ABBASIN Ltd. Versus METALEXPORT

This is a suit for the recovery of Rs. 12,64,186.20.

2. The case of the plaintiff as disclosed in the plaint is, that on 2‑10‑1972, the Plaintiff which is a registered company, entered into a contract with the Defendant No. 1, through their agents, Defendant No. 2 for the import of iron and steel scrap. On 6‑10‑1972. in pursuance of the contract, the Plaintiff opened L.C. in the sum of $ 6,51.706.55 (equivalent to Rs. 72,00,000 Pakistani) with the Bank of Bahawalpur Ltd., Karachi, dated 29‑I1‑1972. 4,000,930 M/T of iron and steel scrap was shipped by the supplier on board s.s. `Marbella' from Port of Sudan. This ship was also controlled and owned by Defendant No. 1 and their agents in Pakistan are Defendant No. 3 for the ship. Defendant No. 4 was the Master of the ship and Defendant No. 5 had purchased the ship in question in the end of 1972 for scrap. The draught survey of the ship was carried out before sailing from the Port of Sudan, which showed a load on the ship actually weighed 3,574.000 as against 4,006.930 metric tons shown in the (sic).

3. On 22‑12‑1972 on the request of Defendant No. 2 the Plaintiff got the L.C. further amended, inter alia, to provide for Draught Weight Certificate ‑issued by the Lloyds and/or Certificate issued by the Port of Sudan Authorities and attested by Lloyds is acceptable accompanied by Bank Guarantee for U.S. $10,000 in case of shortage at discharge Port.

4. On 20‑1‑1972 the Plaintiff Banker advised them that their correspondents had released payment for 4,006.930 Metric Tons to the Defendant No. 1 amounting to Rs. 22,65,576.68 in Pak. currency, without complying with the requirement of the amended L.C. On 10‑2‑1973 s.s. `Marbella' berthed at Karachi and on the same day a draught preliminary survey was asked for, a report whereof was received on 1()‑4‑1973 showing 750(1 long ions (equivalent to 7.579.36 metric tons) board the ship. It is further mentioned that on the way the ship picked up 3,981.7 metric tons of iron, steel and Aluminium scrap from Jeddah belonging to other parties.

5. The plaintiffs came to know that it was the last voyage of the ship and by an agreement dated 24‑10‑1972 the ship had been sold to M/s. Dada Steel Mills, Karachi for being scrapped. After about three days of its berthing, because of its poor condition and maintenance, the ship caught fire and as consequence of this fire in the ship, the cost of off loading went up. The quality inspection of the consignment on board the ship was carried out on 26th, 27th and 28th February, 1973 and 1st March, 1973 which revealed that the goods consigned were not m conformity with the specification and were much below the standard. The consignment loaded by the other parties from Jeddah was off loaded first and subsequently 1,877‑9‑3‑14 (1866 metric tons) of iron and steel scrap were delivered to the Plaintiff.

6. That on being approached Defendant No. 2 by their letter dated 28‑3‑1973 informed the Plaintiffs that U.S. $ 23,760 being the value of 432 metric tons detected to be short as per Draught Survey at Port Sudan had been agreed to be remitted by the Defendant No. 1 and that they had asked the Defendant No. 1 to remit a further sum of U.S. $ 18, 150 for estimated short landing of 330 metric tons at Karachi. That on 5‑4‑1973 Defendant No. 2 asked for Lloyds Draught Survey of the ship which was actually carried out on 7‑4‑1973 with the consent of the Master of the Ship. The joint Survey revealed, that the total quantity of cargo on board the ship was 1405 long tons (1427.5 metric tons). The ship was discharged 1413.218 metric tons upto 13‑8‑1973 when it became empty.

