JUDGMENT :

K.N. Saikia, J. - Respondent 1 M/s Shanmughavilas Cashew Industries, Quilon purchased from East Africa 350 tons of raw cashewnuts which were shipped in the vessel SS Steliosm chartered by the appellant M/s British India Steam Navigation Co. Ltd., incorporated in England, pursuant to a contract of affreightment evidenced by 3 bills of lading issued to the shipper for the 3 loads of cashewnuts. Out of 4445 bags containing the nuts carried in the said vessel only 3712 bags were delivered at Cochin, there being thus short landing of 733 bags.

2. Respondent 1 sued the appellant in Suit No. O.S. 18 of 1965 in the Court of the Subordinate Judge, Cochin seeking damages for the shortage of 733 bags of raw cashewnuts amounting to Rs 44,438.03. The suit having been decreed with interest @ 6 per cent per annum from July 17, 1964, for the sum total of Rs 46,659.93, the appellant preferred therefrom appeal A.S. No. 365 of 1969 in the High Court of Kerala which was pleased by its judgments and decree dated August 16, 1973 and November 30, 1973, to dismiss the appeal and affirm that of the Subordinate Judge. Aggrieved, the appellant has preferred this appeal by special leave.

3. In the courts below the main contentions of the appellant, inter alia, were that it was a mere charterer of the vessel which was owned by S. Matas & Company c/o Lucas Matas & Sons, Piraeus, Greece; that there was a charterparty executed between respondent 1 and M/s Victorial Steamship Company as agents of the said owner of the vessel in London on January 27, 1964; that as per clause 3 of the bill of lading the court at Cochin had no jurisdiction and only English courts had jurisdiction; and that as per the charter party and clause 4 of the bill of lading the remedy of respondent 1, if any, was against the owner who alone was liable and not against the appellant charterer of the vessel. Exhibit D-1 is the photostat copy of the charterparty concluded in London on January 27, 1964 and Exs. P-1 to P-3 are the 3 bills of lading in the transaction. Respondent 1 denied that the appellant was only a charterer and not liable for the shortage. It also denied that only English courts had jurisdiction in the matter.

4. Mr R.F. Nariman the learned counsel for the appellant first submits that the appellant is an English company registered in England carrying on business in England, and it does not carry on any business in India. It is submitted, as the carrier under clause 3 of the bill of lading, only the appellant has an option either to sue or be sued in England, or in Cochin, which is a port of destination but the shipper had no option to sue at Cochin. In its written statement it was clearly stated that it had appeared under protest and without prejudice to the contention regarding jurisdiction which contention it had also pressed at the time of the argument, and, therefore, it could not be said to have submitted to the jurisdiction of Cochin court; and it never made any submission or raised any objection as to the fact of short landing. According to counsel the High Court has held clause 3 of the bill of lading to be bad on two erroneous grounds, namely, that it offends Section 28 of the Contract Act and that it gives an unfair advantage to the carrier which advantage is not given to the consignee. Section 28, according to counsel, is not applicable and clause 3 was not bad on the ground of having given an unfair advantage to the carrier in giving him the option to sue or be sued either in England or at the port of destination and that even if it was bad, only the offending portion could be struck off, the rest of the clause would still be applicable and only the English court would have jurisdiction.

5. Records show that in the written statement the appellant as defendant in para B stated that the contract evidenced by the bills of lading was governed by English law and the parties had agreed that the disputes were to be determined in England according to English law t