SHAW WALLACE & CO. LTD. Vs NEPAL FOOD CORPN. .
Bench: R.V. RAVEENDRAN,H.L. GOKHALE
Case number: C.A. No.-007099-007099 / 2001
Diary number: 16745 / 2001
Advocates: E. C. AGRAWALA Vs
Reportable IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7100 OF 2001
Shaw Wallace & Co. Ltd. … Appellant (now United Spirits Ltd.)
Vs.
Nepal Food Corporation & Others … Respondents
and
CIVIL APPEAL NO.7099 OF 2001
Shaw Wallace & Co. Ltd. … Appellant (now United Spirits Ltd.)
Vs.
Nepal Food Corporation & Another … Respondents
J U D G M E N T
R.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
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`1,26,38,951/06. UPT Imports Exports Ltd., the second respondent herein,
was the first defendant in the said suit. 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.No.323 of 1988)
against judgment and decree dated 9.9.1987 passed by a learned single Judge
of that court decreeing the suit filed by the first respondent in part. For
convenience we will also refer to the parties by their ranks in the suit.
2. NFC entered into a contract dated 7.12.1977 with Ngoh Hong Hang
Pvt. Ltd., Singapore (for short ‘NHH’ or the ‘buyer’) for sale of 10000 MT
of parboiled rice-1978 crop, (as also other quantities of rice). As per the
contract, the payment was to be made by the buyer by establishing an
irrecoverable confirmed and transferable letter of credit confirmed by
Rashtriya Banijya Bank, Kathmandu in US dollars in favour of the seller
allowing part payment. The contract provided that the payment 100%
invoice value shall be made at sight at the seller’s bank on presentation of
‘on board Bills of Lading’ (or charterparty Bills of Lading) supported by
seller’s commercial invoice. In pursuance of it, Bangkok Bank Ltd., Hong
Kong who were the buyer’s 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. The
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validity period of the said letter of credit was originally upto 30.6.1978, the
last date for shipment being 20.6.1978. 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.
3. UPT Imports Exports Ltd. was the owner of the vessel – ‘M.V. Pichit
Samut’. Shaw Wallace represented itself to be the agent of the owner of the
vessel. The said vessel ‘Pichit Samut’ was chartered by NHH (buyer of rice
from NFC) from the owner of the vessel under charterparty agreement dated
11.10.1978 for carrying 5000 MT of rice to be shipped by NFC to NHH,
from Calcutta to Penang, Malaysia. M/s Grand Fortune Singapore Private
Ltd., (for short ‘Grand Fortune’) was the general agent of the owner of the
vessel. In accordance with Charterer’s 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
‘Owner’s Protective Agent’ on 16.10.1978. Shaw Wallace was also acting as
the charterer’s agent as per charterer’s request dated 3.1.1979. M/s Asian
Agency was the agent of the seller (NFC) who was the shipper of the goods.
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4. Shaw Wallace addressed a letter dated 6.11.1978 to Asian Agency
(NFC’s agent) informing that the vessel Pichit Samut was due to arrive at
Sandheads, Calcutta on 8.11.1978, that there was insufficient cargo at the
Port and that all expenses for delays, if any, would be to the shipper’s
(seller’s) account. Shaw Wallace informed Asian Agency by letter dated
8.11.1978 that the vessel Pichit Samut had arrived at Sandheads, Calcutta
and served a notice of readiness (that the vessel was ready to receive cargo).
The said notice of readiness was accepted by Asian Agency on 28.11.1978
when the vessel arrived at berth (23 K P D) after it was certified to be fit for
loading by the surveyor. The loading of rice in the ship was commenced on
29.11.1978 and completed on 4.12.1978. Several mate’s receipts were issued
between 29.11.1978 to 4.12.1978 to Asian Agency on behalf of the master
of the ship acknowledging the receipt of goods as and when received. The
ship sailed from the Port of Calcutta to Penang on 4.12.1978.
5. The general agent of the shipowner – Grand Fortune, advised Shaw
Wallace by telex message dated 5.12.1978, not to issue Bills of Lading to
NFC until advised, in view of the dispute between the charterer and the
shipper in regard to the “lay days”. At this juncture it is necessary to refer to
the background facts relating to the said dispute. When the vessel arrived at
Garden Reach Anchorage on 9.11.1978, the vessel was passed as fit for
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loading, by the surveyors. On 9.11.1978, NFC did not have sufficient goods
to load and therefore the vessel was birthed at 28 KPD. The vessel was
programmed to shift from 28 KPD to 23 KPD on 16.11.1978, but could not
be shifted on account of Port Workers strike. After the strike was called off,
the vessel moved from 28 KPD to 23 KPD on 28.11.1978. Asian Agency
therefore accepted the notice of readiness dated 8.11.1978, only on
28.11.1978. According to Shaw Wallace, Asian Agency ought to have
accepted the notice of readiness as soon as the ship berthed at the port on
9.11.1978. According to Asian Agency, the vessel could be said to be ready
only when it berthed at 23 KPD which was on 28.11.1978 and therefore
there was no delay on its part. The dispute was as to whether the shipper
should bear the demurrage charges if any for the lay days between 9.11.1978
to 28.11.1978. It is in this background the said telex dated 5.12.1978 was
issued by Grand Fortune. This was followed by another telex dated
12.12.1978 from Grand Fortune, forwarding a telex communication from
NHH requiring the ship-owner to advise its agent Shaw Wallace to obtain a
bank guarantee from NFC regarding demurrage before issuing the Bills of
Lading, to avoid disputes over payment of demurrage and stating that if it
was not done, it (NHH) will not be responsible for any demurrage incurred.
