(1.)Plaintiff No. 1 is a State emporium owned by the State Govt. of Rajasthan, being a Division of the Rajasthan Small Industries Corporation Ltd. plaintiff No. 2. They are engaged in the business of manufacturing, marketing and export of handicrafts, objects of arts and garments etc. M/s. Prince Associates defendant No. 4 is an importer firm of U.S.A. with defendants 5 and 6 as partners therein. They are carrying on their business at St. Paul Minneapolis. On various dates of June 1975, plaintiff No. 1, pursuant to the order placed by defendants 4, 5 & 6 and in accordance with the agreed arrangements between the parties, despatched four consignments of different types of merchandise to be shipped by Pan American World Airways, an I.A.T.A. airline, under their airways bills dt. llth June 1975, 20th June 1975, 25th June 1975 and 30th June 1975 etc. The contention of the plaintiffs is that it was an express condition of shipment that the consignments would be delivered only when the documents were cleared through St. Anthony Park Bank defendant No. 2, which is a banking corporation carrying on the business of banking etc. at Minesota, United States of America. It is further averred that M/s. United Airlines defendant No. 3 is an airline which operates from and to various stations within the United States of America and defendant No. 1 who were the first carriers were to deliver goods to defendant No. 3 for forward shipment to the ultimate destination from the point up to which the airline of defendant No. 1 operated with the express condition that the goods would not be delivered unless so authorised by defendant No. 2. However, on account of collusion between defendants, 1, 2 & 3 on the one hand and defendants 4, 5 & 6 on the other, defendant No. 3 acted wrongly and illegally in delivering the consignments to defendants 4, 5 & 6 without getting clearance from defendant No. 2, Thus, it is contended that defendants 1, 2 & 3 besides, of course, defendants 4, 5 & 6, who failed to pay price of the goods, are liable to re-imburse the plaintiffs to the extent of loss caused to them on account of their wrongful act in delivering the goods to defendants 4, 5 & 6 without the authority of defendant No. 2, who was the consignee under the airway bills. As for defendants 4 to 6, it is contended that they received all the abovementioned four consignments wrongfully without getting the requisite shipping documents cleared through defendant No. 2 and they have not paid price of the goods so far.
(2.)The suit is resisted by defendant No. 1. A written statement was filed on behalf of defendants 4 & 5 also but subsequently there was no appearance on their behalf. Hence, proceedings are ex parte against them.
(3.)Defendant No. 1 while admitting that the four consignments in question were booked by them for carriage to St. Paul Minneapolis (USA) has contended that their airline did not operate to serve St. Paul Minneapolis on its routes and as such the consignments in question had to be transferred to some other carriers which operated to the ultimate destination. Accordingly they discharged their contractual obligation under the conditions of contract of carriage by transferring the shipments to different forwarding carriers, namely, (i) United Airlines defendant No. 3, (ii) Western Airlines Inc. and (iii) North West Orient Airlines in good order for carriage to the ultimate destination St. Paul Minnepolis. They assert that the Plaintiffs and their shipping agents M/s. Cox and Kings were well aware of the fact that they did not operate to St. Paul Minneapolis and that the shipments under the four airway bills in question were to be transferred to some other carrier which operated to the ultimate destination and as such the said arrangement had been made by them purely as an agent of the shipper i.e. the plaintiffs as per condition No. 6 of the conditions of contract of carriage, they point out that the suit is bad for misjoinder and non-joinder of the parties inasmuch as the ultimate liability to deliver the goods lay on the delivering carriers mentioned above and the plaintiffs not having impleaded Western Airlines Inc. and North West Orient Airlines, who were necessary parties to the suit, the same is liable to be dismissed. As for themselves, the stand of defendant No. 1 is that the plaint does not disclose any cause of action against them either under the contract of carriage or under any law for the time being in force. The plaint is, therefore, liable to be rejected as against them. Lastly, it is urged that the suit not having been instituted within a period of two years, as envisaged in the conditions of contract, Art. 29 of the Warsaw Convention of Oct. 12, 1929, as amended at the Hague Protocol in 1955 and the rules framed under the Carriage by Air Act, the same is barred by time. They vehemently deny that the consignments in question could not be delivered to defendant No. 4 without the documents having been cleared by defendant No. 2 and urge that M/s. Prince Associates defendant No. 4 was one of the consignees as mentioned in the column "consignees name and address" on the four airway bills. The following issues were raised on the pleadings of the parties :
1. Whether the suit is barred by limitation under the conditions of contract stipulated under the four airway bills in question? 2. Whether the suit is bad for misjoinder and/or non-joinder of parties? 3. Whether the plaint does not disclose any cause of action against defendant No. 1? 4. Whether the suit is barred by limitation under the Carriage by Air Act? 5. Whether the suit is barred by limitation by virtue of Art. 29 of the Warsaw Convention of Oct. 12, 1929 as amended at the Hague in 1955. (Note : This issue would also cover the question whether the suit is covered by the said Convention.) 6. Whether the plaint has been signed and verified and the suit filed by a competent person? 7. Whether the plaintiffs entrusted the goods in question for carriage to defendant No. 1 to North St. Paul. U.S.A.? 8. Whether there was any express condition of contract that the consignments in dispute were to be delivered only when the document would be cleared through the Bank? 9. Whether defendant No. 1 had wrongly and illegally delivered the goods without proper requisite and legally adequate authorisation? 10. Whether defendant No. 1 had completed its contractual obligation under the conditions of contract of carriage as alleged in paragraph 2 of the preliminary objections? If so, its effect. 11. To what amount, if any, are the plaintiffs entitled and from whom? 12. Relief.