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Suit No. 145 of 1977; decided on 1st June, 1983.

‑‑Arts. 22 & 30‑Limitation‑‑Suit for recovery‑Short supply of goods‑Facts pleaded in plaint showing cause of action arising to plaintiff on arrival of vessel and finally when shortage of goods came to his notice‑Suit which ought to have been filed within one year of occurring of loss filed by plaintiff in about three years‑Suit held hopelessly barred by time and dismissed.

Mansoorul Arfin and Mr. Saleem for Plaintiff.

Ibrahim pishori for Defendants.

Dates of hearing : 11th and 25th April, 1983.

The plaintiffs filed the above‑mentioned suit wherein they have prayed for a decree for Rs. 32,118.18 with costs and interest.

1. The plaintiff's case is that they imported Tallow one consignment of 266.917 Metric Tons and the other of 949.636 Metric Tons of Tallow which was brought on the vessel m. t. Stolt Victor which arrived at the port of Karachi on or about 8th February, 1976. According to the plaintiff's case in the plaint on arrival of the vessel at Karachi it was found that the defendant did not discharge 6.322955 Metric Tons equivalent to 13939.71 lbs. of Tallow. The costs of the short landed Tallow amounted to Rs. 32,118.18 for the recovery of which the suit was filed.

2. In the suit as originally filed on 3rd February, 1977, M/s. Ameri can Export Lines Inc. were joined as defendant No. 1 on the allegation made therein that they are the owners of the abovementioned vessel.

M/s. Mackinnon, Mackenzie & Co,, Pakistan were joined as defendant No. 2 on the plea that they are liable to pay the amount claimed as agents of the defendant No. 1 (M/s. American Export Lines Inc.) a foreign company.

3. The defendant No. 2 filed its written statement on 26th February, 1978. While denying the claim of the plaintiffs it was pleaded, amongst others, that the said defendant No. 2 by its letter, dated 9th August, 1976 addressed to the plaintiffs without any admission of acknowledgment any liability, informed the plaintiffs that their alleged claim had been referred to its principals, M/s Stott Nielson Inc. for instructions if any. It was further pleaded that the defendant No. 2 was not the agent of American Export Lines Inc. and that the liability for settlement of the alleged claim, if any, arising out of alleged short landing and/or damage to the two consignments carried on the abovementioned vessel, is that of the owner of the vessel and only when such alleged liability was established against the vessel, the liability of the agent could arise. It was further pleaded that the defendant No. 2 had no privity of contract with the plaintiffs and thus no cause of action arose against the answering defendant.

4. Subsequently on 27th February, 1979 the plaintiff moved an application (C.M.A. No. 918 of 1979) under O. VI, rule 17, C.P.C. for amendment of the plaint seeking substitution of M/s. Stolt Nielsen Inc. in Place of M/s. American Export Lines, as the defendant No. 1.

The above application was opposed by the defendant No. 2 but by order passed on 28th April, 1979 it was granted, subject to the right of the proposed substituted defendant No.: l to raise any question of Limitation or any other question. The amended plaint was filed on 16th May, 1979 in which for the first time M/s. Stolt Nielsen Inc., were shown as the defen dant No. 1. After the filing of the amended plaint the " newly‑added defen dant No. 1 filed written statement on 10th November, 1980 wherein, inter alia, it was pleaded that the suit is barred by limitation. It was also pleaded that the two consignments were shipped on the vessel above-mentioned for carriage and the terms and condition as contained in the bill of lading. The alleged shortage was denied and it was pleaded‑that the shortage, if any, took place subsequent to the consignment leaving the vessel at the receiver's shore tanks. The value of the alleged shortage was also denied. It was admitted that the defendant No. 2 is the agent of the defendant No. 1 but it was pleaded that for the alleged short landing and/or damage the defendants were not liable.

5. On the pleadings of the parties the following issues were framed by consent of the Advocates for the parties :‑---

(1) Whether the suit is barred by limitation

(2) Whether the entire consignment of Tallow was discharged in full and in the same order and condition in which they were received from the shipper at the time of loading

(3) What should the decree be

(4) What amount if any are the defendants liable to pay.