In view of it, Grand Fortune instructed Shaw Wallace to require NFC to
furnish a bank guarantee for issuing and releasing the bills of lading. On
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13.12.1978, Shaw Wallace sent a statement of facts pertaining to the arrival
and loading of Pichit Samut. As per the standard practice, Shaw Wallace
supplied the blank forms of bills of lading to NFC for being filled and
returned. NFC’s agent delivered the mate’s receipts and the duly filled forms
of bills of lading to Shaw Wallace on 17.12.1978 with a request to sign and
issue the bills of ladings as the agent of the owner of the vessel. Shaw
Wallace’s statement of facts was returned by NFC’s agents with remarks on
19.12.1978.
6. Pichit Samut arrived at Penang on 18.12.1978. NHH took delivery of
the goods from the vessel at Penang on 22.12.1978 without possessing any
document of title and apparently without the knowledge of the NFC. Asian
Agency - NFC’s agent, addressed a telex message dated 1.1.1979 to Shaw
Wallace regretting that bills of lading had not been delivered to them,
despite delivering the mate’s receipts and that therefore, Shaw Wallace
would be responsible for all delays and damages, as NFC was unable to
negotiate the letter of credit in the absence of bills of lading. NHH sent the
following telex dated 3.1.1979 to Shaw Wallace:
“As you are aware, we wish to counter claim demurrage from shipper…… Since the owner requires charterers/shippers to provide first class international prime bank guarantee to pay freight, dead freight and demurrage before issuing bills of lading, it is proper for us to request shipper to submit first class international prime Bank Guarantee to pay the demurrage prior to releasing of bills of lading and subject to our telex
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confirmation before. Kindly act as an agent on our behalf to do the needful and possible and we will be responsible for all possible legal action.”
It should be noted that by then NHH had taken delivery of the cargo from
Pichit Samut. Shaw Wallace sent a telex message dated 3.1.1979 informing
Asian Agency that the Carrier had advised not to issue the bills of lading
until NFC furnished a bank guarantee towards demurrage and that the ship-
owner would not be responsible for the delay in issuing bills of lading, in
view of delay on the part of NFC in furnishing a bank guarantee for the
demurrage. The validity period of the letter of credit issued at the instance of
NHH expired on 15.1.1979. Shaw Wallace by communication dated
15.1.1979 informed NFC’s agent that the demurrage due in respect of M.V.
Pichit Samut was US$ 30,000 and a bank guarantee for the said amount
should be furnished by the NFC or its agents so that the bills of lading could
be issued. On 19.1.1979, NFC issued a notice to Shaw Wallace calling upon
them to issue bills of lading and take steps to see that NHH extends the
validity of the letters of credit to enable NFC to negotiate the same and
realize the value of goods failing which Shaw Wallace would be held liable
for all consequences. On 25.1.1979, three signed bills of lading dated
4.12.1978 were delivered by Shaw Wallace to NFC’s agent (Asian Agency)
in regard to 1522.727 MT, 1022.860 MT and 1901.207 MT of rice entrusted
to the master of the vessel ‘Pichit Samut’ for transshipment to Penang. NFC
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issued its final invoice in regard to the consignments on 1.2.1979 and
2.2.1979.
7. NHH issued a notice 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 non-supply 11573 MT of
white rice and demurrage in regard to delaying three vessels. NFC issued a
notice dated 25.9.1979 to NHH claiming US$ 59,12,191.07 towards the
value of rice supplied. NFC also issued a legal notice dated 29.11.1979 to
UPT Imports Exports and Shaw Wallace claiming the value of the goods as
damages, by reason of the delay in issuing the bills of lading and the
wrongful delivery of the cargo to NHH without the production of bills of
lading. 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 :
(a) Damages equivalent to the value of ` 1,05,32,459/22 4446.794 MT of rice covered by the three Bills of Lading (1522.727 MT + 1022.860 MT + 1901.207 MT) loaded on the Vessel Pichit Samut.
(b) 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).
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8. 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
M.V.Pichit Samut and M.V.Eastern Grand). NHH raised a counter claim for
US $13,41,242/38. The said suit (Suit No.5809/1983) was decreed (by the
High Court of Singapore on 22.8.1984) on admission for US$ 11,54,575/37
for which there was no defence or dispute. NFC filed Civil Appeal
No.56/1984 before the appellate court at Singapore regarding non-grant of
decree on admission for the balance. However, NHH was wound up by the
Singapore High Court in the year 1985, on an application by a Malaysian
creditor and consequently, NFC could not recover any amount from its
buyer NHH.
9. In the suit filed by NFC against the owner of the vessel and the agent
(appellant), it was contended that as the bills of lading were not issued in
time, the valuable security was not 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
basis of the claim was two-fold. The first was wrongful delivery by the ship-
owner (first defendant) to NHH without production of the necessary
documents (bills of lading). The second was wrongful failure on the part of
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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. 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.