7. The Plaintiffs claim that there was shortage of 708.252 metric tons against the contracted quantity. They claimed U.S. $ 37,006.167 for this shortage. The estimated value of this shortage is U.S. $ 38,95,38 but they claimed 95% of the above amount paid accordingly to the stipulation in the L/C amounting to U.S. $ 37,006.167 (equivalent to Rs. 4,07,067.84 in Pakistan currency). They further claim damages for being supplied with inferior quality of the contracted goods which they estimated at Rs. 5,14,142.86. They also claimed additional Stevedoring charges to the extent of Rs. 1,50,000 and losses of profit amounting to Rs. 1,23,944.10 and the loss of interest on the sale value amounting to Rs. 62,501.

8. Defendant No. 2 in his written‑statement has denied to be the agent of Defendant No. 1 and states that there was direct contract between the Plaintiffs and Defendant No. 1. They have admitted to have written letters dated 22‑12‑1972 and 28‑3‑1973, but state that these letters were written on the basis of instructions received from Defendant No. 1. They have denied to have admitted the shortage of 762 metric tons and want the Plaintiffs to prove their case.

9. Defendant No. 3 also denies to be the agent of Defendant No. 1, but states that the Defendant No. 2 is the principal agent of Defendant No. 1, who had appointed Defendant No. 3 as agent of the vessel. It is averred that the survey carried out was without notice to him and that the ship was sold to M/s. Dada Steel Mills, Karachi. It is further averred that the bulk of cargo belonging to the Plaintiff and other consignees was not delivered in full quantity to, them. They deny the other contentions of the Plaintiffs and want them to prove them strictly.

10. Defendant No. 5, also denies the claim of the plaintiffs. They have admitted to be owners of the ship as alleged in para. 2‑A of the plaint. It is contended that no cause of action has arisen against them.

11. Defendant No. 1 has admitted the contract but denies to be the owner of the ship s.s. `Merbella'. It is contended that the Defendant No. 5 was owner of the ship in question. They also deny that the Defendant No. 2 was their agent. It is contended that the alleged contract dated 2‑10‑1972 was an indent from the Defendant No. 2 for supply of iron and steel scrap. It is further contended, that without waiting for confirmation, the Plaintiff opened L.C. for Rs. 72,00,000 as against the indent amount of Rs. 96,00,000. It is averred, that by contract dated 12‑10‑1972 executed between the Defendant No. 1 and Defendant No. 2, the importer, Defendant No. 1 agreed to supply 10,1100 metric tons iron scrap to two importers of Defendant No. 2 each importing quantity 5,000 tons. He admits to have issued contract dated 12‑10‑1972, but it was issued only for limited purpose to keep the L.C. alive. It is admitted, that on draught survey at Port of Sudan, the quantity of cargo on board was found to be 3,574 metric tons. It is contended, that on an agreement arrived at in the meeting at Beirut on 18‑12‑1972 with regard to this draught survey Defendant No. 1 furnished Bank Guarantee of U.S. $ 10,00,000 to the Plaintiff. It is also denied that there was any short supply or that the quality of the goods was inferior or that the fire took place because of the negligence on the part of the Defendants. Defendant No. 4 remained absent and ex parte.

12. On the pleadings of the parties the Court settled‑the following issues:‑

(1) Whether defendant No. 2 are the agents of defendant No. 1 in Pakistan?

(2) Whether the defendant No. 1 had made short shipment of the cargo imported by the plaintiff? If so; what was the weight and value of such cargo?

(3) Whether the bank released payment without complying with the requirements of the amended letter of credit?

(4) Whether the goods had short landed and were not in conformity with the contracted quality and specification?

(5) Whether the fire in the ship was caused due to the negligence, fault or privity of the defendants?

(6) Whether the plaintiffs had to incur additional stevedoring charges? If so, are they entitled to recover it from the defendants?

(7) What loss, if any, was suffered by the Plaintiff?

(8) Whether the plaintiffs claim for Rs. 62,501 is barred under Order 11, Rule 2, C.P.C.?

(9) Whether the goods in question were indented through defendant No. 2 and if so, what is the effect?

(10) What is the effect of final contract dated 12‑10‑1972 followed by the provisional contract dated 2‑10‑1972?

