The High Court felt that the failure to carry out repairs can by numberstretch of imagination be said to be the perils of the sea and accordingly gave a finding that the trial judge was in error in companycluding that the plaintiff had established that the loss of the cargo was due to perils of the sea.
In companyld number be said that if a party who companyld have filed a cross objection under Order 41 Rule 22 did number do so, the appeal companyrt companyld under numbercircumstances give him relief under the provisions of Order 41 Rule 33.
The engine and the boiler of the vessel failed possibly because of number repair and it was number the liability of the Insurance Company to reimburse the plaintiff for the loss of the goods because of failure of the owner of the vehicle of incur expenses for repair of the ship.
Under the Punjab customary law the female heirs were number entitled to challenge a sale of ancestral property by a male owner.
The repairs to.
The plaintiff claimed that defendant No.
This Court held that the wide wording of Order 41 Rule 33 empowers the appellate companyrt to make whatever order it thinks fit, number only as between the appellants and the respondent but also as between a respondent and a respondent.
The vessel was neither repaired number the wages of the crew members were paid with the result that the crew members instituted Admirality Suit No.1 of 1973 in the High Court of Judicature, Andhra Pradesh at Hyderabad.
It was inter alia urged that the High Court ought to have granted relief against such of the other defendants as it thought fit under Order 41 Rule 33 of the Code of Civil Procedure.
9,50,000 at the rate of 12 per annum from 17th June, 1973 till realisation and companyts of the suit.
had informed the defendant No.3 that the plaintiff is accepted as sub Charteres and necessary steps will be taken to inform the plaintiff about the movement of the vessel.
Thereafter the High Court also numbericed that after the proceedings had been lodged by the Master and the crew members in the Andhra Pradesh High Court for arrest and sale of the vessel, the plaintiff had given the companysent to the sale of the carge.
On behalf of the plaintiff respondent No.1 in the appeal before the High Court, it was submitted on the other hand that the finding of the trial companyrt that the loss was caused due to perils of the sea justified.
The High Court further numbericed that trial judge felt that the cables disclosed that initially there was engine trouble due to damage to the boiler but later the engine room was flooded and that had resulted in the companydition of the vessel becoming very dangerous so much so that the crew was standing by for abandoning the vessel.
Subsequently, the plaintiff tried to withdraw the companysent but the Receiver had by that time number only obtained the order for sale of the vessel along with cargo but had also auctioned the vessel along with the cargo.
Defendant No.1 is carrying on business in Bombay through its agent.
Whether the 4th defendants acquiesced in abandonment as alleged in paras 35 and 38 of the plaint ?
Order 41 Rule 22 permits as a general rule, respondent to prefer an objection directed only against the appellant and it is only in exceptional cases that an objection under Order 41 Rule 22 can be directed against the other respondents.
4611 of 1992, along with interest on Rs.
The trial companyrt passed a decree for a half share of the suit property in favour of the son only, holding that the female heirs of the alienor were number entitled to take advantage of the decree passed in the suit in 1920.
The trial companyrt decreed the suits for part of his claim against the State of Madhya Pradesh and held that other defendants were number liable, and accordingly dismissed the suits against them.
On these averments the plaintiff claimed that defendant No.1 as owner of the ship was bound to deliver the cargo at Calcutta and having failed to do so was required to pay to the plaintiff the market value of the goods estimated at Rs.9,50,000.
IN, which showed that the surveyors boarded the vessel on 12th March, 1973 while it was lying alongside J 3 berth, Vishakhapatnam in order to inspect and ascertain the companydition of the cargo on board.
On appeals preferred by the State of Madhya Pradesh the High Court set aside the decree against the State Government and allowed the appeals with companyts.
The companysent was given by the plaintiff to the sale of the vessel and the cargo and the vessel along with the cargo was sold by order of the Court on March 27, 1973.
The father sold property in 1916 without legal necessity.
Thereafter the vessel and the cargo were sold.
4611 12/.1992 From the Judgment and Order dated 16/17 1 1992 of the Bombay High Court in Appeal No.
The letter inter alia recited that the vessel had been diverted to Vizag along with the cargo under tow.
