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ivil Appeal No. 764 (N) of 1975.
From the Judgment and Decree dated 30.11.1973 of the Kerala High Court in A.S. No. 365 of 1969.
R.F. Nariman, Mrs. A.K. Verma and D.N. Mishra for the Appellant.
Ramamurthi (Not Present) for the Respondents.
The Judgment of the Court was delivered by 889 K.N. SAIKIA, J.
The first respondent M/s. Shanmughavilas Cashew Industries, QuiIon purchased from East Africa 350 tons of raw cashewnuts which were shipped in the vessel SS Steliosm chartered by the appellant M/s. British India Steam Navigation Co. Ltd., incorporated in England, pursuant to a contract of affreightment evidenced by 3 bills of lading issued to the shipper for the 3 loads of cashewnuts.
Out of 4445 bags containing the nuts carried in the said vessel only 37 12 bags were delivered at Cochin, there being thus short landing of 733 bags.
The first respondent sued the appellant in suit No. O.S. 18/1965 in the Court of the Subordinate Judge, Cochin seek ing damages for the shortage of 733 bags of raw cashewnuts amounting to Rs.44,438.03.
The suit having been decreed with interest @ 6% per annum from 17.7.
1964, for the sum total of Rs.46,659.93, the appellant preferred therefrom appeal A.S. No. 365 of 1969 in the High Court of Kerala which was pleased by its Judgments and decree dated 16.8.
1973 and 30.11.
1973, to dismiss the appeal and affirm that of the Subordinate Judge.
Aggrieved, the appellant has preferred this appeal by special leave.
In the courts below the main contentions of the appel lant, inter alia, were that it was a mere chatterer of the vessel which was owned by section Matas & Compnay c/o Lucas Matas & Sons, Piraeus, Greece; that there was a charterparty executed between the first respondent and M/s. Victorial Steamship Company as agents of the said owner of the vessel in London on 27.1.
1964; that as per clause 3 of the bill of lading the court at Cochin had no jurisdiction and only English courts had jurisdiction; and that as per the char terparty and clause 4 of the bill of lading the reined.? of the first respondent, if any, was against the owner who alone was liable and not against the appellant charterer of the vessel.
Exhibit D 1 is the photostate copy of the char terparty concluded in London on 27.1.
1964 and Exhibit P 1 to P3 are the 3 bills of lading in the transaction.
The first respondent denied that the appellant was only a char terer and not liable for the shortage.
It also denied that only English Courts had jurisdiction in the matter.
Mr. R.F. Nariman the learned counsel for the appellant first submits that the appellant is an English company registered in England carrying on business in England, and it does not carry on any business in India.
It is submitted, as the carrier under clause 3 of the bill of lading, only the appellant has an option either to sue or be sued in England, or in Cochin, which is a port of destination but the shipper 890 had no option to sue at Cochin.
In its written statement it was clearly stated that it had appeared under protest and without prejudice to the contention regarding jurisdiction which contention it had also pressed at the time of the argument, and, therefore, it could not be said to have submitted to the jurisdiction of Cochin court; and it never made any submission or raised any objection as to the fact of short landing.
According to counsel the High Court has held clause 3 of the bill of lading to be bad on two errone ous grounds, namely, that it offends section 28 of the Contract Act and that it gives an unfair advantage to the carrier which advantage is not given to the consignee.
Section 28, according to counsel, is not applicable and clause 3 was not bad on the ground of having given an unfair advantage to the carrier in giving him the option to sue or be sued either in England or at the port of destination and that even if it was bad, only the offending portion could be struck off, the rest of the clause would still be applicable and only the English court would have jurisdiction.
Records show that in the written statement the appellant as defendant in para B stated that the contract evidenced by the bills of lading was governed by English law and the parties had agreed that the disputes were to be determined in England according to English law to the exclusion of the jurisdiction of the courts of any other country and that the institution of the suit at Cochin was in violation of that agreement, and hence the Court had no jurisdiction to try the suit and the plaint should be returned for presentation to proper court.
In the Replication filed by the plaintiff it was said: "The objection regarding jurisdiction raised in clause B of written statement is not tenable.
The cause of action for the suit has arisen within the local limits of the jurisdic tion of this Court.
The defendant is also residing and carrying on business within this court 's jurisdiction.
It is now well settled that the parties cannot be consent confer or oust the jurisdiction of a Court.
The plaintiffs deny the agreement mentioned in clause B and no agreement can oust the jurisdiction of the Court when the Court possesses the jurisdiction.
" Issue No. 1 was: "Whether the suit is properly filed in this Court?" The trial court in its judgment dated 29.3.
1968 held: "This issue has been considered by this Court on 28.2.
1966 891 and it has been found that this Court has jurisdiction to try the suit.
The said finding has been confirmed by the Hon 'ble High Court on 6.4.1967 in C.R.P. 977/66.
" That judgment is not before us.
In the memo of appeal to the High Court apart from the general grounds that the judgment and decree of the Court below were wrong in law and fact; that the Court below should have held that the suit was not maintainable in law and should have finally dismissed the suit as the owners of the vessel 'Steliosm ' a necessary party, as he alone was liable, was not impleaded and pro ceeded against, no specific ground about jurisdiction was taken and consequently we do not find any direct discussion on the point in the High Court judgments.
Even so, this being a question of jurisdiction going to the root of the matter we allowed the appellant to make his submissions.
The appellant 's submission that the courts at Cochin had no jurisdiction is based on clause 3 of the Bills of Lading which reads as follows: "3.
JURISDICTION: The contract evidence by this bill of lading shall be governed by English law and disputes deter mined in England or, at the option of the Carrier, at the port of destination according to English law to the exclu sion of the jurisdiction of the Courts of any other country.
" If the above clause was binding on the first respondent, without anything more, there could be no doubt that the suit claim arising out of the contract of affreightment evidenced by the bills of lading will have to be determined in England or, at the option of the carrier, that is the appellant, at the port of destination, that is, Cochin, to the exclusion of the jurisdiction of the courts of any other country.
Is the first respondent bound by this clause of the Bill of Lading? Clause 29 of both the bills of lading Exhibit P 1 and P2 runs as follows: "Finally in Accepting This Bill of lading.
The shipper, Consignee, and Owner of the goods, and the Holders of this Bill of Lading, expressly accept and agree to all its stipu lations, exceptions, and conditions whether written, print ed, stamped or incorporated, as fully as if they were all signed by such Shipper, Consignee, Owner or Holder.
" 892 The first respondent is the consignee and holder of the bills of lading and ex facie should be bound by this clause.
No doubt the bills of lading were issued to the shipper from whom it was received by the first respondent.
There is no evidence to show that the shipper has repudiated the stipu lations in the bills of lading in any manner.
Under these circumstances would it be open to the first respondent to repudiate clause 3 of the bills of lading? It is a settled principle of Private International Law governing bills of lading that the consignee or an endorsee thereof derives the same rights and title in respect of the goods covered by the bill of lading as the shipper thereof had.
For the purpose of jurisdiction the action of the first respondent is an action in personam in Private International Law.
An action in personam is an action brought against a person to compel him to do a particular thing.
If clause 3 of the bills of lading is held to be binding on the first respondent the choice of law by the parties would also be binding.
English courts would perhaps use their own Private International Law to decide the dispute.
In the event of the English Court alone having the jurisdiction, the application of Indian statutes and the jurisdiction of the Indian courts would be, to that extent, inapplicable.
