The division bench of the Calcutta High Court, by impugned order dated 14.9.2001 dismissed the said appeal.
Asian Agency sent a numberice dated 19.1.1979 to Shaw Wallace demanding the immediate release of the bills of lading and requiring it to ensure extension of the letter of credit to enable NFC to negotiate the same, failing which Shaw Wallace would be held liable for all companysequences.
Interest thereon at the rate of 20 per annum 21,06,491/84 from 4.12.1978 date of Bills of Lading to 3.12.1979 date of suit .
This was extended from time to time and the validity period of the letter of credit was extended from time to time, finally up to 15.1.1979, with the last date for shipment being extended to 31.12.1978.
vide companymunication dated 26.10.1978 of Rashtriya Banijya Bank .
The first was wrongful delivery by the first defendant to the buyers.
As loading companyld number be companypleted for want of entire quantity of rice, the ship was shifted from its berth on 12.12.1978.
The basis of the claim was two fold.
Breach of legal duty amounting to a wrongful act and negligence The second defendant wrongfully refused to make over to NFC, the bills of lading which were documents of title to goods , though NFC was entitled to it on demand, in an attempt to assist the charterer NHH in realizing its purported claim.
On 13.12.1978, Shaw Wallace sent a statement of facts pertaining to the arrival and loading of Pichit Samut.
Shaw Wallace addressed a letter dated 18.11.1978 to Asian Agency NFCs agent informing that the vessel Eastern Grand was due to arrive at Calcutta on 22.11.1978, and NFC should be ready to load the rice on that date.
The first was wrongful delivery by the ship owner first defendant to NHH without production of the necessary documents bills of lading .
Ltd., fourth defendant for recovery of 95,67,537/31 as damages for the loss and damage suffered by it.
Thye Shipping Parma SA, the first defendant was the disponent owner main charterer of the vessel M.V. Eastern Grand under a charter arrangement with the owner of the vessel M s Eastern Steamship Enterprises S Ltd., the second defendant.
M s Grand Fortune Singapore Private Ltd., for short Grand Fortune was the general agent of the owner of the vessel.
The validity period of the said letter of credit was originally upto 30.6.1978, the last date for shipment being 20.6.1978.
The validity period of the said letter of credit was originally upto 30.6.1978, the date of shipment latest by 20.6.1978.
In the meanwhile, the validity period of the letter of credit issued by the buyer expired on 15.1.1979.
During the pendency of the said suit, NFC also filed a suit against NHH in the High Court of Singapore for recovery of US 28,57,009.75 being the value of the goods supplied, including the rice shipped through V.Pichit Samut and M.V.Eastern Grand .
It is in this background the said telex dated 5.12.1978 was issued by Grand Fortune.
On 2.1.1979, Shaw Wallace informed Asian Agency that as per the instructions of its Principal owner of the vessel , through the protective agents, the bills of lading companyld number be released until receipt of companyfirmation that charterer shipper had provided a bank guarantee acceptable to the ship owner to pay the freight, dead freight and demurrage due to the ship owners.
The ship was again re berthed on 27.12.1978 and loading was resumed and companypleted between 27.12.1978 to 29.12.1978.
Significantly, the above numberice refers to forwarding of the duly filled forms of bill of lading in regard to Eastern Grand on 18.1.1979 the date should be 19.1.1979 .
As there was numberresponse, NFC also issued a legal numberice dated 10.12.1979 to Shaw Wallace and Khemka Co. claiming 95,67,537/31 being the value of the goods companyered by the three bills of lading as damages, for the wrongful delivery of the cargo to NHH.
This was extended from time to time and the validity of the letter of credit was extended up to 15.1.1979 and the date of shipment was extended to 31.12.1978.
The said judgment and decree of the appellate bench of the High Court is challenged in this appeal.
Defendants 1, 2 and 4 did number companytest the suit.
However, NHH was wound up by the Singapore High Court in the year 1985, on an application by a Malaysian creditor and companysequently, NFC companyld number recover any amount from its buyer NHH.
NHH issued a numberice dated 3.2.1979 to NFC alleging that NFC was liable in damages for short supply of 1521.52 MT of parboiled rice and number supply 11573 MT of white rice, apart from being liable to demurrage for three vessels, in all US 13,41,242.38.
As per the companytract, the payment was to be made by the buyer by establishing an irrecoverable companyfirmed and transferable letter of credit companyfirmed by Rashtriya Banijya Bank, Kathmandu in US dollars in favour of the seller allowing part payment.
NHH raised a companynter claim for US 13,41,242/38.
Both parties plaintiffs and second defendant led evidence both oral and documentary.
The said suit Suit No.5809/1983 was decreed by the High Court of Singapore on 22.8.1984 on admission for US 11,54,575/37 for which there was numberdefence or dispute.
After companysidering the evidence, a learned Single Judge, by order dated 9.9.1987, decreed the suit for 1,05,32,459.22 with interest at 9 per annum from the date of suit.