(11) Whether defendant No. 2 personally undertook any liability as alleged by the Plaintiffs?

(12) What the decree should be and against which defendant?

ISSUE NO. 1.

13. The case of the Plaintiff is that he entered into a contract with the Defendant No. 1 through Defendant No. 2 who acted as agent of Defendant No. 1. The Defendant No. 2 denies to be acting as agent of Defendant No. 1 and Defendant No. 1 also denies, that the Defendant No. 2 was his agent.

14. Word `agent' is defined in section 182 of the Contract Act as "a person employed to do any act for another or represent another in dealings with third person". It will be seen from this section, that no particular formality is required to constitute the agency. The essence of the matter, is that the Principal authorises the agent to represent or act for him in bringing or to act in bringing the Principal into contractual relationship with a third person. Such authority of agency need not necessarily be in writing but is to be inferred from circumstances in each case.

15. In the instant case, the contractual relationship between the Plaintiff and Defendant No. 1 commenced with the execution of the document which has been produced as Exh.

19. It is an admitted document. It is on the Letter Head of Defendant No. 2 and is dated 2‑10‑1972. Its heading shows "Contract No. PL 863". It shows Messrs Toyomenka Kaisha Ltd. Beirut to be the sellers and the plaintiffs as purchasers. It is signed by Defendant No. 2. Admittedly in this document, the Defendant No. 2 has not been shown to have signed it on behalf of Defendant No. 1. The name of Defendant No. 1 is mentioned in Item No. 2 of the remarks which read as under:‑

"This is firm and final provisional contract. However, final confirmation of sale from our shippers M/s. Metal Export. Panama Building, P.O.Box No. 2693 Beirut, will be submitted in due course."

Admittedly on the basis of this contract, Letter of Credit was opened by the Plaintiff m favour of Defendant No. 1 for Rs. 96,00,000 to which I will advert later.

16. The Plaintiffs have produced certain correspondence exchanged between the Plaintiff and Defendant No. 2 to show, that the Defendant No. 2 was acting as Agent of Defendant No. 1. Main reliance has been placed upon a letter Exh. PW 2/5‑B. It is a letter addressed to the Plaintiff, signed by the Defendant No. 2 and is dated 29‑1‑1972. In this letter reference has been made to Defendant No. 1 as Principal. Reference may be made to letter Exh. PW 2/16 addressed to the Plaintiffs by the Defendant No. 2 informing them, that they are enclosing therewith original contract No. Nil, dated 12th October, 1082 together with copies received from Defendant No. 1. The Defendant No. 2's witness D.W.2 Syed Ali Ullah Kazmi has produced photostat copy of this contract as Exh. D.W.2/1 It is signed by Defendant No. 1. Exh. 12 is a letter admittedly written by Defendant No. 2 to the Plaintiff requesting for amendment of Letter of Credit which, as already pointed out, was opened by the plaintiff in the name of Defendant No. 1. In Exh. 13, which I will discuss in another issue, the Defendant No. 2 informed the Plaintiff about the shortage ii the consignment shipped in s.s. `Marbella'. He further informed the plaintiff that Mr. Hagop of Defendant No. 1 was in Karachi and they (Defendant No. 2) brought the discrepancies to his notice and Mr. Hagop informed them, that he will remit the amount to the Bankers of the Plaintiff. Exh. D . W 2/5/2 was also written by the Defendant No. 2 to the Plaintiff with reference to the consignment and contract in question.

17. The witness of Defendant No. 2 has admitted all these letters and states, that they were conveying to the Plaintiff, what the Defendant No: 1 told them. It is also admitted fact, that the Defendant No. 1 had asked for survey of the goods, when the ship berthed at Karachi. The Defendant No. 2, however, contends that, he was not acting as agent of Defendant No. 1 but had only indented the goods and was acting as indentor. The word `Indentor' is not defined m any law.

