Baboo Lall Jain, J. - (1.) This suit has been instituted by Nepal Food Corporation against U. P. T. Imports & Exports Ltd. (Part) and M/s. Shaw Wallace & Co. Ltd., for recovery of a sum of Rs. 1,26,38,951.06 P, on account of loss and/or damages suffered by them, due to the alleged wrongful acts of the defendants and for interim and further interest thereon. U.P.T. Imports & Exports Ltd. (Part), are alleged to be the owners of motor vessel 'Pichit Samut' and M/s. Shaw Wallace & Co. Ltd., acter as the agents of the said owners in respect of the said M. V. 'Pichit Samut', for her visit during November/December, 1978 to the port of Calcutta for taking load of a cargo of a Nepal Rice. The plaintiff loaded a total quantity of 4446.794 M T. of Nepal rice valued at Rs. 1,05,459.22 p., on Board the said vessel for carriage to the port of Penang Malayasia. It so happened that after completion of the shipment on December, 1978 the Mate's receipts were duly issued and the ship left Calcutta Port. Though the Mate's receipts mentioned that the goods were received subject to the conditions stated in the Bills of Lading which can be obtained at the Agent's Office, the plaintiff was not made over the bills of lading in exchange of the mate's receipt, to encash the letter of credit inspite of demands. The plaintiff, also could not fall back to the rice, loaded by the plaintiff, on board the said vessel Even before the bills of lading were made over by Shaw Wallace & Co. Ltd. to the plaintiff's forwarding agents at Calcutta, the cargo of rice had already been delivered at destination by the said vessel at Penang even without production of the bills of lading. The plaintiff was left with the bills of lading alone, i.e., the papers only. It could neither encash the letter of credit, nor could it fall back to the goods. Extended date of the letter of credit expired even before the Bills of Lading were made to the plaintiff's forwarding agent and the goods had also been discharged and delivered before the bills of lading were made over to the plaintiff.
(2.) So far as the defendant No. 1, being the owners of the said vessel are concerned, they have not appeared to defend the suit. indeed, they could not possibly have any defence to this action. On or before 22nd December, 1978, i. e., by which the time the goods were discharged & delivered, they must have had the knowledge, that the shipper had not been issued the Bills of Lading and they must have known that no one could have the right to obtain delivery of the goods without being a holder of the Bills of Lading. In any event, the plaintiff as Shipper and/or as rightful holder of the bills of Lading which are documents of title to goods, was and is entitled to claim the goods and/or the value thereof from the owners of the said vessel who parted with the said goods without authority of the holder of the said bills of Lading. It is further significant that on the one hand the ship owner was not exercising lien over the goods, nor was pressing for the realisation of its dues from the Charterer/Buyer where as the paper bill of lading became so valuable a document that the shipper was not allowed to have possession thereof before the expiry of the term of the letter of credit.
(3.) On 25th January 1979, a sudden change took place in the attitude of the defendants and all the three Bills of Lading were delivered to the plaintiff's forwarding agents, by M/s. Shaw Wallace 4 Co. Ltd., the defendant No. 2 herein, being Bill of Lading Nos.1, 2 and 3 respectively all dated December 4, 1978, in respect of a total cargo of 4,446.794 metric tons. None of the alleged conditions for issuance of the bills of lading which were raised namely for Bank Guarantee, etc., earlier, under letters of Shaw Wallace, were pressed by Shaw Wallace or their principals the Ship owners. It is clear that by that time the entire damage was done; neither the Letter of Credit could be encashed, nor the goods were traceable. The plaintiff is, claiming a decree for the Value of the said cargo and for interest thereon, as against the defendant No. 1. In addition the plaintiff is also claiming a decree against the defendant No. 2, the agent of the defendant No. 1 at Calcutta, inter alia on the basis that it is due to the wrongful acts and/or negligence of the said defendant No. 2, that the plaintiff suffered the said loss and damages.;