Chandrachud, C. J. - (1.) We want to be as brief as possible because we do not want any of our observations to affect the merits of the case. The case has to go back to the High Court for disposal of the appeal on merits for reasons which we will presently mention.
(2.) This appeal by special leave arises out of a suit filed by the respondent for recovering a sum of Rs. 1,01,594/- by way of damages together with interest at 6 per cent per annum on Rs. 76,735/- from the date of suit till the date of recovery. Respondent is a private limited Company carrying on business in export and import. The first appellant is the Shipping Corporation of India Limited, Bombay while the second respondent, a private limited company, is its agent, The respondent obtained a written shipping order for shipping 5,000 packages of onions and moved the entire cargo alongside the steamer m.v. "Chidambaram", which was berthed at North Quay of the Madras Port on 28/29th October, 1973 The cargo was intended to be exported to Malaysia. It appears that while the loading operations in regard to some other cargo were going on, there were showers at the Madras Port, light or heavy we do not want to say. The case of the respondent is that while the cargo was being loaded on a "first come first served" basis and as his turn was due near about the midnight of October 31, 1973, the shipping company, the first appellant, announced that in accordance with the instructions of its agent the second appellant, loading of the Madras cargo would be stopped by giving preference to the cargo from Nagapattinam. The case of the respondent is that Nagapattinam cargo was given a "preferential and discriminatory treatment", as a result of which his cargo was not accepted for loading. The respondent sold the onions in the local market thereafter as a result of which, according to him, he suffered a loss, for the recovery of which he brought the present suit on the original side of the Madras High Court.
(3.) On the pleadings of the parties the learned Trial Judge framed six issues, one of which, namely, issue No. 4 was as to whether there was discrimination in shutting out the respondent's cargo. After considering the entire evidence in the case the learned Judge dismissed the suit.;