10. The first defendant (owner of the vessel) did not defend the suit claim.
The second defendant (Shaw Wallace) in its written statement claimed that it
had merely acted as the agent of the ship-owner in regard to that particular
voyage undertaken by M.V. Pichit Samut; and that it could issue the bills of
lading only on the instructions of and under the authority of the first
defendant. Shaw Wallace contended that as it merely acted on the
instructions of the ship-owner (first defendant), as its agent, it could not be
held liable for the acts or omissions of the ship-owner. On the said
pleadings, the following issues were framed :
“1. Is the suit not maintainable as against the defendant No.2 on the grounds as stated in written statement?
2. Has there been any breach of contract on the part of defendant No.2?
3. Was there any negligence or breach of obligation on the part of defendant No.2, as alleged in paragraphs 15 and 16 of the plaint?
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4. To what relief, if any, is the plaintiff entitled as against defendant No.2? ”
Both parties (plaintiff and second defendant) led oral and documentary
evidence.
11. After considering 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. He rejected the claim for interest from 4.12.1978 (date
of bill of lading) to 3.12.1979 (date of suit). The learned Single Judge held
that the suit was maintainable. He also held that Shaw Wallace was liable to
pay damages to NFC on three counts:
(i) Breach of statutory duty : The act of withholding the bills of lading by
Shaw Wallace was wrongful and in violation of the statutory duty imposed
by Article III, Rule 3 of the Carriage of Goods by Sea Act, 1925.
(ii) 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. As a result of this wrongful act of Shaw Wallace, NFC
suffered loss and damages to the extent of the value of the said goods.
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(iii) Conversion : Both ship-owner as well as Shaw Wallace acted
inconsistently with the rights of NFC, in respect of the said bills of lading
and such wrongful acts amounted to conversion of the said bills of lading
which were documents of title to the goods, and thereby caused damages and
injury to the plaintiff to the extent of the value of the said goods.
12. Feeling aggrieved, Shaw Wallace filed an intra-court appeal. A
Division Bench of the Calcutta High Court by impugned judgment dated
14.9.2001 dismissed the said appeal. The division bench affirmed the
finding that the appellant was guilty of breach of a statutory duty and breach
of a legal duty which amounted to negligence. It however clarified that Shaw
Wallace was guilty of conversion of bills of lading which constituted title to
the goods and not conversion of goods. The division bench rejected the
contention of the appellant that it was the duty of the master of the ship who
took charge of the goods to issue the bill of lading and not that of the agent.
It held that Shaw Wallace had an obligation to issue the bills of lading
within the validity period of the letter of credit. It also held that by the
appellant’s failure to issue the bills of lading, NFC was unable to negotiate
the letter of credit and consequently lost the value of the goods.
13. The said judgment and decree of the appellate bench of the High
Court is challenged in this appeal. At the outset, it should be noticed that in
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this appeal, we are neither concerned with the liability of the buyer/charterer
(NHH) nor with the liability of the owner of the vessel (UPT Imports
Exports). The decree against the owner of the vessel who remained ex parte
is not under challenge. We are only concerned with the role played by Shaw
Wallace as the carrier’s agent and the question whether it was liable for the
suit claim. The High Court has not made Shaw Wallace liable as an agent,
for any acts of omission or commission by its principal (the ship owner).
Nor has the High Court made the agent (Shaw Wallace) liable by binding it
to any contract made by the principal (ship owner). The High Court has
made Shaw Wallace liable in view of its breach of a statutory duty and
negligence to perform its legal duty in common law. Therefore, the limited
question that arises for our consideration in this appeal is whether there is
any ground for interference, in regard to the concurrent finding of the
learned Single Judge and the division bench holding that the appellant-
Shaw Wallace committed breach of its statutory duty and also breach of its
legal duty amounting to negligence and wrongful act and consequently liable
to pay to NFC the value of the goods by way of damages.
14. Section 2 of the Indian Carriage of Goods by Sea Act, 1925 (‘Act’ for
short) provides that subject to the provisions of the said Act, the rules set out
in the schedule shall have effect in relation to and in connection with the
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carriage of goods by sea, in ships carrying goods from any port in India to
any other port whether in or outside India. Section 4 provides that every bill
of lading issued in India shall contain an express statement that it is to have
effect subject to the provisions of the rules contained in the schedule to the
Act. The schedule to the said Act contains the rules relating to bills of
lading. Clause (a) of Article I of the Schedule defines the term ‘carrier’ as
including the owner of charterer who enters into a contract of carriage with a
shipper. “Contract of carriage” is defined in clause (b) of Article I thus :
“(b) “Contract of carriage” applies only to contracts of carriage covered by a bill of lading or any similar document of title, in so far such document relates to the carriage of goods by sea including any bill of lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same :”
Article III deals with the Responsibilities and Liabilities of Carriers by Sea.
Rule 3 thereof which is relevant for our purpose, is extracted below :
“3. After receiving the goods into his charge, the carrier or the master or agent of the carrier, shall, on demand of the shipper issue to the shipper a bill of lading showing among other things—
(a) The leading marks necessary for identification of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if uncovered, or on the cases or coverings in which such goods are contained, in such a manner as should ordinarily remain legible until the end of the voyage;
(b) Either the number of packages or pieces, or the quantity, or weight, as the case may be, as furnished in writing by the shipper;
(c) The apparent order and condition of the goods:
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Provided that no carrier, master or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.”
