← Library
Madras High CourtCRP NPD/2083/2004allowed

M/S.Wavin India Ltd., v. M/S.Dongeue Shipping Company

2018-07-18Honourable Mr Justice M.V. Muralidaran4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 02.11.2017 Pronounced on : 18.07.2018

CORAM

THE HON'BLE MR. JUSTICE M.V.MURALIDARAN C.R.P.(NPD) No. 2083 of 2004 1.M/s.Wavin India Ltd., rep. by Power Agent The Oriental Fire & General Insurance Co. Ltd., 2.The Oriental Fire & General Insurance Co. Ltd., by its Divisional Manager .. Petitioners vs M/s.Dongeue Shipping Company Limited, by their Local agents M/s.J.M.Baxi & Co.

.. Respondent Revision Petition filed under Section 115 of C.P.C., against the order dated 8.7.2004 in E.P.No.359 of 2004 in O.S.No.2848 of 1996 on the file of the IX Assistant City Civil Court, Chennai. For Petitioners :

Mr.Nageswaran For Respondent :

Mr.K.Bijai Sundar

ORDER

This Civil Revision Petition is directed against the order dated 08.07.2004 passed in E.P.No.359 of 2004 in O.S.No.2848 of 1996 on the file of the learned IX Assistant Judge, City Civil Court, Chennai, dismissing the Execution Petition filed by the petitioners.

2. The petitioners, who are decree-holders, have filed E.P.No.359 of 2004 under Order 21, Rule 43 and 64 of C.P.C. to attach and sell the movable properties mentioned in the schedule of properties to realise the decree amount.

3. The Execution Petition was resisted by the respondent/agent stating that the agent's movable properties cannot be attached.

4. Upon consideration of the rival submissions, the Executing Court dismissed the Execution Petition. Aggrieved by the same, the petitioners have filed this Civil Revision Petition.

5. I heard Mr.Nageswaran, learned counsel for the petitioners and Mr.K.Bijai Sundar, learned counsel for the respondent/agent and also perused the materials available on record.

6. The learned counsel for the petitioners submitted that the Executing Court failed to take cognizance of the fact that the respondent failed to appear in the suit proceedings, resulting in an ex parte decree against them directing to pay the suit amount with interest and costs. He would submit that the Executing Court also failed to note that Section 148 of the Customs Act clearly mentions about the liabilities of the agent appointed by the person in charge of a conveyance. The said Section mentions that the agent shall be liable for the fulfilment in respect of the matter in question of all obligations imposed on such person in charge or under the Customs Act or any law for the time being in force and to penalties and confiscations which may be incurred in respect of that matter.

7. The learned counsel further submitted that the Executing Court failed to see that the principal in the instant case situated at Korea is a foreign principal, represented by their local agent, who is personally liable for their acts and that of their principal, as an agent for the person in charge of conveyance as contained in Section 148 of the Customs Act. He argued that the Executing Court ought to have held that the remedy of the respondent/agent is to file an application before the trial Court to set aside the ex parte decree and contest the suit on merits instead of just filing a counter in the Execution Petition denying their liability.

8. Per contra, the learned counsel appearing for the respondent/agent submitted that since the agent is not a party to the transactions between the parties and no movable properties were available for attachment, the respondent/agent is not liable to pay the decree amount. He argued that the Executing Court was right in dismissing the Execution Petition as petitioners have failed to show before it any amount of the principal was lying with the agent.

9. The case of the petitioners before the Executing Court is

that first plaintiff-decree holder purchased two consignments of PVC suspension grade P 1000U from Seoul under two invoices dated 27.03.1983. Cargo was carried by sea by defendant from Korean Port to Chennai Port. Vessel arrived on 16.05.1983. Goods damaged and short landed and the Port Trust certified the same. Steamer survey was done by defendant's agents. The damage and shortage was assessed at Rs.1,11,820.73. The second plaintiff insurer covered the cargo under Marine policy and claim settled to the first plaintiff and second plaintiff gets subrogated to the rights of the first plaintiff. The plaintiffs recovery agent lodged a claim with defendant's agents, who denied liability.

Therefore, the suit was filed before the High Court and thereafter on the point of pecuniary jurisdiction, the same was transferred to the file of the City Civil Court and numbered as O.S.No.2848 of 1996. Though the defendant's agent filed written statement, but remained ex parte in the suit and ex parte decree was passed on 19.11.2002 holding that the defendant was liable for suit claim with interest and costs.

10. Based upon the ex parte decree, plaintiffs have filed E.P.No.359 of 2004 for attachment and sale of movables of the respondent/agent. Though the respondent contended that the agent's movable properties cannot be attached, they have not let in any oral evidence. However, the Executing Court, dismissed the Execution Petition holding that the agent is not liable to pay the amount.

11. It appears that while dismissing the Execution Petition, the Executing Court has not given valid and/or convincing reason as to why the agent is not liable for the amount due to be paid by the principal.

12. The learned counsel for the petitioners submitted that the agent had undertaken and performed all the acts on behalf of the principal. Therefore, the agent acting for a foreign principal has a duty to inform the principal of the claim and to see that the decree is satisfied.

13. In the case on hand, M/s.J.M.Baxi and Company had acted as an agent on behalf of the principal M/s.Dongeue Shipping Company and in the course of transactions, there was a due and hence petitioners have filed the suit and also obtained decree in favour of the petitioners. Though the decree obtained by the petitioners is ex parte one, till date the same holds good as neither the principal, nor the agent has taken steps to set aside the ex parte decree. Further, the respondent/agent performing all the functions of the principal and receiving monies towards consideration is estopped from raising a defence that they are not liable as they are only an agent.

14. As stated supra, the Executing Court had failed to point

out the duty of the agent, who admits all transactions, to inform the principal and to safeguard their interest by providing sufficient funds to meet the claim against them.

15. As per the provisions of the Customs Act, a declaration was executed between the parties that if any penalty levied for the goods, the agent was liable to pay the same. Therefore, the ship's agent was answerable for the discharge of all claims for damages or short delivery which might be established by the owner of any goods comprised in the import cargo in respect of such goods.

16. The Execution Court has failed to consider the role played by the agent as laid down in the Customs Act and erred in dismissing the Execution Petition. Therefore, in view of the aforesaid discussions, the order of the Executing Court is liable to be set aside.

17. In the result, the Civil Revision Petition is allowed. No costs.

-s/d- Assistant Registrar(CCC) True Copy Sub-Assistant Registrar vs To The IX Assistant Judge, City Civil Court, Chennai.

Copy to The Section officer VR Section, High Court, Madras 104.

+1 CC to Mr. Nageswaran, Advocate sr 47487.

+1 CC to Mr.K. Bijai Sundar, Advocate sr 47985 C.R.P.(PD) No.2083 of 2004 NA(CO) SP(07/08/2018)