18. Indent in its ordinary meaning is considered to be an order or requisition for goods. indentor, therefore, means a person, who places order or requisition for the goods. Even on the admission of defendant No. 2, it can be said, that he took order for supply of goods from the plaintiff and placed the same with the defendant thereby bringing the contractual relationship between parties. It will also be relevant to refer again Exh. 2 D.W. 2/1. Document is admittedly signed B by the defendant No. 1, and it was sent to the plaintiff through defendant No. 2, vide letter of defendant No. 2 Exh. 2/16. The heading of this document shows, that it was a contract. The defendant No. 1 is shown to be seller while the plaintiffs are shown to be purchasers through the defendant No. 2.

19. All this evidence, oral, as well as documentary, shows, that defendant No. 2 did not act to bring contractual relationship between the plaintiff and defendant No. 1. The fact, that defendant No. 1 acted upon this contract, encashed the L.C., and also shipped the goods clearly shows, that defendant No. 2 was acting with the implied or express consent of defendant No. 1. As such defendant No. 2 would be an agent as defined in section 182 of the Contract Act. It is not disputed, that the defendant No. 1 is a foreign company, whereas the defendant No. 2 is registered in Pakistan. As such my finding is in affirmative on issue No. 1.

ISSUES NOS. 2 AND 4.

20. The Plaintiffs' witnesses Rizwan Ahmed and Abdul Jalil have stated, that the contracted quantity of steel scrap was 4,006.930 metric tons. There is no evidence in rebuttal. Rizwan Ahmed has produced two bills of lading as Exhs. 22 and 23. Both are dated 30th November. 1972. PW Abdul Jalil states, that Exh. 23 shows, the shipment of contracted quantity viz. 4,006.930 metric tons. However, Exh. 23 shows, that the iron and steel scrap was shipped in bulk said to weigh 4,32,900 kilos. It is stated, that this quantity is equivalent to 4,006.930 metric tons. He further states, that draught survey at the port of Sudan showed, that the goods shipped were 3,574 metric tons and therefore second bill of lading Exh. 22 was issued which shows quantity to be 3,574.030 Kg. which is said to be equivalent to 3,574 metric tons. Another bill of lading had been produced by P.W. Abdul Jalil which his Exh. D.W. 2/1. This is not non negotiable copy dated 29th November, 1972. This shows, that 4,006.930 metric tons of scrap iron were shipped. The report of the draught survey conditioned at port of Sudan has not been produced. Naturally, this would be in possession of defendant No. 1 who has not cared to produce any evidence. The fact, that the bills of lading Exh. 2/1 and Exh. 23 were for 4,006.930 metric tons while bill of lading Exh. 22 is for lesser quantity viz. for 3,574 metric tons lends support to the contention, that goods were short loaded at the port of origin. As already pointed the plaintiff's evidence as to the contracted quantity is not rebutted. It is admitted by the defendant No. 1 in his written statement that he shipped 3,574 metric tons of goods.

21. P.W. Rizwan Ahmed states, that they got 708 meteric tons less than the contracted quantity. Admittedly, draught survey of the ship was also carried out at Karachi at the request of defendant No. 2.

22. P.W. Hasan Abbas of M/s. Marine Consultant has been examined as P.W. No. 4. He states, that he carried out the survey of vessel on 10‑2‑1973, and on 7‑4‑1973 and have weighed the cargb from 2‑8‑1973 to 13‑8‑1973. He has produced copies of survey report as P.W. 4/1 and P.W. 4/2. He has identified his signature on the survey reports Exhs. 2/3 and 2/11, P.W. 2/3, is dated 30‑5‑1973. It shows, that the total quantity of cargo of scrap iron of board ship was 1,405 long tons on 7‑4‑1973. Exh. P 2/11 which is also dated 3‑4‑1973, shows that the total quantity of cargo of board the vessel on 10‑2‑1973 was 7,460 long tons. An attempt has been in the cross‑examination by the defendant to show, that these reports are not reliable as these were issued long after the alleged draught survey which was first held in February, 1973 whereas these reports were issued in April, 1973. Be that as it may, the fact, that draught survey was conducted at the request of defendant No. 2 by the Marine Consultant is not denied, but is rather admitted by the defendant No. 2.