15. Halsbury’s Laws of England (4th Edition, Vol. 43(2) Shipping &
Navigation : Pages 1042 and 1043) deals with the ‘Right to receive bill of
lading’ and ‘effect of mate’s receipt’. We extract below the relevant portion
therefrom :
“1544. Right to receive bill of lading. The person who at the time of shipment is the owner of the goods is entitled to receive a bill of lading and to have it made out in accordance with his instructions. If he is refused a bill of lading, or if the terms of the bill of lading offered differ from those which he is entitled to require, or if his instructions are not complied with, he may demand the redelivery of his goods, and a refusal to redeliver them, when so demanded, amounts to a conversion of them by the shipowner. The shipowner is not discharged from his responsibility to the owner of the goods merely on the ground that a bill of lading has already been signed and handed over to a third person who was believed in good faith to be the owner.”
“1545. Effect of mate’s receipt. Possession of the mate’s receipt prima facie entitles the holder to receive a bill of lading. Therefore, on its production, in the absence of notice that the holder is not the owner, the master or other agent of the shipowner is justified in signing a bill of lading and delivering it to the holder in exchange for the mate’s receipt.”
The following observations relating to mate’s receipt in Scrutton on
Charterparties and Bills of Lading (Twentyfirst (2008) Edition] are relevant:
“On delivery of goods by a shipper to the shipowner or his agent, the shipper will, unless there is a custom of the port to the contrary, obtain a document known as a “mate’s receipt”…. As a general rule, the person in possession of the mate’s receipt, where one exists, is the person entitled to bills of lading, which should be given in exchange for that receipt and he an sue for wrongful dealing with the goods.” [ page 162]
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After the shipment of goods under a contract of affreightment, the bill of lading is signed by the carrier or his agent and delivered to the shipper, in exchange for the mate’s receipt.” [page 62]
The standard method of preparing bills of lading is stated in CARVER’s
Carriage by Sea (Thirteenth Edition, vol. 1, Page 41 Para 54) thus :
“The bills of lading are usually procured by the shipper, and filled by him with statements of the kinds and quantities of the goods, and the marks upon them. These are checked on behalf of the ship, and documents are signed on behalf of the master, by the ship’s agent, and delivered to the shipper.”
16. NFC did not engage the vessel Pichit Samut. It was chartered by the
buyer NHH to carry the goods purchased by it from NFC. The contract of
carriage was governed by the terms of the charterparty agreement dated
11.10.1978. As per the said charterparty agreement, if the ship was delayed,
the Charterer (NHH) was responsible to pay the demurrage and the
agreement provided that the demurrage should be settled at Singapore,
twenty days after discharge of the cargo at Penang. Thus NFC did not have
any obligation towards the owner of the vessel to pay either the freight or
any demurrage charges. If there was any delay for which NFC was liable,
that was a matter to be sorted out by NHH making a claim against NFC. As
per the sale contract dated 7.12.1977 between NFC as seller/shipper and
NHH as the buyer, the seller (NFC) was entitled to payment of the entire
invoice value, at sight at the seller’s bank, on presentation of the “on board
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Bills of Lading” supported by its commercial invoice. NFC had secured its
interest by ensuring that the buyer opens an irrevocable letter of credit and
by making the supply during the currency of the letter of credit. The shipper
(NFC) was certain of obtaining payment from the Bank under the buyer’s
letter of credit, by merely producing before the bank, the bills of lading and
the invoice. The shipper was entitled to the bills of lading from the agent of
the shipowner, immediately on production of the mate’s receipt. Therefore,
the mere fact that delivery was taken by the buyer (NHH) at Penang even
without the bills of lading would not have caused any loss to the seller, if it
had been issued the bills of lading to which it was entitled, without delay so
that it could have realized the amount against the letter of credit which was
valid and in force till 15.1.1979. NFC lost the value of goods on account of
Shaw Wallace not releasing the bills of lading before 15.1.1979, even
though it was liable to issue the bills of lading on 17.12.1978.
17. The delivery of the goods on board the ship was completed on
4.12.1978. On 17.12.1978, Asian Agency presented the mate’s receipt along
with the filled forms of bills of lading to Shaw Wallace and demanded the
issue of signed bills of lading. Issue of mate’s receipt on behalf of the master
of the ship was the authority and instruction to the agent of the ship-owner to
issue the bills of lading to the shipper. The likelihood of a dispute between
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the charterer/buyer and shipper/seller regarding demurrage for lay days was
not sufficient to suspend the authorization given by issue of the mate’s
receipt. But Shaw Wallace did not issue the bills of lading inspite of Asian
Agency furnishing the mate’s receipts and duly filled forms of bills of
lading. Thereafter, Asian Agency made a further demand by telex on
1.1.1979. Shaw Wallace replied that the ship-owner wanted a bank
guarantee towards payment of demurrage before the release of bills of
lading, without indicating the amount for which the bank guarantee was to
be given. By this process, issue of the bills of lading which was legitimately
due on 17.12.1978 was postponed beyond 15.1.1979, on which date the
letter of credit ceased to be operative. The bills of lading were ultimately
issued on 25.1.1979. Having regard to Rule 3 of Article III of the Schedule
to the Act, there was a statutory duty cast upon Shaw Wallace as agent of the
carrier, to issue the bills of lading, without delay. Shaw Wallace was aware
of the relevance and importance of bills of lading. By deliberately delaying
the issue of the bills of lading from 17.12.1978 to 25.1.1979, Shaw Wallace
committed a breach of statutory duty cast under Article III (3) of the
Schedule to the Act. It also acted negligently in performance of its legal duty
in common law to issue the bills of lading on delivery of the mate’s receipt,
as the agent of the ship-owner. Thus it became liable to pay damages to
make good the loss, namely the value of the goods covered by the bills of
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lading. For this purpose it is immaterial whether Shaw Wallace was aware or
unaware of the fact that the Letter of Credit was expiring on 15.1.1979. The
contention of Shaw Wallace that it was acting merely on the instructions of
the shipowner in refusing to issue the bills of lading till furnishing of a bank
guarantee and therefore not liable, is rejected.
