- (1.) THE facts of this case in short is that the defendant No. 1 agreed to carry 793 bundles of steel plates consisting of 7676 pieces from the Port of Detroit to the port of Calcutta for the plaintiffs on the terms inter alia freight prepaid. The said 793 bundles were shipped on board the vessel S. S. "green Wave" and the defendant No. 1 issued four bills of Lading Nos. 63, 124, 218 and 388 respectively and all dated 4. 11. 64 containing description of the goods and the number of packages. The plaintiff no. 1 is the owner of the said goods and the plaintiff No. 2 is the consignee in respect of the said 793 packages. It is an admitted fact that during the transit, the defendant No. 1 had cut open the packages and at Singapore had transhipped 2975 pieces of steel plates to the vessel S. S. "green Point". the plaintiffs' case in the plaint is that the defendant No. 1, in breach of the terms of the contract of carriage, had cut open the bundles without their knowledge and consent. In terms of the Bills of Lading, the defendant No. 1 was to carry the goods in bundles and unload the same at the Port of Calcutta in the same condition. It is also admitted that the woods being unloaded in loose condition the port Commissioners and the customs authorities, at first, could not deliver the goods to the plaintiff as the same did not tally with the description in the bills of Lading, manifest filed and delivery orders issued by the defendant No. 2 who was acting as the local agent of the defendant No. 1. It is the plaintiffs case that on account of the delay in delivery of the goods, the Port commissioners charged the plaintiffs a total sum of rs. 78,105. 99 p by way of wharf rent. In the present suit the plaintiffs are seeking to recover the said sums from the defendants on the ground that the plaintiffs have suffered loss and or damages to the extent of the said sum on account of the breach of contract by the defendants in cutting open (he bundles and unloading the same in loose condition contrary to the terms contained in the Bills of Lading and for causing delay in delivery by not taking timely steps for delivery of the goods in pieces.
(2.) IN the written statement, it was alleged, that the plaint did not disclose any cause of action against the defendants in as much as the defendants had performed the contract by unloading the goods at the Port of Calcutta and the plaintiff had accepted the performance of the contract by the defendants by taking delivery in pieces. It was farther alleged that the defendants were entitled to cut open the bundles under the contract. In any event by taking delivery in pieces, the plaintiff represented to the defendants that they would forego their claims, if any, and as such they were estopped from claiming damiages. The suit did not lie against the defendant No, 2 as it was acting as the agent of the defendant No. 1. The following issues were raised at the trial:- ISSUES : 1. (a) Was there any delay in delivery of the consignments on board the vessels Green wave' and 'green Point' ? (b) If so, was the defendant No. 1responsible for such delay ? 2. Did the plaintiff pay to the calcutta Port Authorities a sum of Rs. 55,962. 31 paise in respect of Green Wave and a sum of Rs. 22,143. 68 paise in respect of Green green Point as wharf rent? 3are the defendants liable to pay to the plaintiff the said sum of Rs. 55,962. 31 paise and Rs. 22,143. 68 paise? 4. (a) Did the plaintiff represent that if delivery was effected piece by piece, the plaintiff would forego their claim, as alleged in paragraph 19 (e) of the Written Statement ? (b) If so, what is the effect of such representation? 5. Does the plaint disclose any cause of action? 0. To what relief, if any, the plaintiff is entitled? the plaintiff examined two witnesses. There was no oral evidence on behalf of the defendants. Issue No. 5.
(3.) THE defendant's counsel pressed this preliminary issue first. He relied on section 230 of the Indian Contract-Art, in Support of his submission, that no suit would lie against the agent, the defendant No. 2, as the facts of this case did not come under the exceptions mentioned in that Section. The plaintiffs had full knowledge that the defendant No. 2 was an agent, as all letters written by the defendant No. 2 were written in their capacity as an agent of the defendant No. 1. He pointed out the pages 13, 18, 25, 31, 32, 34 and 35 of the admitted brief of document being Ext. A'. On behalf of the plaintiffs, it was submitted, that the agency agreement, between the two defendants would show the extent of liability of the defendant. No. 2 as an agent. ;this document was; suppressed from the Court. Moreover, the plaintiffs, by their letter dated 16. 1. 1964 (page 17 Ext. A) gave notice to the defendant No. 2 that it would be liable for all damages caused to the plaintiffs for delay in delivery. The defendant No. 2 did not deny the said liability and accepted the said position. Section 230 of the Indian Contract is as follows :-In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Such a contract shall be presumed to exist in the following cases:-- (1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad: (2) Where the agent doe; not disclose the name of his principal : (3) where the principal, though disclosed, cannot be sued;