Neither any dispute about the shortage in weight was then raised nor notified to K.P.T., which in the normal course would have been done if there was alleged short delivery. I may also mention here that the evidence of plaintiff's witnesses (i) Niaz Baqar, P.W.1 (Exh.6). Director of plaintiff company, and (ii) Muhammad Siddique, P.W.2 (Exh.7), Clearing Agent of plaintiff on this question is not relevant as none of these persons were present when the delivery was taken from K.P.T., and clean receipt (Exh.D/3) was issued by the representative of the Clearing Agent acknowledging receipt of 63 bundles in good order and that only 6 bundles remained to be delivered. The evidence of Ali son of Mohsin, Weighment Clerk, P.W.3 (Exh.8) is x inadmissible as he had neither weighed the material nor had issued the weighment ships (Exh.8/1 to 8/7). The last evidence of the plaintiff in this respect is that one J.N. Craddock, Consulting Engineer, who claims to have surveyed the alleged consignment on 25‑10‑1971 as per Survey Certificate Exh.9/1 and Exh.9/2 which are signed by Mr. Farooq Ali Shah, Director of General Superintendence Company Limited. These certificates were exhibited subject to objection of the defendant's Advocates. It is not explained why the executant of these certificates was not examined. I have already discussed above the reasons for which this alleged survey does not help the plaintiff and I need not repeat the same. Significant fact, to which I may, however, refer, is that this witness (surveyor) for purposes. of mentioning the alleged weight of the consignment received by the plaintiff and of which survey was conducted totally relied upon the weighment made at Mauripur Road Public Weigh‑Bridge and the weighment slips issued by it, which were produced in Court by Ali son of Mohsin, P.W.3 (Exh.8) which I have already held as inadmissible. Thus, the weight of the consignment, stated to have been received by the plaintiff in the survey report based as it is on inadmissible documents (i.e. Exh.8/1 to Exh.8/7) and no independent weighment having been made by the surveyor himself, cannot be relied upon in support of the plea that the consignment received weighed only 1,22,535 lbs. and that the remaining six bundles weighed 11,670 lbs. (for which also there is no evidence). Moreover this surveyor has given a totally different version by stating that 69 bundles which according to the bill of lading (Exh.P/1) contained 115 coils in fact contained 276 coils though it is admitted in the report that: "Quantity 69 bundles agrees with Customs Entry and Ship's declared manifest as per K . P . T . record." The report of surveyor as to number of coils (276) being inconsistent even with the plaintiff's own plea in the plaint and the evidence cannot be allowed to be relied upon to enable the plaintiffs to set up a totally new case. For the reasons discussed above these issues are answered in the negative.

10. Re: Issues Nos. 4 and 5: Under the Issue No.4 in view of the findings given above by me under the Issues Nos.3‑A and 3‑B, it is held that 69 bundles of Mild Steel Rods were accepted by the defendant No.1 for shipment on the vessel s.s. "Harappa" and that the same were discharged in the custody of the defendant No.3/K.P.T. Under issue No.5 it is held that for the reasons already stated above, none of the defendants is liable for non‑delivery of the remaining 6 bundles as it was the plaintiff, who neglected to take delivery of the same consequent to which they were disposed of by the Customs Authorities in accordance with the law.

11. Regarding Issue No. 6: A reading of the bill of lading shows that the shipper had furnished particulars of the consignment in question in the said bill of lading (Exh.3/1). As regards the effect of those particulars is concerned, the presumption would be that the same were correctly stated. So far as the present case is concerned, I have already held that 63 bundles were duly delivered to the plaintiffs by the K . P. T . and that the delivery of remaining 6 bundles were not taken by the plaintiffs deliberately. For the non‑‑delivery of these 6 bundles, therefore, none of the defendants is responsible.

12. Regarding Issue No. 7: The survey report has been produced as Exh.9/1. The said survey report was carried out ex parte without notice to any of the defendants at the godowns of the plaintiffs. The survey is stated to have been made on 25th October, 1971, whereas the delivery was given of the 63 bundles to the plaintiffs clearing agent on 31st September, 1971. There is nothing on record to explain as to how the consignment in dispute was handled by the plaintiff during this period. Obviously the report cannot be treated as binding on any of the defendants. On the evidence on record, I have already reached the conclusion that 69 bundles were duly discharged in the custody of K.P.T. by the defendant No. l and that out of it, 63 bundles were delivered in good order and condition by the K.P.T. to the Clearing and Forwarding Agents of the appellants.

13. Regarding Issue No. 8: The material on record as discussed above prove that 63 bundles were delivered in good order and condition to and were removed by the clearing agents of the consignees from the K.P.T. and that no notice of any loss or damage was given by the consignees or their agents either to the Shipping Company or the K.P.T. In the normal course of business if there was any loss or damage, an immediate notice would have been given and in any case a clear receipt would not have been given by the clearing agent of the consignee. Indeed plaintiff's Director Mr. Niaz Baqir (Exh.6) in cross‑examination to Mr. Zaheeruddin, Advocate for K.P.T. stated that Mr. Siddique, who was the manager of, the clearing agent had informed him that delivery of 6 (six) bundles was not taken as the K.P.T. was insisting for full receipt of the consignment. In view of this stand and conduct of the clearing agent, it is obvious that had there been shortage of any nature, as now alleged, the plaintiff's clearing agent would not have issued a clean receipt acknowledging delivery of 63 bundles in good order. In the circumstances under this issue I have no hesitation in holding that there was neither any loss or shortage of coils in the 63 bundles which were received by the plaintiff's clearing agent. As regards the remaining 6 bundles there is no evidence that there was any shortage in them.

14. Regarding Issues Nos. 9 and 10: No arguments have been advanced under these issues and accordingly these are answered in the negative.

15. Regarding Issue No. 11: The plaintiffs have failed to prove their case, the suit is therefore, dismissed. In the circumstances of the case there shall be no order as to costs. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.