2011 Supreme(Bom) 318

High Court of Judicature at Bombay
D.K. DESHMUKH & K.K.TATED
MV.x.press annapurana & Another
Versus
Gitanjali Woolens Pvt.ltd. & Others
APPEAL NO.747 OF 2005 IN ADMIRALTY SUIT NO.27 OF 1999 WITH APPEAL NO.749 OF 2005 WITH APPEAL NO.750 OF 2005
Decided on : 11-03-2011

Headnote:

ADMIRALTY SUIT - MARITIME LIEN - BILLS OF LADING - LIMITATION - DAMAGES - AGENT - PRINCIPAL - PRIVITY OF CONTRACT - JURISDICTION: 1. A suit in admiralty jurisdiction cannot be maintained against a foreign vessel when the vessel is not within the maritime jurisdiction of the court, unless the defect is cured by the vessel entering the maritime jurisdiction at a subsequent date. 2. A maritime lien can only be enforced against the vessel, not against the owner or other parties. 3. A claim for damages cannot be decreed in the absence of any particulars given either in the plaint or in the oral evidence of the claim. 4. An agent acting on behalf of a disclosed principal is not personally liable for contracts entered into on behalf of the principal, unless there is a contract to that effect. 5. There is no privity of contract between the shipper and the owner of the vessel carrying the goods, unless there is a contract between them for the delivery of bills of lading.

Fact of the Case:

Plaintiff entrusted its cargo to Defendant No.3, who was acting as an agent of Defendant No. 2 for being carried from a Port in India to Assab Port, Ethiopia. Plaintiff paid necessary charges for carriage of goods by sea to Defendant No.3, but Defendant No.3 despite the demands made by the Plaintiff did not hand over the bills of lading to the Plaintiff. With the result, the goods were lost and the Plaintiff suffered loss. Plaintiff filed a suit in admiralty jurisdiction claiming maritime lien on the Defendant No. 1's vessel, along with the Hull, Engines, gears, tackles, bankers, machinery apparel plant, furniture, appurtenances and paraphernalia for the purpose of securing the claim of the Plaintiffs in the suit.

Finding of the Court:

1. The Plaintiff never demanded delivery of the Bills of Lading from the Defendant No.3. 2. The claim made against Defendants Nos. 2 & 3 by amendment in the year 2004 was within the period of limitation and therefore could not be decreed. 3. In the absence of any particulars given either in the plaint or in the oral evidence of the claim for damages, the learned Judge was not justified in passing a decree for payment of damages. 4. As admittedly on the date on which the plaint was presented in this court, the Defendant No.1 vessel was not within the maritime jurisdiction of this court. The suit was not maintainable. 5. As admittedly the third Defendant was agent of the disclosed principal namely the Defendant No.2, the suit was not maintainable for a decree against the third Defendant. 6. There was no privity of contract between the Plaintiff and the Defendants Nos.1 & 4.

Issues: 1. Whether the Plaintiff demanded the Bills of Lading from the Defendant No.3, after the cargo reached its destination (For deciding this question, the question whether on behalf of the Plaintiff any assurance was given to the Defendant No.3 to clear all the dues of the Plaintiff as well as its sister concern M/s.Deepak Wollen Ltd. will have to be decided.) 2. Whether the claim made against Defendants Nos. 2 & 3 by amendment in the year 2004 was within the period of limitation and therefore could not be decreed. 3. Whether in the absence of any particulars given either in the plaint or in the oral evidence of the claim for damages, the learned Judge was justified in passing a decree for payment of damages) 4. As admittedly on the date on which the plaint was presented in this court, the Defendant No.1 vessel was not within the maritime jurisdiction of this court. The suit was not maintainable. (For deciding this point, we will have to consider the question whether the defect in filling the suit in the Admiralty Jurisdiction, when the Defendant No.1-Vessel which is a foreign vessel was not within the Admiralty Jurisdiction of this Court, can be cured by the vessel entering the maritime jurisdiction of this court at a subsequent date.) 5. Whether, a suit in the Admiralty jurisdiction of this court against the Defendant No.4 was maintainable, without the Plaintiff having any privity of contract with the Defendant No.4. 6. As admittedly the third Defendant was agent of the disclosed principal namely the Defendant No.2, the suit was maintainable for a decree against the third Defendant.

Ratio Decidendi: 1. The carrier is under no duty to deliver Bills of lading without it being demanded by the shipper. 2. A party could not be permitted to amend the plaint after the suit for the reliefs in question was barred by time during the pendency of the proceedings. 3. 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.

Final Decision: All the Appeals succeed and are allowed. The judgment and order of the learned single Judge impugned in the Appeals is set aside. The suit filed by the Plaintiff is dismissed. The Plaintiff is directed to pay costs to all the Defendants. Security, if any, given by the Defendants be discharged.