2018 Supreme(Mad) 4470

IN THE HIGH COURT OF JUDICATURE AT MADRAS
M. SUNDAR, J.
Expo Freight Pvt. Ltd, Chennai - Applicant
Versus
Supreme Overseas Exports (India) Pvt Ltd, Represented by its Managing Director - Respondent
Application No. 6445 of 2018 in C.S. No. 750 of 2009
Decided On : 12-12-2018

Headnote:

Civil Procedure Code,1908 - Order I,VII - Rule 9,11(d) - MTG Act - Section 24,13(2) - Indian Carriage of Goods by Sea Act, 1925 - Article III - section 8 (A) ,8 (C) - United states carriage of goods by sea Act ,1936 - Section 1304(5) - Application - Manufacturer and exporter of finished leather garments - Sole respondent in instant reject plaint application shall be referred to as Plaintiff based on its rank in main suit for sake of convenience and clarity - In other words applicant in instant application shall be referred to as defendant and lone respondent in instant reject plaint application shall be referred to as plaintiff - Before this Commercial Division proceeds with discussion on this reject plaint application it is necessary to set out factual matrix in main suit in a nutshell - In other words factual matrix in a nutshell will contain bare minimum facts which are absolutely essential for appreciating this order - Plaintiff company is a manufacturer and exporter of finished leather garments and according to plaint it is a recognised trading house having been so recognised by Government of India - Defendant is an international freight forwarder in Chennai engaged in business of clearing forwarding and shipping - In other words first defendant is in business of providing services of transportation of goods by Air and Sea - According to plaint erstwhile second defendant is first defendants agent in New York United Sates of America - Erstwhile third defendant is a Company in United States of America and it had placed orders with plaintiff for purchase of certain leather garments - To be precise it placed orders with plaintiff for Mens leather jackets and opened a transferable irrevocable letter of credit for same - Defendant delivered aforesaid cargo / consignment to erstwhile third defendant without receiving original bills of lading resulting in erstwhile third defendant taking delivery of cargo / consignment without making payment to plaintiff - Alleging that such action on part of defendant is a clear tortious act main suit has been filed by plaintiff claiming value of consignment / cargo being over Crores together with future interest from all defendants i.e clearing forwarding and freight agent its agent in New York and consignee/ purchaser in New York - Pending suit defendant took out an application in under Section 8 of Arbitration and Conciliation Act seeking a reference of dispute in suit to arbitration by stating that bills of lading covering aforesaid consignment / cargo contain an arbitration clause - This application under Section 8 of Act came to be dismissed by a learned Single Judge of this Court after full contest vide order - There is no dispute or disagreement before this Commercial Division that this order has been given a legal quietus and has attained finality - Why this Honourable should not be pleased to reject plaint as barred by limitation? - Held, Would like to point out that there could be no quarrel over such propositions but here what Court would observe is that clause containing arbitration itself would at most bind plaintiff and a dispute cannot be bifurcated and part of it be sent for arbitration and remaining be retained by Court - Limitation on action - Multimodal transport operator shall not be liable under any of provisions of this Act unless action against him is brought within nine months of-date of delivery of goods or - Date when goods should have been delivered or - Date on and from which party entitled to receive delivery of goods has right to treat goods as lost under sub-section (2) of section 13 - Non joinder of necessary parties namely defendants - For this purpose it is also necessary to have a close look at language in which clause of Rule 11 of Order VII of CPC is couched - Reasons for which plaint can be rejected are adumbrated in various clauses under Rule 11 - Clauses are not applicable to this Commercial Division as this is a Chartered High Court exercising ordinary original civil jurisdiction - It therefore follows that clause of Order VII Rule 11 is not made inapplicable - Clause reads where suit appears from statement in plaint to be barred by any law - Language in which clause is couched makes it clear that for rejection of plaint under clause suit should appear to be barred by any law from a/ statement/s in plaint - To be noted this expression from statement in plaint does not find place in other grounds of rejection adumbrated in other clauses of Rule 11 of Order VII CPC - Erstwhile second defendant is said to be an agent of erstwhile first defendant whereas third defendant is an independent entity and therefore presence of third defendant consignee is imperative and non derogable for plaint to survive - To put it metaphorically plaintiff cannot jettison third defendant and expect plaint Vessel to sail - Even though degree of proof required in civil suits is preponderance of probability it cannot be established clinchingly that third defendant lifted cargo much less lifted without original bills of lading without presence of third defendant in suit - As stated position of plaintiff is that it has no instructions to take steps to restore suit against erstwhile second and third defendants it follows as an inevitable sequittur that plaint as it stands today is certainly hit by proviso to Order I Rule 9 CPC owing to absence of necessary parties - Suit Allowed