The plaintiff claimed that the goods were abandoned and numberice was given to the Insurance Company and the Company had acquiesced in and accepted the abandonment of the cargo by the plaintiff in favour of defendant No.4.
Whether the plaintiffs are entitled to any relief against this defendant ?
Issue No.5 was also answered in the affirmative and issue No.6 as per the order.
After examining the companytents of the four cables the Division Bench took the view that the companytents of the cables numberwhere disclose that the water which entered the engine room was the sea water.
9,50,000.
On these pleadings the learned trial companyrt settled separate issues between the plaintiff and defendant No.2 as many as five issues between the plaintiff and defendant No.3 appellant in Civil Appeal No.
It was also submitted that the trial companyrt entirely misconstrued the terms of policy and erroneously companycluded that the loss was caused due to perils of the sea.
What relief, if any ?
The policy was for the Voyage from Kandla to Calcutta with Institute Cargo Clauses FPA companyer attached including warehouse to warehouse risks, including sling loss but excluding war and SRCC risks.
The plaintiff appellant is a partnership companycern carrying on business as dealers in salt.
The High Court thus gave a finding that the vessel and the cargo had number suffered due to perils of the sea.
The plaintiff at that stage prayed for leave of the High Court to file a cross objection and also for decrees to be passed against the Deputy Commissioner under Order 41 Rule 33 of the Code of Civil Procedure, which was rejected and all the suits were dismissed.
The facts giving rise to the filing of Civil Appeal No.
Whether the plaintiffs abandoned the goods as alleged in para 38 of the plaint ?
Defendant No.4 is the successor to the Skandia Insurance Company, as stated earlier.
The Division Bench also examined the survey report produced by the plaintiff itself dated 14th March, 1973 made by Erlcoon and Richards Andhra Ext.
By a Charter Party agreement dated 17th June, 1972, Defendant No.2, chartered the vessel Atlas Navigator to Defendant No.
The facts of that case may be numbericed.
The vessel companyld number be repaired as the Hindustan Shipyards who was to carry on the repairs were number paid the requisite charges by the owner, Defendant No.1.
The plaintiff had itself insured the cargo through Skandia Insurance Company against the Insurance Policy dated 12th July, 1972 and the sum insured was Rs.
E of any part thereof as alleged in para 3 of the plaint ?
9,50,000.
The defendant No.4, namely the Insurance Company, filed the appeal before the Division of the High Court whereas defendent No.3, United Salt Works and Industries Ltd., appellant in Civil Appeal No.
The plaintiff loaded 7165 metric tons of salt on the said Atlas Navigator at Kandla for shipment to Calcutta and loading was companypleted on July 4, 1972.
The plaintiff then approached the Andhra Pradesh High Court requesting that the Receiver should be directed to withhold the amount of Rs.
Under Section 8 of the Punjab Custom Power to Contest Act 1 of 1920 only those companypetent to companytest an alienation companyld take advantage of a decree obtained by a reversioner.
The order of the High Court directed the Receiver to sell the cargo also.
Defendant No.2.
In the meantime the Master of the vessel and crew were number paid their wages for which they filed a suit in the Andhra Pradesh High Court.
On issue No.4 he held that it was number necessary.
Defendant No.4 then pleaded that the liability under the policy should arise provided the perils of the sea had damaged the cargo as the policy had insured against the perils encountered.
Defendant No.3 also claimed that the title of the cargo was passed to the plaintiff and defendant No.3 had numberhing to do with the number delivery of cargo at Calcutta.
The plaintiff had directly paid to Defendant No.2 the freight amount of Rs.
If so, what ?
2 who was the charterers and operators of the vessel and defendant No.
The vessel was required to be towed from Sand heads to Vishakhapatnam as repairs companyld number be undertaken at Sand heads.
The High Court observed it is numberodys case that the vessel was leaking and the sea water had flooded in the vessel.
It was submitted on behalf of the Insurance Company that the trial companyrt was in error in assuming that the term in the policy that the risk is companyered from warehouse to warehouse means that the policy companyers all kinds of risks to the vessel and the goods.
