Harish Tandon, J.:— This revisional application is directed against Order No. 17 dated March 31, 2014 passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in Title Suit No. 28598 of 2013 by which an application under Order VII, Rule 11 of the Code of Civil Procedure is rejected.
2. The attack to the impugned order is basically restricted on the point that the suit against an agent of a disclosed principal is not maintainable under section 230 of the Indian Contract Act. The other point taken in an application under Order VII, Rule 11 of the Code relating to the exclusion of jurisdiction of Indian Court and non-disclosure of cause of action against the defendant No. 2 have not been agitated and, therefore, are treated to have been abandoned. The plaintiff/opposite party filed a suit for specific performance of the contract of carriage through Bill of Lading by delivery of goods at the discharge port, permanent injunction restraining the defendants from exercising lien under Clause 13 of the Bill of Lading and decree and recovery of a sum of Rs. 2 crore 56 lakhs with interest.
3. In the plaint, it is averred that the plaintiff entered into a contract with a buyer at Singapore for supply of prime cold rolled full hard coils and requisitioned 19 containers from the defendant for stuffing the goods at the plant of the plaintiff at Serampore in Hooghly District, West Bengal. The paragraph 2 of the plaint contains the statement that the defendant No. 1 provides service for carriage of cargo stuffed in the container owned and operated by it under the name and style Regional. Container Lines. The Goods were stuffed in the said 19 containers and were transported by the plaintiff from its plant at Serampore, Hooghly for onward shipment to the destination through the vessel. The freight for carriage of the goods has been paid and therefore, it is a statutory obligation of the defendant to carry the cargo safely with liability against any damage to the cargo in course of voyage. By letter dated 18th October, 2013, the plaintiff was communicated that the 14 containers were damaged requiring refurbish before becoming fit for onward transshipment and called upon the plaintiff to appoint a representative to inspect the cargo and to arrange for reworking the damaged containers indicating the estimated costs. The plaintiff reminded of the defendants of their responsibility and liability to make good the damaged containers at their costs which was followed by the reply convened the intention to dispose of the goods to recover all expenses in relation to refurbish of the containers on failure to deposit the cost therefor. The defendant No. 2.pettiioner filed an application under Order VII, Rule 11 of the Code for rejection of the plaint on various grounds including that he cannot be arraigned as a party or be responsible for any claim against a disclosed principal because of the embargo created under section 230 of the Contract Act.
4. The said application is dismissed by the Trial Court on the ground that the point agitated therein is a mix question of facts and law arid can only, be decided after recording the evidence of the respective parties.
5. Mr. Thakkar, the learned Advocate for the petitioner submits that suit against the agent of a disclosed principal who is also impleaded as a party is not maintainable under section 230 of the Indian Contract Act as held in case of Nicholas Schinas v. Nemazie . AIR 1952 Cal 859.. He further submits that if the disclosed principals have been sued and there is no reference in the contract that agent would be personally liable for any damages or breach of the terms and conditions embodied therein, the suit against both the disclosed principal and the agents is not maintainable and placed reliance upon a judgment of this Court in case of Steel Authority of India Ltd. v. Transworld Marine Ltd. . AIR 1982 Cal 161.. By placing reliance upon a judgment of the Bombay High Court rendered in case of Midland Overseas v. M.V “CMBT Tana” . AIR 1999 Bombay 401., Mr. Thakkar submits that if the contract is entered into by the agent for and on behali of the disclosed foreign principal and the terms and conditions incorporated therein does not make the agent responsible for any breach thereof, the agent cannot be sued personally. He thus submits that both the disclosed foreign principal and its agent cannot be sued and, therefore, the plaint against the defendant No. 2.petitioner is liable to be rejected.
6. Mr. Sabyasachi Chowdhury, the learned Advocate appearing for the plaintiff/opposite party submit that the statutory presumption can be drawn if the contract relates to sale or purchase of goods entered into by an agent for a merchant resident abroad for existence of a contract. He further submits that the Bill of Lading is signed by the defendant No. 2.petitioner for the defendant No. 1 who is admittedly a foreign principal and, therefore, there is no impediment in proceeding against both the principal and the agent. He strenuously submits that the cause of action is not restricted to a Bill of Lading but the supply of container by the defendants which later on alleged to have been damaged during the carriage of the goods and, therefore, both the defendants are responsible and liable for the claims made in the plaint. He thus submits that it is not a simple case entrusting the goods to the carrier on issuance of Bill of Lading but based on certain other facts pertaining to supply of the containers for stuffing the goods for its shipment to the destination and, therefore, is Multi Model Transport Bill of Lading.
7. Before proceeding to deal with the points agitated above, it would be relevant and convenient to quote section 230 of the Indian Contract Act which runs thus:
“Section 230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal.— In the absence of any contract to that effect, an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them.
Presumption of contract to contrary.— Such a contract shall be presumed to exist in the following cases:
(1) Where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;
(2) Where the agent does not disclose the name of his principal;
(3) Where the principal, though disclosed, cannot be sued.”
