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TMI Blog2023 (8) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Honourable Mr.Justice S.Sounthar For the Plaintiff : M/s.P.Giridharan And Mr.C.Thiyagaraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of charges namely: (i) Detention and other charges payable to the plaintiff; (ii) Demurrage charges for parking the containers in the the Container Freight Station. 2.4. It is the specific case of the plaintiff that the person who is desirous of obtaining delivery of containers from the plaintiff has to first submit the original Bill of Lading to the plaintiff, pay the charges of the plaintiff i.e., the detention and other charges and obtain a valid delivery order from the plaintiff. Thereafter, on presentation of valid delivery order, the first defendant would calculate the demurrage charges till date of presentation and on payment of the demurrage charges, the containers would be released after complying the customs formalities. 2.5. The cargo in the containers shall be released by first defendant only on production of valid delivery order in original issued by the plaintiff. The importers namely the defendants 2 and 3 had issued letters along with Indemnity Bonds to the plaintiff nominating the first defendant as the CFS of their choice to which the containers have to be moved after unloading. 2.6. After the containers were moved to CFS of the first defendant, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff as if, cargo was delivered to the defendants 2 and 3 without delivery order is false. The delivery order had been issued by the plaintiff as seen from the invoices raised by the plaintiff mentioning levy of fees for delivery orders. 3.5. As an agent of M/s. Mediterranean Shipping Company SA, the plaintiff has acted only in a limited capacity to receive and return the containers to its principal after delivery of cargo to the importers. The plaintiff is not the owner of the containers and as an agent it is not entitled to detention charges. The plaintiff has no locus standi to maintain the present suit. The plaintiff has no title to the suit containers or right to claim alleged detention charges. The plaintiff has no cause of action to file the present suit as it acted only as an agent of a disclosed principal. It was also averred by the defendant, the cargoes were released only on valid or proper documents and no cargo had been permitted to be taken delivery without any documents as averred by the plaintiff. The indemnity bond was obtained by the plaintiff from the other defendants and hence the first defendant is not a necessary party to the suit. 3.6. The plaintiff has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng this Court to the evidence of PW.1 and the documents filed in support of the suit claim submitted that the cargo stuffed in the containers of the plaintiff were imported from China to India by the defendants 2 and 3 and the first defendant being a licensed Container Freight Station ought not to have allowed the importers to take delivery of the cargo without producing the original delivery order issued by the plaintiff. The first defendant by allowing the defendants 2 and 3 to take delivery of the cargo illegally caused loss to the plaintiff in the name of non payment of detention charges by importers. The learned counsel by taking this Court to the e-mail communication between the plaintiff and defendants marked as Ex.P20 submitted when plaintiff acquired knowledge about the illegal delivery of the cargo to the defendants 2 and 3 by the first defendant sent an e-mail questioning the same. The first defendant in his e-mail dated 21.09.2018, replied that due to urgent request by the importer they were allowed to take delivery of the cargo and they have been following with the importer for the delivery order. In the said e-mail, the first defendant also assured in future delivery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only an agent of a disclosed principal in a Foreign Country and hence, the present suit is not maintainable and barred under Section 230 of Contract Act. The learned counsel by taking this Court to Exs.P2 to P8 bills of lading and Ex.P21-invoices for detention and local charges submitted that bills of lading was issued by the plaintiff's principal and the plaintiff name was only mentioned as agent of the principal at port of discharge. 8.2. The learned counsel further submitted that even in respect of invoices under Ex.P21, the same was raised by the plaintiff's principal but signed by the plaintiff as an agent of its principal M/s. MSC Mediterranean Shipping Company SA. Therefore, it is the case of the plaintiff, the suit filed by the plaintiff who is only an agent of the disclosed principal is not maintainable and liable to be dismissed. The learned counsel also submitted that the import of cargo by the defendants 2 and 3 are separate transactions under separate contract and therefore the cause of action for filing a suit against the defendants 2 and 3 are distinct and separate. Hence, the suit is bad for mis-joinder of cause of action. 8.3. The learned counsel als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. MSC Mediterranean Shipping Company SA, which issued the bills of lading. A reading of Clause 14.8 of the contract of carriage annexed with Ex.P8 bills of lading would suggest the detention charge was payable to the carrier. Therefore, Exs.P2 to P8 clearly establish the importers the defendants 2 and 3 entered into the contract for import of certain cargo from the principal of the plaintiff M/s. MSC Mediterranean Shipping Company SA. The containers and cargo therein are all belong to the principal and the plaintiff's role is only that of an agent in port of discharge. Therefore, it is clear, the main contract is between the principal of plaintiff and the importers. The detention charges are payable to the principal of the plaintiff. 9.3. A perusal of Ex.P21 invoices produced by the plaintiff would suggest all the invoices were raised by the Principal of the plaintiff M/s. MSC Mediterranean Shipping Company SA and the same was signed by the plaintiff only as agent of the Principal. The invoices also refer to collection of fees for delivery order. The detention advice was also prepared only in the name of principal M/s. MSC Mediterranean Shipping Company SA. Therefore, Ex.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 442, submitted that if agency is coupled with an interest, notwithstanding Section 230 of Contract Act, he is entitled to maintain a suit independently. However as rightly pointed out by the learned counsel for the defendants, there is no plea by the plaintiff that he is an agent coupled with interest and hence he is entitled to maintain the suit. In the absence of specific plea regarding agency coupled with an interest, at the stage of arguments, it is not open to the plaintiff to say that he is an agent coupled with an interest. 9.7. The learned counsel for the plaintiff by relying on Section 148 of Customs Act submitted that he has got a statutory duty under Section 148 of Customs Act. However, 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. 9.8. In view of the discussions made above, I hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery order. In the said communication, it is also mentioned by the first defendant in future they would not deliver the cargo unless delivery orders are produced. Therefore, it is clear, the first defendant delivered the cargo to importers without insisting original delivery order issued by the plaintiff. 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 No.4 is answered in favour of the plaintiff and against the defendants. 13. Issue Nos.5,6 and 8: In view of the conclusion reached by this Court in Issue No.1 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 issue 5,6 and 8 are answered against the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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