Sathish Ninan, J
1. Holding that the court does not have territorial jurisdiction to entertain the suit, a suit for recovery of money has been dismissed by the court below.
2. The first plaintiff is an Insurance Company. The second plaintiff, the consignee, is a company owned by the Government of Gujarat and is represented by the first plaintiff as the power of attorney holder. The first defendant is the owner of the vessel 'M.V.Primorsk'. The second defendant is the charterer of the vessel. The third defendant is the agent of defendants 1 and 2. 6,000 metric tonnes of Polypropylene was shipped as per Exts.B70 to B81 bills of lading, in the vessel 'M.V.Primorsk' The consignor was M/s G.A. International, Dubai, U.A.E. The consignment was shipped from Mexico to be A.S No.422/2001 2 delivered at Kandla, Gujarat. On delivery it was found that some of the goods were spoiled and also that there was short delivery. The first plaintiff Insurance Company settled the claim of the second plaintiff. The suit is filed for realisation of the said amount.
3. The court below found that no part of the cause of action arose within the territorial jurisdiction of the court and accordingly held that it has no jurisdiction to entertain and try the suit. According to the court, the cause of action has arisen at Kandla, Dubai and Mexico and therefore, the suit is not maintainable in the court at Kochi.
4. Question of jurisdiction is to be decided primarily on the plaint averments. In paragraph 2 of the plaint it has been specifically alleged that defendants 1 and 2 are represented by their main agents in India, the third defendant, and that the third defendant has transacted the entire business of defendants 1 and 2. A.S No.422/2001 3 It would be relevant to refer paragraph 2 of the plaint, which reads as under:
"The 1st defendant is the owner of 'M.V.Primorsk' a vessel flying Russia Flag. The 2nd defendant appears to be charters of M.V Primorsk which belongs to the 1st defendant. The 1st and 2nd defendants are represented by their Main Agents in India, M/s GAC Shipping (India) Ltd., Willingdon Island, Cochin-3. The 3rd defendant is transacting the entire business of 1st and 2nd defendants in all major ports directly or through sub-agents appointed at their risk and discretion for customers who are exporting or importing the goods through 1st or 2nd defendant arrangements are made by 3rd defendant. Under the custom and all practical purposes business is independently transacted by the 3rd defendant."
The definite allegation of the plaintiffs is that the third defendant along with defendants 1 and 2 are liable for the plaint amount since they act as representative and agent of defendants 1 and 2 and the business of defendants 1 and 2 is being transacted through third defendant. The relief claimed in the A.S No.422/2001 4 suit is also against all the defendants jointly and severally. Defendants 2 and 3 filed a joint written statement wherein the contention appears to be that the agency of the third defendant is limited to some particular work alone. Therefore, it is admitted that the third defendant is the agent of the second defendant, though there is dispute regarding the scope of the agency and its liability. The scope of the agency is something to be looked into on the merits of the matter, as to whether the third defendant will be liable for the plaint claim or not.
5. It is also worthwhile to refer to the averments in paragraph 11 of the written statement to the effect that:
"The plaintiffs have no right to raise any claim against the defendants No.2 & 3, though the 3rd defendant is the principal agent and S.D.S Shipping Pvt.Ltd. Who is the sub agent who had done entire agency work of the said vessel on behalf of the defendant No.3. "
Therein it is admitted that one S.D.S Shipping A.S No.422/2001 5 Private Limited is the sub agent. Ext.A2 is a communication by the said S.D.S Corporation wherein they acknowledged that they are the sub agents of the third defendant. Ext.A7 is a communication by the first plaintiff to the third defendant referring to the claim. Ext.A8 is a communication by the third defendant to the first plaintiff regarding the claim wherein it is stated that they have informed regarding the claim to their principals.
6. Suffice to say that the plaint averments when considered along with the documents produced prima facie show the involvement of the third defendant in the transaction and that the court below had jurisdiction to entertain the suit. The finding of the court below to the contrary is unsustainable. If at all the court below was of the opinion that it lacked territorial jurisdiction to entertain the suit, it ought to have ordered return of the plaint in terms of Order VII Rule 10 of the Code of Civil Procedure. A.S No.422/2001 6 In the result, the appeal is allowed. Impugned judgment is set aside. Court fee to be refunded. It is held that the court below has territorial jurisdiction to entertain the suit. The suit shall be considered and disposed of on its merits. The court below shall on receipt of a copy of this judgment fix the date of appearance and notify the parties accordingly.
Sd/- V.Chitambaresh, Judge Sd/- Sathish Ninan, Judge vdv //TRUE COPY// P.A TO JUDGE