23. The plaintiff's case, is that ship was loaded with 3,381.7 metric tons of iron steel scrap from Jeddah belonging to other parties; which was unloaded first and handed over to these‑parties. P.W. Abdul Jalil states, that survey report disclosed, that the ship was carrying on 430 metric tons less than its loaded quantity as per bills of lading. According to him the total quantity that they had received was less by 708 metric tons from the contracted quantity. He gets support from the letter of defendant No. 2, which is Exh. 13, which discloses, that as per discussions with Mr. A.M. Abdullah with Mr. M.A. Jalil the estimated shortage in the consignment shipped per ss. `Marbella' would be around 762 metric tons. He also informed the plaintiff, that Mr. Hagop of defendant No. 1 had informed them, that for shortage of 432 metric tons, he would immediately remit the amount viz. U.S. Dollars 32,760, whereas, with regard to the further shortage of 330 meteric tons, he had requested the defendant No. 1 to remit the plaintiff further amount of U.S. Dollars 18,150. This letter is admitted by defendant's witness No. 2 Syed Aliullah Kazmi, who has stated, that they only conveyed to the plaintiff‑ what the defendant No. 1 had told them. There is no evidence in rebuttal. Thus, the short landing and short supply is admitted and proved as per evidence discussed above.

24. P.W. No. 3 Mr. Muhammad Samiullah a Supervisor of KPT has produced the short landing certificate dated 31‑8‑1973: ‑ It shows, that s.s. `Marbela' short landed its cargo of iron scrap by 679.10 metric tons. This certificate is dated 21‑8‑1973. Mr. Zia Oureshi, learned counsel for the defendant raised objection, that it was photostat copy and therefore could not be produced in evidence. The witness has stated, that the original record is not available and the same has been destroyed. As such photostat copy is admissible as secondary evidence. Admittedly the goods were off loaded from the ship in two instalments. Once before it caught fire and second time, when after it was berthed after repairs. Exh. P 4/2 produced, by the said witness Hassan Abbas, shows, that the last consignment of goods off loaded from vessel was 1431.218 metric tons, which were delivered to the plaintiffs. This witness is partner in Marine Consultants who were admittedly appointed as surveyors by defendant No. 2. Mr. Abdul Jalil has stated, that the total quantity of cargo on vessel was less by 430 tons. He further states, that in first instance the ship had delivered them about 1,400 metric tons of cargo and after it was brought back it delivered about 1,877.934 tons which brings total to about 3,277.934 metric tons. Thus, the short landing would be about less 300 metric tons. According to P.W. Rizwan Ahmed, they received 1,666 metric tons before the repairing of the ship was started and 1,431 metric tons on 13‑8‑1974, when ship came back after the repairs. Thus, according to him, they received about 3,100 Metric tons, and shortage was about 340 tons. However, both of them are Unanimous that the total quantity of the consignment they received was 703 metric tons less than contracted quantity. As already pointed in Exh. 13, the defendant No. 2 has accepted the shortage of about 762 metric tons. It may be pointed, that the figure of second delivery given by Mr. Rizwan Ahmed tallies with report of Surveyor Exh. P 4/2. However, there appears to be no doubt, that the consignment was short loaded by about 432 metric tons. If this figure is deducted from the total shortage of 708 metric tons, the short landing would be 276 metric tons. My finding, therefore, on issue No. 4 is, that the goods were short laded but it is not proved, that they were not in conformity with the C specification. The plaintiff had contended, that the goods were not in conformity with the contracted quantity and specification. It is conceded by Mr. Afzal Nabi, that no expert evidence has been produced to show, that the goods were not in conformity with the contracted specifications, My finding, therefore, accordingly on Issue No. 4.

