- (1.) The Plaintiff instituted this suit for the recovery of Rs. 42,078 and, in the alternative, an inquiry into damages and decree for the sum found due. The Plaintiff also claims interest on the said sum from January 30, 1958. The Plaintiff alleges that China National Metal Import Corporation, Shanghai Branch, of China, consigned 14,612 bundles of Mild Steel Rounds of different marks and numbers and weights to Calcutta. By a contract evidenced by Bill of Lading No. 1 dated December 9, 1957, issued and granted by the Defendant's agent to the said consignor, the Defendant agreed to carry the said goods on board the Defendant's ship "Sunnanbris" and to deliver the said goods to the order of the consignor or their assignees at Calcutta. The said China National Metal Import Corporation also consigned 19,650 bundles of Mild Steel Rounds of different marks, numbers and weights as evidenced by Bills of Lading Nos. 1, 2, 3, 4, and 5, all dated December 15, 1957, issued and granted by the Defendant's agent to the consignor for carriage on board the Defendant's ship "Sunnanbris" to be delivered to the consignor, or to the order of the consignor, at Calcutta. The Plaintiff alleges that by the said Bills of Lading the Defendant acknowledged to have shipped on board 34,227 bundles of Mild Steel Rounds to be safely and securely carried for delivery unto order or assigns. The vessel arrived at the port of Calcutta and discharged its cargo on January 30, 1958, The Defendant delivered 33,384 bundles. The Plaintiff claims Invoice value of 843 bundles amounting to Rs. 41,318 and proportionate expenses incurred for clearing the said goods amounting to Rs. 760. The Plaintiff alleges to be the owner of the goods and endorsee of the Bills of Lading and, in the alternative, to be the holder for value of the Bills of Lading.
(2.) The Defendant states that the Defendant issued Bills of Lading and makes no admission as to numbers, contents or weight of the bundles, or as to the marks. The Defendant denies to have made any acknowledgment as to the number of bundles shipped. The Defendant does not admit that the Bills of Lading were endorsed in favour of, or delivered to, the Bank of China, or that the Bank was the Plaintiff's agent, or that the property in the goods passed to the Plaintiff. The Defendant also alleges that whatever quantities were shipped were landed from the vessel and the Defendant's liability was discharged. The nature and extent of the defence will appear from the Issues raised at the trial.
(3.) The following Issues were framed at the trial: 1. Did the Defendant by the Bills of Lading for the said consignments acknowledge that the total quantity of 34,227 bundles of Mild Steel Rounds had been shipped on board the ship "Sunnanbris" as alleged ? 2(a) Were the said Bills of Lading, or any of them, duly endorsed in favour of the Bank of China ? (b) If so, were or was such endorsements or endorsement made for valuable consideration ? (c) Were the said Bills of Lading or any of them, delivered to the said Bank of China at Calcutta within the said jurisdiction ? (d) In respect of the alleged transactions as aforesaid, was the said Bank of China acting as the Plaintiff's agent ? 3. Did the property in the goods in the said consignments pass to the Plaintiff as alleged in paragraph 4 of the plaint ? 4(a) Did the Defendant fail to deliver 843 bundles or any other quantity out of the said consignments as alleged in paragraph 6 of the plaint? (b) Did the Defendant, in breach of contract, contained in the said Bills of Lading, or in breach of any duty as common carriers, fail to carry 843 bundles or to deliver the same or any of them ? (c) Has the Defendant converted the said 843 bundles, or any of them, to its own use ? 5(a) Was the Plaintiff at all material times the owner of the said goods ? Or (b) Was the Plaintiff the endorsee of the said Bills of Lading ? Or (c) Was the Plaintiff the holder for value of the said Bills of Lading ? (d) Did the Plaintiff take delivery of 33,384 bundles of Mild Steel Rounds ? 6. Has the Plaintiff suffered damages to the extent of Rs. 42,078.00 nP. as alleged or in any other sum ? 7. Was any written notice of the alleged loss or the general nature of the alleged loss given to the Defendant or its agent at Calcutta before or at the time of the removal of the goods into the custody of the person entitled thereto or within 3 days thereafter ? 8(a) Did the Plaintiff make any claim within 8 days of the landing of the goods as provided in Clause 13 of the said Bills of Lading ? (b) If not, what is the effect thereof ? 9. Has the Plaintiff any cause of action against the Defendant ? 10. To what reliefs, if any, is the Plaintiff entitled ?;