(1.)Respondent 1 M/s Hanmughavilas 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 17/07/1964, for the sum total of Rs. 46,659.93, the appellant preferred therefrom appeal AS. No. 365 of 1969 in the High court of Kerala which was pleased by its judgments and decree dated August 16, 1973 and 30/11/1973, 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 and Company c/o Lucas Matas and 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 27/01/1964; 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 charterparty and clause 4 of the bill of lading the remedy of respondent I, if any, was against the owner who alone was liable and not against the appellant charterer of the vessel. Exhibit D-l is the photostat copy of the charterparty concluded in London on 27/01/1964 and Exs. P-l 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.