ISSUES NOS. 9 and 10

25. It is contended by the defendant No. 2, that while entering into contract with the plaintiff vide Exh. 18, he did not act as an agent of the plaintiff, but in fact he thereby acted as indentor and the defendant No. 1 entered into fresh contract on 10‑12‑1972, which is Exh. D.W. 2/1. As already pointed in remark No. 2 of this contract, it was provided, that the final confirmation of sale from their shippers defendant No. 1 will be submitted in due course. This clearly snows, that this contract was subject to confirmation by the defendant No. 1. This confirmation has been produced in the shape of Exh. D.W. 2/1 clearly shows, that the contract was entered into by the defendant No. 1 with the plaintiff through defendant No. 2. Apart from Exh. 18, there is no evidence, that any indent was sent by the defendant No. 2 to defendant No. 1. Exh. 18 is not indent, but as its heading show, it is contract which was sent by the defendant No. 2 to defendant No. 1 for confirmation. This contract was confirmed by the document D.W. 2/1. D.W. 2/1 did not create or bring into existence a fresh contract. 1t is not even signed by the plaintiffs. It is only confirmation of the contract entered into by the defendant No. 2 as agent of defendant No. 1 with the plaintiff. This conclusion finds support from the fact, that L.C. was opened period to the receipt of D.W. 2/1 and in pursuance of that L.C. the goods were shipped by the defendant No. 1. My finding therefore, on issue No. 9 is in negative, and on issue No. 10 my finding is, that the control dated 12‑10‑1972 confirmed the contract dated 2‑10‑1970, which is Exh. 18.

ISSUES NOS. 5 and 6

The burden of proof was on the plaintiff to show, that the ship had caught fire due to negligence or fault of the defendants. Admittedly, the ship did catch fire, but there is absolutely no evidence to show, that this ship caught fire E because of any negligence on part of any of the defendants. The mere statement of the plaintiff's witnesses, that the ship caught fire because of negligence of defendant is not enough to discharge the burden of proof on this issue. The mere fact, that the ship was old or that it was sold for scrapping does not raise any presumption, that because of its age, it caught fire. My finding on issue No. 5 is in negative. The plaintiffs witness Mr. Abdul Jalil has produced two letters from M/s. A.J. Mirza their Clearing Agent as Exh. P.Ws. 2/6 and 2/8. He has also produced some letters from Premier Mercantile Services as Exh. P.W. 2/91 to 2/9/10, to show, that because of fire they had to pay extra charges for unloading. No witness has been examined from Premier Mercantile Services. P.W. No. 8 Muhammad Jamal Mirza of M/s. A.J. Mirza, has been examined, who admits to have written the letters Exh. 2/6, and 8, but he does not state, that if any extra charges were paid because of fire. Even if the plaintiff had to pay extra charges for unloading etc. because of fire in view of my finding on issue No. 5, they are not entitled to recover the same from any of the defendants.

ISSUE NO. 3

26. Admittedly, the L.C. was negotiated and the bank released payment as stated by P.W. Sher Muhammad Chishty, an officer of the National Bank of Pakistan on or about 24‑1‑1973, viz. before the ship reached Karachi. Mr. Sher Muhammad Chishty was examined on 1‑4‑1983 viz. after ten years after the L.C. was negotiated. He further states, that the L.C. was encashed for lesser amount as the amount was in U.S. Dollars 6,51,766.25 whereas, the documents negotiated are in U.S. Dollars, 2,05,087.10. He has produced invoice dated 27‑12‑1972, as Exh. P.W. 6/1. This invoice shows, the quantity of the goods to be 40,00,69.30 Kg. and its value as shown at 95% to be 2,05,037.10 U.S. Dollars. Witness, however, was unable to say, if the payment was made without complying with the requirement of the amended letter of credit. There is no other evidence to show, that the payment was made without complying with the requirement of the amended letter of credit. However, the evidence of the witness clearly shows, that the defendant No. 1 had encashed the L.C. for 4,009.930 metric tons of iron scrap, whereas as already held, the goods were short supplied to the plaintiff to the extent of about 708 metric tons. This shows, that no compliance was made with the requirement of the amended L.C. As such my finding is in affirmative on this issue.

