IN THE HIGH COURT OF SINDH, KARACHI
High Court Appeal No.317 of 2006
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Date Order with Signature(s) of Judge(s)
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Present:
Muhammad Ali Mazhar, J.
Abdul Maalik Gaddi, J.
Karachi Port Trust …..……… Appellant
Versus
National Insurance Corporation …..……… Respondent
Date of hearing : 07.03.2017 & 28.03.2017
Mr. Muhammad Ahsan Ghani, Advocate for the Appellant.
Mr. Muhammad Arif Khan, Advocate for the Respondent.
J U D G M E N T
Abdul Maalik Gaddi, J. – Being aggrieved and dissatisfied with the Judgment dated 13.03.2006 and decree prepared and signed on 03.08.2006 passed by the learned Single Judge of this court in Civil Suit No.571 of 1987, whereby the suit filed by the respondent for recovery of Rs.84,11,540.84/- against the appellant had been decreed with costs alongwith interest at the rate of 15% per annum pendente lite and future. The appellant has preferred the instant High Court Appeal with the prayer to set-aside the impugned judgment and decree and dismissed the suit of the respondent by allowing the appeal with costs.
2. Briefly the facts of the instant case as stated in the appeal are that the respondent filed a Civil Suit bearing No.571 of 1987 for recovery of Rs.84,11,540.84/- against the appellant before the learned Single Judge sitting on original side of this court. It is averred in the plaint that a consignment of a complete plant of machinery for manufacture of heavy duty polythelene bags, stowed in fourteen (14) containers was imported by M/s. Farmaish Industries Limited, Karachi, from Italy for delivery at the port of Karachi, a sum of Italian Liras 105,22,740 being C&F price of consignment was paid to the importers by the suppliers M/s. France Ferri S.P.A., Rome, Italy under the letter of credit dated 15.03.1987, opened to Industrial Development Bank of Pakistan. The consignment was shifted by the supplier at the port of Ravenna, Italy in good order and condition on board of vessel HOISTON SAILOR under bill of lading No.034 dated 31.10.1983, the consignment was insured with the respondent/plaintiff under a policy in lieu of Cover Note, the vessel arrived at the port of Karachi, landed the consignment in the custody of appellant/defendant as bailees on 10.11.1983 under IGM No.2371/1983. A dispute arose between Custom Authorities and the importers, which was settled, the importer and their appointed clearing agents M/s. Qadri Shippers Limited, approached the representative of the appellant/defendant over delivery of the consignment on the basis of the delivery order issued by local agents of the vessel M/s. Anchor Shipping and Trading Limited, they demanded exorbitant amount towards wharfage, demurrage, storage charges, the matter was ultimately referred to the Ministry, Government of Pakistan, the amount was reduced to a considerable extent. The respondent/plaintiff on the request of the importers appointed M/s. Amanat Khan & Company and M/s. Mustafa Hyder & Company, surveyors to carry out the survey of the consignment found that five (05) packages bearing Nos.7/43, 9/43, 13/43, 16/43 and 17/43 were missing from the containers. The survey was held in presence of the appellant/defendant’s representative to confirm the missing of five (05) packages, assured that the shortage will be returned by the concerned department of the appellant/defendant and would arrange a search for the missing packages to be traced out. On 23.10.1986, the importers took over the delivery of the consignment, relying that the shortage noted down by the representatives of the appellant/defendant to the utter surprise the importers, received a letter of the traffic officer of the appellant/defendant dated 09.12.1986 that the clearing agents of the importers had taken delivery of the full consignment in good order. The importer had suffered a loss due to the missing of five (05) packages and on the appellant/defendant’s failure to make the loss good, the respondent/plaintiff under the insurance policy settled the dispute by paying Italian Liras 64,17,59,432/- (amounting to Rs.84,11,540/84) upon being subrogated to all rights and remedies of the insured, the respondent/plaintiff are entitled to claim suit amount on account of the missing of the five (05) packages. Hence, this appeal.
3. The appellant resisted the suit by filing written statement before the learned Single Judge and specifically denied the case and claim of the respondent by stating that the consignment of forty three (43) packages was landed at the port of Karachi by the ship arrived on 18.11.1983 in fourteen (14) containers was delivered to the appellant/defendant. In para 6 of the written statement, it is specifically stated that at the time of customs examination, the containers were stuffed and re-stuffed under the supervision and arrangement of M/s. Qadri Shippers Limited clearing agents of the respondent/plaintiff, with the necessary seal, wherefrom the clearing agents took delivery on 23.10.1986 under the clear receipt. It is averred that the respondent/plaintiff’s claim is not sustainable, liable to be dismissed.