18. The appellant made a belated attempt to avoid liability by contending
that it was not responsible or liable for the issue of bills of lading, that only
the master of the ship who received the goods, had to issue the bills of
lading, and that NFC having permitted the ship to leave the port without
obtaining the bills of lading, could not require the agent to issue the bills of
lading. The well recognized practice relating to carriage of goods by sea is
that where a consignment is loaded/received on board on different dates, the
person in charge of the vessel issues mate’s receipts acknowledging the
quantity received, as and when the goods are received. On completion of
delivery of goods by the shipper, on production of the mate’s receipts, the
bills of lading would be issued to the shipper either by the master of the
vessel or by the agent of the shipowner. In this case, at the relevant time,
Shaw Wallace represented to NFC and its agent (Asian Agency) that it was
the agent of the carrier and did all acts expected to be carried out by the
carrier’s agents, that is informing the shipper’s agents about the arrival of the
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ship by issuing notice of readiness and by calling upon the shipper’s agent to
load the cargo. It issued to the master of the vessel, the mate’s receipt book,
bearing printed caption of ‘Shaw Wallace & Co. Ltd.,’ thereby making it
clear that it was acting as an agent of the carrier. The mate’s receipt forms
issued by Shaw Wallace for use by the master of the ship clearly contained a
printed provision that the bills of lading could be obtained at the agent’s
office. Shaw Wallace corresponded and dealt with the shipper’s agent in all
matters with reference to the shipment and furnished the blank forms of bills
of lading to the shipper’s agent. Shaw Wallace also received the mate’s
receipt and duly filled forms of bills of lading from Asian Agency on
17.12.1978 without any protest. Ultimately, the Shaw Wallace did issue the
bills of lading. Therefore, it is too late in the day for Shaw Wallace to
contend that it was not liable to issue the bills of lading. It is also significant
that Shaw Wallace never informed NFC or Asian Agency before the vessel
left Calcutta on 4.12.1978 or even thereafter, that it did not have the
authority to issue the bills of lading or that it would not issue bills of lading
in view of any default on the part of NFC. On the other hand, it held out till
the ship left the port that it was the carrier’s agent and it will issue the bills
of lading in lieu of the mate’s receipt. It did not express any reservation or
objection when it issued the blank forms of bills of lading to Asian Agency
for being filled or even when the mate’s receipts and filled forms of bills of
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lading were delivered to it on 17.12.1978. Even in the letter dated
28.12.1978 addressed to the Asian Agency, it merely stated that readiness of
the ship to receive goods would commence from 9.11.1978 and not
26.12.1978. More than 15 days after receiving the mate’s receipts and filled
form of bills of lading, on 3.1.1979, for the first time, Shaw Wallace raised
the issue of furnishing a bank guarantee for payment of demurrage amount
before releasing the bills of lading. Even in this letter, it did not mention the
amount of demurrage for which the bank guarantee was to be issued. The
demurrage amount was mentioned for the first time by letter dated
15.1.1979. Therefore, even if NFC wanted to give a bank guarantee, it could
not have given a bank guarantee before 15.1.1979 as the amount for which
bank guarantee was required, was not notified. On 15.1.1979, the letter of
credit expired. Therefore, it is clear that the Shaw Wallace alongwith the
ship-owner (first defendant) was jointly and severally responsible for the
loss caused to the NFC. The liability of Shaw Wallace arises by reason of
breach of a statutory duty and by reason of its negligence in performing its
legal duty to release the bills of lading when demanded. Whether the delay
on the part of the Shaw Wallace in issuing the bills of lading was on account
of negligence or on account of mala fides, makes no difference, in so far as
its liability is concerned.
21
19. Once a mate’s receipt is issued to the shipper on delivery of the goods
to the ship, issue of bill of lading in respect of such goods cannot be
postponed on any ground except where the person claiming the bill of lading
is not the shipper. Once the mate’s receipt is issued to the shipper (or its
agent) and the demand for issue of a bill of lading in terms of the mate’s
receipts is made by the shipper (or its agent), the owner of the vessel is
bound to issue the bill of lading and cannot deny or delay the issue of the bill
of lading. If the arrangement was that the agent of the owner of the vessel
will issue the bill of lading, or if the owners’ agent had held out that it will
issue the bill of lading, the agent cannot withhold the bills of lading once the
mate’s receipt is issued, irrespective of any instructions to the contrary,
issued by the owner of the vessel subsequent to the issue of mate’s receipt
and departure of the vessel with the goods from the port. If the issue of bill
of lading is denied or delayed as a consequence of which the shipper suffers
loss, the owner of the vessel and its agent will jointly and severally be liable
to make good the loss by way of damages.
