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TMI Blog2016 (8) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... al documents to HDFC Bank in India and in turn they forwarded to the Bank of America to surrender the same to notify party, namely M/s. Maldonado Imports LLC, USA on receipt of cost of the goods. (ii) The buyer on arrival of the goods, who pay the bill value to the banker upon which the original documents are to be released to the buyer, thereafter, upon receipt of the original documents, the agent of the defendant shall issue the delivery order. On receipt of the swift message from the Bank of America to HDFC Bank about the non-collection of the amount for the bills, the plaintiff requested delivery agent of the defendant to convey the delivery status of the goods. Neither the defendant nor the agent responded to the request. The Bank of America sent second suit communication, dated 30.10.2008 from which the plaintiff understand that the defendant and his agent in USA in gross violation connived with the buyer and issued delivery order for the goods, without getting the concurrence of the consignee bank. (iii) The plaintiff issued legal notice to the defendant. Suddenly, the buyer informed the consignee bank that they could not pay payment to the bank as they received the goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnee would be entitled to take delivery without surrender of the original bill of lading and neither the forwarder nor carrier could prevent delivery, as the same would amount to a serious offence under USA Laws. The defendant understands that the consignee on arrival of the cargo had arranged inspection of the cargo, which disclosed the cargo in a damaged condition. The non-payment of the value of the cargo by the consignee, should have been due to damage to the cargo and for which, the plaintiff should settle its dispute with the consignee and cannot blame the defendant or its principal for the alleged non-payment of the value of the cargo. It is further understood that the consignee would not have come forward to take delivery of the cargo within free period because of the bad condition of the cargo and the plaintiff was aware of the same. Therefore, the suit is to be dismissed. 4. The learned trial Judge, framed necessary issues and after analysing both the oral and documentary evidence on either side, dismissed the suit. Aggrieved by the said order, this Appeal Suit has been filed by the appellant/plaintiff. 5. The learned counsel appearing for the appellant/plaintiff conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ident abroad; (2) where the agent does not disclose the name of his principal; (3) where the principal, though disclosed, cannot be used." 11. The learned counsel appearing for the appellant/plaintiff cited a Supreme Court Judgment in Radhakrishna Sivadutta Rai and Ors. v. Tayeballi Dawoodbhai, reported in AIR 1962 SC 538, for the proposition that in the absence of any contract between the parties, an agent who acts on behalf of a principal is not personally liable. 12. As per the three presumptions listed under Section 230 to the exception to the rule that an agent, who acts on behalf of the principal is not personally liable, the presumption to support a contract to the contrary would be whether contract is made by a agent for the sale or purchase of goods for a merchant residing abroad or whether the agent does not disclose the name of the principal and lastly when the principal though discloses cannot be sued. 13. Here in this case, the respondent/defendant signed the document in the capacity as an agent and also disclosed the principal by mentioning in the document itself as a destination agent. Thus, the respondent/defendant disclosed its principal as freightcan Global I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Freightcan Global Inc. 18. The learned counsel appearing for the appellant cited the Calcutta High Court Judgment, in Jaytee Exports v. Natvar Parekh Industries Limited & Ors., and contends that this Court has got jurisdiction as part of cause of action arose at Chennai. He contends that place of acceptance of goods of carriage and place of issuance of bill of lading are at Chennai. But the learned counsel for the respondent inter alia contends that only the jurisdictional Court in USA alone has got jurisdiction as per the terms in the bill of lading. He pointed out Clause 3 of the bill of lading, which reads thus: "3. (Law and Jurisdiction) - Whenever the Carriage of Goods by Sea Act, 1936 (COGSA) of the United State of America applies, this contract is to be governed by United States Law. In all other cases actions against the Carrier may be instituted only in the country where the Carrier has its principal place of business and shall be decided according to the law of such country." 19. The defendant in its pleading stated that bill of lading issued by the Carrier being a Sea Way Bill, as per the Custom and Law of USA, consignee would be entitled to take delivery without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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