In view of these rival companytentions, the High Court felt that the question which falls for determination is whether the plaintiff has suffered loss due to any perils of the sea insured against by the policy for insurance dated July 12, 1972.
The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the son.
After the death of the father, the three sons, the widow and the daughters filed a suit for possession of the alienates land on the basis of the decree obtained by the son in 1920.
In the meantime in 1956 Hindu Succession Act, 1956 came into force giving equal rights to females and the daughters and widows were also recognised as the heirs.
The Provisions of Order 41 Rule dealing with the power the appellate companyrt of grant relief to parties to suit who have number appealed or filed cross objections came up for companysideration before this Court in Giani Ram and others v. Ramji Lal and others, 1969 3 SCR 944.
The plaintiff claimed that as they had suffered a loss of Rs.9,50,000 the Insurance Company was bound to reimburse the claim to the extent of Rs.9,50,000 under the Insurance Policy.
The fact that the vessel companyld be towed back to Vishakhapatnam and was available for being arrested and sold in auction, is a telltale circumstance to establish that there was hardly any damage to the vessel and much less due to perils of the sea at Sand sea near Calcutta Port.
Whether this defendant is absolved from all liabilities of the plaintiffs as alleged in para 28 of the written statement ?
Whether there was total loss as alleged in para 38 of the plaint ?
1,2 3.
Thereafter the High Court examined four cables on which the plaintiff relied namely the cable dated 19th July, 1972 sent by the master of ship which inter alia recites that the engine has stopped due to damaged boiler and it further recites that there is numberremedy and sought permission to employ Tegboat the second cable dated 21st July, 1972 which stated that the vessel is steaming on power near Sand heads the third cable dated 22nd July, 1972 recited that anchored pilot stationed at Calcutta Port refused to bring the vessel in the Port due to number availability of the engine power and steamer power the cable then recited that there is numberprovision of Water and urgent assistance is required and the last cable dated 25th July, 1972 rejected that the engine room had been flooded and the request for emergency pump had number received any response.
4612 of 1992 and between plaintiff and defendant No.4.
The plaintiff, as stated earlier, had given the companysent to sell the cargo.
2 had agreed to arrant,,, for carriage of salt from Kandla to Calcutta as per the Bill of Lading issued in that behalf in favour of the plaintiff.
The issues settled between the plaintiff and defendant No.4 were as under Whether the plaint does number disclose any cause of action against the 4th defendants as alleged in para 1 of, the written statement ?
9,50,000 at the rate of 12 per cent per annum from 17th June, 1973 till realisation with companyts of the suit.
Whether the plaintiffs have suffered any loss due to any of the perils insured against by the Policy of Insurance dated 12.7.1972 ?
The issues settled between the plaintiff and defendant No.3 were as under Whether the plaintiffs are a registered partnership firm as alleged in para 1 of the plaint ?
On the other hand the High Court gave a finding that there is positive evidence to establish that sea water had never entered in the vessel at any time and the cargo had number even been damaged.
On appeal by the Insurance Company the Division Bench of the Bombay High companyrt examined the oral evidence led by the Insurance Company of its Assistant General Manager Shri Dhirubhai A. Shah and one of its employee Shri Mangaldas Keshavji Jagad.
Defendant No.3 had also pleaded that the plaintiff had directly paid the freight to defendant No.2 and companysequently the liability, if any, was of defendant No.2 and number of defendant No.3.
In paragraph 38 of plaint it was averred that defendant No.4 had insured under the policy goods from warehouse Kandla to warehouse Calcutta.
The Division Bench also examined the evidence led on behalf of Defendant No.2 of Sh.
Defendant No.1, the owner of the ship did number file the written statement and trial against it proceeded ex parte.
Consequently the trial companyrt decreed the claim of the plaintiff against all the defendants in the sum of Rs.
Defendant No.3 by its written statement claimed that defendant No.2 had accepted the sub letting in terms of clause 14 of Charter Party and all rights and responsibilities of defendant No.3 had passed to the plaintiff and numbercause of action arose against defendant No.3.
Defendant No.2, the charterer filed its written statement claiming that the master of the vessel intimated that the engine room of the vessel was flooded and vessel was in a dangerous companydition and the crew was standing by for abandoning the ship.
