Reliance Marine Insurance Co., Ltd. v. Mahomed Omar Mahommed Yacoob

1. This is an application for revision under Section 115 of the CPC.

2. The facts giving rise to the present application, shortly stated, are as follows: On the 11th August 1923 Messrs G. Atherton & Co. of Liverpool, shipped two packages intended for the plaintiffs per ss. “Masbtid” from Liverpool to Calcutta and, according to the plaintiffs' instructions insured the same with defendant company for £220. A certificate of insurance was issued by the defendant company.

3. The steamship “Mashud” arrived in Calcutta sometime in September 1923. The two packages in question were cleared in apparently good condition on or about the 20th September 1923, and were brought to the godewn of the plaintiffs' Calcutta Branch at 5, Colootola 2nd Lane. It was then discovered that one of the packages was much lighter than the other and the attention of Messrs Gladstone Wyllie and Co., the agents of the defendant company, was drawn to the same. The plaintiffs asked for a survey and a survey was held. On opening the package in question, the surveyor found that the contents were entirely missing and it was thought that the loss was due to pilferage. The plaintiffs thereafter claimed the value of the missing goods plus the costs of the survey and instituted a suit in respect of the same in April 1925, in the Calcutta Court of Small Causes. They did not take any leave under Section 18 of the Small Cause Courts Act.

4. The defendant company's defence was that they did not carry on any business in Calcutta and that inasmuch as leave under Section 18 of the Presidency Small Cause Courts Act had not been taken to the institution of the suit, the Court, had no jurisdiction whatsoever to try the same.

5. Evidence was gone into in the Court of Small Causes on the point as to whether or not the defendant company carried on business in Calcutta. It appeared on that evidence that the defendant company had an agency in Calcutta, the business of agents being carried on by Messrs Gladstone Wyllie & Co., and that the latter were authorized to settle claims in Calcutta at the exchange of the day, either in currency or by draft in sterling money at 15 days sight on the company in Liverpool. The Small Causes Court on this evidence held that the defendant company carried on business in Calcutta and that the Court had jurisdiction to try the suit.

6. The defendant company is a foreign corporation and it can only carry on business in Calcutta through an agent. It is also clear that it can only be served with the writ through its agents so carrying on its business. It settled law, however, that in order that service on an agent in such circumstances should be treated as service on the foreign corporation, the agent must have power to enter into contracts on behalf of the foreign corporation: See Saccharin Corporation Ltd. v. Chemische Fabrik Von Heyden Aktiengesellschaft(1); otherwise the service of the writ is not good service on the foreign corporation: see Okura & Co. Ltd. v. Forsbacka Jernverks Aktiebolag(2). Now from the evidence in this case, and specially from the certificate of insurance produced by the plaintiff, it is by no means clear that the agents in Calcutta have any power whatsoever to enter into contracts on behalf of the foreign corporation. It is true they can settle claims in Calcutta, but in case there is a difference of opinion such claims have got to be referred to the defendant company in Liverpool. In these circumstances I have come to the conclusion that the defendant company does not carry on business in Calcutta. It is Said, however, that the Small Causes Court has on evidence found that the defendant company does carry on business in Calcutta and that therefore I cannot interfere under Section 115 of the CPC. In my opinion the Small Causes Court cannot give jurisdiction in a case like this on an entirely wrong view of the law on the subject, I am therefore of opinion that the Small Causes Court had no jurisdiction to try this suit and that the decree of the Small Causes Court cannot stand and must be set aside. The defendant company will be entitled to the costs of this application.

7. Rule made absolute.