4. From the pleadings of the parties, the learned Single Judge framed the following issues:-
i. Whether the suit is premature and is barred under Section 87 of the KPT Act?
ii. Whether the suit is bad for non-joinder of the necessary parties?
iii. Whether the suit is barred by limitation?
iv. Whether the suit is bad for want of full particulars of alleged damages?
v. Whether the clearing agents of the importers/plaintiffs took delivery of the goods against clear receipt?
vi. Whether the plaintiffs suffered alleged loss on account of any act or omission and/or commission on the part of the defendants?
vii. To what relief, if any, the plaintiffs are entitled to?
5. It reveals from the record that in order to prove his case, the respondent/plaintiff had only filed affidavit-in-evidence of Liaquat Ali Khan, Assistant Manager and Principal Officer of plaintiff’s corporation at Ex.5 of the Evidence File and produced number of documents, which need not to be reiterated here as the same are available in evidence file as Ex.6/A to Ex.6/Z and Ex.6/A/1 to Ex.6/R/1. This witness has also been cross examined by the counsel for the appellant/defendant. As against this, the appellant/defendant had also filed only affidavit-in-evidence of Willayat Ali, Traffic Officer of KPT at Ex.6 and produced copies of bill of lading for combined transport, Receipt of packages delivered and invoices as Ex.A to C available with the affidavit-in-evidence. This witness had also been cross examined by the counsel for the respondent/plaintiff.
6. It is contended by the learned counsel for the appellant that the impugned judgment and decree passed by the learned Single Judge in this matter are against law and facts as the same have been passed on the basis of incorrect facts liable to be set-aside. Per learned counsel, the learned Single Judge erred in not appreciating that suit which was brought before the court was not maintainable on the face of it as various mandatory requirements of various statutes have not been complied, nevertheless, it was proceeded without looking into the same which among others were that;
i) the suit was time barred and the claim against the consignment which was landed in 1983, was raised preferred in the year 1987;
ii) it is an admitted fact, borne out from the record that it were the custom authorities who de-stuffed and re-stuffed the consignment where after it was taken delivery of by the respondents against clear receipts and that shortage, if any, that was made was either because of the customs or the clearing agents and surely not by the appellants. Despite this both of them were not party to the proceedings, which was against the mandatory requirements of Order I C.P.C.;
iii) it is also a matter of record that mandatory notice under Section 87 of appellant’s parent statute was not given at the relevant time and/or the one which was given subsequently did not comply with the provisions thereof in its true sense. Despite categorically pointing out of such facts, the same did not find favour with the learned Single Judge.
Per learned counsel, the impugned judgment and decree are contrary to the evidence available on record. During the course of arguments, he pointed out the observations of learned Single Judge on issues No.5 and 6 in which specific part performance has been produced, which reads as follows:-
“It is in my knowledge that the suit consignment after re-stuffing was delivered to the clearing agent of the plaintiffs against clear receipt on 23.10.1986,” thus, there is no iota of evidence that the consignment was not delivered in entirety to the clearing agent.”
He further submits that the entire consignment was delivered to the agent of respondent/plaintiff, therefore, there is no question of short landing. During the course of arguments, learned counsel for the appellant has taken to us to the various documents available on record as well as various Sections of KPT bye-laws and has made an attempt to show that there was no short landing of the consignment, but the suit had been filed by the respondent mainly on the basis of surmises and conjectures, which is liable to be dismissed.
7. Conversely, learned counsel for the respondent has supported the impugned judgment and decree passed by the learned Single Judge of this court by arguing that the impugned judgment and decree have been passed after considering the pleadings of the parties, documents and evidence on record. He submits that suit filed by the respondent was very much maintainable and within time. During the course of arguments, he has referred to various documents and evidence on record and has made an attempt to show that the learned Single Judge while handing down the impugned judgment and decree committed no illegality nor any infirmity. Therefore, the instant appeal is liable to be dismissed. In support of his arguments, he has relied upon the following case laws:-
(i) Trading Corporation of Pakistan (Pvt.) Ltd v. Messrs S.R. International reported as 2008 CLD 412;
(ii) Premier Insurance Company of Pakistan & another v. Karachi Shipyard & Engineering Works Ltd. & another reported as 2016 CLD 1983;
(iii) Rice Export Corporation of Pakistan v. Mohammad Alam reported as 2016 CLC 1326;
(iv) Messrs Mastersons through its Partner v. Messrs Ebrahim Enterprises & another reported as 1988 CLC 1381;
(v) Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi through Chairman & others reported as 1992 CLC 804.
8. In order to resolve the controversy in between the parties, the following points for determination are formulated to decide this appeal.
(1) Whether the suit filed by the respondent is/was barred under Section 87 of the KPT Act, and no cause of action is/was accrued to the respondent against the appellant to bring the suit against them and furthermore the suit filed by the respondent is/was barred by limitation, if so what is its effect?
