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TMI Blog2016 (8) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... e, there is no privity of contract between the plaintiff and the defendant, as the defendant signed in the bill of lading only as an agent of the Freightcan Global Inc. In Ex. A.7, the defendant is not shown in any capacity, except signing the bill on behalf of Freightcan Global Inc and Freightcan Global Inc alone is shown as destination agent. Therefore, existence of any contract between the plaintiff and the defendant does not arise at all. The learned trial Judge has rightly dismissed the suit and this Court do not find any reason to interfere with the Judgment and Decree of the trial Court - appeal suit dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... and carry on business at USA and therefore, the suit is not maintainable. (iii) As per Clause 3 of the bill of lading, the suit should have been filed only in the Court, having jurisdiction in the United States of America with respect to this dispute of breach of contract of carriage. (iv) The defendant had received a booking from one M/s. Time Scan Logistics Pvt., Ltd., and therefore, the booking was released to Time Scan Logistics Pvt., Ltd., and the defendant had no contractual relationship with the plaintiff. In fact, the container with the cargo was booked up from the port by Time Scan Logistics Pvt., Ltd., and was also delivered to the port and to the line (carrier) by Time Scan Logistics Pvt., Ltd. As Time Scan Logistics Pvt., Ltd., does not have any FMC bill of lading, the defendant had issued House Bill of Lading to the actual shipper namely the plaintiff, as per the instructions given by the Time Scan Logistics Pvt., Ltd. There is no privity of contract between the plaintiff and the defendant. The plaintiff's remedy if at all is only against Time Scan Logistics Pvt., Ltd. and not against the defendant. The ocean freight was also paid only by the defendant to the car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A.1 is the invoice and Ex. A.2 is the packing list. In these documents, plaintiff is shown as exporter, consignee is mentioned as Bank of America Trade operations and the buyer is noted as Maldonado Imports LLC. 8. The Bill of Lading is marked as Ex. A.7. In this the particulars are given as follows: consigned from - M/s. Inter Asia Impex (Plaintiff) consigned to - Bank of America Trade operations Notify party/intermediate onsignee - Maldonado Imports LLC Destination Agent - Freightcan Global Inc NJ 08837 Freight prepaid." 9. Though in Ex. A.1 and Ex. A.2, the terms of the delivery and payment is shown as 100% cash against documents, whereas in Ex. A.7, no such condition is mentioned. However, in all the three documents, the respondent/defendant Freightcan Global Logistics Pvt., Ltd., signed only as agent. P.W. 1 also during cross-examination admits that the defendant signed in Ex. A.7 in the capacity as an agent. Therefore, the respondent/defendant acted only as an agent to its principal Freightcan Global Inc, whose principal office is in United States of America. 10. Section 230 of the Indian Contract Act, 1872 reads thus: "230. Agent cannot personally enforce, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods to the plaintiff he falls squarely within the exception under Section 230. In order to avoid personal liability, the second defendant must show that by express words or by necessary implication he contracted out of such liability. In regard to the liability of damages cl. 26 referred to by my learned brother in his judgment quite clearly exempts him from liability of any kind. But in regard to the refund of the advance amount, there is no specific provision in the contract excluding his liability." 15. In the above ruling, the dispute arose against the contract entered into between the plaintiff and the first defendant wherein there was no specific provision in the contract excluding the liability of the agent/second defendant in that suit, as far as refund of the advance amount is concerned, when there is a clause of exclusion with regard to the liability of damages. 16. In this case on hand, as already pointed out, there is no privity of contract between the plaintiff and the defendant, as the defendant signed in the bill of lading only as an agent of the Freightcan Global Inc. In Ex. A.7, the defendant is not shown in any capacity, except signing the bill on behalf o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant, who is the agent of the carrier is not maintainable. 22. In the light of the above findings, the issue about the claim of insurance by the plaintiff need not be gone into. Though document, Ex. P.1 has been marked subject to objection, it has not been proved as per Section 65(B) of the Indian Evidence Act. However, it is pertinent to note that there is no denial of insurance claim by the plaintiff by making any suggestion to D.W. 1 who deposed about the insurance claim. 23. As far as maintainability of the suit in the name of proprietary concern, it is permissible under law. Learned counsel for the appellant cited Ashok Transport Agency v. Awadhesh Kumar, reported in (1998) 5 SCC 567, for the proposition that a suit by or against proprietary concern as well as by or against the proprietor is maintainable as per the provisions of Order 30 Rule 10 CPC. 24. For the aforementioned reasons, this appeal is liable to be dismissed. The learned trial Judge has rightly dismissed the suit and this Court do not find any reason to interfere with the Judgment and Decree of the trial Court. In fine, this Appeal Suit is dismissed, confirming the Judgment and Decree of the trial Court, date ..... X X X X Extracts X X X X X X X X Extracts X X X X
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