8. The meaningful reading of the aforesaid provision makes amply clear that ordinarily the agent cannot be personally bound by any action of the principal in absence of any specific contract to that effect. The second part of the said section raises a statutory presumption of contract to the contrary in case the contract relates to sale or purchase of a goods made by the agent for the disclosed foreign principal or for and on behalf of the undisclosed principal or where the principal though disclosed cannot be sued. The entire argument is based upon the first contingency and according to the opposite party, the defendant No. 1 being the disclosed foreign principal resident abroad can be sued alongwith the agent. Admittedly the Bill of Lading is signed by the defendant No. 2.petitioner as an agent of the defendant No. 1 who is resident abroad. There is no indication therein to the effect that the agent would be bound by the contract entered into or on behalf of its principal. The plaint does not disclose any facts that the said contract is coupled with interest. The defendant No. 2.petitioner may be working as an agent on commission but there is no indication in the contract that he would be personally responsible and liable for any breach thereof. In case, the name of the principal is disclosed the agent can no more be responsible or liable unless the case is made out within the later part of section 230 of the Act raising presumption for existence of contract.
9. In case of Nicholas (supra), an identical point arose whether both the principals and the agent can be sued in a same suit when admittedly the principal is a resident abroad. The facte emanates from the said report is that a Greek seller was selling the vessel under Spanish American Master flying the flag of Republic of Panama was admitted in the hospital having suffered from bronchitis and asthma when the vessel reached the port of Calcutta and was under treatment for 22 days. The owner of the vessel abandoned him after admitting in the hospital and the seller has to bear the expenditure for his treatment and sued for unpaid salary and such expenses both against the foreign principal and the agent. In Paragraph 8 of the said report, it is held that the suit against the agent must fail on a preliminary grounds as both the principal and the agent cannot be sued in a same suit based on contract.
10. The other judgment rendered in case of Steel Authority of India (supra), Justice Dipak Kumar Sen (as His Lordship then was) was considering a matter where the plaintiff therein shipped the consignment of mild Steel Plates with the defendant No. 1 incorporated under the laws of Taiwan for carriage from port of Taiwan to Calcutta which sank near the sandheads at Diamond Harbour and were lost. The monetary relief was claimed in the suit filed against both the disclosed foreign principal and its agent at Calcutta. His Lordship dismissed the plaint against the agent holding that the plaintiff therein cannot get over the mischief of section 230 of the Act by suing both the foreign principal and the agent in these, words:
“9. Learned Advocate for the plaintiff contended to the contrary. In the facts and circumstances of and on the pleadings the plaintiff in my view cannot get over the mischief of section 230 and sue both the principal and the agent. It is not the case of the plaintiff that by an express contract the defendant No. 2 made itself liable for the contract of carriage. The plaintiffs cause of action is founded on certain representations which, according to the plaintiff, create some sort of estoppel in his favour. Nothing further has been disclosed in the affidavit filed in opposition on behalf of the plaintiff on which the plaintiff can be given a chance to amend its plaint and make out a cause of action against the defendant No. 2
11. For the reasons stated above, the defendant No. 2 succeeds in its application. The plaint however cannot be struck out in its entirety. Following the decision of the Division Bench in P.B Shah and Co. v. The Chief Executive Officer. It is directed that the name of the defendant No. 2 be struck out and deleted from the cause list of the plaint in this suit.”
12. The plaint against the agent was rejected in case of Midland Overseas (supra) applying the provisions laid down under section 230 of the Act as both the principal and the agent cannot be sued unless the contract clearly provides, a personal liability of the agent. It is relevant to quote Paragraph 7 of the said report which runs thus:
“7. The plaintiffs claim is founded on non-delivery of the container containing plaintiffs cargo to the consignees at Durban allegedly attributable to negligence and breach of contract of carriage. Under section 230 of the Act before the Agent can be sued it must he pleaded and shown that the principal is undisclosed and the contract, the breach of which is sued on was entered into by the Agent as having contracted personally. Where the contract is entered into by agent contracting on behalf of a foreign principal who is named and disclosed, the agent cannot be sued personally nor made personally liable. From the pleaded facts in the plaint it is amply clear, therefore, that no cause of action has arisen against the 3rd defendants and plaint is liable to be rejected under Order VII, Rule 11 of the C.P.C as against 3rd defendants.”
13. From the Bill of Lading, it is apparent that the same was issued by the defendant No. 2.petitioner as an agent of the defendant No. 1 whose name is disclosed therein. None of the clauses incorporated in the Bill of Lading nor the learned Advocates could place any clause which makes the defendant No. 2.petitioner personally liable under the Contract. The foreign principal, the defendant No. 1 herein has been made a defendant in the suit and, therefore, when the plaintiff has chosen to sue the foreign principal, the agent is automatically relieved of its responsibility so far as it relates to dealings and transactions between the plaintiff and the principal.
14. This Court, therefore, finds that the suit against the defendant No. 2.petitioner is not maintainable when the defendant No. 1 being the foreign principal have been made a party therein and there is no express contract which binds the agent personally or responsible personally liable.
15. Accordingly the suit is dismissed against the defendant No. 2.petitioner. The concerned office of the Trial Court is directed to delete the name of the defendant No. 2.petitioner from the cause title of the plaint and the suit shall be proceeded against the defendant No. 1. The revisional application succeeds.
16. However, there shall be no order as to costs.
17. Application Allowed.