Breaking News:

Obama opens 24-hour trip to Germany ; NSA director says plot against Wall Street foiled ; Israeli premier: pressure on Iran must continue ; DCC elections after Eid-ul-Fitr : EC ; Indefinite transport strike continues in Khulna ; 18-party to stage demo countrywide on June 22 ; One killed in Jamalpur ‘by brother’

Appeal allowed as trial court failed to appreciate case

.
High Court Division
(Civil Appellate Jurisdiction)
Mashuque Hossain Ahmed-J.
And
Md. Abu Tariq-J.
FIRST APPEAL. No. 59 OF 1990
(Appeal preferred on the 17th day of February, 1990, against the judgment and decree of Mr. Anwar-ul Haque, Sub Ordinate Judge, Chittagong dated the 4th day of November, 1989 passed in Money Suit No.97 of 1985.)
M /S Polish Ocean Lines and another ............... Appellants.
Vs.
Bangladesh and another ... Respondents.
For the appellants: Mr. Md. Ohiullah for Mr. M. Hafizullah, Advocate.
For the respondents: Not represented.
Judgment: July 15, 2009
Customs Act, 1969-
Section 55(E)- Declaration as to the lading of consignment and delivery thereof-
In the instant case the plantiff claimed compensation on account of damage to his consignment. Out of 13 cases only one case has been referred. In the event of any damage to consignment, it is mandatory to notify the defendant for joint survey within three days of the lading. But the plaintiff did not request the defendant for holding joint survey within the stipulated time. The learned judges of the High Court Division held the trial court failed to properly appreciate the evidence, facts and circumstances of the case consequent whereupon came to erroneous decision which is not tenable in and accordingly allowed the appeal and set aside the impugned judgment and decree.
We find from the impugned judgment that the defendant Nos.1 and 2 contended that in the event of any damage to the goods, as was found, at the time of lading, it was incumbent upon the plaintiffs to apply to these defendants for a joint survey within three days of the landings of the goods, but the plaintiffs did not do the same and as such these defendants, are not liable to compensate the alleged loss suffered by the plaintiff: On the other hand, the defendant No.3 the Chittagong Port Authority contended that out of the alleged suit consignment of 13 cases only one single case landed by mark in damaged condition as noted in the landing tally slip, exhibit-AA and the same was delivered to the consignee in the same condition  as received from the ship ....................(Para 11)
JUDGMENT
MASHUQUE HOSSAIN AHMED-J:
This first appeal is preferred by the defendants against the judgment and decree dated 4.11.1989 passed by the learned Subordinate Judge, 2nd Commercial Court, Chittagong in Money Suit No. 97 of 1985 decreeing the suit against the defendant Nos. 1 and 2 (appellants) with interest @ 15% per annum with effect from the date of filing of the suit till realisation.
2. The plaintiff's case, in short, is that the plaintiff imported a consignment of 13 cases of equipments (containing plastic coated panels) under Bill of Lading No.53/T dated 23.1.1975, which was shipped from the Port of Gdansk, Hungary per M.S. "LENINO" to be carried to' and delivered at Chittagong Port; the ship arrived at Chittagong Port on or about 8.4.1975 and thereafter discharged her cargoes upto 16.4.1975; the ship is owned or managed controlled by the defendant No.1 and the defendant No.2 is their local agent who cleared the ship at Chittagong Port on behalf of the defendant No.1 by giving declaration under Section 55(E) of the Custom Act.
3. That after obtaining the delivery order, the District Controller of Stores (Shipping) on behalf of the plaintiff went to take delivery of goods from the defendant No.3, Chittagong Port Authority but it was found that the consignment was lying in damaged condition at Jetty Shed No.7, and as such the plaintiff applied to the defendant No.2 for holding joint survey of goods but the defendant No.2 refused to do so by their letter dated 21.5.1975 on flimsy pretext and then M/S. Purbanchal Surveyors Limited was engaged to hold survey of the goods who held the survey on days 16, 17 and 21.7.1975. It has been found in the survey, that out of the total manifested quantity, 6 cases were in damaged condition and out of contents thereof'17 were damaged and broken and 221 were missing and thereby the plaintiff suffered a loss of Tk 1,47,341/78. That the said loss was caused due to the gross negligence' and carelessness of the staff of the defendants and accordingly the plaintiff lodged the claim upon the defendants but they illegally repudiated the same. Hence, the plaintiff was constrained to file the instant suit.
4. The defendant Nos. 1, 2, and 3 contested the suit by filing separate written statements denying the plaintiff's claim and material allegations against them and absolved themselves of any liability and their contention was that as carrier they carried the goods with utmost care and caution and discharged the same to the Port of Chittagong at the same good and original as condition as it was during the custody of the ship till its arrival at the Port of shipment and as such these defendants are not liable' to compensate for the alleged loss which might have been suffered by the plaintiff. Therefore, the suit was liable to be dismissed as against these defendants.
5. Upon consideration of the evidence on record and hearing both the sides of the counsels and with reference to the statute and decision, the learned trial Court allowed the suit by the aforesaid impugned judgment and decree.
6. Being aggrieved and dissatisfied with the aforesaid impugned judgment and decree dated 4.11.89 passed by the learned Subordinate Judge, 2nd Commercial Court, Chittagong in Money Suit No. 97 of 1985 the aforesaid defendant-appellants have preferred this first appeal.
7. Mr. Md. Ohiullah, the learned Counsel appearing, on behalf of the defendant-appellants submits that the trial Court erred in law in not holding that the defendant-appellant Nos. l and  2 could not be held liable to the plaintiff for the shortage/ damage of the goods since the consignments were discharged into the care and custody of the defendant No.3 the statutory bailee of the goods and the vessel sailed off from Chittagong Port after completing the discharge of the suit consignment, he submits also that the learned trial Court erred in law in not holding that the plaintiff and their agent acted. negligently and carelessly in not talking delivery of the goods in time which resulted in theft and pilferage while the goods were lying in the custody of the defendant No.3 for which these defendants cannot be held liable. He further submits that the learned trial Court erred in law in not holding that since the cargo were discharged from the vessel "M.S. k EN I NO" into the care and custody of the defendant No.3, the liability of the defendant Nos. 1 and 2 thus was ceased as soon as the goods had left the ship's tackle as envisaged by law and as such the defendant Nos. 1 and 2 appellant are not liable to the plaintiff.
8. Heard the learned Counsel and perused the papers and documents.
9. Considering the pleadings of the parties, we find that, the learned trial Court had framed the following issues:
1. Whether the. suit was maintainable in its present form?
2. Whether the suit was bad for defect of parties?
3. Whether the suit was barred by limitation?
4. Whether the plaintiff  was entitled to get relief as prayed for?
5. Whether, the plaintiff is entitled to any-other relief?
10. After hearing of all the issues and after considering the facts and circumstances, evidence on record and other legal aspects, the learned Subordinate Judge held, inter alia, that the plaintiffs have been able to prove their case and as such the plaintiffs were entitled to get decree as prayed for against the defendant Nos 1 and 2.
11. We find from the Impugned judgment that the defendant Nos.1 and 2 contended that in the event of any damage to the goods, as was found, at the time of