(2) Whether the clearing agents of the importer/respondent took delivery of the goods against clear receipt, if not, whether the respondent suffered alleged loss on account of any act or omission and/or commission on the part of the appellant?
9. We have heard the learned counsel for the parties at a considerable length and perused the record with their able assistance. Our findings on the above points with reasons are as under:-
(i) POINT NO.1. It is settled law that wherever there is a right, there is a remedy is a fundamental principle of law. Any person having right has a corresponding remedy to institute suits in a court unless the jurisdiction of the court is barred. In this case, no question of jurisdiction has been raised by the appellant. However, it is the case of the appellant that the suit filed by the respondent is barred under Section 87 of KPT Act, 1886 and further the respondent had no cause of action to bring the suit against the appellant. For the ease of reference, the relevant part of Section 87 of the KPT Act, 1886 is reproduced as under:-
“87---No suit shall be commenced against any person for anything done or purporting to have been done; in pursuance of this Act, without giving to such person one month’s previous notice in writing of the intended suit and of the cause thereof, nor after six months from the accrual of the cause of such suit.”
After going through the above Section, it reveals that one month’s previous notice in writing has to be served upon the appellant before filing the suit, the suit shall be filed within six months from the accrual of cause of action. Here in this case, suit was filed on 03.08.1987, one month’s notice dated 30.06.1987 (Ex.6/M of evidence file) under Section 87 of Karachi Port Trust Act, 1886 was served upon the appellant which was replied on 18.07.1887 vide Ex.6/N of evidence file, thus, the requirements appears to duly complied with. The second condition of Section 87 of the KPT Act, 1886, provides that suit has to be filed within six months from the accrual of cause of action of such suit. It is an admitted position that the entire consignment was discharged by the vessel into the custody of the appellant, remained for about three years due to dispute with customs authorities, after the dispute was resolved, the importer/respondent proceeded to take delivery and it is the case of the respondent that the appellant demanded exorbitant amount towards wharfage, demurrage, storage charges, the matter was referred to the concerned Ministry and the charges were considerably reduced. It also reveals from the record that the delivery of the consignment was effected on 23.10.1986, five packages were found missing. The Deputy Conservation KPT forwarded the matter to Traffic Manager KPT through its’ letter dated 09.12.1986, took a stand that the entire consignment was delivered to the clearing agent under a clear receipt. The cause of action to file a suit is a question of fact, which can be adjudicated or determined on facts of each case. The term ‘cause of action’ has not been defined in the Civil Procedure Code, but it is now well settled that this term means the bundle of facts, which the plaintiff basis its claim against the defendant. In the case of Haji Adam v. Levant Line & 02 others reported as (PLD 1959 W.P. Karachi 369), where it has been held that no hard and fast rule can be laid down in connection with the accrual of the cause of action against the port trust authorities, it depends on the facts of each case.
It reveals from the record that dispute between the parties commenced when the consignment was short delivered by KPT to clearing agent of importer/respondent on 23.10.1986, subsequent thereof, after taking the delivery of the consignment vide letter dated 10.11.1986 Ex.6/G of evidence file, the Deputy Conservation KPT vide Ex.6/F informed about the 05 missing packages, whereby the appellant had informed that the entire consignment was delivered to the clearing agent under clear receipt, which amounted to a refusal by the appellant vide letter dated 09.12.1986 at Ex.6/H of evidence file, as such, the starting point of the limitation is the date of the refusal by the KPT. The suit was required to be filed within six months i.e. 09th June, 1987 as this Court i.e. High Court of Sindh was closed for summer vacation from 06th June 1987 till 02nd August, 1987, therefore, the suit filed on 03.08.1987 was within time and so also maintainable in law, therefore, we endorse/concur with the findings of the learned Single Judge on the above points. Learned counsel for the appellant has also taken the plea that the suit is not maintainable for want of impleading the necessary parties including the importers and clearing agents. We have gone through the impugned judgment in this regard and found that the learned Single Judge has elaborately addressed and discussed this issue with reasons in the impugned judgment, therefore, we feel need not to interfere in it. Therefore, this point is decided against the appellant.
(ii) POINT NO.2. The case of the appellant as setup in written statement and evidence are that on 23.06.1986, the entire consignment was delivered to the clearing agent against clear receipt, the question of missing packages is/was an afterthought. The appellant’s witness namely Willayat Ali, Traffic Officer in his evidence produced three documents viz. copy of Bill of Lading for combined transport, copy of Receipt of Packages Delivered and copy of Invoice, which shows that delivery of consignment was taken over by clearing agent, admitted by the respondent’s witness in his cross examination.