6. At the trial the plaintiffs examined Mr. Mohammad Azhar (Exh. 6) who produced documents marked Exhs. 6/1 to 6/5. The plaintiff also examined Mohammad Khalid (Exh. 7) an officer in the National Bank of Pakistan. He produced photostat copy of original L C dated 30th June, 1975, as Exh. 7/1 and copy of the agreement between the parties as Exh. 7/2. The plaintiff's witness Mohammad Ahmed Exh. 8 produced documents Exhs. 8/1 to 8/111 and also deposed about "Caliberation" a method through which engineers determine the capacity of tanks in which Tallow or other liquid is kept. The plaintiff also examined Mr. Shabbirur Rehman (Exh. 9), Insurance Surveyor. The last witness examined by the plaintiff was Ahmed Asim Exh. 10 who is the Chief Accountant of the plaintiff Company.

The defendants on the other hand examined Mr. Tariq Khataq Exh. 11, Assistant Manager (Claims) in the defendant No. 2 company. They also examined Mr. Tabraiz Ali Saqib (Exh. 12) Surveyor working with M/s. Bhombal & Co., Surveyors.

7. After hearing the learned counsel for the parties and perusal of the record my answers to the Issues are as follows :‑‑

Issue No. 1.‑The suit is barred by time.

Issue No. 2.‑No decision is called for in view of findings on Issue

No. 1.

Issues Nos. 3 and 4.‑The suit is dismissed with no order as to costs.

8. My reasons for the conclusions reached as above are as follows :‑

Re‑Issue No. 1.‑The facts already stated above would show that according to the plaintiffs' own admission the defendant No. 1. M/s. Stolt Nielsen Inc. is the owner of the vessel m. t. Stolt Victor which carried the cargo in question. This defendant was sought to be brought on record as defendant No. 1 in place of M/s. American Export Lines Inc., against whom the suit as originally framed, was filed on 3rd February, 1977, as the owner of the said vessel. The application for joinder of M/s. Stolt Nielsen Inc. was made on 10th January, 1979 on the plea that M/s. American Export Lines Inc. was joined by mistake. The, application as already noted above was granted by order passed on 28th April, 1979 subject to any question of limitation or any other question which might be, raised. The suit against the present defendant No. 1 (M/s. Stolt Nielsen Inc) the owner of the vessel for purposes of limitation; therefore shall be deemed to have been filed on 10th January, 1979 where the applica tion under Order 1, rule 10, C.P.C. for the joinder of the said company was made.

It is not disputed that within the meaning of section 22 of the Limita tion Act the amendment allowed by the Court on 28th April, 1979 whereby the present defendant No. 1 was allowed to be joined as a party to the suit, shall relate back to 10th January, 1979 when the application was moved for substitution of the new party in place of American Export Lines Inc.

According to the facts pleaded in the plaint the cause of action for the suit arose on or about 8th February, 1976 when the above‑mentioned vessel of the defendant No. 1 arrived at the Port Karachi and thereafter started discharging the cargo. Admittedly the Survey report of Bhombal & Company, the Surveyors, was made on 18th February, 1976 on which date the alleged shortage became known to the plaintiffs and the cause of action, if any, for recovery of any claim for the same thus finally arose. The suit against the carrier (defendant No. 1) ought to have been filed for the said alleged short delivery as provided in Art. 30 of the Limitation Act, within one year when the loss occurred.

The suit filed against the defendant No. 1 on 10th January, 1979 (when the application for joinder of the defendant No. 1 was filed) under the provisions of section 22 of Limitation Act, was thus hopelessly barred by time.

9. Re‑Issue No. 2.‑In view of the findings under Issue No. 1 it is not necessary to enter into any inquiry on merits under this issue.

10. Re‑Issues Nos. 3 and 4.‑Consequent to the conclusions reached as above under Issue No. 1, the suit is dismissed as barred by time but with no order as to costs.

M.Y.H. Suit dismissed.

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