Until the Bills of Lading Act, 1855 was passed in Eng land the endorsement of a Bill of Lading would not affect the contract evidenced in it, and the endorsee could not sue or be sued on such contract, though he was the person really interested in goods, the subject of the contract.
By section 1 of the Bills of Lading Act, 1855, in England "every con signee of goods named in a Bill of Lading, and every endor see of a Bill of Lading to whom the property of goods shall pass, upon or by reason of such consignment or endorsement shall have transferred to and vested in him all rights of suit and be subject to the same liabilities in respect of such goods as if the contract contained in the Bills of Lading had been made with himself." In Sewell vs Burdick, (85, 104) it is held that section 1 is to be given effect in any proceeding in the English Court regardless of the proper law governing the transfer of the bill of lading.
The property passes by reason of consignment or endorsement and the right to sue passes with it.
The consignee or endorsee may lose his right or liability under the Act by such further endorsement of the bill of lading as divests him of the property.
Such a vesting of rights and liabilities on endorsement of a bill of lading does not in any way affect the shipowners ' rights against the original shippers or owners of the goods for the freight or the shipper 's rights under the bill of fading or the liability 893 Of the consignee or indorsee by reason of his being such consignee or indorsee or of his receiving the goods in consequence of such consignment or endorsement, or any right of stoppage in transit.
The Indian Bill of Lading Act, 1856 was based on the English Bills of Lading Act, 1855 (18 and 19 Vict. C. 111) (Act IX of 1856).
Under section 1 of the also every consignee of goods named in a bill of lading and every endorsee of a bill of lading to whom the property in goods therein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.
The bill of lading is the symbol of the goods, and the right to possess those passes to the transferee of the bill of lading.
In other words, its transfer is symbolic of the transfer of the goods themselves and until the goods have been delivered, the delivery of the duly endorsed bill of lading operates as between the transferor or transferee, and all who claim through them, as a physical delivery of the goods would do.
The bill of lading is a negotiable instru ment in the sense of carrying with it the right to demand and have possession of the goods described in it.
It also carries with it the rights and liabilities under the con tract, where the property in the goods also is transferred.
However, a bill of lading is not a negotiable instrument in the strict sense of the transferee deriving better title than the transferor.
The transferee of a bill of lading gets no better title than the transferor himself had.
Mere pos session of the bill of lading does not enable the holder to sue a person at a place where the tranferor himself could not have done.
Where the negotiation of a bill of lading is by the person who had a right to sue on it, mere possession of it does not enable the holder to sue any person who was not liable under it and not to sue another who was liable under it to make good the claim.
He cannot also sue at a place not intended by the parties when intention has been expressed.
It would also be relevant to consider whether English courts would be likely to entertain the instant suit if instituted in England in terms of the bills of lading so that the first respondent is not likely to be without a remedy.
Dicey & Morris in the Conflict of Laws 1 1th Ed.
have given the following general principles as to jurisdiction in actions in personam: 894 "Rule 28, Sub rule 4: The court may assume jurisdiction if, in the action begun by the writ, the claim is brought to enforce, rescind, dissolve, annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of the breach of a contract, being (in either case) a contract which (i) was made in England, or (ii) was made by or through an agent trading or residing in England on behalf of a principal trading or residing out of England, or (iii) is by its terms or by implication governed by English law, or (iv) contains a term to the effect that the court shall have jurisdiction to hear and determine any action in respect of the contract.
" Rule 34 deals with jurisdiction clauses and it says: "(1) Where a contract provides that all disputes between the parties are to be referred to the jurisdiction of the Eng lish courts, the court normally has jurisdiction to hear and determine any action in respect thereof.
(2) Subject to clause (3) of this Rule, where a contract provides that all disputes between the parties are to be referred to the exclusive jurisdiction of a foreign tribu nal, the English court will stay proceedings (or, as the case may be, refuse to give leave to serve the writ out of the jurisdiction) instituted in England in breach of such agreement, unless the plaintiff proves that it is just and proper to allow them to continue.
(3) Where the case falls within the scope of the 1968 Con vention, unless the defendant submits to the jurisdiction, the court has no jurisdiction to determine a dispute.
(a) if one or more of the parties is domiciled in a Con tracting State and the parties have agreed in accordance with Article 17 of the 1968 Convention 895 that the courts of a Contracting State other than the United Kingdom are to have jurisdiction to settle any such dispute; or (b) if none of the parties is domiciled in a Contracting State and the parties have agreed in accordance with Article 17 of the 1968 Convention that the courts of a Contracting State other than the United Kingdom are to have jurisdiction to settle any such dispute and the courts chosen have not declined jurisdiction." According to the authors the parties to a contract in international trade or commerce may agree in advance on the forum which is to have jurisdiction to determine disputes which may arise between them.
The chosen court may be a court in the country of one or both the parties, or it may be a neutral forum.
The jurisdiction clause may provide for a submission to the courts of a particular country, or to a court identified by a formula in a printed standard form, such as a bill of lading referring disputes to the courts of the carrier 's principal place of business.
It is a question of interpretation, governed by the proper law of the con tract, whether a jurisdiction clause is exclusive or non exclusive, or whether the claim which is the subject matter of the action fails within its terms.
If there is no express choice of the proper law of the con.tract, the law of the country of the chosen court will usually, but not invaria bly, be the proper law.
It is accordingly unlikely that the first respondent would be without any remedy if the terms of clause 3 of the bills of lading are faithfully observed.
The question of jurisdiction in this case ought not ,to be determined by the High Court on the basis of the provi sions of section 28 of the Indian Contract Act in the absence of a specific provision making it applicable to transactions in international trade.
The effective operation of statutes of a country in relation to foreigners and foreign property, including ships, is subject to limitations.
In general, a statute extends territorially, unless the contrary is stat ed, throughout the country and will extend to the territori al waters, and such places as intention to that effect is shown.
A statute extends to all persons within the country if that intention is shown.
The Indian Parliament therefore has no authority to legislate for foreign vessels or for eigners in them on the high seas.
Thus a foreign ship on the high seas, or her foreign owners or their agents in a for eign country, are not deprived of 896 rights by our statutory enactment expressed in general terms unless it provides that a foreign ship entering an Indian port or territorial waters and thus coming within the terri torial jurisdiction is to be covered.
If the Parliament legislates in terms which extend to foreign ships or for eigners beyond the territorial limits of its jurisdiction, the Indian court is of course bound to give effect to such enactment.
However, no such provision has been referred to in the impugned judgments.
Without anything more Indian statutes are ineffective against foreign property and for eigners outside the jurisdiction.
The Privy Council in Sirdar Gurdyal Singh vs Rajah of Faridkote, (684) decided that no territorial legislation can give jurisdiction in personal action which any foreign court should recognize against absent foreigners owing no allegiance or obedience .to the power which so legislates.
Lore Selborne said: "In a personal action to which none of these causes of jurisdiction apply, a decree pronounced in absentem by a foreign court, to the jurisdic tion of which the defendant has not in any way submitted himself, is by international law an absolute nullity.
He is under no obligation of any kind to obey it; and it must be regarded as a mere nullity by the courts of every nation except (when authorised by special local legislation) in the country of the forum by which it was pronounced.
" There may however be submission to the .jurisdiction of an Indian court by litigating in India.
The question then is what would amount to submission to jurisdiction.
Cheshire & North 's Private International Law 11th Ed., on submission to jurisdiction says: "Despite the fundamental principle that the court cannot entertain an action against a defendant who is absent from England, it has long been recognised that an absent defendant may confer jurisdiction on the court by submitting to it.