It is contended by the learned counsel for the respondent that after discharge of the consignment at Karachi Port on arrival of the ship, the responsibility of the carrier has come to an end, the consignment was delivered in the custody of appellant. The consignment after being discharged on KPT was surveyed on 12.03.1986 as Ex.6/D and 25.11.1986 as Ex.6/E, after the lapse of three years, five packages were found missing. It appears from the survey report (Ex.6/E) that the delivery of fourteen containers were taken over from the appellant on 23.10.1986 with the assistance of their consignment representative, the contents of the containers were checked and five packages were found short, brought to the notice of KPT staff, Chief Surveyor requested the appellant to provide a shortage certificate or record the same in KPT register before delivery is taken, but the appellant’s staff did not response. The importer also informed the appellant vide letter dated 25.10.1986 (Ex.6/F) about the short delivery of the consignment, the appellant vide its letter dated 09.12.1986 informed the importer that the consignment was properly stuffed in the containers, delivery of fourteen containers was taken by clearing agent on 23.11.1986 under clean receipt, no complaint was lodged at the time of delivery for missing packages. The same position is spelled out from Ex.6/I. On the basis, the joint survey report of surveyors Mustafa Hyder & Company and Amanat Khan & Company (Ex.6/J) dated 14.07.1987, it was revealed that five cases out of entire consignment were found missing, the loss was ascertained, the payment was made by the respondent to the importers, under letter of subrogation. The correspondence exchanged between the importer and the appellant suggest, that the representative of appellant at the time of survey did not note the factum of shortage of consignment, between 24.05.1984 to 26.10.1986.
P.W. Liaquat Ali Khan deposed that after the consignment was discharged in the custody of the appellant, the dispute arose between the custom authorities and the importers regarding chargeable custom duty and sales tax, consignment was opened by the custom authorities, packed in forty three (43) packages, after completion of the examination locked and seal the containers with all packages intact.
We have examined the record and come to this conclusion that the learned Single Judge has rightly held that the delivery of consignment in full had not been received by the consignee and that five (05) packages were lost due to the negligence of the appellant. The said findings are based on the Joint Survey Report exhibited during evidence and discussed above. We have also gone through the evidence of respondent that on 10.11.1983, the consignment had been discharged in full in the care and custody of the appellant, who received the goods as bailee for delivery to the importers. The witness of the respondent further affirmed that the respondent appointed M/s. Amanat Khan & Company and Mustafa Haider & Company, Surveyors for survey of the consignment, who first surveyed the goods during its examination by the Customs, and finding no loss or missing of items issued their survey report in confirmation thereof. The respondent’s witness produced the survey report bearing No.MNIC-1058 dated 12.03.1986 available on record. Accordingly, the surveyors of the respondent, on their advice again surveyed the consignment in KPT premises, while lying in custody of the appellant, in presence of their representatives/officers and the importers and their clearing agents. During the survey five (05) packages of the consignment bearing No.7/43, 9/43, 13/43, 16/43 and 17/43 were found missing from the containers, which bare marks of tampering with. The witness of respondent also produce the survey report bearing No.M.NIC/1263 dated 25.11.1984 available on record.
Furthermore, the consignee had categorically stated in its letter dated 25.10.1986 that delivery of 38 cases shipped in fourteen (14) containers was taken by him on 23.10.1986 and five crates have been misplaced somewhere in the KPT area. The respondent asked to get in touch with the appropriate department to have these five cases traced out and to take their delivery. The numbers on the missing cases are 7/43, 9/43, 13/43, 16/43 and 17/43.
In view of the foregoing reasons, it has been rightly held by the learned Single Judge that the clearing agents did not take the consignment in full and that on account of the same, the respondent suffered a loss of huge amount. It is settled law that once a contract of bailment is proved and there was the entrustment of the goods with the bailee as happened in this case, then the loss of the subject matter of the bailment is prima facie evidence of negligence of bailee. Conversely, in the present case, the onus is on the appellant to prove that the appellant took all appropriate measures while carrying out the repair work and employed reasonable standard of care but in the instant case, the appellant could not discharge its burden of proof about not being negligent in performance of its contractual obligation towards the above named shipping company, which is subsequently subrogated by present respondent. In view of the above discussion, this point is also decided against the appellant.
10. Keeping in view hereinabove facts, we are of the view that the appellant has not been able to point out any illegality or error in impugned judgment and decree, which require no interference by this Court. Accordingly, the instant appeal being devoid of any merits is hereby dismissed. However, before parting with this judgment, we would like to observe here that in this appeal, the appellant in compliance of the order of this court dated 09.09.2008 furnished the bank guarantee in the sum of Rs.84,11,541/- (equivalent to the decretal amount) before this Nazir of this court and as per Nazir report dated 03.06.2017 available on record, it appears that the said bank guarantee is still intact/full force. The fate of bank guarantee will be subject to the order as may be passed by Executing Court for the satisfaction of decree.
Karachi.
Dated: 23.06.2017
JUDGE
JUDGE
Faizan A. Rathore/PA*