Janah, J. - (1.) This appeal is by the defendant No. 2 and it is against a decree passed in favour of the plaintiff respondent No. 1 in a suit for damages. The case of the plaintiff is as follows :
(2.) Calcot Ltd. of California in the United States of America sold 25,853 Lbs. of American Raw upland cotton to the plaintiff and shipped them in 36 bales at Port Okland and 14 bales at Port Los Angeles all marked and numbered FOOCI/ CALCOT on board vessel s. s. Vishva Siddhi belonging to the defendant No. 1. The defendant No. 1 in consideration of freight agreed to carry by the said vessel those 50 bales of cotton and deliver them to the plaintiff at the Port of Calcutta. In evidence of the said agreement the first defendant issued two bills of lading, namely, No. OAK/CAL-5 and No. LA/ CALCUTTA-5 dated 24th Feb. 1970, and 28th Feb. 1970, respectively. The plaintiff is the owner of the said consignment. The plaintiff was also the endorsee in respect of the said bills of lading. The vessel s. s. Vishva Siddhi arrived at the Port of Calcutta on the 24th April, 1970, and discharged its cargo at K. P. Dock. After discharge the bales of cotton were taken possession of by the defendant No. 2 and were kept in their custody and control for fumigation. After fumigation the defendant No. 2 delivered to the plaintiff 40 bales of cotton on 13th May, 1970, but failed to deliver the balance of 10 bales of cotton. The said 10 bales of cotton were not accounted for and as a result the plaintiff suffered a loss to the extent of Rs. 15000/-. The plaintiff repeatedly asked the defendant to pay the said sum but to no effect. The suit was therefore filed for a decree for Rs. 15000/- against either of the defendants which may be found liable by the court for the said amount, alternatively, for an equity into the damages sufferred by the plaintiff and a decree for such amount. Other reliefs were also prayed for but we are not concerned with the same in the present appeal.
(3.) The suit was contested by the defendants Nos. 1 and 2 by filing separate written statements. The defendant No. 1 alleged that it shipped and discharged 50 bales of cotton and those goods were then placed in the custody of the defendant No. 2. The defendant No. 1 pleaded that the plaintiff has no cause of action against them. The defence of the defendant No. 2 is that they received 50 bales of cotton from the ship s. s. Vishva Siddhi and that thereafter all the bales of cotton were sent to the fumigation chamber on 27th April, 1970. Those were taken out from the fumigation chamber between 10th May, 1970, and 12th May, 1970, and thereafter those goods were kept in the shed of 2 G. R. J. It is alleged by the defendant No. 2 that the suit is barred under Section 113 (2) of the Calcutta Port Act, inasmuch as the plaintiff failed and neglected to take delivery of the goods from the defendant within the statutory period under the said section. The defence further is that the disputed 10 bales of cotton were traced out on 24th July, 1970 and the plaintiff was duly informed about it and was asked to take delivery of the same but the plaintiff did not take delivery of the said goods and as such the plaintiff has no cause of action against the defendant No. 2.;