This may be done in a variety of ways, such as by the defendant acknowledging service before actual service of the writ, or instructing a solicitor to accept service on his behalf; Commencing an action as a plaintiff will give the court jurisdiction over a counter claim.
Although a defendant who appears and con tests the case on its merits will be held to have submitted to the jurisdiction, an appearance merely to protest that the court does not have jurisdiction will not constitute submission, even if I the defendant also seeks a stay of proceedings pending the outcome of proceedings abroad.
" The authors go on to say that any person may contract, either expressly or impliedly, to submit to the jurisdiction of a court to which he would not otherwise be subject.
In case of an international contract it is common practice for the par ties, to agree that 897 any dispute arising between them shall be settled by the courts of another country even though both the parties are not resident of that country.
In such a case having consent ed to the jurisdiction one cannot afterwards contest the binding effect of the judgment.
The defendant out of the jurisdiction of the country may be deemed to have been served by service on his agent within the jurisdiction.
However, parties cannot by submission confer jurisdiction on the court to entertain proceedings beyond its authority.
The jurisdiction of the court may be decided upon by the parties themselves on basis of various connecting factors.
Wastlake says in his Treatise on Private International Law, at page 5: "The principal grounds for selecting a particular national jurisdiction in which to bring an action are that the subject of the action, if a thing, is situate, if a contract, was made, or was to be performed, if a de lict, was committed, within the territory: hence the forum situs, or rei sitae, contractus, delicti, the two latter of which are classed together as the forum special obligatio nis.
Or that the jurisdiction is that in which all the claims relating to a certain thing or group of things ought to be adjudicated on together, the forum concursus, or that to which the defendant is personally subject, the forum rei.
" In the instant case the appellant submits that as de fendant it appeared before the Indian court to protest its jurisdiction and put forth its defences subject to that protest.
The appellant, it has been stated in para 2 of the judgment under appeal, dated 30.4.1973, had not filed any objection to the findings as to damages.
Did it then amount to submitting to the jurisdiction of the Indian court in which the shipper or the first respondent had no right to sue? In Williams & Glyn 's Bank PLC vs Astro Dinamico Compania Naviera S.A. & Anr., The Weekly Law Reports Vol.
(1) 1984 438, where the plaintiff bank sought to enforce its securi ties against the defendants by instituting proceedings in England in reliance of clause 7 of the guarantees, whereby each of the defendants were expressed to submit irrevocably to the jurisdiction of the English courts.
The respondents (defendants) made an application disputing the jurisdiction of the English courts and had also simultaneously applied for stay of the action.
It was contended on behalf of the appellants (plaintiffs) that the respondents (defendants) either had waived any objection to the jurisdiction because they had taken a step in the action by applying for a stay or that they would waive any objection if they persisted with 898 their application in priority to disputing the jurisdiction.
Lord Fraser observed that it would surely be quite unrealis tic to say that the respondents had waived their objection to the jurisdiction by applying for a stay as an alternative in the very summons in which they applied for an order giving effect to their objection to the jurisdiction.
That the summons made it abundantly clear that they were object ing and the fact that they asked for a decision upon their objection to be postponed until the outcome of the Greek proceedings was known, was not in any way inconsistent with maintaining their objection.
There was no reason in princi ple or in common sense why the respondents should not be entitled to say: "We object to the jurisdiction of the English courts, but we ask for the proceedings necessary to decide that and the other issues to be stayed pending the decision of the proceedings in Greece.
" Reference was made to Rein vs Stein, , where it was said at page 471: "It seems to me that, in order to establish a waiver, you must show that the party alleged to have waived his objection has taken some step which is only necessary or only useful if the objection has been actually waived, or if the objection has never been entertained at all." In Dulles ' Settlement (No.2) ( ; the question was whether a father, who was an American resident outside England, had submitted to the jurisdiction of the English courts in a dispute about payment of maintenance to his child in Eng land.
He had been represented by counsel in the English court, who argued that he was not subject to their jurisdic tion.
Denning LJ (as he then was) said at page 850: "I cannot see how anyone can fairly say that a man has voluntarily submitted to the jurisdiction of a court, when he has all the time been vigorously protesting that it has no jurisdiction.
If he does nothing and lets judgment go against him in default of appearance, he clearly does not submit to the jurisdiction.
What difference in principle does it make, if he does not merely do nothing, but actually goes to the court and protests that it has no jurisdiction? I can see no distinction at all.
" The judgment of the court of appeal which held that the application for a stay involved assumption that the court had jurisdiction to entertain the action and therefore the question of jurisdiction must be decided first, was set aside in appeal, and the appeal therefrom was dismissed by the House of Lords.
In the instant case the question is of initial jurisdiction on the 899 basis of claues 3 of the bills of lading.
We have to ask the question whether the shipper could or could not have the right to sue at Cochin under the bills of lading.
If he could not have done so, the appellant 's appearance to pro test about jurisdiction would not cure that defect of juris diction.
However, we find that in the Memo.
of appeal before the lower appellate court no specific ground as to jurisdic tion was taken through there were grounds on non maintain ability of the suit.
Even in the Special Leave Petition before this Court no ground of lack of jurisdiction of the courts below has been taken.
We are, therefore, of the view that the appellant has to be held to have either waived the objection as to jurisdiction or to have submitted to the jurisdiction in the facts and circumstances of the case.
The defence that the suit was not maintainable in the absence of the owner of the ship could in a sense be said to have been on the merits of the case.
The submission as to lack of jurisdiction is, therefore, rejected.
Clause 3 of the bills of lading also contains the selec tion of law made by the parties.
The contract is governed by English law and disputes are to be determined according to English Law.
Is the selection of law binding? In Cheshire & North 's Private International Law 1 th Ed., page 495,, while discussing about the interpretation of contracts the authors say: "When the stage has been reached where an obligation, formally and essentially valid and binding on parties of full capacity, has been created, then in the further matters that may require the intervention of the Court, there is, speaking generally, no reason in principle why the parties should not be free to select the governing law.
" The express choice of law made by parties obviates need for interpretation.
In the absence of an express choice the question of the proper law of contract would arise.
The parties to a con tract should be bound by the jurisdiction clause to which they have agreed unless there is some strong reason to the contrary.
Dicey & Morris in the Conflict of Laws formulate the following rule on proper law of contract as Rule 180: "The term "Proper law of a contract" means the system of law by which the parties intended the contract to be governed, or, where their intention is neither expressed nor to be inferred from the circumstances, the system of law with which the transaction has its closest and most real connec tion." 900 Sub rule 1: "When the intention of the parties to a contract, as to the law governing the contract, is expressed in words, this expressed intention, in general, determines the proper law of the contract.
" Sub rule 2: "When the intention of the parties to a contract with regard to the law governing the contract is not expressed in words, their intention is to be inferred from the terms and nature of the contract, and from the general circumstances of the case, and such inferred intention determines the proper law of the contract .
" There can, therefore, be no doubt that the instant contract of affreightment evidenced by the bills of lading will be governed by English law.
As the law has been chosen, the proper law will be the domestic law of England and the proper law must be the law at the time when the contract is made throughout the life of the contract and there cannot be a "floating" proper law.
It has been recognised since Gienar vs Meyer, [1796] 2 Hy B 1608, that the the time of making the contract the parties may expressly select the law by which it is to be governed and they may declare their common intention by a simple statement that the contract shall be governed by the .law of a particular country.
