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2023 (8) TMI 754 - HC - CustomsRecovery of money towards local and detention charges and value of the containers alongwith interest - plaint presented by an authorized signatory of the plaint - non joinder of proper and necessary parties - delivery order issued in the name of the plaintiff - illegal delivery of the cargo by the second and the third defendants - bill of lading and indemnity bonds were issued by the principal of the plaintiff. Whether the suit is barred for non joinder of proper and necessary parties? - HELD THAT - A perusal of the Section 230 of Contract Act would make it clear that an agent cannot personally enforce contracts entered by him on behalf of the principal nor he is personally bound by it. As discussed earlier Exs.P2 to P8 and P21 clearly establish contract of carriage was entered into between the plaintiff's principal and the importer. The role of the plaintiff is that of an agent in port of discharge. There is no evidence available on record to suggest a contract to the contrary. No authorization has been produced by the plaintiff to show that he has been authorized by its principal either by contract or otherwise to sue. It is not the case of the plaintiff that contract was entered into or negotiated by him on behalf the principal. It is clearly disclosed in the plaint M/s. MSC Mediterranean Shipping Company SA is the principal of the plaintiff, therefore, it is clear, the plaintiff is only an agent of the disclosed principal. It is also not the case of the plaintiff that its principal cannot be sued. The present suit for recovery of money has nothing to do with any of the statutory duty or liability of an agent under Section 148 of Customs Act. The suit is for recovery of charges based on the contract of the carriage between the plaintiff's principal and the importers and violation thereof. Therefore, the arguments advanced by the learned counsel for the plaintiff by relying on Section 148 of Customs act is also of no use. The principal of the plaintiff is a necessary party to the suit and the suit filed by the plaintiff in its individual capacity without any authorization from the principal is not maintainable - Issue is answered in favour of the defendants and against the plaintiff. Whether the plaint presented by an authorized signatory of the plaint is maintainable? - HELD THAT - Ex.P1 is the extract of board of resolution passed by the plaintiff company authorizing one A.Umaibalan, Senior Manager to sign and verify the plaint. The said Umaibalan, verified the plaint under the seal of the company. In the absence of any contra evidence to doubt Ex.P1, it is held that the present plaint verified by the authorized signatory of the plaintiff company is in accordance with law and the issue is answered, accordingly in favour of the plaintiff. Whether the delivery order issued in the name of the plaintiff is true and valid? - HELD THAT - This Court takes adverse inference against the defendants for failure to produce the delivery order said to have been issued by the plaintiff and hold that no delivery order has been issued by the plaintiff. Accordingly, the issue is answered in favour of the plaintiff as against the defendants. Whether the first defendant and the fourth defendant colluded to take illegal delivery of the cargo by the second and the third defendants? - HELD THAT - There is no evidence on record to show that delivery order was issued by the plaintiff and the same was presented to the first defendant at the time of taking delivery of cargo by the importers namely the defendants 2 and 3. The 4th defendant is the customs agent of defendants 2 an 3. A perusal of Ex.P20-e-mail communication between the plaintiff and the first defendant would suggest the first defendant in his e-mail dated 21.09.2018 clearly admitted that the cargo was delivered to the importers based on their urgency - Though, the first defendant in his written statement had taken a defence, as if, cargo were released after submission of delivery orders, no such delivery order has been produced by him. The first defendant also failed to examine any witness and lead contra evidence to that of P.W.1. The defendants 2 and 3 remained ex-parte. The 4th defendant though engaged a counsel failed to file a written statement and participate in the trial. In these circumstances, the collusion pleaded by the plaintiff is proved and the issue is answered in favour of the plaintiff and against the defendants. Whether the plaintiff is entitled to claim the charges viz., value of the containers, import customs duty for containers, local and detention charges? - Whether the plaintiff is also entitled for interest at the rate of 18% p.a. - HELD THAT - The suit filed by the plaintiff as agent of disclosed principal is not maintainable, the plaintiff is not entitled to any relief in the suit and accordingly issues are answered against the plaintiff and in favour of the defendants. Whether the first defendant is jointly and severally liable with the other defendants, when the bill of lading and indemnity bonds were issued by the principal of the plaintiff and the other defendants 2 to 4? - HELD THAT - This Court came to a conclusion that the suit is not maintainable. Hence, the 1st defendant is not jointly and severally liable to meet the suit claim. Accordingly, the issue is answered against the plaintiff and in favour of 1st defendant. The suit is dismissed, however, in the circumstances of the case, there will be no order as to costs.
Issues Involved:
1. Maintainability of the plaint presented by an authorized signatory. 2. Suit barred for non-joinder of proper and necessary parties. 3. Validity of the delivery order issued in the name of the plaintiff. 4. Collusion between the first and fourth defendants for illegal delivery of cargo. 5. Entitlement of the plaintiff to claim charges. 6. Entitlement of the plaintiff to interest at the rate of 18% p.a. 7. Joint and several liability of the first defendant with other defendants. 8. Other reliefs. Summary: Issue No.1: The court held that the plaint verified by the authorized signatory of the plaintiff company is in accordance with law. Ex.P1, the board resolution authorizing the signatory, was not contested by any contra evidence. Thus, this issue was resolved in favor of the plaintiff. Issue No.2: The court found that the plaintiff, being an agent of a disclosed foreign principal, cannot maintain the suit individually without authorization from the principal, as per Section 230 of the Indian Contract Act. The principal, M/s. MSC Mediterranean Shipping Company SA, was necessary to the suit, and the plaintiff lacked the authorization to sue on its behalf. Hence, this issue was resolved in favor of the defendants. Issue No.3: The court took an adverse inference against the defendants for failing to produce the delivery order allegedly issued by the plaintiff. The court held that no delivery order was issued by the plaintiff, resolving this issue in favor of the plaintiff. Issue No.4: The court concluded that the first defendant delivered the cargo to the importers without insisting on the original delivery order issued by the plaintiff. The first defendant's email communication admitted to this, and no contrary evidence was provided. Thus, the court found collusion between the first and fourth defendants and resolved this issue in favor of the plaintiff. Issue Nos.5, 6, and 8: Given the conclusion that the suit filed by the plaintiff as an agent of a disclosed principal is not maintainable, the plaintiff is not entitled to any relief, including charges and interest. These issues were resolved against the plaintiff. Issue No.7: Since the suit was deemed not maintainable, the first defendant is not jointly and severally liable. This issue was resolved against the plaintiff. Conclusion: The suit was dismissed, with no order as to costs, due to the lack of maintainability of the plaintiff's claim as an agent of a disclosed principal without proper authorization.
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