P.B.Mukharji, J. - (1.) In this appeal, the claim is large, the witnesses are numerous and the documents are voluminous. But the essential controversy between the parties lies within a very small compass.
(2.) Two plaintiffs brought this suit for the recovery of a sum of Rs. 3,40,243/6/3 pies as damages for non-delivery of 1472 bags of Indian biri tobacco entrusted to the defendant shipping company for carriage by sea from Bombay to Calcutta, under eight Dills of lading between the dates 20th November 1948 and 27-11-1948, by the defendant's steamer, S.S. Pasha. The Pasha left Bombay on or about the 4th December and arrived at Calcutta on the 24th December 1948 after stopping en route at Tuticorin and Madras. The defendant failed to deliver the said cargo of 1472 bags to the plaintiffs in Calcutta. On 16-3-1949, the defendant called upon the first plaintiff to clear 212 bags alleged to be part of the consignment of 1472 bags and also, made an offer of 1260 bags which were no part of the consignment but were offered in satisfaction of the same under certain terms of the bill of lading. The plaintiffs refused to take delivery of 212 bags on the ground that they were damaged and were useless and unmerchantable goods of no value and also refused to accept the offer of 1260 bags on the ground that the goods were not of the like Kind and quality as the goods of the plaintiffs. As between the two plaintiffs, it is pleaded that the first plaintiff is the owner of those 1472 bags of cargo and that in any event the property in those goods passed to the first plaintiff by the endorsement of the relative bills of lading by the second plaintiff in favour of the first plaintiff. The contract of carriage as contained in the bills of lading was between the second plaintiff and the defendant. The cargo of tobacco appeared in the port of Calcutta as a charred mass and, in fact, steaming,
(3.) The plaintiffs' claim for Rs. 3,40,243/6/3 consists of Rs. 225902/-/9 pies as the value of 1472 bags of Indian Bin tobacco and Rs. 1,02,331/- as excise duty paid or payable thereupon and Rupees 12010/5/6 as loss of profit or damage on the basis of the contract rate or the market rate on or about the 2nd January 1949 in respect of those 1472 bags.;