20. The appellant next contended that even if it is held liable in damages,
the amount claimed was erroneous. It is pointed that NFC has claimed in the
plaint (Annexure D to the plaint) that the value of 4446.794 MT of parboiled
rice was ` 1,05,32,459/22. The appellant further pointed out that as per the
22
contract rate of US$ 216 per MT, the value of 4446.794 MT would be US$
960,507. It is pointed out that in the plaint in its suit filed against NHH in the
High Court of Singapore, NFC had shown the value of 4446.794 MT as US$
960,507. According to the appellant, as per the prevailing exchange rate
when the loss occurred, the rupee equivalent of US$ 960,507 was `
77,80,110/- (at the rate of ` 8.10 per US Dollar) and therefore, the claim of `
1,05,32,459/22 was excessive, erroneous and even if the plaintiff should
succeed, the decree should be only for ` 77,80,110/-. We have carefully
considered the said contention. It is seen that the appellant in its written
statement did not raise the contention that the exchange rate was ` 8.10 per
US Dollars at the relevant time and the Indian rupee equivalent of the value
of the rice in US Dollar would be only ` 77,80,110/-. Significantly, even
when the learned Single Judge decreed the suit for ` 1,05,32,459.22, the
appellant did not raise this contention in the memorandum of appeal in the
intra-court appeal. 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 not raise this contention in the
special leave petition. Apart from the absence of pleadings, there is no
material 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. In
23
the absence of any plea in the written statement and in the absence of any
ground in the memorandum of appeal or special leave petition, and the
absence of any material, the appellant cannot during arguments, raise this
issue which involves examination of disputed questions of fact. The said
contention is therefore liable to be rejected.
21. In the view we have taken, it is wholly unnecessary to consider the
several decisions on unrelated issues relied upon by both sides. The decision
of the High Court that the appellant is jointly and severally liable along with
the owner of the vessel does not call for any interference. The appeal is
therefore, liable to be dismissed.
Civil Appeal No.7099/2001
22. 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. Thye Shipping
Parma SA, the second respondent herein, was the first defendant in the said
suit. Eastern Steamship & Enterprises (S) Ltd., and Khemka & Co.
(Agencies) Pvt. Ltd., respondents 3 and 4 herein were the second and fourth
defendants respectively in the suit. The appellant has filed this appeal
24
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
court decreeing the suit filed by the first respondent.
23. The plaintiff entered into a contract dated 7.12.1977 with Ngoh Hong
Hang Pvt. Ltd., Singapore (for short ‘NHH’ or the ‘buyer’) for sale of
certain quantities of Nepal parboiled rice. As per the contract, the payment
was to be made by the buyer by establishing an irrecoverable confirmed and
transferable letter of credit confirmed by Rashtriya Banijya Bank,
Kathmandu in US dollars in favour of the seller allowing part payment. The
contract provided that the payment 100% invoice value shall be made at
sight at the seller’s bank on presentation of ‘on board Bills of Lading’ (or
charter party Bills of Lading) supported by seller’s commercial invoice. In
pursuance of it, Bangkok Bank Ltd., Hong Kong who were the buyer’s
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. The
validity period of the said letter of credit was originally upto 30.6.1978, the
date of shipment latest by 20.6.1978. This was extended from time to time
and the validity of the letter of credit was extended up to 15.1.1979 and the
25
date of shipment was extended to 31.12.1978. (vide communication dated
26.10.1978 of Rashtriya Banijya Bank).
24. 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. 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. Khemka & Co.
(Agencies) Pvt. Ltd., the fourth defendant was the Owner’s Protective
Agent. Shaw Wallace was the agent of the owner of the vessel, at Calcutta.
M/s Asian Agency was the agent of the seller (NFC) who was the shipper of
the goods.
25. Shaw Wallace addressed a letter dated 18.11.1978 to Asian Agency
(NFC’s 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. Shaw Wallace informed NFC’s 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 notice of readiness. The said notice of readiness was accepted
26
by NFC’s Agent on 4.12.1978. The loading of goods was commenced on
5.12.1978 and continued upto 12.12.1978. As loading could not be
completed for want of entire quantity of rice, the ship was shifted from its
berth on 12.12.1978. The ship was again re-berthed on 27.12.1978 and
loading was resumed and completed between 27.12.1978 to 29.12.1978.
Several mate’s 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. The ship sailed from the Port of
Calcutta to Penang on 30.12.1978.
26. The disponent owner of the vessel (Thye Shipping) advised Shaw
Wallace by telex on 1.1.1979, not 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).
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. 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 could not be released until receipt of confirmation that
charterer/shipper had provided a bank guarantee acceptable to the ship
27
owner to pay the freight, dead freight and demurrage due to the ship owners.
27. 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. In the
meanwhile, the validity period of the letter of credit issued by the buyer
expired on 15.1.1979. Shaw Wallace by communication dated 15.1.1979
informed Asian Agency that the total demurrage and dead freight due in
respect of M.V. Eastern Grand was US $77,000 and a bank guarantee for the
said amount should be furnished by the NFC or its agents so that the bills of
lading could be issued.