ISSUE NO. 11

27. There is no other evidence to show, that the defendant No. 2 personally undertook any liability under the contract except, that he acted as agent of defendant No. 1. The principal in this case is a foreign company whereas the defendant No. 2 is a local company. Under section 230 of the Contract Act, a contract shall be presumed to exist between the purchaser and the agent of the seller in cases, where the contract is made by the agent for the sale or purchase of goods for merchant residing abroad. Therefore, under section 230 of the Contract Act, the defendant No. 2 is also personally liable. My finding accordingly.

ISSUES NO. 7 and 8

28. I have already held that the short supply of the goods stands proved to the extent of about 708 metric tons as against the contracted quantity. The plaintiffs have claimed amount of short supply of contracted goods to the extent of 708.252 metric tons. As already pointed, the defendant had encashed L.C. for contracted quantity. According to the plaintiff the value of 708.252 metric tons at 95% is Rs. 4,07,067.64. In my opinion, they are entitled to receive this claim. I have already held, that there is no satisfactory evidence to show, that the quality of the goods received was inferior or as to what would be difference of the price. Therefore, they are not entitled to receive Rs. 5,14,142.86 claimed by them as damages for supply of inferior quality of the goods. I have already held, that neither is any proof nor are plaintiffs entitled to receive Rs. 1,50,000 which they claim to have paid as additional stevedoring charges due to the ship having caught fire. Similarly, there is no satisfactory evidence as to what loss of profit they have suffered. No books of accounts have been produced to show as to at what rate they sold the goods, which they received from the defendant or what was the market rate at the relevant time. Therefore, they are not entitled to receive the claim or loss of profit. Similarly, they are not entitled to receive interest as there was no agreement of interest between them nor they served any notice upon the defendant under the Interest Act.

Now the question arises as to from whom they are entitled to receive their claim. They are no doubt entitled to receive their claim from defendants Nos. 1 and 2. As far the defendant No. 3 is concerned, he alleges to have been appointed as agent by defendant No. 2, who is a resident of Pakistan and as such under section 230 of the Contract Act, the contract is not enforceable against him. Besides there is no evidence, that he had filed the form under section 55 of 1 the Customs Act, and therefore, he is not liable for any loss. The defendant No. 4 is Master of the ship. He being an employee of the owner or charterer of the ship, is not personally liable for any claim.

29. The case of the defendant No. 5 is that he is owner of the ship. There is no evidence to show, that any notice of short landing or survey was given to the defendant No. 5 or even to Master of the ship. No doubt, report Exh. 2/11 shows, the survey was conducted with the consent of the Master of the ship, but there is no evidence, that consent of the Master of the ship was taken. P.W. Hassan Naseer, who conducted the survey admitted in the cross‑examination, that he had not taken the consent of the Master for conducting the survey in writing. Furthermore, it may be pointed, that the defendant No.5 was not made party in suit in first instance. It may also be pointed, that in the plaint, it is alleged, that he defendant No. 5 claims to have purchased the ship, It is not alleged, therein, that his agent had issued the bill of lading. Even in the amended plaint in which the defendant No. 5 has been made a party, it is alleged, that the defendant No. 1 is the owner of and controls the ship. Admittedly defendant No. 2 as agent of defendant No. 1 had appointed defendant No. 3 as agent of the ship.

30. Be that as it may, in my opinion the defendant No. 5 is also not liable to I J pay any damages to the Plaintiffs.

31. As a result of the aforesaid discussions the suit of the Plaintiffs for Rs. 4,07,067.84 is decreed with proportionate costs against defendants Nos. 1 and 2. They are also awarded interest @ 10% per annum from the date of K judgment till the amount is recovered.

The suit was disposed of by a short order dated 29‑10‑1987. Above are the reasons in support of the said order.

AA./A‑350/K

Suit decreed.