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TMI Blog2012 (7) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of plaint till realisation and for costs. 3. The case of the first respondent/first plaintiff is briefly stated thus: On or about 10.1.1997, the third defendant/consignor/ shipper entrusted to the first defendant a consignment of 1 x 20 container No.XTRO containing 250 cartons (5000 pieces Floppy Disk Drive 1.44 MB) weighing 2350.000 Kgs as per purchase order No.PDB.3160/96 dated 19.12.1996, of the first plaintiff to be shipped from Singapore to Madras and the first defendant accepted the said cargo for transportation by sea and issued a bill of lading bearing No.SINN 37450 dated 10.1.1997, to carry it in ship TIGER BRIDGE. It is further stated by the first plaintiff that the cargo appears to have arrived at Madras Port on or about 17.1.1997 and moved to Container Corporation of India Ltd., Tiruvottiyur, (hereinafter referred to as CONCOR), on 28.1.1997, and the original seal of the container was said to be intact when the container had reached the Container Freight Station of CONCOR, the fifth defendant, which is about 5 kilometers away from Chennai Port Trust. According to the first plaintiff, the container was inspected by the Customs on 11.2.1997, after breakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re jointly and severally liable for a sum of ₹ 7,21,607/- to the first plaintiff and hence the suit. 5. During the pendency of the suit, the original fourth defendant, namely Insurance Company, honoured the claim of the first plaintiff and it was transposed as second plaintiff as per order of the trial Court dated 25.7.2002, made in I.A.No.560/98, and impleaded as such and consequently, the original defendants 5 and 6 became defendants 4 and 5. 6. The defendants 1 and 2 are carriers and they have stated in their written statement, that notice as contemplated under Article III Clause 6 of the Indian Carriage of Goods by Sea Act, 1925, which Clause is contained in 7(4) of the Bill of Lading itself, was admittedly not served on them within 3 day period contemplated therein and as such, the presumption is that the goods described in the bill of lading, were delivered. Without prejudice to the above contention, they have further stated in the written statement, that the bill of lading issued was a CY/CY Shippers Load, Stow and Count and said to contain bill of lading and as such, defendants 1 and 2 cannot be held responsible either directly or indirectly for any alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led PNR application, and the said container arrived in the premises of CONCOR within three hours from the time of despatch from the Port Trust with the same one time lock intact and the same was recorded by the Surveyors of the original sixth defendant and also the Preventive Officers of the Customs. It is further stated by the original sixth defendant that the plaintiff's (first plaintiff) representative, namely Customs House Agent/Clearing and Forwarding Agent, approached it on 11.2.1997, for Customs examination and accordingly, the container was handed over to the Customs House Agent with the Customs seal intact on 11.2.1997, and the container was opened in the premises of CONCOR on 11.2.1997, in the presence of the plaintiff's (first plaintiff) Clearing and Forwarding Agent and Customs Authorities and Surveyor and after the inspection was over, the Clearing Agent sealed the container with his own hand, with the one time lock of the original sixth defendant on the very same day and after the procedure was over, the Clearing Agent requested the sixth defendant for the delivery of the cargo on 12.2.1997. 8. It is also stated in the written statement, that on 12.2.199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Court framed two issues and two more additional issues and P.W.1 S.K.Egnya Varahan was examined and Exs.A1 to A46 came to be marked on the side of the plaintiffs. The fifth defendant, CONCOR, examined D.W.1 V.Balaji and the fourth defendant, Madras Port Trust, examined D.W.2 Thuraisamy on their side and Ex.B1 authorisation letter, was marked through D.W.1. The trial Court, on a consideration of oral and documentary evidence, held that the plaintiffs have substantiated the case pleaded by them, and all the defendants are liable for the suit claim and consequently, decreed the suit as prayed for with costs. Challenging the said judgment and decree, the fifth defendant, CONCOR, filed the appeal in A.S.No.948/2005 and the fourth defendant, Madras Port Trust, preferred the appeal in A.S.No.104/2012. For the sake of convenience, in this judgment, the parties are referred to as arrayed in the Original Suit after amendment. The points that arose for consideration in these appeals, are: (1) Whether the endorsement said to contain found in Ex.A4 bill of lading, as declared by the shipper/consignor, namely the third defendant, means that there was no admission or acceptance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Clearing Agent of the first plaintiff and it was resealed again in the presence of Customs and the said agent, and therefore, the fifth defendant is not responsible for the alleged loss and the finding of the trial Court is perverse and liable to be set aside. Learned Counsel appearing for the appellant in A.S.No.104/2012, namely fourth defendant Madras Port Trust, submits that the subject container was a Full Container Load and as per the bill of lading, it was said to contain cargo in it and it was meant to door to door delivery and the original seal of the container was intact when it was sent to the Container Free Station, CONCOR, namely the fifth defendant, and the CONCOR does not come under the ambit and control of Madras Port Trust and therefore, the fourth defendant cannot be held liable for any alleged loss of the cargo. In other aspects, he adopted the contentions of the learned Counsel appearing for the fifth defendant. Per contra, learned Counsel appearing for the respondents 1 and 2 in both the appeals, namely plaintiffs, submits that the Customs Authorities broke open the lock in the premises of CONCOR and examined the cartons, assessed proper duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge and his testimony does not in any way help the plaintiffs to prove the actual quantity shipped by the consignor. A Division Bench of this Court in the decision in M/s.Thakur Shipping Co. Ltd. case, referred to above, dealing with the endorsement as said to weigh in a bill of lading, observed as follows: 34.....In other words, it would mean that the particulars of weight entered in the bills of lading were in accordance with the figures given by the shipper; but so far as the master is concerned, he did not give any assurance that those particulars had been checked and found to be correct. Once such a conclusion is reached, then it follows that it is for the respondent to prove that the rice bags that were loaded at Bangkok were of the same weight as had been entered in the bills of lading. Only after such proof is adduced, the owner of the vessel can be called upon to account for the shortage. Since such proof has not been adduced by the respondent in this case, we have to hold that the appellants cannot be called upon to account for the shortage in the weight contents of the bags... Subsequently, a learned Single Judge of this Court followed the above ratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h seal by CONCOR, the fourth defendant, was put in the presence of Customs Officials as well as the Clearing Agent of the first plaintiff. The further plaint averments are that on 12.2.1997, the representative of the Clearing Agent of the first plaintiff inspected the container externally and found it to be sound and in his presence, the seal of the container was broken and doors were opened and the contents were destuffed and a shortage of 50 cartons was found. From the above, it is clear that the original seal of the container was found to be intact and during Customs inspection, it was broken open and and sealed again in the presence of the Clearing Agent of the first plaintiff and on the next day, after the representative of the Clearing Agent ensuring the seal to be intact, the container was opened and the goods were destuffed. There is absolutely no allegation against the fifth defendant CONCOR that there was any tampering with the seal of the container when it was in its custody. The witness examined on the side of the plaintiffs, namely P.W.1, also did not allege any tampering with the seal of the container at any point of time. Though Ex.A15 Survey Report, dated 22.2.1997, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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