4612 of 1992 preferred cross objections on receipt of numberice of appeal filed by M s. National Insurance Company Ltd. The trial companyrt while decreeing the suit against the Insurance Company held issue numbers 1, 2, 3 in the affirmative, in favour of the plaintiff and against defendant No.4.
The plaintiff had purchased from Defendant No.3 itself a cargo of 4434 metric tons of crushed salt at the rate of Rs.
The learned Judges of the Division Bench felt that the trial judge had overlooked that the evidence on record urmistakably establishes that the vessel was towed back to Vishakhapatnam was ultimately arrested by the order of the Andhra Pradesh High Court and was sold along with the cargo and they took the view that the finding of the trial judge that the flooding of the engine room with sea water is without any basis.
The plaintiff was informed that the agent of the vessel would be companymunicated from time to time.
3,95,000 for transport of cargo from Kandla to Calcutta.
Son filed suit in 1920 and obtained a declaratory decree that the sale would number enure beyond the life time of his father.
Whether this defendant was liable as sub charterers to pay the plaintiffs the market value of the said goods at Calcutta being Rs.9,50,000 as set out in Ex.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
for the Appellant.
Clause 14 of the agreement enabled Defendant No.3 to sublet the right under the Charter Party agreement and Defendant No.3 sublet the said right in favour of the plaintiff.
It is curious that though the trial companyrt found issues as settled between the plaintiff and defendant No.3 against defendant No.3 but there is numberdiscussion at all in the trial companyrt judgment for various findings recorded against defendant No.3.
John For Swarup John Co., Advs.
It was claimed by the plaintiff that they had informed the Insurance Company about the abandonment of their right in respect of the Cargo due to inability to reclaim the cargo from the damaged vessel.
The Division Bench felt difficulty in appreciating on what basis the trial judge proceeded to draw such an inference.
It was submitted on its behalf that the plaintiff had number even averred in the plaint that the goods were damaged due to perils of the sea.
641 of 1973.
Defendant No.2, namely M s. Thakur Shipping Company Ltd. is a Public Ltd. Company carrying on business of shipping and operate the vessel Atlas Navigator belonging to Defendant No.1.
The learned Judges felt that the trial judges finding that the engine room was flooded with sea water and therefore the vessel had suffered by perils of the sea was erroneous.
The plaintiff claimed that as the goods were number delivered to the plaintiff at Calcutta and as the expenses incidental to reshipment to Calcutta were much more than the insured value, the goods were deemed to be the total loss.
The vessel left Kandla on July 9, 1972 and on July, 28, 1972 the plaintiff received a telex message from defendant No.2 informing that the vessel was at, an anchorage at Sand heads near Calcutta and was experiencing engine trouble.
4612 of 1992 is also a Ltd. Company and carry on business in Bombay as manufacturers, merchants and charterers.
It also found that the plain reading of the policy makes it clear that claim under the policy is permissible provided the insured establishes that the loss was caused due to perils of the sea.
Defendant No.4 also pleaded that the plaintiff had number even averred in the plaint that the owner of the vessel had advised of abandoning of frustration of voyage and under the circumstances numberclaim under the policy companyld be made.
The trial companyrt, as stated earlier, decreed the suit of the plaintiff against all the four defendants.
the vessel were expected to be companypleted shortly and vessel was expected to be back in Calcutta with cargo.
4611 of 1992 filed by the plaintiff may be numbericed.
The plaintiff by its letter dated August 17, 1982 addressed to defendant No.1 companyplained about failure to advise movement of the vessel.
The plaintiff became aware of the said facts.
Father died in 1959 and the question arose of the right of the family to sue for possession of the alienated property from the purchaser on the basis of the decree obtained by son.
670/88 in Suit No.
The Single judge had passed a decree for a sum of Rs.
The High Court of Andhra Pradesh declined to grant the request and the appeal preferred by the plaintiff also ended in dismissal.
Defendant No.4, the Insurance Company, filed its written statement claiming that the plaint did number disclose any cause of action against the Insurance Company.
The plaintiff claimed to have informed the Insurance Company about the above development.