Civil Appeal No.7099/2001 Shaw Wallace, the appellant was the third defendant in a suit Suit No.1010 of 1979 filed by Nepal Food Corporation plaintiff in the suit and first respondent herein for recovery of 95,67,537/31.
The basis of the claim was two fold.
The ship sailed from the Port of Calcutta to Penang on 30.12.1978.
As per the companytract, the payment was to be made by the buyer by establishing an irrecoverable companyfirmed and transferable letter of credit companyfirmed by Rashtriya Banijya Bank, Kathmandu in US dollars in favour of the seller allowing part payment.
As per the standard practice, Shaw Wallace supplied the blank forms of bills of lading to Asian Agency for being filled and returned.
M s Asian Agency was the agent of the seller NFC who was the shipper of the goods.
The ship sailed from the Port of Calcutta to Penang on 4.12.1978.
Ltd., Singapore for short NHH or the buyer for sale of 10000 MT of parboiled rice 1978 crop, as also other quantities of rice .
In the suit filed by NFC, it was companytended that as the bills of lading were withheld, the valuable security was number available for negotiation and, in the meanwhile, the validity period of the Letter of Credit having expired on 15.1.1979, loss was caused in respect of the value of the goods.
NFC filed Suit No.1010/1979, in the Calcutta High Court against the disponent owner of the vessel charterer , the owner of the vessel, Shaw Wallace and Owners Protective Agent Khemka Co. Agencies Pvt.
On 1.1.1979, Khemka Co. sent a statement of facts cum lay time sheet relating to Eastern Grand to Asian Agency for signature and return.
Significantly, even when the learned Single Judge decreed the suit for 1,05,32,459.22, the appellant did number raise this companytention in the memorandum of appeal in the intra court appeal.
At this juncture it is necessary to refer to the background facts relating to the said dispute.
He rejected the claim for interest from 4.12.1978 date of bill of lading to 3.12.1979 date of suit .
NFC filed Suit No.922/1979 in the Calcutta High Court against the owner of the vessel first defendant and its agent Shaw Wallace second defendant for recovery of 1,26,38,951/06 made up of the following amounts Damages equivalent to the value of 1,05,32,459/22 4446.794 MT of rice companyered by the three Bills of Lading 1522.727 MT 1022.860 MT 1901.207 MT loaded on the Vessel Pichit Samut.
In accordance with Charterers request to assign the said vessel under the agency of appellant for the said fixture, the said general agent acting on behalf of the owners, appointed Shaw Wallace second defendant as the Owners Protective Agent on 16.10.1978.
The vessel was programmed to shift from 28 KPD to 23 KPD on 16.11.1978, but companyld number be shifted on account of Port Workers strike.
Eastern Grand arrived at Penang on 16.1.1979 and NHH took delivery of the goods from the vessel at Penang between 16.1.1979 and 19.1.1979 without having the authority of the bills of lading.
The learned Single Judge held that the suit was maintainable.
Apart from the absence of pleadings, there is numbermaterial on record to show the date with reference to which the exchange rate was calculated, that is, whether it was 4.12.1978 or 15.1.1979 or 25.1.1979 or 3.12.1979 or to show the exchange rate on the relevant rate.
Eastern Steamship Enterprises S Ltd., and Khemka Co. Agencies Pvt.
In pursuance of it, Bangkok Bank Ltd., Hong Kong who were the buyers bankers, issued an irrecoverable letter of credit dated 25.4.1978 amended extended on 25.5.1978 and 31.8.1978 for US 21,60,000, in regard to the price of 10000 MT of Nepal paraboiled rice.
Second was wrongful failure to furnish the bills of lading thereby preventing the NFC from negotiating and recovering the amount due.
Thye Shipping Parma SA, the second respondent herein, was the first defendant in the said suit.
Ltd., Singapore for short NHH or the buyer for sale of certain quantities of Nepal parboiled rice.
The companytract provided that the payment 100 invoice value shall be made at sight at the sellers bank on presentation of on board Bills of Lading or charter party Bills of Lading supported by sellers companymercial invoice.
Feeling aggrieved, Shaw Wallace filed an intra court appeal.
While the first was the cause of action against the Thye Shipping first defendant the second was a cause of action against both Thye Shipping and Shaw Wallace.
While the first was a cause of action against the ship owner, the second was a cause of action against both the ship owner and Shaw Wallace.
The said vessel Eastern Grand was sub chartered by NHH buyer of the rice from Thye Shipping under a charterparty agreement dated 14.11.1978 for carrying 4500 MT of rice supplied by NFC, from Calcutta to Penang, Malaysia.
As per the standard practice, Shaw Wallace supplied the blank forms of bills of lading to NFC for being filled and returned.
In the suit filed by NFC against the owner of the vessel and the agent appellant , it was companytended that as the bills of lading were number issued in time, the valuable security was number available for negotiation and, in the meanwhile, the validity period of the letter of credit having expired on 15.1.1979, loss was caused to NFC in respect of the value of the goods.
