- (1.) Leave granted.
(2.) The parties hereto entered into a contract of carriage. First Respondent approached the appellants which are companies registered and incorporated under the Indian Companies Act for delivery of six consignments valued at US $ 98,715.29 to the original consignee, M/s. Universal Apparels (EPZ), Mombassa, Kenya. By reason of a fax message, Appellants asked their counterparts in Mombassa, Kenya (Walford Meadows) to confirm delivery of consignment asking it to see that the cargo is delivered only against presentation of original Bills of Lading. The goods in question were said to have been delivered by the agent of the petitioner to the original consignee but the same allegedly was rejected on the ground of being inferior in quality. Goods are said to have been delivered to M/s. Fashionette Industries Ltd. Complainant-Respondent issued a notice to the accused persons as also the aforementioned Walford Meadows and M/s. Universal Apparels stating : "That with utter disregard to the procedures and practice prevalent internationally, and being fully conscious of the consequences of delivering the consignments without production of the Bills of Lading, you M/s. Walford Meadows Ltd., as agents of the Carrier at Mombassa Ltd. effected delivery of the consignments covered under the aforesaid original bills of lading to the consignees, without their producing the Bills of Lading. That my clients are shocked at your act of negligence, which is contrary, violative and in breach of your duties under the Contract and Law."
(3.) Negligence was, thus, attributed to the agencies in delivering the cargo without the original Bill of Lading. It was also alleged that the carriers and their agent have committed a breech of carriage and acted in violation of their contract and obligation. A claim for a sum of US$ 84,353.31 was made. In the said notice, it was stated : "That you, M/s. Walford Meadows, sent a fax dated 19.9.1996 to M/s Universal Apparels, copy of which was faxed to my clients by you M/s All Cargo Movers (India) Pvt. Ltd. By the said fax, you M/s Walford Meadows Ltd. have clearly pointed out the procedures to be followed in respect of Through Bills of Lading or House Bills of Lading and have admitted that no cargo should be released to the importer without the presentation of the original Bills of Lading. That you, M/s. Walford have gone one step further and stated that you had delivered the consignments to Universal Apparels as a favour, since Universal Apparels were your regular customers etc. etc. and lodged a claim for the value of the said consignments being the amount they have been debited with you, M/s. All Cargo.";