This has been settled by a long line of decisions, as 'Rex vs Internation al Trustee for the Protection of Bondholders AG, (529); Vita Food Products Inc. vs Unus Shipping Co. Ltd., (289 90); James Miller and Partners Ltd. vs Whitworth Street Estates (Manchester) Ltd., (603); Mackender vs Feldia AG, ; Com pagnie d ' Armement Maritime SA vs Compagnie Tunisienne de Navigation SA, and Acrow (Automation) Ltd. vs Rex Chainbelt Inc., [1971] 3 All E.R. 1175.
It is true that in English law there are certain limita tions on freedom to choose the governing law.
The choice must be bona fide and legal, and not against public policy.
It may not be permissible to choose a wholly unconnected law which is not otherwise a proper law of contract.
English courts, it has been said, should, and do, have a residual power to strike down for good reasons, choice of law clauses, totally unconnected with the contract.
Where there is no express 901 choice of the proper law, it is open to Court to determine whether there is an implied or inferred choice of law in the parties contract.
The next question to be decided is whether the appellant would be liable for the suit claim.
This would naturally depend on the contract of affreightment.
It is an accepted principle that the bill of lading is not the contract of affreightment, for that has been made before the bill of lading was signed and delivered, but it evidences the terms of that contract.
The bill of lading serves as a receipt and also as a document of tittle and may be transferred by endorsement and delivery.
Article III(3) of the Hague Rules says that a bill of lading is prima facie evidence of the receipt by the carrier of the goods described therein.
The Hamburg Rules define a bill of lading under Article 1(7) as follows: "Bill of lading" means a document which evidences a contract of carriage by sea and the taking over or loading of the goods by the carrier, and by which the carrier undertakes to deliver the goods against surrender of the document.
A provision in the document that the goods are to be delivered to the order of a named person, or to order, or to bearer, constitutes such an undertaking.
" The Hague Rules say that after the goods are taken into his charge, the carrier or his agent shall issue to the shipper, if he so demands, a bill of lading, showing among other things the particulars of the goods.
The contract of affreightment need not necessarily be expressed in writing.
The bill of lading is evidence of the terms of the contract which can also be ascertained from the charterparty where one exists.
Dr. Justice T. Kochu Thommen in his book of Bills of Lading in International Law and Practice at page 25 writes: "As between the shipowner and the shipper, the bill of lading is not conclusive evidence of the terms of the con tract and parties to the contract are entitled to prove that the stipulations in the bill of lading are at variance with the agreed terms of the contract, as expressed or evidenced in other documents.
In practice, however, the terms of the bill of lading govern the contractual relations between the shipowner and the shipper, and the booking note generally states that the carrier 's regular forms of bill of lading shall 902 be used and all the terms thereof shall form part of the contract.
The bill of lading assumes the character of con clusive evidence once it has passed into the hands of a consignee or indorsee and evidence may not be given which varies or contradicts it.
The position is, however, differ ent when the ship is under charter and stipulations in the charterparty are expressly and clearly incorporated in the bill of lading.
In such a case the bill of lading, even after it has passed in to the hands of a consignee or indor see, has to be read subject to the charterparty stipula tions.
In the hands of a charterer, the bill of lading is only a receipt and the charterparty is the governing docu ment as far as the shipowner ' and the charterer are con cerned.
" Apart from the question of the charterparty having been proved or not according to law the question in the instant case is whether clause 4 of the charterparty as to responsi bility of the shipowner in respect of the goods carried would form part of or be incorporated in the bills of lad ing.
How far the charterparty clauses laying down the re sponsibility and liabilities between the charterer and the shipowner can be attributed to the consignee under the bill of lading? It is an accepted principle that if certain clauses of the charterparty are referred to in the bill of lading those should be referred to in specific terms so as to bind the shipper and the consignee.
A general reference may not be sufficient under all circumstances.
Thus in T.W. Thomas & Co. Ltd. vs Portsea Steamship Co. Ltd., in the bill of lading there was also a marginal clause in writing as follows: "Deck load at shipper 's risk, and all other terms and condi tions and exceptions of charter to be as per charterparty, including negligence clause.
" The question was whether the arbitration clause in the charter~ party was incorporated by the reference in the bill of lading.
Lord Loreburn L.C. answering this question wheth er an arbitration clause found in the charterparty was applicable to the contract evidenced by the bill of lading, and to disputes arising between the shipowners and the holders of the bill of lading under that document, replied in the negative.
Lord Atkinson observed that when it was sought to introduce into a document like a bill of lading a negotiable instrument a clause such as the arbitration clause, not germane to the receipt, carriage, or delivery of the cargo or the payment of freight, the proper subject matters with which the bill of lading is conversant, that should 903 be done by distinct and specific words, and not by such general words as those written in the margin of the bill of lading in that case.
In Vita Food Products, Incorporated vs Unus Shipping Co. Ltd., , the bill of lading set out in detail the terms and conditions of the contract "which are hereby mutually agreed upon as follows".
Clause 7 contained a general exemption in respect of the goods carried from liability for all damage capable of being covered by insur ance and from liability above a certain value per package unless a special declaration was made.
The same clause also provided that "these contracts have been governed by English Law." While determining what was the proper law of the contract the Privy Council held that the expressed words of the bill of lading must receive effect with the result that the contract was governed by English Law.
It was said: "It is now well settled that by English Law (and the law of Nova Scotia is the same) the proper law of the contract is the law which the parties intended to apply.
That intention is objectively ascertained, and, if not expressed, will be presumed from the terms of the contract and the relevant surrounding circumstances.
" In that case the goods were shipped in Newfoundland under bills of lading which did not contain the statement required by section 3 of the Carriage of Goods by Sea Act, 1932 which incorporated the Hague rules subject to certain modifications but the bill of lading contained a general clause that the contracts "shall be governed by English Law" and applying that law the Shipowner was held to be within the exceptions which exempted him from liability.
In Rex vs
International Trustee for the protection of Bondholders, , it was held that the inten tion of the parties would be ascertained from what is ex pressed in the contract, which will be conclusive.
Repelling the contention that the transaction which was one relating to the carriage on a Nova Scotian ship of goods from New foundland to New York between residents in those countries, contained nothing to connect it in any way with English law, and that choice could not be seriously taken, their Lord ships held that connection with English law was not as a matter of principle essential.
The , which is based on the Bills of Lading Act of 1855 of England in its preamble says: "Whereas by the custom of merchants a bill of lading of goods being transferable by endorsement, the property in the goods may thereby pass to the indorsee, but nevertheless all rights in respect of the contract contained in the bill of lading continue in the original shipper or owner, and it is 904 expedient that such rights should pass with the property.
" Section 1 of the Act provides that fights under bills of lading are to vest in consignee or endorsee.
It says: "Every consignee of goods named in a bill of lading and every endorsee of a bill of lading to whom the property in the goods therein mentioned shall pass, upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself." Thus a bill of lading is intended to provide for the rights and liabilities of the parties arising out of the contract of affreightment.
If the consignee claims the goods under a bill of lading he is bound by its terms.
The property in the cargo passes to the consignee or the endorsee of the bill of lading but the contract whereunder the consignment or en dorsement is made has always to be taken into consideration.
Thus the consignee or an endorsee gets only such rights as its consignor or endorser had in respect of the goods men tioned in the bill of lading.
This is in conformity with Private International law applicable to the case.
The Indian Carriage of Goods by Sea Act, 1925 (Act XXVI of 1925) is an Act to amend the law with respect to carriage of goods by sea.