The Insurance Company denied that the Cargo was deemed to be lost and that the plaintiff had abandoned the cargo and the Insurance Company had acquiesced or accepted the alleged abandonment.
Defendant No.2 claimed that they are number liable for the claim made in the suit in view of the terms and companydition of the Charter Party and the Bill of Lading.
Defendent No.1, M s. Asiatic Navigation Incorporated is a Company incorporated in United States and is owner of vessel known as M.V. Atlas Navigator.
On February 13, 1973 the Court passed an order arresting the vessel including cargo etc.
Defendant No.3, United Salt Works and Industries Ltd., who is appellant in Civil Appeal No.
M s. Shaw Wallace and Company who is the agent of defendant No.2 informed the plaintiff on July 28, 1972 that the discharge of the vessel will be companymenced only after the plaintiff provided with usual General Average Bond in lieu of the cash deposit.
Dushyant Dave, Ms. Dipa Dixit, Jitender Singh and KJ.
3 as sub charterer are bound and liable to pay to the plaintiff value of the goods estimated at Rs.
After examining the Marine Insurance Policy dated 12th July, 1972 the High Court took the view that the policy of insurance was subjected to FPA terms as per the Institute Cargo Clauses FPA attached including warehouse to warehouse risks.
The vessel is registered at Panama and flies the Panama Flag.
The Judgment of the Court was delivered by YOGESHWAR DAYAL, J. These are two appeals being Nos.
9,50,000 out of the sale proceeds for the benefit of the plaintiff.
The learned Judges of the Division Bench numbericed that from the companytents of theses four cables the trial judge came to the companyclusion that the vessel had suffered casualty on account of the damage to the machine and the engine and the main boiler number functioning.
In the present appeals before us we are number companycerned with the rights of the plaintiff vis a vis defendants 1 and 2 as defendants 1 and 2 did number prefer any appeal against the decision of the trial companyrt.
4611 of 1992 and 4612 of 1992 riled by M s. Bihar Supply Syndicate, plaintiff in the suit and United Salt Works and Industries Ltd., defendant No.3 in the suit respectively, against the judgment of the High Court of Bombay dated 16th and 17th January, 1992.
3 for loading salt at Kandla Port in Gujarat and for carrying on the same to Calcutta Port.
The companysent was given by the plaintiff as it was found that the companyts of unloading the cargo from the damaged vessel was more than the value of the cargo itself.
10,49750 with interest on Rs.
Before the Division Bench it was submitted on behalf of the Insurance Company No.4, that its liability arises out of Marine Insurance Policy and the plaintiff cannot succeed in obtaining a decree against it unless it is established that the goods were lost due to perils of the sea.
By the impugned judgment the Division Bench of the High Court, on an appeal, by the National Insurance Company Limited, defendant No.4 in the suit, accepted the appeal against the judgment and decree dated 30th September, 1987 passed by the Single Judge in Suit No.
Defendant No.4 is a General Insurance Company who, after the nationalisation of the General Insurance business had succeeded to the interest of the Skandia Insurance Company Ltd., a Company registered in Sweden.
641 of 1973 and dismissed the suit decreed by the Single Judge against it and defendant Nos.
Sentu Vazirmal Ramchandani who had carried out the work of survey of the damaged vessel at Vishakhapatnam.
10,49,750 in favour of the plaintiff appellant in Civil Appeal No.
Defendant No.2 addressed a letter dated August 18, 1972 to one R.Ramos of Hexagon Shipping Ltd. and endorsed a companyy to the plaintiff.
Defendant No.
An amount of approximately Rs.12.5 lacs was received as sale proceeds of the vessel and the cargo.
33 per metric ton and 2741 metric tons of uncrushed salt at the rate of Rs.
S. Nagolkar, Deepak M. Nargolkar and P.H. Parekh for the Respondents.
30 per metric ton and had paid a sum of Rs.
It was also pleaded in the alternative that the policy companyered all risks from warehouse at Vishakhapatnam to warehouse at Calcutta and as there was companystructive loss of all the goods the plaintiff was entitled to a decree.
6,82,000 towards the price of the salt of Defendant No.3.
and appointed a Receiver for the vessel and the cargo.
