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IN THE HIGH COURT OF BOMBAY
S.N. Khatri, J.
Dodsal Private Ltd. another.... Plaintiffs.
Versus
Narmada Seaways Ltd. others .... Defendants.
Notice of Motion No. 2344 of 1986 in Suit. No 788 of 1986, decided on 30-6-1988.
Advocates appeared :
A.M. Vernekar i/b. Narichania and Narichania, for plaintiffs to show cause.
S. Venkiteshwaran, V.K. Ramabhadran, C.K. Rebello, P.S. Pratap Shriam, for defendant in support.
BILLS OF LADING ACT, 1856
Section 1-Civil Procedure Code, Order VII, Rule 11 (a)-Consignee of goods named in bill or an endorse can sue under bill of lading-Plaint averments do not disclose any cause of action Hence plaints have to be rejected.
Under Section 1 of the Indian Bills of Lading Act, 1856, the right to sue vests only in the consignee of goods named in the Bill of Lading, or an endorsee. The present plaintiffs do not fill either of these two descriptions. Neither branch of Shri Vernekars two-fold submission can be accepted. He does not rely on any other provisions of law including those of the Carriage by Sea Act, 1925, to spell out the liability of the 5th defendants towards the plaintiffs, de hors the two aspects considered above. The result of the above discussion is that treating the plaint averments as true, they do not disclose any cause of action as against the 5th defendants. The plaint will therefore have to be rejected as against them under Order 7, Rule II (a) of Civil Procedure Code. I am now not called upon to decide the alternative prayer in the Notice of Motion, relating to the stay of the suit under Section 34 of the Arbitration Act.
CARRIERS ACT, 1865
Section 2-Sea Carrier-Not a Common Carrier under the Act.
A carrier by Sea is not a Common Carrier within the meaning of the Carriers Act of 1865.
Order 7, Rule 11 (a). C
See Bills of Lading Act, 1856 Section 1.
Order 8, Rule 6-A-Colonial Courts of Admirality (India) Act, 1891, Section 2-Requirement of counter-claim-Recovery suit for company incorporated in Federal Republic of Germany-Amount regarding various spare parts supplied and repairs carried out to the, vessel of, defendant at Hamburg and else there- From making counter claim, defendant not be prohibited.
This High Court was set up as a Court of Admiralty under the Colonial Courts of Admiralty (India) Act, 1891.
Under Order 8, Rule 6-A of the Code of Civil Procedure a defendant in a suit may set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The proviso sets out that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Under ,Order 8, Rule 6-A, therefore, once a suit has been filed the defendant can set up by way of counter-claim any right or claim against the plaintiff which arises before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter claim may be a claim in the nature of damages also, The only restriction as set out in the proviso is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the Court. This is because the suit and the counter-claim are in many was not two independent proceedings but a united proceeding. Although Order 8, Rule 6-A provides that the counter-claim is to be treated as a plaint and is to be governed by the rules applicable to plaintiff, it is not to be treated as a completely separate suit. In fact under Order 8, Rule 6-A, sub-rule (2) the counter-claim is to be treated as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, so that both the proceedings can be disposal of by a common judgment.
Under Order 8, Rule 6-C however, it is open to the plaintiff to apply for exclusion of the counter-claim. In the present case, there is no reason why the counter-claim should be tried in an independent suit. The claim of the plaintiff relates to repairs which the plaintiff carried out at Hamburg and Bremen. The plaintiffs submitted themselves to the jurisdiction of this court by filing the present action in admiralty. A counter-claim can, therefore, be filed against them under Order 8, Rule 6.A. The counter-claim of the defendants is directly related to these same repairs which the plaintiffs had carried out at Hamburg and Bremen. The defendants are defending the suit on the ground that they are not liable to pay any amount to the plaintiff for these repairs because, according to them, these repairs were not properly carried out. As a result the defendants claim to have suffered damages. In the counter-claim they have set out various grounds on which they are making a counter-claim for defective repairs and/or for negligence of the plaintiff in carrying out these repairs. The two claims are, therefore, directly connected and it would be most unfair to the defendants to drive them to a separate suit in a different court.
2. The material facts in nutshell are these. The two plaintiffs and each of the defendants Nos. 1 to 5 are Companies registered under the Indian Companies Act. The 6th defendants are the Oil Natural Gas Commission. In or about May 1983 the 6th defendants had invited tenders for laying of land line pipes from Umrat to Hazira in the State of Gujarat. The said tender was ultimately awarded by them to the 1st plaintiffs. The 2nd plaintiff are Insurers of the 1st plaintiffs. We are here concerned with the 1st plaintiffs alone. I shall refer to them as 'plaintiffs'. The terms and conditions of the work are recorded in an Agreement dated 21st August, 1984. It appears that the work, inter alia, involved the transportation of coal tar enamel and reinforced Concrete Coated Pipes from Mangalore to Magdala in Gujarat. The plaintiffs under their Agreement undertook this job also. It appears that while the proceedings relating to the finalisation of the tender were still not concluded, the plaintiffs entered into a contract with the 1st defendants on 29th May, 1984 for transportation of the said pipes from Mangalore to the designated Steel Yard at Magdala. The 2nd defendants are a sister concern of the 1st defendants. The 1st defendants entered into a contract with their sister concern and entrusted them a part of the work. The 2nd defendants in their turn entered into two separate and independent Charter-party Agreements with the 3rd and 5th defendants for carriage of the pipes by Sea from Mangalore Port to Magdala Port. Here it may be noted that at Mangalore, initially the pipes were to be transported to the Port from the Yard by road and next by barges to the mother ship. After the goods were loaded on to the ship, the defendants 3 and 5 were to carry the goods to Magdala. At Magdala, again the same process of transporting the pipes from the shop to the jetty by barges and eventually from the jetty to the work site by road was to follow in the reverse order. It is not disputed and this ought to be noted-that the job of defendants 3 and 5 under their separate contract was restricted to carriage of the pipes by ship only, that is from the port of goods being loaded into the ship at Mangalore upto the point of discharge from the ship to the barges at Magdala. For the purposes of this motion, we are concerned only with the case of the 5th defendant who were responsible for carriage of 738 pipe which they did in their Ship "m. v. JAY AMBIKA”.
3. According to the plaint averments, extensive damage was caused to these pipes carried by the 5th defendants and other 683 pipes carried by the 3rd defendants. The plaint further avers that the damage was caused during the course of the entire journey, (that is, by road, barges and ships) and that this was due to the negligence of the servants/ employees/representatives of the defendants. The primary claim of the plaintiffs for damages in the sum of Rs. 77,02,725, 15 is against the 1st defendants with whom they had entered into the contract of 29th May, 1984. In the alternative they also claim damages from defendants 2 to 5. The averments in relation to the alternative claim are principally contained in para 15 of the plaint.
4. Shri Vernekar for the plaintiffs clarifies that although there is no direct privity of contract between the plaintiffs and the 5th defendants, the cause of action against the latter is two-fold (i) the plaintiffs were bailees in respect of the goods at the time of carriage by Sea and therefore they have a good case of action against the 5th defendants on the ground of negligence and (ii) the plaintiff s have a right to sue, emanating from the Bill of Lading issued by 5th defendants in favour of the
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