It was passed after accepting the recommen dations of the International Conference on maritime Law held at Brussels in October, 1922 and accepting the rules con tained in the Draft Convention held at Brussels meeting in October, 1923 amending the rules to give the rules the force of law with a view to establish the responsibilities, li abilities, rights and amenities attaching to carriers on the bills of lading.
But the Rules of the act are not applicable to this case.
The High Court rejected the contention of the appellant that it could not be made personally liable for claim on the grounds that the bills of lading were issued in the printed forms of the appellant company bearing its name at the top and that beyond what appeared at the bottom over the signa ture and seal, there was nothing at all to indicate that the appellant company was issuing the bills of lading for and on behalf of any owners of the vessel.
However, the conditions printed on the reverse of the bills of lading itself could not have been avoided.
Clause 4 Agency Clause said: "If the vessel is not owned by or chartered by demise to the company or Line by whom this bill of lading is issued (as may be the case notwithstanding anything that appears to 905 the contrary) this bill of lading shall take effect only as a contract with the owner or demise chatterers as the case may be as principal made through the agency of the said company or Line who act solely as agents and shall be under no personal liability whatsoever in respect thereon." This clause ex facie establishes a privity of contract between the owner or demise charterer of the vessel on the one hand and the shipper to whom the bill of lading has been issued by the appellant company as the charterer otherwise than by demise.
The High Court construed this clause to be one relieving or lessening the carrier 's liability without considering whether it was otherwise than as provided in the Rules under the Carriage of Goods Act, 1924 of England.
In Halsbury 's Laws of England 4th edn.
43, para 401, it is said.
"A contract for the carnage of goods in a ship is called in law a contract of affreightment.
In practice these con tracts are usually written and most frequently are expressed in one or other of two types of document called respectively a charterparty and a bill of lading." In para 402 we read that a contract by charterparty is a contract by which an entire ship or some principal part of her is let to a mer chant, called 'the charterer ', for the conveyance of goods on a determined voyage to one or more places, or until the expiration of a specified period.
In the first case it is called a "voyage charterparty", and in the second a "time charterparty".
Such a contract may operate as a demise of the ship herself, to which the services of the master and the crew may or may not be added, or it may confer on the charterer nothing more than the right to have his goods conveyed by a particular ship, and, as subsidiary to it, to have the use of the ship and the services of the master and crew.
Thus for the purposes of ascertaining the responsibili ty of a charterer in respect of the cargo shipped and land ed, it would be necessary to know not only the stipulations between the shipper i.e. the owner of the cargo and the charterer, evidenced by the bill of lading and also those between the charterer and the owner of the ship.
If the charter is by way of demise the problem would be simple inasmuch as the bill of lading will be purely between the shipper and the charterer.
In cases of a 'voyage charter ' or a 'time charter ' one has to find out the actual terms of the charter to ascertain whether they operated as charter by demise or made the charterer only as an agent 906 of the shipowner and if so to what extent so as to ascertain the extent of privity established between the shipper, and the shipowner as stipulated in the bill of lading.
Charterparties by way of demise, says Halsbury, at para 403, are of two kinds: "(1) charter without master or crew, or "bareboat charter", where the hull is the subject matter of the charterparty and (2) charter with master and crew, under which the ship passes to the charterer in a state fit for the purposes of mercantile adventure.
In both cases the charterer becomes for the time being the owner of the ship; the master and crew are, or become to all intents and pur poses, his employees, and through them the possession of the ship is in him.
The owner, on the other hand, has divested himself of all control either over the ship or over the master and crew, his sole fight being to receive the stipu lated hire and to take back the ship when the charterparty comes to an end.
During the currency of the charterparty, therefore, the owner is under no liability to third persons whose goods may have been conveyed upon the demised ship or who may have done work or supplied stores for her, and those persons must look only to the charterer who has taken his place.
" In para 404 Halsbury said: "Although a charterparty which does not operate as a demise confers on the charterer the temporary right to have his goods loaded and conveyed in the ship, the ownership remains in the original owner, and through the master and crew, who continue to be his employees, the possession of the ship also remains in him.
Therefore, the existence of the char terparty does not necessarily divest the owner of liability to third persons whose goods may have been conveyed on the ship, nor does it deprive him of his rights as Owners.
" Whether a charterparty operates as a demise or not depends on the stipulations of the charterparty.
The princi pal test is whether the master is the employee of the owner or of the charterer.
In other words where the master becomes the employee of the charterer or continues to be the owner 's employee.
Where the charterparty is by way of demise, the charterer may employ the ship in carrying either his own goods or those of others.
Where the charterparty does not operate as a demise, the charterer 's right vis a vis the owner depends upon the terms of the contract.
"The contract of carnage is personal to the 907 charterer, and he cannot call upon the shipowner to under take liabilities to third persons or transfer to third persons his own liabilities to the shipowner unless the contract so provides.
" A charterparty has to be construed so as to give effect, as far as possible, to the intention of the parties as expressed in the written contract.
The stipu lations of charterparty may be incorporated in a bill of lading so that they are thereby binding on the parties.
It is an accepted principle that when stipulations of the charterparty are expressly incorporated, they become terms of the contract contained in the bill of lading, and they can be enforced by or against the shipper, consignee or endorsee.
The effect of a bill of lading depends upon the circumstances of the particular case, of which the most important is the position of the shipper and of the holder.
Where there is a bill of lading relating to the goods, the terms of the contract on which the goods are carried are prima facie to be ascertained from the bill of lading.
However, if a shipper chose to receive a bill of lading in a certain from without protest he should ordinarily be bound by it.
Thus, it cannot be said that the bill of lading is not conclusive evidence of its terms and the person execut ing it is not necessarily bound by all its stipulations, unless he repudiates them on the ground that, as he did not know, and could not reasonably be expected to know, of their existence, his assent to them is not to be inferred from his acceptance of the bill of lading without objection.
Where there is a charterparty, the bill of lading is prima facie, as between the shipowner and an indorsee, the contract on which the goods are carried.
This is so when the indorsee is ignorant of the terms of the charterparty, and may be so even if he knows of them.
As between the shipowner and the charterer the bill of lading may in some cases have the effect of modifying the contract as contained in the char terparty, although, in general, the charterparty will pre vail and the bill of lading will operate solely as an ac knowledgement of receipt.
In the instant case we find from Exts.
P 1 to P3 that the following has been prominently printed just below the signature 'For the Master and Owners ' in the bills of lad ing.
SEE CONDITIONS OF CARRIAGE AND OTHER CONDITIONS OF REVERSE.
It can not therefore be said that the shipper, whose knowledge will be attributed to the first respondent did not know of the conditions of carriage printed on the reverse , there being no other conditions printed elsewhere in the bills of lading.
None of the parties having repudiated the bills of lading in this case, the High Court ought not to have ac cepted the submission of .the first respondent that clause 4 of the bills of lading offended the provisions of the Car riage of Goods by Sea Act, 1924 and therefore bad.
908 The Carriage of Goods by Sea Act, of 1924 of England was on the Hague Rules which were amended by Brussels protocol 1968 which is now embodied in the Carriage of Goods by Sea Act 1971 which came into force in 1977.
The Indian Carriage of Goods by Sea Act 1925 (Act XXVI of 1925) which is an Act to amend the law with respect to the carriage of goods by sea was passed after the International Conference on Maritime Law held at Brussels in October 1922 and Brussels meeting in October 1923.
Under Section 2 of that Act which deals with application of rules it is provided: "Subject to the provi sions of this Act, the rules set out in the Schedule (here inafter referred to as "the Rules") shall have the effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in India to any other port whether in or outside India." To apply the Rules to a case, the port of origin has to be an Indian Port.
