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1999 Supreme(Cal) 416
High Court Of Calcutta
S. B. Sinha, M. H. S. Ansari
THE OWNERS AND PARTIES INTERESTED IN THE VESSEL M.V."Baltic CONFIDENCE" - Appellant
Versus
THE STATE TRANDING CORPORATION OF INDIA LTD. - Respondent
A. P. C. T. 917 Of 1998
Decided On : 08/02/1999
ANINDYA MITRA, SUDIPTO SARKAR
The court cannot appoint a commissioner to collect evidence in respect of alleged damaged goods in the custody of the plaintiff.
Headnote:
ADMIRALTY JURISDICTION - DAMAGE TO CARGO - APPOINTMENT OF COMMISSIONER TO ASSESS DAMAGES - LEGALITY - COMMISSIONER CANNOT BE APPOINTED TO COLLECT EVIDENCE IN RESPECT OF ALLEGED DAMAGED GOODS IN CUSTODY OF PLAINTIFF - INHERENT POWER OF COURT CANNOT BE EXERCISED FOR SUCH PURPOSE.
Fact of the Case:
A portion of the cargo was damaged during transhipment, leading to a dispute between the parties. The plaintiff, instead of arresting the ship, relied on an undertaking from the Protection and Indemnity Club to pay damages. A receiver was appointed in the suit, and the parties appointed their surveyors to assess the extent of damage. The trial court appointed a commissioner to ascertain the extent of damage and assess its value.
Finding of the Court:
The court held that the trial court's order appointing a commissioner to assess damages was illegal. The court reasoned that it is not within the province of the court to collect evidence for the parties and that such a judicial function cannot be delegated. The court also held that a commissioner cannot be appointed to collect evidence in respect of alleged damaged goods in the custody of the plaintiff.
Issues: Whether the trial court erred in appointing a commissioner to assess damages.
Ratio Decidendi: The court relied on the principles that the court has no inherent power to appoint a commissioner to seize documents or collect evidence in a suit, and that a commission cannot be appointed for the purpose of collecting evidence in a suit.
Final Decision: The court allowed the appeal and dismissed the cross-objection. The court directed that both suits be heard by the same court analogously and be heard expeditiously.
( 1 ) THIS appeal arises out of an order dated 10th November, 1998 passed in G. A. No. 709 of 1998 arising out of Admiralty Suit No. 17 of 1997 by a learned single Judge of this Court, the operative portion whereof reads thus:--"mr. Suhrid roy Chodhury, Barrister-at-Law is appointed Commissioner to ascertain the extent of the damage, if any, caused to the said cargo and as to whether the said damaged portion is unfit for human consumption and further determine and assess the value of the said damaged portion.
( 2 ) FOR this purpose, the Commissioner shall take oral and documentary evidence to be adduced by the parties and also take the assistance of the surveyors to be nominated by the plaintiff and the second defendant and whose remunerations shall be paid by them respectively.
( 3 ) THE department is directed to issue the writ of commission to the Commissioner. The Commissioner shall file his return within six weeks from the date of this order. The Commissioner shall be entitled to the remuneration of 200 Gms. for each sitting which is to be shared by the parties equally at the first instance. The Commissioner will be entitled to appoint a clerk and a streno-grapher whose remunerations shall be fixed by him in consultation with the parties and the same shall be shared by the parties in equal shares at the first instance.
( 4 ) UPON ascertainment of the damaged portion of the said cargo which is unfit for human consumption the same shall be set apart from the rest of the cargo. The plaintiff shall be entitled to destory the said damaged portion and the cost incurred on this account shall be borne by the plaintiff at the first instance. "
( 5 ) THE fact of the matter has been stated by us in A. P. O. T. No. 916 of 1998 and in that view of the matter it is not necessary to reiterate the same.
( 6 ) ADMITTEDLY a portion of the Cargo was damaged during transhipment and a dispute between the parties arose as regard thereto. Although in case of this nature the plaintiff might have become entitled to make a prayer for arresting the ship, it did not do so in view of an undertaking given by the Protection and Indemnity Club which is to the following effect :--"in consideration of you refraining from arresting or otherwise detaining the M/v "baltic Confidence" or any other vessel in the same ownership or management possession or control, we hereby undertake to pay you on demand and sum up to USD (GIF value of damaged cargo plus cost of segregation and bagging of damaged cargo established jointly by the surveyors operating under the Receiver appointed by the Court) excluding Interest and costs, which may be found due to you from the owners of the M/v "baltic Confidence" by final decision of a competent Court, an amicable settlement or an award of arbitration not subjects Lo an " appeal in respect of your claim for alleged damage to cargo carried under Bs/l as per above heading. "
( 7 ) IN the suit, however, a receiver was appointed and pursuant to the direction of the said receiver the parties appointed their own surveyors to ascertain the extent of damage who submitted their separate reports. While as per the report of the appellant about 23 Mts of the goods, i. e. 47,670 bags became damaged, the report of the Surveyor of the plaintiff-appellant shows that more than 63,000 bags were damaged. There, thus, exists difference between two reports as regard extent of the damage. The said report had been filed in a wrong suit and, thus, an objection thereto had been taken by the Appellant herein. In the meantime on an application filed by the respondents herein the order impugned has been passed. The respondent has also filed a cross appeal as according to them, the job as regard destruction of the damaged goods is a difficult one and therefore permission from the pollution Control Board is required to be obtained and for destruction of the damaged goods they are likely to incur expenditure for a sum of Rs. 25 lakhs in th
