BHASKAR BHATTACHARYA, J. - (1.) This first appeal is at the instance of a defendant in a suit for recovery of money and is directed against the Judgment and Decree, dated July 22, 1988 passed by the Assistant District Judge. 8th Court, Alipore in Money Suit No. 54 of 1982 thereby passing a decree for recovery of Rs. 1,09,315/- against the appellant herein.
(2.) The respondent filed the aforesaid suit in the 8th Court of Assistant District Judge, Alipore, against the appellant and the case made out by the respondents may be summed up thus : (a) On or about 24th April. 1981, on the vessel "S. S. SOLIDARITY" owned by the defendant, at the port of Moji, Japan, 200 bags of special grade synthetic rubber known as "NIPOL HS-860 B.T.N." in good condition were boarded by Messers Ferimek Ltd. Tokyo, Japan and the defendant in consideration of the freight paid, agreed with the said shipper to carry to the port of Calcutta and deliver those goods in accordance with the terms and conditions of the contract of shipment evidenced by the bill of lading dated 25th April, 1981 issued by or on behalf of the defendant. (b) The plaintiff No. 1 was the owner of the said cargo and also the endorsee for value of the said bill of lading. The said vessel arrived at Port of Calcutta on 7th May, 1981 and unloaded the said cargo on or about the selfsame day with short-delivery and in damaged condition.' (c) Out of 2000 bags of the said cargo, only 1641 bags were landed and the remaining bags being 359 bags could not be found and/or landed. (d) On a survey held on 13th June, 1981 by the surveyor appointed by the plaintiffs, the said cargo was found to be damaged and short in quantity and the aforesaid short landing of cargo was caused by the negligence and failure on the part of the defendant or its agents or servants to exercise proper care in handling and carrying and storing during transit in breach of their obligations under the said bill of the said cargo. (e) The plaintiff No. 1 suffered loss and damages amounting to Rs. 1,17,441.64p., as a result of short landing and damage of the cargo. By a letter dated 25th July, 1981 the plaintiff No. 1 lodged its claim against the defendant with its agents but the claim was ignored. The said cargo was, however, covered under an "ALL RISKS" marine insurance policy issued by plaintiff No. 2 in consideration of premium paid by the plaintiff No. 1. (f) The plaintiff No. 1 submitted its claim to palintiff No. 2 for loss of the insured goods and the plaintiff No. 2 paid a sum of Rs. 1,17,441.64p to plaintiff No. 1 in full and final settlement of the said demand. (g) On payment of the aforesaid amount by plaintiff No. 2, the plaintiff No. 1 assigned the said policy to the plaintiff No.2 who became suborgated to all the rights and remedies of the plaintiff No. 1 against the defendant in respect of the loss due to short delivery of the said cargo. (h) The plaintiffs claimed a sum of Rs. 1,09,315.50p being the actual loss sustained due to short landing of 359 bags of the said cargo at the rate of Rs. 304.50p. per bag and the balance sum of Rs. 8,126.14p was waived.
(3.) Defendant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the plaint. The defendant, apart from taking the plea that the suit was not maintainable and was barred by limitation, denied all the allegations made in the plaint.;