Unless the starting point or the port of loading is a port in India the Rules are inapplicable.
These Rules have no application when goods are not carried from any Indian port.
As in the instant case goods were shipped in Africa and carried to Cochin, this Act obviously was not applicable.
There is nothing to show that the charterparty was by way of demise.
Pacta dant legem contractui the stipulations of parties constitute the law of the contract.
Agreements give the law to the contract.
Clause 4 having been a stipu lation in the contract evidenced by the bills of lading the parties could not resile therefrom.
It is not clear whether the English Carriage of goods by Sea Act, 1924 or the Indian Carriage of Goods Act 1925 was applied by the High Court.
The Articles and the Rules referred to are to be found in the Schedule to the Indian Act the Rules whereunder were not applicable to the facts of the case.
The dispute could not have been decided partly according to municipal law and partly according to English law.
The English law was not proved before the court according to law.
The result is that this appeal must succeed.
We accordingly allow this appeal, set aside the impugned judgments and remand the case to the trial court for disposal according to law after giving opportunity to the parties to amend their pleadings and adduce additional evidence, if they are so advised, in light of the observations made hereinabove.
In the facts and circumstances of the case we make no order as to costs.
R.S.S. Appeal allowed.

Output:
The first respondent, M/s Shanmughavilas Cashew Indus tries, shipped 4445 bags of raw cashewnuts from East Africa to Cochin in the vessel Steliosm chartered by the appellant M/s British India Steam Navigation Co. Ltd., incorporated in England, pursuant to a contract of affreightment evidenced by three bills of lading.
But only 3712 bags were delivered at Cochin, there being thus short landing of 733 bags.
The first respondent sued the appellant in the Court of the Subordinate Judge, Cochin, seeking damages.
The Subordi nate Judge decreed the suit with interest.
The appellant 's appeal to the High Court failed.
In the courts below the main contentions of the appel lant were that it was a mere charterer of the vessel; that there was a charterpar? executed between the first respond ent and the agent of the owner in London; that as per clause 3 of the bill of lading the Court at Cochin had no jurisdic tion and only English Courts had jurisdiction; and that as per the charterparty and clause 4 of the bill of lading the remedy of the first respondent, if any, was against the ' owner who alone was liable and not against the appellant charterer of the vessel.
The first respondent had denied that the appellant was only a charterer and not liable for the shortage.
It had also denied that only English Courts had jurisdiction in the matter.
885 Before this Court, on behalf of the appellant it was submitted that the appellant was an English company regis tered in England carrying on business in England, and it did not carry on any business in India; as the carrier under clause 3 of the bill of lading, only the appellant had an option either to sue or be sued in England, or in Cochin, which was a port of destination, but the shipper had no option to sue at Cochin; in its written statement it was clearly stated that it had appeared under protest and with out prejudice to the contention regarding jurisdiction which contention it had also pressed at the time of the argument, and, therefore, it could not be said to have submitted to the jurisdiction of Cochin court as it never made any sub mission or raised any objection as to the fact of short landing; and that the High Court has held clause 3 of the bill of lading to be bad on two erroneous grounds, namely, that it offends section 28 of the Contract Act and that it gives an unfair advantage to the carrier which advantage is not given to the consignee.
Allowing the appeal and remanding the case to the trial Court it was, HELD: (1) A bill of lading is the symbol of the goods, and the right to possess these passes to the transferee of the bill of lading, and the right to sue passes with it. ]893C] Sewell vs Burdick, [1884] 10 App.
Cases 74 (85, 104), re ferred to.
(2) A bill of lading is intended to provide for the rights and liabilities of the parties arising out of the contract of affreightment.
If a consignee claims the goods under a bill of lading, he is bound by its terms.
[904C] (3) The property in the cargo passes to the consignee or the endorsee of the bill of lading but the contract whereun der the consignment or endorsement is made has always to be taken into consideration.
Thus the consignee or endorsee gets only such rights as its consignor or endorser had in respect of the goods mentioned in the bill of lading.
[904C D] (4) The jurisdiction of the Court may be decided upon the parties themselves on the basis of various connecting factors, and the parties should be bound by the jurisdiction clause to which they have agreed unless there is some strong reason to the contrary.
[897B; 899F] (5) The first respondent is the consignee and holder of the bills of 886 lading and ex facie should be bound by clause 3 thereof in regard to jurisdiction.
1892A] (6) If clause 3 of the bills of lading is held to be binding on the first respondent the choice of law by the parties would also be binding.
[892C] (7) In the event of the English Court alone having the jurisdic ion, the application of Indian statutes and the jurisdiction of the Indian court would be, to that extent, inapplicable.
[892D] (8) There may, however, be submission to the jurisdic tion of an Indian Court by litigating in India.
[896E] Sirdar Gurdyal Singh vs Rajah of Faridkote, (684), referred to.
(9) The question of jurisdiction in this case ought not to have been determined by the High Court on the basis of the provisions of section 28 of the Indian Contract Act in the absence of a specific provision making it applicable to transactions in international trade.
[895F] (10) Where the negotiation of a bill of lading is by the person who had a right to sue on it, mere possession of it does not enable the holder to sue any person who was not liable under it and not to sue another who was liable under it, to make good the claim.
He cannot also sue at a place not intended by the parties when intention has been ex pressed.
[893E F] (11) Although a defendant who appears and contests the case on its merits will be held to have submitted to the juris diction, an appearance merely to protest that the court does not have jurisdiction will not constitute submission, even if the defendant also seeks stay of proceedings pending the outcome of proceedings abroad.
[896F G] Williams & Glyn 's Bank PLC vs Astro Dinamico Compania Navi era S.A. & Anr.
The Weekly Law Reports Vol.
(1) 1984 438 and Rein vs Stain, , referred to.
(12) In the instant case, in the Memo.
of appeal before the lower appellate court no specific ground as to jurisdic tion was taken though there were grounds on non maintain ability of the suit.
Even in the Special Leave Petition before this Court no ground of lack of jurisdiction of the courts below has been taken.
The appellant has, therefore, to be 887 held to have either waived the objection as to jurisdiction or to have submitted to the jurisdiction, in the facts and circumstances of the case.
The defence that the suit was not maintainable in the absence of the owner of the ship could in a sense be said to have been on the merits of the case.
[899B C] 13) Clause 3 of the bills of lading also contains the selection of law made by the parties.
The contract is gov erned by English law and disputes are to be determined according to English Law.
[8991] (14) As the law has been chosen, the proper law will be the domestic law of England and the proper law must be the law at the time when the contract is made, throughout the life of the contract, and there cannot be a "floating" proper law.
[900D] Gienar vs Meyer, [1796] 2 Hy BI 603; Rex vs Internation al Trustee for the Protection of Bondholders AG, [1937] AG 500 (529); Vita Food Products Inc. vs Unus Shipping Co. Ltd., (289 90); James Miller & Partners Ltd. vs Whirworth Street Estates (Manchester) Ltd., (603); Mackendar vs Feldia AG, ; Com pagnie d 'Armement Maritime SA vs Compagnie Tunisienne de Navigation SA, and Acrow (Automation) Ltd. vs Rex Chainbelt Inc., [1971] 3 All E.R. 1175, referred to.
(15) The bill of lading is not the contract of af freightment, for that has been made before the bill of lading was signed and delivered, but it evidences the terms of that contract.
[901B] (16) If certain clauses of the charterparty are referred to in the bill of lading those should be referred to in specific terms so as to bind the shipper and the consignee.
