Decided on July 12,1960

Swedish East Asia Co Ltd Appellant
Messes Khandelwal Brothers (P) Ltd Respondents


- (1.) This Rule is directed against an order passed by the 8th court of the Subordinate Judge at Alipore, by which a preliminary issue as to whether that court had Jurisdiction to try a suit for recovery of 401 bundles of Mild Steel Plate cuttings alternatively, for recovery of compensation therefor was decided against the Defendants. The Defendant Petitioner No. 1 is a Swedish company, at all material times the chatterer of a Motor vessel of the name of "Allobrogia". Defendant No. 2 is the agent of the Defendant No. 1 company.
(2.) The Plaintiff opposite party No. 1 is an Indian Company and claims to have become the owner of two consignments of cargo, viz., 251 bundles of M.S. Plate cuttings, weighing about 150 tons and 150 bundles weighing about 150 tons of M.S. Plate cuttings. The aforesaid two consignments were shipped in the vessel "Allobrogia" by a company of the name of Khandelwalas limited. It was admitted before us that the description of the shipper, as a German shipper in paragraph 4 of the petition before this Court, was an inadvertent error. The learned Subordinate Judge came to the conclusion that the shipper was an Indian company. We are not sure of that, although, the name indicates that the shipper may have been an Indian company. The loading of the cargo in the ship was made in the port of Bremen, in West Germany, and the Defendant Petitioner No. I agreed to carry the said goods from the port of Bremen to the port of Calcutta. In evidence of the agreement, the Defendant Petitioner No. 1 issued two Bills of lading in respect of the two consignments in suit and the Plaintiff till admittedly became the holder of the said Bills of lading. Each of the Bills contained the following clause: Jurisdiction?Any dispute airsing under this Bill of "lading he decided in Sweden according to Swedish "Law". It is alleged by the Plaintiff opposite party No. 1 that each one of the Plate Cuttings was distinctly marked with oil paint and each bundle was securely bound with metal tags, so that there might, be no difficulty in distinguishing them at the port of discharge.
(3.) The vessel "Allobrogia" admittedly reached the port of Calcutta on April 20, 1956, but the two consignments were not available for delivery to the Plaintiff. On enquiry, through its clearing agent, the Plaintiff came to learn that in the books of the opposite party No. 2. the Commissioners for the Port of Calcutta the said two consignments of cargo were recorded as "not found". Subsequently, however, the Port Commissioners issued to the Plaintiff opposite party No. 1 a certificate in Form B (commonly known as the certificate of not landing) in respect of 239 bundles, out of the consignments covered by the said two Bills of lading, and acknowledged receipt of only 162 bundles out of the same. Still later, the Plaintiff opposite party No. 1 was informed by the opposite party No. 2?Port Commissioners that the said 251 and 150 bundles of M.S. Plate cuttings could be had for delivery from the opposite party No, 2 partly as unmanifested excess cargo and partly as manifested cargo, provided the Plaintiff opposite party No. 1 surrendered the certificate in Form B and undertook to give full discharge receipt for the goods to the opposite party No. 2 and also paid rent for warehousing the goods.;

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