Back
High Court Of Calcutta
Dipak Kumar Sen
KONSUMEX - Appellant
Versus
ANAND AND CO. - Respondent
Suit 121 Of 1978
Decided On : 04/10/1981
INDIAN CARRIAGE OF GOODS BY SEA ACT, 1925 - Waiver of Limitation Period - Applicability - Estoppel Against Statute.
Fact of the Case:
Plaintiff (Konsu-mex) sued the defendant shipping company (Shipping Corporation of India) for damages caused to a shipment of men's undergarments due to contamination and infestation. The garments were shipped under two Bills of Lading issued by the defendant, and the plaintiff claimed to have suffered losses due to the poor quality of the goods. The plaintiff alleged that the defendant waived the one-year limitation period for filing a suit under the Indian Carriage of Goods by Sea Act, 1925, and made representations that it would not rely on the stipulation. The defendant filed an application to reject the plaint against it, arguing that the suit was time-barred and that the alleged waiver or representations could not override the mandatory provisions of the statute.
Finding of the Court:
The court held that the one-year limitation period under Clause (6) of Article III of the Indian Carriage of Goods by Sea Act, 1925, resulted in the total extinction of the carrier's liability, not just the remedy against the carrier. The court found that the plaintiff failed to furnish particulars of the alleged waiver and representations as directed by the court, despite several extensions granted. The court also noted that the plaintiff had not filed an affidavit denying the defendant's allegations that the case of waiver and estoppel was false.
Issues: 1. Whether the one-year limitation period under the Indian Carriage of Goods by Sea Act, 1925, could be waived by the carrier. 2. Whether the alleged waiver or representations by the defendant could override the mandatory provisions of the statute. 3. Whether the plaintiff's failure to furnish particulars of the alleged waiver and representations, as directed by the court, affected its ability to rely on such pleas.
Ratio Decidendi: 1. The court relied on the Supreme Court's decision in East and West Steamship Co. v. S. K. Ramalinga Chettiar, which held that Clause (6) of Article III of the Indian Carriage of Goods by Sea Act, 1925, extinguished the carrier's liability upon the expiration of the one-year limitation period, and that such liability could not be revived by subsequent acknowledgment. 2. The court held that the alleged waiver or representations by the defendant could not override the mandatory provisions of the statute, as there could be no estoppel against a statute. 3. The court found that the plaintiff's failure to furnish particulars of the alleged waiver and representations, despite an order of the court, indicated a lack of merit in the plaintiff's case and further supported the rejection of the plaint.
Final Decision: The court allowed the defendant's application and rejected the plaint filed by the plaintiff against the defendant shipping company. The plaintiff was ordered to pay the costs of the application to the defendant.
( 1 ) THE dispute in this case arises out of shipment of several consignments of men's under-garments by Anand and Co. , the defendant No, 1, to Konsu-mex, the plaintiff, a company.
( 2 ) THE plaintiff's case inter alia is that 87,000 pieces of such garments were shipped between August and September 1975 by S. S. State of Meghalaya and S. S. Vishva Mangal from Calcutta to the port of Rijeka under two Bills of Lading issued by the Shipping Corporation of India Limited, the defendant No. 3.
( 3 ) THE plaintiff's case is that it opened an irrevocable Letter of Credit in favour of the defendant No. 1 for the value of the said shipments and between July and October 1975 the defendant No. 1 negotiated the said Letter of Credit and obtained sum of Rs. 17,05,500.
( 4 ) THE plaintiff alleges that on arrival at destination the said garments were found to be contaminated and infected with fungus and insects, and that the same were not fit for the purpose for which the same were purchased, not of merchantable quality and not in accordance with the samples. The plaintiff claims to have rejected the said garments and to mitigate its loss and damages to have sold a part thereof for Rupees 10,33,843/80.
( 5 ) THE plaintiff claims the said sum of Rs. 17,05,500 with interest at the rate of 12% per annum and a further sum of Rs. 1,70,550 for its loss and damages from the defendant No. 1.
( 6 ) THE plaintiff has alleged that in the alternative that the defendant No. 1 and the General Superintendence Co. of India (P.) Ltd. , the defendant No. 2, who was required under the tenor of the contract of supply to inspect the said garments and issue inspection certificates vouching for the quality of the shipments and that the same to be in accordance with the samples, acted fraudulently and made false representations to the plaintiff to the effect that the said goods were of stipulated specifications and conformed to the samples. By reason of the aforesaid fraud and misrepresentation the plaintiff has suffered damages and the plaintiff claims such damages against the defendants Nos. 1 and 2 at Rs. 11,17,386/62.
( 7 ) IN the further alternative the plaintiff has alleged that the defendant No. 2 acted negligently in issuing reports and and certificates as to the condition of the said garments and failed to exercise reasonable care and skill in inspecting and certifying the said goods as a result of which the plaintiff suffered loss and damages assessed at Rs. 11,17,386.
( 8 ) IN the further alternative the plaintiff has alleged that the defendant No. 3 failed to carry the said shipments duly or properly, failed to take steps to prevent the same from being contaminated and damaged and failed to keep its vessels carrying the same free from such contamination. It is further alleged that in the breach of the Indian Carriage of Goods by Sea Act, 1925 (hereinafter referred to as the said Act) and the rules thereunder the defendant No. 3 failed to keep the said vessels sea-worthy. As a result of the aforesaid wrongful acts and omissions on the part of the defendant No. 3 the plaintiff claims to have suffered loss and damages assessed at Rs. 11,56,554/50, decree for which amount has been claimed from the defendant No. 3.
( 9 ) IT is not in dispute that the garments, shipped in the said vessels of the defendant No. 3 arrived at the Port of Rijeka between 21st December 1975 and 1st January 1976. The present suit was filed on the 28th February 1978 beyond one year from the date of the delivery of the said garments.
( 10 ) IT is pleaded in paragraph of the plaint as follows :--"the defendant No. 3, its servants and agents waived the stipulation that the suit for enforcement of claim under the said Bills of Lading would be instituted within one year from the date of delivery of the said goods and/or the date when the said goods should have been delivered. The defendant No. 3 also made representations that it would not rely upon or enforce
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