A general reference may not be sufficient under all circum stances.
[902E] T.W. Thomas & Co. Ltd. vs Portsea Steamship Co. Ltd., ; Vita Food Products, Incorporated vs Unus Ship ping Co. Ltd., and Rex.
vs International Trustee for the Protection of Bondholders, , referred to.
(17) For the purpose of ascertaining the responsibility of a charterer in respect of the cargo shipped and landed, it would be necessary to know not only the stipulations between the shipper i.e. the owner of the cargo and the charterer evidenced by the bill of lading, but 888 also those between the charterer and the owner of the ship.
If the charter is by way of demise the problem would be simple inasmuch as the bill of lading will be purely between the shipper and the charterer.
In cases of a 'voyage char ter ' or a 'time charter ' one has to find out the actual terms of the charter to ascertain whether they operated as charter by demise or made the charterer only as an agent of the ship owner, and if so to what extent so as to ascertain the extent of privity established between the shipper and the ship owner as stipulated in the bill of lading.
[905G H; 906A] (18) Whether a charterparty operates as a demise or not depends on the stipulations of the charterparty.
The princi pal test is whether the master is the employee of the owner or of the charterer.
[906G] (19) It cannot be said that the bill of lading is not conclusive evidence of its terms and the person executing it is not necessarily bound by all its stipulations, unless he repudiates them on the ground that, as he did not know, and could not reasonably be expected to know, of their exist ence, his assent to them is not to be inferred from his acceptance of the bill of lading without objection.
[907D] (20) Where there is a charterparty, the bill of lading is prima facie, as between the ship owner and an indorsee, the contract on which the goods are carried.
This is so when the indorsee is ignorant of the terms of the charterparty, and may be so even if he knows of them.
As between the ship owner and the charterer the bill of lading may in some cases have the effect of modifying the contract as contained in the charterparty, although, in general, the charterparty will prevail and the bill of lading will operate solely as an acknowledgement of receipt.
[907E F]


Input:
Appeal No. 154 of 1976.
(From the Judgment and Order dated 16 12 1975 of the Judicial Commissioner 's Court, Goa, Daman and Diu in Election petition No. 2/74).
V.M. Tarkunde and Shri Natgin for the Appellant.
Hardayal Hardy, S.K. Mehta and P.N. Puri for the Respondent.
The Judgment of the Court was delivered by KHANNA, J.
This appeal by Dr. Wilfred D 'Souza is against the judgment of learned Judicial Commissioner Goa whereby be dismissed.
election petition filed by the appel lant to declare the election of Francis Menino Jesus Ferrao respondent to the Goa Legislative Assembly to be void and to declare instead the appellant to be duly elected.
The appellant and the respondent were the two candi dates who sought election to the Goa Legislative Assembly from Benaulim Assembly constituency in the by election caused by the death of Vassuudev Garmalkar.
Polling took place on June 9, 1974 and the counting of votes on June 10, 1974.
After the first count, the Returning Officer found that the total number of valid votes cast in favour of the appellant was 4,656 and of those cast in favour of the respondent was 4,654.
234 ballot papers were rejected.
The respondent then applied for recounting of the votes and the said application was granted.
As a result of recounting, it was found that the appellant had secured 4,651 valid votes, while the respondent had secured 4,652 valid votes.
Seven ballot papers were rejected.
It may be mentioned that at the time of recounting 234 votes which had been earlier rejected in the first count were not taken into account.
Soon after the recount the appellant made an application for a second recount.
This application was granted and the recount took place on the following day, i.e., June 11, 1974.
As a result.of the second recount the appellant was found to have secured 4,650 valid votes while the respondent was found to have secured 4,652 votes.
One ballot paper was rejected.
At the time of second recount the ballot papers which had been rejected at the time of the initial counting and the first recount were not taken into account.
In the result the respondent was declared elected.
The appellant thereafter filed the present petition on July 15, 1974.
Besides the ground with which we are concerned in this appeal, the appellant challenged the election of the re spondent on the following two grounds: "(1) that in the first and second recount the Returning Officer illegally accepted .in favour of the returned candidate, some votes which he ought to have rejected, and rejected some votes in favour of the appellant which he ought to have accepted under law; (2) that the failure of the Returning Officer to re scrutinize the rejected votes in the first and second recounts is illegal" In respect of the above two grounds, objec tion was taken by the respondent that there was non compliance with the statutory require ments of section 83(1)(a) of the Representa tion of the People Act, 1951 (hereinafter referred to as the Act) inasmuch as the appel lant had not set out the material facts re garding those allegations.
Learned Judicial Commissioner as per order dated March 22, 1975 held that the appellant had failed to give material particulars in respect of the said two grounds.
The petition in that respect was held to have not disclosed a cause of action.
It was also held that the appellant was not entitled to an order of the court for re counting the polled votes.
The appellant, it may be stated, filed a petition seeking spe cial leave of this Court against the above order but that petition was dismissed on July 31, 1975.
The only ground which survives and with which we are concerned in this appeal is given in para 9 of the petition.
The same reads as under: "The petitioner further submits that the scrutiny and counting of the tendered votes is absolutely necessary in this case, consid ering the fact that the respondent has been declared the returned candidate after securing in his favour only 2 votes more than the petitioner and the fact that the tendered votes are 10, and that the non counting of such votes may materially affect the result of the election, in so far as it concerns the respondent, by the improper reception of votes originally polled by persons other than those who tendered their votes.
The petitioner, therefore, submits that the votes initially and improperly received should be removed and the tendered votes should be accepted and counted instead.
" The appellant accordingly asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes.
Prayer made by the appellant was that the 'election of the respondent be declared void and the appellant be declared to be duly elected.
The petition was resisted by the respondent, and in reply to para 9 of the petition the respondent submitted that no recount was justified 945 or required in law merely because of the returned candidate having secured only two votes more than the defeated candi date.
The respondent denied that the tendered votes were cast by genuine voters.
Issue No. 7 which is the only issue relating to the allega tion in para9 reads as under: "Whether the petitioner proves that the vote or votes were initially improperly received, and should be removed and in their place tendered vote or votes should be taken into account.
" The Judicial Commissioner in his order dated March 22, 1975, while holding that no material particulars had been given in the petition in respect of the other two grounds of the election petition, found that regarding the allegation about tendered votes material facts had been given and a cause of action had been disclosed.
An application was filed on April 4, 1975 after the above order on behalf of the appellant praying for a direc tion to the District Election Officer to send all the papers mentioned in rule 92 of the Conduct of Election Rules, 1961 to the court.
In reply to that application the respondent stated that the court should, before sending for the said papers, call upon the appellant "to make out a prima facie case by undertaking to examine all the persons who have cast the tendered votes and producing some of them and proving that they had cast the tendered votes and that they are the true votes." Learned Judicial commissioner after refer ring to the case of Rameshwara Nand vs Madho Ram(1) and some other cases, passed order dated September 11, 1975, the material part of which reads as under: "In the present case the tendered votes are only ten and I see no reason why the petitioner should be allowed to break the principle of secrecy, particularly because the necessity of knowing for whom the voters have cast their vote does not arise now.
The petitioner will have to establish his case before he succeeds in this petition.
He will have, therefore, to produce all his evidence before the counting is done.
I therefore order that the petitioner shall produce before the Court all the evi dence on which he relies.
I also order that the District Election Officer be asked to produce the election papers mentioned in rule 92(2) of the Conduct of Election Rules, 1961 before this Court.
" The appellant thereafter examined two witnesses, Joa quine Rodrigoes (PW 1) and Vina Farnandes (PW 2).
