- (1.)This appeal by a certificate issued by the Bombay High Court under Art 133 (1) (a) of the Constitution arises out of a suit initially filed on the Original Side of the Bombay High Court (Suit No. 232 of 1951) by the Bombay Steam Navigation Co. Ltd. (hereinafter called the B. S. N.), and the Eastern Steam Navigation Co. Ltd. (hereinafter called the E. S. N.), against the respondent, the Union of India to recover a sum of Rs. 64,499-6-0 by way of charges for carriage of logs of teakwood timber from the forests of Kanara to Karachi. A further sum of Rs. 445-4-0 was also claimed for storage charges of the said logs at Marmagoa. This latter claim was given up at the time of the hearing of the suit. The B. S. N. then merged in the Scindia Steam Navigation Co Ltd., and so the latter company came on the record in place of the B. S. N. This company is the first appellant before us. The E. S. N. was in liquidation and so its liquidators have joined the present litigation as plaintiff 2 and so they are appellant 2 in this Court.
(2.)The E. S. N. had a ship called Azadi. It appears that the B. S. N. looked after the business of the E. S. N. and arranged on its behalf freight to be carried by the ship belonging to it. In 1947 there was an agreement between the B. S. N. as representing the E. S. N. on the one hand and the Conservator of Forests, North Kanara, representing the North-Western Railway on the other for the carriage of logs of teak-wood timber from the forests in Kanara, first by rail to Marmagoa and then by a steamer belonging to the E. S. N. from Marmagoa to Karachi. Pursuant to this agreement 636 tons of timber were shipped by the Steamer Azadi which left Marmagoa on July 23, 1947. It s common ground that the conditions of the bill of lading provided that the appellants had the right to have the logs of wood remeasured at Karachi but it was agreed between the railway and the appellants that freight should be paid on the basis of 70 per cent more than the measurements shown by the records of the forest department of South Kanara. In the plaint as it was originally filed freight had been claimed on the said bases; but it appears that before the learned trial judge this claim was given up and in consequence the amount claimed was reduced from Rs. 64,699-6-0 to Rs. 44,449/-. It is with this claim that the appellants went to trial against the respondent.
(3.)Soon after the Azadi reached Karachi the partition of India into the two Dominions of India and Pakistan took place on August 15, 1947. And that led to a good deal of correspondence between the parties which shows that the appellants were sent from pillar to post, from one authority to the other, but ultimately their efforts to recover the amount due under the contract failed. That is why the appellants had to file the present suit against the respondent. Their claim against the respondent is based of Art 8 (10 (b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, (hereinafter call the Order). In the alternative the same amount is claimed on the footing of a Press Communique alleged to have been issued by the respondent on May 22, 1948.