9911796707
TMI Blog2011 (9) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... ises Limited of Hong Kong for sale of 28,000 metric tones of iron ore at a price of US $84 per metric ton free on board. The said buyer was to arrange for a vessel to carry the cargo at the port of Haldia. The plaintiff had made everything ready for loading of the said cargo on board the said vessels at the port and hence filed shipping bill for export of 16,500 metric tones of iron ores. It appears that the buyer had an arrangement with the voyage-charterer for carriage of the said cargo by the said vessel. In terms of this arrangement the plaintiff tendered the cargo to the vessels agents at the jetty in Haldia port and in fact loading of cargo commenced on 21st June, 2008. It is alleged by the plaintiff that the vessel s cranes were defective and as such loading of the said cargo could not be completed resulting in only 15 metric tones of the cargo could be loaded. It is further alleged by the plaintiff that the cranes did not have the capacity of lifting grabs with the cargo which was noticed by the Port Authorities and the Master of the vessels was issued a notice by the Port Authority on June 21, 2008. The loading could not be done in view of the fact that grabs of smaller si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round made out in the petition before the learned Trial Judge contends that the suit cannot be maintained going by the statements and averments made in the plaint. There has been no privity of contract in so far as the vessel is concerned and can have no cause of action against the vessel. Admittedly, there is no contractual obligation though the plaintiff has averred that the representation of the Master gives rise to contractual obligation. This alleged representation of the Master intending to create contract does not constitute any cause of action under the law. The defendant/appellant who has provided security is admittedly time-charterer of the vessel who had a contractual obligation with one M/s. Rainbow Sky Shipping Limited the voyagecharterer to provide the vessels. The voyage-charterer on the other hand had an obligation to the buyers, M/s. Golden World Enterprises Ltd. to provide the vessel. Even if it is assumed that the appellant has failed to provide the vessel as contracted for, it will only be breach of contract which was undertaken with the voyage-charterer or the buyers and there would be no privity of contract whatsoever with the plaintiff who is the seller. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial who furnished security as the Admiralty Suit is suit in rem. By filing caveat the time-charterer wanted to contest the suit on behalf of the owner of the vessel. Learned Single Judge of the Hon ble Court after hearing the parties passed order with reasons on 4th July, 2008 and expressly held that cause of action of the plaintiff gives rise to maritime claim and the damage caused need not arise out of the agreement. No appeal was preferred from the order dated 4th July, 2008. Subsequently on 8th July, 2008 further order was passed directing the defendant to furnish security of ₹ 1 crore with liberty to have such security amount reduced upon production of further documents. He submits that going by the statement and averment made in the plaint, it will appear that the plaintiff has maritime claim and it has been held so at the first instance by the learned Single Judge. He contends that even otherwise in the absence of direct privy or agreement between the owner of the vessel and the plaintiff, it is possible to file the Admiralty Suit against the vessel. This finding has been recorded by the learned Trial Judge earlier and no appeal has been preferred there from. Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 when the plaintiff realized that the vessel s cranes could not lift upto their declared capacity and the loading operations had to be stopped. Thus the vessel was not in all respects ready to load the cargo. Instead of rectifying the defect in the cranes and resuming loading, the owners of the vessel have refused to load the cargo and thus are in breach of their duty and obligation to load the plaintiff s cargo. This has caused a loss to the plaintiff which is presently estimated at ₹ 1,21,49,700/- as detailed above. 12. The plaintiff further submits that the Master of the defendant vessel has refused to issue a Bill of Lading in respect of the 15 metric tone of cargo already loaded on board. The Master is bound to issue a bill of lading to the plaintiff in respect of the quantity loaded. The Master in fact attempted to illegally dump this cargo. The Port Authorities have issued a notice dated 29th June 2008 to the Master recording his illegal acts. 13. The Master of the defendant vessel is obliged to issue a bill of lading for the cargo of 15 metric tone already loaded. The provisions of the Indian Carriage of Goods by Sea Act 1925 are applicable. Article III of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l-settled law that the demurrer action has to be agitated and accordingly adjudged on the basis of statement and averment made in the plaint and plaint alone. On reading the statement and averment as above it apparently does constitute an actionable claim. At this stage above averment has to be accepted as true and correct. In our considered view and it is rightly recorded by the learned Trial Judge with great details, the aforesaid allegations do constitute cause of action to maintain maritime claim. Thus the order refusing to reject the plaint and/or to dismiss the suit at this stage, we think, is just and proper and the same does not call for any interference. Apart from above reasons we are also of the view as rightly contended by Mr. Mukherjee that the contention as to whether the present suit is for maritime claim or not, was raised at earlier stage in the interlocutory application. It appears from the judgment and order dated 4th July, 2008 the learned Single Judge recorded identical contention and it was dealt with by the learned Single Judge with reasons upon hearing both the parties. We appropriately reproduce findings of the learned Trial Judge in the said judgment an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciple of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjective law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. One aspect of this question is that which is dealt with in a provision like Section 105 of the Civil Procedure Code In the earlier judgment of Supreme Court cited by Mr. Bose, in case of Satyadhyan Ghosal and others vs. Smt Deorajin Debi and another reported in AIR 1960 SC 941 in paragraph 8 of the report reflects statement of law as follows:- The principle of res judicata applies also as between two stages that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. In this case admittedly, in the same interlocutory proceedings this point was earlier raised and on contest it was decided. Hence contention raised by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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