IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL APPELLATE JURISDICTION)

First Appeal No. 90 of 1998

In the matter of:

The Scindia Steam Navigation Co. Ltd. Through its agents M/S. Atlas Shipping Agencies Jiban Bima Bhaban Bangabandhu Road, Agrabad Chattogram and another.

…Appellants.

-Vs-

Bangladesh Chemical Industries Corporation Shilpa Bhaban, Motijheel Commercial Area, Dhaka and others.

Present

Mr. Justice Mamnoon Rahman

And

Mr. Justice Md. Atoar Rahman

…Respondents.

Mr. Muhammad Ohiullah, Adv. with Mr. Al Amin Sarker, Adv.

Mr. Nur Ahmed, Adv.

Mr. Abu Bakkar Siddique, Adv.

…For the appellants.

Mr. M.G.H. Ruhullah, Adv.

…For the respondents.

Heard on: 11.08.2022, 23.10.2022 & 09.11.2022

And

Judgment on: The 30th November, 2022

Mamnoon Rahman,J:

This appeal is directed against the judgment and decree dated 26.05.1997 and 01.06.1997 respectively passed by the learned 3rd Court of Subordinate Judge, Chittagong in Money Suit No. 151 of 1994 decreeing the suit against the defendant Nos. 2 and 3 along with costs and interest @ 13% per annum from the date of decree till realization.

The plaintiffs filed the above suit for recovery of Tk.60,11,138.56. It has been stated by the plaintiff in the plaint that the plaintiff No.1 placed an order with a firm in Canada by the name of M/s. Rayonier-Canada Sales Ltd, 4 West Georgia Street, Vancouver 5, B.C., Canada Sales Ltd, 4 West Georgia Street, Vancouver 5, B.C., Canada for supplying 500 metric Airdry tons of Excel-O-Bleached sulphite (soft wood) chemical wood pulp for the plaintiff No.2 and M/s. Rayonier-Canada Sales Ltd, the supplier sent the wood pulp in 2506 bales vide M.V. JALADURGA belonging to the defendant No.2.

The vessel M.V. JALADURGA arrived at Chittagong port and discharged the cargo of 791 bales of wood pulp on to the barges belonging to the proforma-defendant No.4 and discharge of cargo started at 8 a.m. on 16.9.1975. It has been alleged by the plaintiff in the plaint that after 791 bales of wood pulp were discharged on to the barges the plaintiff allegedly found damage to the goods and upon ascertaining damage to the cargo the appointed surveyors allegedly reported total loss of the entire cargo for the purpose for which the goods were imported.

The plaintiff thereafter lodged claim with the defendant No.1 insurer and defendant Nos. 2 and 3 carrier and its agent for Tk.36,69,849.61 being the C&F value of the goods and since the defendant Nos.2 and 3 did not settle the alleged claim

of the plaintiff the plaintiff filed the instant suit against the defendant No.1, 2 and 3 for damages and compensation.

The defendant No.1 Sadharan Bima Corporation filed Written Statement contending that the plaintiff No.1 has no locus standi whatsoever to file the present suit and that the surveyors did not report that the cargo was a total loss. The surveyors stated in their report that the cargo has got salvage value as the same can be used for some other purpose. The defendant No.1 contended in the Written Statement that the plaintiffs, it seems, for reasons malafide, termed the cargo as total loss and the claim of the plaintiffs for constructive total loss or total loss without surrendering the salvage/salved cargo is wholly illegal and untenable. The defendant No.1 Sadharan Bima Corporation also stated that when a cargo arrives as damaged at destination, the owner of cargo even if the cargo is covered by insurance is bound to take delivery of the same and the measure of indemnity for the damage would be of such proportion of the same fixed by the policy if the policy as the difference between the goods sound and damaged value at the place of arrival bears to the gross sound value.

The defendant Nos.2 and 3 entered appearance in the suit and filed Written Statement contending that the plaintiffs or either of them have no right and locus standi to file and maintain the instant suit and that the Bill of Lading of the consignment has not been surren