28. As per the standard practice, Shaw Wallace supplied the blank forms
of bills of lading to Asian Agency for being filled and returned. Asian
Agency delivered the mate’s receipts and the duly filled bills of lading to
Shaw Wallace on 18.1.1979 with a request to sign and issue the bills of
ladings as owner’s agent. Asian Agency sent a notice dated 19.1.1979 to
Shaw Wallace demanding the immediate release of the bills of lading and
requiring it to ensure extension of the letter of credit to enable NFC to
negotiate the same, failing which Shaw Wallace would be held liable for all
consequences. Shaw Wallace received a telex dated 24.1.1979 from the ship
28
owner, giving clearance to release the bills of lading. On 29.1.1979, Shaw
Wallace delivered three signed bills of lading dated 28.12.1978 and
29.12.1978 to NFC’s agent (Asian Agency) in regard to 3366.170 MT of
rice entrusted to the master of the vessel ‘Eastern Grand’ for transshipment
from Calcutta to Penang. NFC issued its final invoice in regard to the
consignments on 2.2.1979.
29. NHH issued a notice dated 3.2.1979 to NFC alleging that NFC was
liable in damages for short-supply of 1521.52 MT of parboiled rice and non-
supply 11573 MT of white rice, apart from being liable to demurrage for
three vessels, in all US$ 13,41,242.38. NFC issued a notice dated 24.9.1979
to NHH claiming US$ 59,12,191.07 in regard to the supplies made
(including quantities shipped in M. V. Eastern Grand and M. V. Pichit
Samut). As there was no response, NFC also issued a legal notice dated
10.12.1979 to Shaw Wallace and Khemka & Co. claiming ` 95,67,537/31
being the value of the goods covered by the three bills of lading as damages,
for the wrongful delivery of the cargo to NHH.
30. 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 Owner’s Protective Agent Khemka & Co. (Agencies) Pvt. Ltd.,
29
(fourth defendant) for recovery of ` 95,67,537/31 as damages for the loss
and damage suffered by it. In the suit filed by NFC, it was contended that as
the bills of lading were withheld, the valuable security was not 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. The basis of the claim was two-fold. The first was wrongful delivery
by the first defendant to the buyers. Second was wrongful failure to furnish
the bills of lading thereby preventing the NFC from negotiating and
recovering the amount due. 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.
31. Defendants 1, 2 and 4 did not contest the suit. Shaw Wallace (third
defendant) in its written statement contended as follows : (a) it did not 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 not
maintainable; (c) it was in no way concerned 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 no knowledge of the opening of the letter of
credit or the expiry date thereof; and (e) it was in no way concerned with the
main contract of sale of rice between NFC and NHH. Issues were framed
30
similar to those in the case of Pichit Samut. Both parties (plaintiffs and
second defendant) led evidence – both oral and documentary.
32. 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 could not recover any amount as
NHH was ordered to be wound up in the year 1985.
33. After considering 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). The learned Single Judge held that
the suit was maintainable. He also held that Shaw Wallace was liable to pay
damages to NFC as claimed. Feeling aggrieved, Shaw Wallace filed an intra
court appeal. The division bench of the Calcutta High Court, by impugned
order dated 14.9.2001 dismissed the said appeal. The reasonings of the
learned Single Judge and the Division Bench are broadly the same as the
reasoning in the case of ‘Pichit Samut’. The said judgment and decree of the
High Court is challenged in this appeal by special leave.
31
34. We have already noticed that the appeal is limited to the role of Shaw
Wallace as the carrier’s agent and its liability. The legal position has been
discussed while dealing with the case of Pichit Samut. The decision of the
High Court was upheld in the case of Pichit Samut solely on the ground that
in view of the delay on the part of Shaw Wallace in releasing the bills of
lading, NFC could not present the bills of ladings and invoices and receive
payment against the letter of credit before its expiry on 15.1.1979. In the
case of Pichit Samut’, the mate’s receipts were delivered and the demand for
bills of lading was made on 17.12.1978, the cargo were delivered to the
NHH on 22.12.1978 and bills of lading were issued on 25.1.1979, after the
expiry of the letter of credit on 15.1.1979. We therefore held that if Shaw
Wallace had delivered the bills of lading when demanded, NFC could have
realized the value of the goods long prior to 15.1.1979 when the letter of
credit expired and that on account of its failure to release the bills of lading
before 15.1.1979, NFC was prevented from realizing the value of the rice
supplied.
35. But the facts are completely different here. As noticed above, the
goods were loaded between 5.12.1978 and 29.12.1978. The vessels sailed on
30.12.1978. The letter of credit expired on 15.1.1979. The goods were
cleared at Penang between 16.1.1979 to 19.1.1979.It was only on 19.1.1979,
32
after the expiry of letter of credit and after the goods were delivered to NHH,
that the NFC tendered the mate’s receipts and requested for issue of bills of
lading from Shaw Wallace. Even if Shaw Wallace had delivered the bills of
lading on the day of demand namely on 19.1.1979 itself, NFC could not
have realized the amount against the letter of credit. Shaw Wallace could be
made liable only if it had committed breach of statutory duty or breach of
any other legal duty amounting to negligence causing loss to the NFC. In
this case, having regard to the fact, that the letter of credit had expired on
15.1.1979 long prior to the tendering of mate’s receipt and demand for bills
of lading, the delay of nine days in issuing the bills of lading had no
relevance. As noticed above, even if the bills of lading had been issued
forthwith on 19.1.1979, it would not have been of any assistance.