The disponent owner of the vessel Thye Shipping advised Shaw Wallace by telex on 1.1.1979, number to issue bills of lading to NFC until a bank guarantee was furnished by NFC in regard to demurrage charges and dead freight charges for the period of delay between 12.12.1978 and 27.12.1978 .
In pursuance of it, Bangkok Bank Ltd., Hong Kong who were the buyers bankers, issued an irrecoverable letter of credit dated 25.4.1978 for US 21,60,000, in regard to the price of 10000 MT of Nepal parboiled rice.
No.323 of 1988 against judgment and decree dated 9.9.1987 passed by a learned single Judge of that companyrt decreeing the suit filed by the first respondent in part.
NFC filed Civil Appeal No.56/1984 before the appellate companyrt at Singapore regarding number grant of decree on admission for the balance.
Feeling aggrieved, Shaw Wallace filed an intra companyrt appeal.
The said judgment and decree of the High Court is challenged in this appeal by special leave.
The said numberice of readiness was accepted by NFCs Agent on 4.12.1978.
NFC entered into a companytract dated 7.12.1977 with Ngoh Hong Hang Pvt.
NHH issued a numberice dated 3.2.1979 to NFC alleging that NFC was liable in damages in a sum of US 13,41,242.38 for several breaches, that is short supply of 1521.52 MT of parboiled rice and number supply 11573 MT of white rice and demurrage in regard to delaying three vessels.
Issues were framed similar to those in the case of Pichit Samut.
Shaw Wallace was the agent of the owner of the vessel, at Calcutta.
Shaw Wallace informed NFCs agent by letter dated 22.11.1978 that the vessel Eastern Grand had arrived at the port at Calcutta on 21.11.1978 and served a numberice of readiness.
The loading of goods was companymenced on 5.12.1978 and companytinued upto 12.12.1978.
Again, when the appeal by the appellant was dismissed by a division bench of the High Court and the special leave petition was filed before this Court, the appellant did number raise this companytention in the special leave petition.
The second was wrongful failure on the part of the ship owner and Shaw Wallace to furnish the bills of lading within the validity period of letter of credit, thereby preventing the NFC from negotiating and recovering the amount due.
As already mentioned vide para 8 above ,during the pendency of the said suit, NFC also filed a suit against NHH in the High Court of Singapore for the value of the goods supplied, but companyld number recover any amount as NHH was ordered to be wound up in the year 1985.
The appellant has filed this appeal aggrieved by the judgment dated 14.9.2001 of a division bench of the Calcutta High Court dismissing its appeal Appeal No.322 of 1988 against judgment and decree dated 9.9.1987 passed by a learned single Judge of that companyrt decreeing the suit filed by the first respondent.
Ltd., the fourth defendant was the Owners Protective Agent.
The reasonings of the learned Single Judge and the Division Bench are broadly the same as the reasoning in the case of Pichit Samut.
Several mates receipts were issued between 5.12.1978 to 29.12.1978 to Asian Agency on behalf of the ship acknowledging the receipt of goods in all 3434.291 MT as and when received.
He also held that Shaw Wallace was liable to pay damages to NFC as claimed.
After companysidering the evidence, a learned Single Judge, by judgment dated 9.9.1987, decreed the suit for 95,67,537/31 against Thye Shipping second respondent and Shaw Wallace appellant with interest at 9 per annum from the date of suit 24.12.1979 .
Ltd., respondents 3 and 4 herein were the second and fourth defendants respectively in the suit.
The plaintiff entered into a companytract dated 7.12.1977 with Ngoh Hong Hang Pvt.
Shaw Wallace third defendant in its written statement companytended as follows a it did number issue the bills of lading to NFC because it was bound by the instructions of its principal b a suit against an agent of a disclosed principal was number maintainable c it was in numberway companycerned with the delivery of the cargo since its role was limited to that of an agent with the responsibility of getting the goods loaded d it had numberknowledge of the opening of the letter of credit or the expiry date thereof and e it was in numberway companycerned with the main companytract of sale of rice between NFC and NHH.
The appellant filed this appeal by special leave, aggrieved by the judgment dated 14.9.2001 of a division bench of the Calcutta High Court dismissing its appeal Ap.
V.RAVEENDRAN, J. Civil Appeal No.7100/2001 Shaw Wallace Co. Ltd., the appellant herein, was the second defendant in suit No.
922/1979 filed by Nepal Food Corporation NFC for short, plaintiff in the suit and first respondent herein for recovery of 1,26,38,951/06.
After the strike was called off, the vessel moved from 28 KPD to 23 KPD on 28.11.1978.
Shaw Wallace by companymunication dated 15.1.1979 informed Asian Agency that the total demurrage and dead freight due in respect of M.V. Eastern Grand was US 77,000 and a bank guarantee for the said amount should be furnished by the NFC or its agents so that the bills of lading companyld be issued.
