HASAN FOEZ SIDDIQUE, J. - (1.)This appeal is directed against the judgment and decree dated 26.11.2008 passed by the High Court Division in First Appeal No.28 of 2004 reversing those dated 23.10.2003 passed by the learned Joint District Judge, 3rd Court, Dhaka in Money Suit No.21 of 2001.
(2.)The short facts, for the disposal of this appeal, are that the plaintiff respondent is a Proprietorship Firm carrying business of importing and selling of watch. In due course, it purchased spare parts of watch from Hong Kong worth of USD 18,911.00 equivalent to Bangladeshi Tk.12,10,000/-, which weighed around 322 Kgs. and were packeted in 9 cartoons. Those goods were booked in Hong Kong to be delivered in Dhaka through Bangladesh Biman, vide air-way bill No.997-8632-1653 dated 21.01.1999, scheduled to carry those goods through BG Flight No.079 on 22.01.1999. But those goods did not reach in Dhaka through the scheduled flight and, consequently, the Biman authority could not deliver those goods. The plaintiff-respondent repeatedly demanded to get delivery of goods. The defendants enquired into the matter but whereabouts of goods could not be detected. The defendants offered to pay compensation in terms and conditions laid down in the contract provided in Air-way bill assessing at USD 6400.00 on calculation of the loss goods weighing around 322 Kgs, the declared weight of the undelivered goods, at the rate of USD 20.00 per Kg. The compensation amount offered was equivalent to Bangladeshi Tk.3,15,560.00 as per the prevailing conversion rate, vide defendant's letters dated 19.08.1999 and 08.09.1999, against the claim of compensation made by the plaintiff for Tk.16,98,000.00. The offer was not acceptable to the plaintiff-respondent. Hence, was the suit.
(3.)The defendant-appellants contested the suit by filing written statement contending, that the suit was barred by limitation and that there was no cause of action for filing the suit. The plaintiff was entitled to get compensation @ USD 20.00 per Kg. on the declared weight of the goods. It was not entitled to get its claimed amount, which was calculated on the basis the alleged price of the goods since the plaintiff did not declare the price of the goods at the time of booking. The plaintiff was abide by the terms and conditions of the contract laid down in Air-way bill and also as per the provisions of the Carriage by Air (International Convention) Act, 1966.