JUDGMENT - R.M. LODHA, J.:---Heard Ms. Sethna, the learned Counsel for applicant-defendant No. 3 and Mr. Vipul Shukla, the learned Counsel for plaintiffs.

2. By this notice of motion, the defendant No. 3 prays that suit be dismissed as against them and other consequential reliefs.

3. In support of notice of motion, an affidavit of Mr. Anthony Lobo has been filed and it has been stated therein that the 3rd defendants merely acted as general agent for disclosed principal, namely, the 2nd defendant at all times and as such has no independent liability either in law or in fact to the plaintiffs. It is stated that even as per the case pleaded in the plaint by the plaintiffs the 3rd defendant has been impleaded as an agent of 2nd defendant.

4. The notice of motion was served on the plaintiffs on 16-7-99. No reply has been filed. As a matter of fact the learned Counsel for defendants No. 3 made statement at the out set that the prayer for dismissal of suit by 3rd defendants against them is sought on the basis of the averments made in the plaint only and the applicant in support of its prayer shall not rely on any other fact.

5. The 3rd defendants appear to have been impleaded because they were shipping agents for and on behalf of the 2nd defendants. In paragraph 2 of the plaint, it is averred by the plaintiffs that the 3rd defendants-a private limited company are doing business as shipping agents at Bombay for and on behalf of the 2nd defendants. The plaintiffs have clearly stated in paragraph 3 of the plaint that the goods were entrusted to the 3rd defendants at Bombay on 13-11-1995 and the said goods were accepted by 3rd defendants on behalf of the 2nd defendants. In paragraph 11, the plaintiffs have further averred that the 2nd defendants transact their business at Bombay through their local agents, the 3rd defendants, who accepted the container from the plaintiffs on behalf of the 2nd defendants.

6. On these admitted facts which have been pleaded by the plaintiffs themselves in the plaint the question that arises for determination is whether any cause of action has accrued against the 3rd defendants who had only acted as agents for and on behalf of 2nd defendants. The agent cannot personally enforce nor be bound by contracts on behalf of principal. Ordinarily an agent contracting in the name of his principal cannot be sued on such contracts. The agent in such circumstances is also not entitled to sue in his name. This position emerges from section 230 of Contract Act which reads thus:

"230. In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them."

Presumption of contract to contrary-

Such a contract shall be presumed to exist in the following cases."

8. Accordingly, suit is dismissed against defendants No. 3 and Office is directed to make an endorsement to that effect in red ink in the title of the plaint against the name of 3rd defendants.

9. By the order dated 28-6-99 the suit has also been dismissed for want of jurisdiction against 1st defendant. Office is directed to make necessary endorsement by red ink in this title of the suit against the name of the 1st defendant as well.

10. Notice of motion stands disposed of as aforesaid.

11. The written statement filed by 2nd defendant, copy whereof has already been given to the learned Advocate for the plaintiffs, is taken on record.

12. The parties are directed to file their affidavits of documents within four weeks time from today and they are further directed to take inspection of the documents within four weeks thereafter. In the meanwhile the parties are directed to exchange draft issues.

13. S. O. after 8 weeks for settlement of issues.

Notice of motion allowed.

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