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2014 Supreme(Mad) 4454
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P. Devadass, J.
Oriental Insurance Co. Ltd., Head Office, New Delhi, Rep by its Divisional Manager, Tuticorin and Another
Versus
P.S.T.S & Sons Pvt Ltd., Agents of the Vessel, M.V.C. Express E.P.R.024, Tuticorin-1
Second Appeal (MD) No. 438 of 2009
Decided on : 5 November 2014
K. Baskaran, for Appellants R. Vijayakumar, for Respondent
Headnote:
Indian Contract Act, 1872 - Section 230(3) - Supply of certain stainless steel scraps - Issued bill of leading – Claim of compensation - Second plaintiff second appellant placed orders with foreign stream Pacific International Lines Tokyo Japan for supply of certain stainless steel scraps from Tokyo Japan - Consignment was loaded in vessel of said foreign company at a Japanese Port - Company issued bill of leading - Port of vessel discharged consignment - There was short landing of cargo to extent - Pursuance of a contract of insurance second plaintiff made a claim with first plaintiff Insurance Company - Insurer paid assured Insurer subrogated to assured second plaintiff - Insurer laid suit allegation that defendant an Agent of said Sea Carrier Pacific International Lines Tokyo Japan and claimed said interest from defendant - Defendant resisted suit by filing a written statement - Principal allegations are that second plaintiff had direct dealings contract with foreign stream liner - Such circumstances invoking principal of agency will not arise inasmuch as foreign principle is disclosed plaintiffs could have sued foreign principal and there is no sufficient pleadings in plaint as to how and under what circumstances plaintiff is suing defendant – Held, A reading of above provisions show that party must plead all material facts on which he means to rely at trial - If any one of material fact is omitted statement of claim is bad and it would mean no pleading and no cause of action for –Suit - If material facts are not pleaded a Court cannot permit evidence to be led - All primary facts which must be proved at trial by a party to establish existence of a cause of action or his defense as material facts - Distinction between material facts and particulars cannot be over looked - Material facts are primary and basic facts which must be pleaded by party in support of case set up by him either to establish his cause of action or defense - Since object and purpose is to enable opposite party to know case he has to meet in absence of pleading a party cannot be allowed to lead evidence - Failure to state even a single material fact hence will entail dismissal of suit - Particulars on other hand are details of case - They amplify refine and embellish material facts - They give finishing touch to basic contours of a picture already drawn so as to make it full more clear and more informative - In plaint plaintiff must plead as to how principal cannot be sued in India - Under what circumstances agent is liable when foreign principal has been disclosed - Arber and Company Mills and Others supra and - However in instant case plaint does not contain such pleadings - In circumstances under Section 230(3) of Contract Act defendant cannot be called upon to pay amount paid by first plaintiff to 2nd plaintiff - Consequently Section 233 of Contract Act cannot be invoked against defendant - Thus substantial question of law is answered against appellants – Appeal is dismissed
1. The Plaintiff in O.S.No.138 of 998, who has succeeded before the trial Court/Sub Court, Thoothukudi since became unsuccessful in the defendant’s First Appeal in A.S.No.119 of 2004 before the Additional District Court, (Fast Track Court-I), Thoothukudi is before us.
2. Second plaintiff/second appellant placed orders with the foreign stream linerviz., Pacific International Lines (PTE) Ltd., Tokyo, Japan for the supply of certain stainless steel scraps from Tokyo, Japan. The consignment was loaded in the vessel of the said foreign company at a Japanese Port on 17.10.1996. The company issued bill of leading. On 15.11.1996 at the port of Tuticoirn the vessel discharged the consignment. There was short landing of cargo to the extent of 2,950Kg. In pursuance of a contract of insurance, the second plaintiff made a claim with the first plaintiff Insurance Company. On 19.03.1997, the insurer paid the assured Rs.1,41,590/- The Insurer subrogated to the assured/second plaintiff. The Insurer laid the suit in O.S.No.138 of 1998 on the allegation that the defendant an Agent of the said Sea Carrier viz., Pacific International Lines(PTE) Ltd., Tokyo, Japan and claimed the said Rs.1,41,590/- with 12% interest from the defendant.
3. Defendant resisted the suit by filing a written statement. The principal allegations are that the second plaintiff had direct dealings/contract with the foreign stream liner. In such circumstances, invoking the principal of agency will not arise, inasmuch as the foreign principle is disclosed plaintiffs could have sued the foreign principal and there is no sufficient pleadings in the plaint as to how and under what circumstances plaintiff is suing the defendant.
4. The trial Court framed the necessary issues and tried the suit. Evidence oral and documentary was adduced before it. The trial Court appreciating the contentions of both sides and the evidence on record held that as per Section 230(3) of the Indian Contract Act, 1872, the defendant/agent is liable to the second plaintiff and as well as to the first plaintiff and thus decreed the suit.
5. The defendant took the matter in appeal in A.S.No.190 of 2004 before the Additional District Court, (Fast Track Court-I), Thoothukudi. The learned first appellate Judge took the view that in the facts and circumstances Section 230(3)of the Indian Contract Act will not apply to this case and allowed the appeal and set aside the decree and judgment of the trial Court.
6. In the circumstances, plaintiff has directed this second appeal.
7. At the time of admission of the second appeal, the then Learned Brother framed the following substantial question of law:
“Whether the learned Additional District Judge is right in dismissing the Appeal without appreciating the liability of the Agent in par with Principal as per Section 233 of the Indian Contract Act, 1872?”
8. The learned counsel for the first appellant/Insurance Company/first plaintiff contended that an agent is liable for the liability arose under the contract on behalf of the principal. And this case is covered under Sections 230(3) and 233 of the Indian Contract Act.
9. The learned counsel for the appellant cited Link International and Another v.Mandya National Paper Mills Ltd., AIR 2005 SC 1417 : (2004) 6 SCC 516 and submitted that the Apex Court has held that whether the contract was entered into by appellant on behalf of the foreign company or by direct contract, the agent is liable. Thus, the defendant/agent is liable to pay the amount which was paid to the second plaintiff by the first plaintiff under the contract of Insurance.
10. On the other hand, the learned counsel for the respondent/defendant contended that there is no sufficient pleadings in the plaint as to how the defendant is liable to pay the amount on behalf of the principal. Actually,, the plaint pleadings would show that the second plaintiff had dealt with the foreign shipping company/ principal directly. In such circumstances, the defendant/agent ca
