S.C.Deb, J. - (1.) Pakistan waged war on India in 1965 and captured "M.V. Shakeela" near Chalna in East Pakistan. She belonged to the plaintiffs and was mortgaged to the last defendant. She was covered by a valued policy of Rs. 10 lacs by the Insurer-defendants against the perils of "Capture, seizure, arrest, restraint or detainment and the consequences thereof or any attempt thereat; and from the consequences of hostilities of warlike operations, whether there be a declaration of war or not". She was condemned as a lawful prize by the Prize Court at Dacca and was made over to the Government of Pakistan in lieu of her sale. Thereafter, a suit was filed in the Court of the subordinate Judge at Khulna in East Pakistan against the plaintiffs by their Pakistani agents claiming over Rs. 2 lacs from the plaintiffs and she was attached in the hands of the Government of Pakistan pursuant to an order of that court. Then an agreement was entered into by and between the two Governments for her exchange with the "Elahi Bux", a Pakistani merchant ship arrested by our Navy during the hostilities, but these two vessels were not ultimately exchanged.
(2.) In these circumstances the plaintiffs have brought this action on February 7. 1967 against the Insurer-defendants claiming her agreed value on the plea that she was an actual total loss and her loss was proximately caused by the perils insured against. This claim is supported by the mortgage-defendant but it is contested by the Insurer-defendants on the plea that she was available for release and the proximate cause of her loss was not the perils insured against but the attachment made by the Civil Court. In this state of pleadings, the following issues raised by the learned counsel Mr. Subrata K, Roy Chowdhury for the Insurers, were accepted by the learned counsel Mr. A.K. Sen for the plaintiffs and by the learned Counsel Mr. Mitter for the mortgagee-defendant and were settled by me: ISSUES 1. Has the plaintiff any right to maintain the suit or to sue the defendants Nos. 1 to 4? 2. Is the plaintiff entitled to claim any sum, and if so, what sum, as trustee for the defendant No. 5 as alleged in paragraph 10 of the plaint? 3. (a) Was the vessel "Sakeela" seized or captured or impounded by Pakistan Authority on or about September 5, 1965 during hostilities between India and Pakistan and in consequence thereof as alleged in paragraph 4 of the plaint? (b) Was the plaintiff irretrievably deprived of the said vessel? (c) Was the said vessel condemned in favour of the Government of Pakistan by the High Court at Dacca in exercise of its jurisdiction as a Prize Court as alleged in paragraph 4 of the plaint? 4. Was the said vessel totally lost as alleged in paragraph 5 of the plaint or at all? 5. Was the said vessel "Sakeela" available for release as stated in paragraph 6 of the Written Statement of the defendants Nos. 1 to 4? 6. Was the said vessel not released to the custody of the plaintiff as a consequence of the facts stated in paragraph 6 of the written statement of the defendants Nos. 1 to 4? 7. On and from June 16, 1966 was the said vessel "Sakeela" under Civil Court attachment? 8. Was the alleged loss or claim for which the suit has been filed covered by the Policy of Insurance? 9. To what relief, if any, is the plaintiff entitled?
(3.) Mr. Q. M. Jadwat, the Managing Director of the plaintiffs, and Mr. S.K. Bose, the unfortunate Chief Engineer of the ill-fated vessel gave evidence for the plaintiffs. Dr. Nagendra Singh, the reputed Jurist on the Shipping Laws and at present acting as the Secretary of our President, was examined on Commission at Rastrapati Bhavan in New Delhi on the requests of the Insurers. Mr. G. V. Jannah, who was the Deputy General Manager of the first defendant at the material time, gave evidence on Commission in Bombay for the Insurers. The case of the plaintiffs was partly represented by Mr. Sen and partly by Mr. Roy Mukherjee but Mr. Roy Chowdhury alone carried the burden of the Insurers and has raised many a complex and interesting questions of law. They have admirably and with great decorum argued the case and have rendered valuable assistance to me.;