- (1.) Both the plaintiffs brought the suit for recovery of a sum of Rs. 1,29,476.33 being the amount of the alleged damages suffered by the plaintiff No. 1. Now the plaintiff No. 2 is the subrogee of the claim of the plaintiff No. 1.
(2.) The short facts which are admitted is that the defendant No. 1 undertook for carriage of 1,90,000 bags of cement from a port of foreign origin namely Korea and for delivery thereof at Haldia Dock partly and partly at Calcutta Port. It is the case of shortlanding of 4,114 bags at Calcutta port. This alleged shortage was detected as alleged in the plaint, before 9/08/1980, and this has been certified by the Short Landing Certificate No. 420/HGRH. The plaintiff No. 1 was the transferee consignee by virtue of purchase of the goods on high seas and these goods were admittedly insured by the plaintiff No. 2. It appears that on payment of the insured value, the right, title and claim of lost goods has been assigned and/or subrogated by the plaintiff No. 1 in favour of the plaintiff No. 2. Thus, the plaintiff No. 2 is interested to obtain the decree as prayed for. Joint written statement has been filed by defendants. The defendant No. 1 is a carrier, and the defendant No. 2 is an agent of the defendant No. 1 at Calcutta. The defence is, apart from general denial, maintainability of the suit and sustainability of the claim itself on the ground of non-service of notice under the Carriage of Goods by Sea Act. This suit was once heard by Ronojit Kumar Mitra, J. and His Lordship framed following issues :- 1. Did the plaintiff serve notice on the defendants before or at the time of removal by the plaintiff of the said cargo or within three days thereafter? 2. Is the short landing certificate dated 9-8-1980 referred to in paragraph 8 of the amended plaint correct and can be relied upon? 3. Did the Vessel discharge all the cargo at the ports of Haldia and Calcutta which are the subject-matter of the suit?"
(3.) The plaintiff No. 2 has examined only one witness in order to prove the case on behalf of the plaintiffs. The defendants have examined four witnesses, out of them three are third party witnesses. Mr. Bose learned Advocate appearing for the defendants, submits that the plaintiff has not been able to prove its case of short landing, rather the defendants have been able to prove by documentary evidence beyond doubt, that there could not be any question of short landing rather the entire goods were discharged and delivered at Haldia and Calcutta Port. He has drawn my attention to Exhibit Nos. 2 and 3 particularly and also other exhibits namely Exhibit Nos. 1 and 4 which show that a part of the cargo was discharged at Haldia point by port authority themselves and, discharge of rest of the goods was accomplished by the stevedore under usual practice at Calcutta point. The stevedoring agents was appointed by the plaintiff No. 1. It will appear from the documents themselves that there is no scope for short landing.;