36. After referring to the oral evidence, the High Court inferred that it
would be highly improbable that the holder of the mate’s receipts would
delay the making of a demand for blank bills of lading forms. The learned
Single Judge recorded a finding that Asian Agency was demanding the blank
bills of lading forms from Shaw Wallace from 30.12.1978 and that Shaw
Wallace did not supply the blank forms to Asian Agency until 17.1.1979.
Consequently the learned single Judge reasoned that the demand for bills of
lading was being prior to 15.1.1979 and therefore, for the reasons stated in
33
the case of Pichit Samut, Shaw Wallace was liable to pay damages equal to
the value of the goods. The division bench affirmed the said findings.
37. There is no reference in the plaint, to the demand for the blank forms
of lading on and from 30.12.1978 by Asian Agency. Asian Agency did not
send either any letter or telex to Shaw Wallace demanding the issue of bills
of lading or the blank forms of bill of lading for purposes of filling up at any
time prior to 17.1.1979. Asian Agency did not tender the mate’s receipts
prior to 17.1.1979. The first communication in writing from Asian Agency
to Shaw Wallace after the ship left on 30.12.1978 was when it sent the
mate’s receipts and the filled forms of bill of lading to Shaw Wallace for
issuing bills of lading, under cover of letter dated 19.1.1979, which is
extracted below:
“We enclose under notes MR’s & B/L’s with 3 original copy for issuing B/L. M/R No.4,5,6,7,8,9,10,11,12,13,14,15,16,17, 18,19,20,21,22,23,24, 25,26,27,28,29,30,31,32,33,34,35, 37,38,39,40, 41,42,43,44,45, 46 for 26680 bags Nepal Parboiled medium rice for Malayasa. MR No. 38,47,48,49,50,51,52, 53,54,55,59 for 25 409 bags LPN Malayasia Nepal Parboiled Medium rice. M.R.No. 1,2,3,56,57,58 for 15,791 bags Nepal Parboiled Medium rice 1978 for Port Penanag.”
38. On the same day, that is on 19.1.1979, Asian Agency also sent a
notice through counsel to Shaw Wallace demanding that immediate steps be
taken for release of bills of lading relating to Pichit Samut and Eastern
34
Grand and for extension of validity of the letters of credit from the buyers so
as to enable NFC to negotiate the same and realise the proceeds. We extract
below the relevant portions of the said notice :
“We have been instructed that the above m.v. Pichit Samut was loaded with 4539 gross tones Nepal Rice and the loading was completed on the 4th December, 1978. The other vessel m.v. Eastern Grand was also loaded by our clients with 3434 gross tones of Nepal Ribel and such loading was completed on the 29th December, 1978. on completion of the loading the Mate Receipts were duly issued by the respective Steamers to our said clients.
Our clients in their turn forwarded to you the forms of the Bills of Lading duly filled in together with the Original Mate Receiepts and such documents were submitted for m.v. Pichit Samut on the 17th December, 1978 and for m.v. Eastern Grand on the 18th January 1979.
You are aware that as per the normal practice the bills of lading are exchangeable against the original Mate receipts which you as steamer agents were obliged to issue in favour of our clients.
It is regretted that although the formalities as aforesaid were duly complied with by our clients you did not release the necessary Bills of Lading to our clients and although you knew fully well that without such bills of lading and other documents our clients could not be negotiate the letter of credit in connection with the said shipments.”
Significantly, the above notice 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). It does not refer to any earlier demand by Asian Agency for
issue of blank forms of bills of lading from 30.12.1978 or any other date. It
does not refer to any earlier demand for issue of bills of lading. Similarly in
the notice dated 10.12.1979 issued by NFC through counsel to Shaw
Wallace, there is no reference to any demand earlier to 19.1.1979. If really
35
NFC and Asian Agency were seriously pursuing the matter, we fail to
understand why no letter or telex was sent either by NFC or by Asian
Agency making a demand for issue of blank bill of lading forms or insisting
upon the issue of bills of lading by tendering the mate’s receipts. Even
assuming that there was any oral demand for bill of lading forms on
30.12.1978 as found by the High Court, it was evident NFC and its agent
had taken the matter in a casual manner presumably expecting a further
extension of letter of credit. In the circumstances, it cannot be said that there
was any default, negligence or delay on the part of Shaw Wallace in issuing
the bills of lading prior to 17.1.1979. The learned Single Judge and division
bench have found that there was a demand for blank forms of bill of lading
from 30.12.1978. Accepting the said finding will not help NFC as there is no
finding that the mate’s receipts were tendered or delivered with a demand
for issue of bills of lading prior to 19.1.1979. The High Court has failed to
consider this important aspect and wrongly assumed that breach, default,
delay could be attributed to Shaw Wallace, in issuing the bills of lading,
even before the mate’s receipts were tendered on 19.1.1979. The decisions
of the learned Single Judge and division bench of the High Court can not
therefore be sustained.
36
Conclusion
39. In view the above, the appeals are disposed of as follows:
(i) CA No. 7099/2001 (Re: Eastern Grand) is allowed and the
judgment and decree of the High Court in so far as it decrees the
suit against the appellant is set aside. The decree against the second
respondent herein (first defendant in the suit) is not disturbed.
(ii) CA No. 7100/2001 (Re: Pichit Samut) is dismissed and the
judgment and decree of the High Court is affirmed.
(iii) Parties to bear their respective costs.
…………………………J. (R.V.Raveendran)
New Delhi; ………………………….J. October 13, 2011. (H.L. Gokhale)
37