These two witnesses, according to the appellant, had marked tendered ballot papers at the time of polling.
Trunks containing election papers were also sent to the court by the Election Registration Officer.
As the keys of those trunks were not available, those trunks were broken open in the presence of the parties.
A Panchnama of the packets contained in those (1) A.I.R. 1968 Punjab 173.
trunks was then prepared.
Some of the packets having connection with the tendered ballot papers were opened after the conclusion of the evidence of the two witnesses examined by the appellant.
The case was thereafter argued and the election petition was dismissed.
In the judgment under appeal, learned Judicial Commissioner examined the evidence of the two witnesses produced by the appellant.
According to the testimony of these two witnesses, when they went to the polling booth, they were told that someone else had already cast their votes.
When these witnesses stated that they had not .voted, they were each given a paper for marking in favour of the candidate of their choice.
They then marked that paper and handed over that paper to the persons present there.
Learned Judicial Commissioner took the view that the evidence of these witnesses did not relate to tendered ballot papers but to the ordinary ballot papers.
The appel lant as such was held to have failed to prove his case.
In the result, the election petition was dismissed.
In appeal before us, Mr. Tarkunde on behalf of the appellant has argued that the evidence of the two witnesses examined on behalf of the appellant relates to the tendered ballot papers marked by them and that the finding of the Judicial Commissioner to the contrary is not correct.
As against that, Mr. Hardy on behalf of the respondent has canvassed for the correctness of the view taken by the Judicial Commissioner.
Before dealing with this aspect of the matter, we think it opposite to deal with the legal position relating to tendered votes.
Rule 42 of the Conduct of Election Rules, 1961 relates to tendered votes and reads as under: "42.
Tendered votes. (1) If a person repre senting himself to be a particular elector applies for a ballot paper after another person has already voted as such elector, he shall, on satisfactorily answering such ques tions relating to his identity as the presid ing officer may ask, be entitled, subject to the following provisions of this rule, to mark a ballot paper (hereinafter in these rules referred to as a 'tendered ballot paper ') in the same manner as any other elector.
(2) Every such person shall, before being supplied with a tendered ballot paper, sign his name against the entry relating to him in a list in Form 15.
(3) A tendered ballot paper shall be the same as the other ballot papers used at the polling except that (a) such tendered ballot paper shall be serially the last in the bundle of ballot papers issued for use at the polling sta tion; and 947 (b) such tendered ballot paper and its counterfoil shall be endorsed on the back with the words 'tendered ballot paper ' by the presiding officer in his own hand and signed by him.
(4) The elector, after marking a ten dered ballot paper in the voting compartment and folding it, shall, instead of putting it into the ballot box, give it to the presiding officer, who shall place it in a cover spe cially kept for the purpose." Perusal of the above rule makes it clear that the occasion for marking tendered ballot paper would arise if a person representing himself to be a particular elector applies for a ballot paper after another person has already voted as such elector.
The person so applying would then be ques tioned regarding his identity by the presiding officer and, in case he gives satisfactory answer, he would be supplied a tendered ballot paper which would then be marked by the aforesaid person.
Such person is also required to sign his name against the entry relating to him a list in form 16.
The tendered ballot papers shall be the same as other ballot papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for used at the polling station.
The words "tendered ballot paper" have to be endorsed on the back of the tendered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him.
The tendered ballot paper, it is further provided, is not to be put in the ' ballot box but is to be kept in a separate cover.
According to clause (6) of rule 56 of the Conduct of Elec tion Rules, no cover containing tendered ballot papers shall be opened at the time of the counting of the votes and no such tendered ballot papers shall be counted.
The Represen tation of the People Act, 1951 as well as the above rules are, however, silent on the point as to what use would be made of the tendered ballot papers and how they would affect the result of the election.
Learned counsel for the parties are, however, agreed that such tendered ballot papers, even though excluded from consideration at the time of counting of votes after the poll, can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided certain conditions are fulfilled.
We agree with the learned counsel for the parties in this respect, and find that this position of law is supported by two English decisions, Borough of St. Andrews(1) and The Stepney Divi sion of the Borough of Tower Homlets(2) as also by.two Indian decisions, Kalicharan Singh vs Ramcharitar Rai Yadava & Ors(3) and A.K. Subbarava Gounder vs
G. Palanisami Gounder & Ors.(4) Before, however, a tendered ballot paper can be taken into account during the proceedings of election peti tion, evidence would have to be led on the following two points: (1) The person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number.
(1)4 Omelly & Hardcastle 32, (2) Omelly & Hardcastle 34.
(3) (4) (2) It was such genuine voter who marked the tendered ballot paper.
So far as the first point is concerned, the evidence of the genuine voter that he had not cast such initial vote would normally and in the absence of any circumstance casting doubt regarding its veracity be sufficient.
Once the above two points are proved, the following consequences would follow: (a) The court would exclude the vote initially cast by the person other than the genuine voter from the number of votes of the candidate in whose favour it was cast; and (b) The court would further take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
It may also be mentioned that the proper occasion for scrutinising tendered ballot papers would normally arise only when the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of election being thus materially affected if the court takes into account the tendered ballot papers and excludes from consideration the corresponding votes which were cast by persons other than the genuine voters.
The present election petition would have to be decided in the light of the legal position set out above.
We have been taken through the evidence on record and are of the view that the evidence of the two witnesses examined by the appellant is sufficient to prove that their evidence relates to tendered ballot papers.
Each of these witnesses has deposed that when she arrived at the polling booth, she was told that someone else had cast her vote.
When these witnesses persisted that they had not cast their votes, each of them was supplied with a paper which she marked.
Both the witnesses were emphatic that they had not.
put their votes in the ballot box and that they handed them over to the persons present at the polling booth.
A very significant circumstance which shows that the evidence of these witnesses relates to tendered ballot papers and not to the ordinary ballot paper is the fact that there is actual reference to them in Form No. 15 which relates to list of tendered votes.
The packet containing Form No. 15, it needs to be mentioned, was opened after the close of the evidence of these two witnesses.
The name of Joaquina Rodrigues is mentioned in Form No. 15.
The fact that the name mentioned in the electoral roll is Rodrigues Joaquina Domingos and not Joaquina Rodrigues is not very material because the name of the father of the witness is Domingos.
So far as Vina Fernandes (PW 2) is concerned, Form No. 15 does not mention her name but only gives the serial number of the tendered ballot paper.
The counterfoil of the tendered ballot paper however, makes it clear that it re lates to serial No. 244 of electoral roll, part No. 12.
The said serial number of the electoral roll pertains to Vina Fernandes.
It 949 appears that some of the formalities which were required to be observed in connection with tendered ballot papers were not complied with by the presiding officer, e.g., he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper.
The parties, however, cannot be made to.
suffer because of any such omission on the part of the presiding officer.
The evidence of the two witnesses examined on behalf of the appellant can also not be discarded on the ground that they have not deposed about their having affixed two thumb impressions instead of one thumb impression.
As mentioned above, the reference to those two voters in Form No. 15 relating to tendered ballot papers goes a long way to show that it were these two witnesses who marked the tendered ballot papers.
Their evidence also shows that they did not cast the initial votes which were cast in their names.
Learned Judicial Commissioner in this case did not record any evidence on behalf of the respondents and pro ceeded to decide the cast after the evidence of the witness es of the appellant had been recorded and after the box containing the relevant necessary papers had been opened and those papers were examined.
In view of the fact that the appellant has adduced prima facie proof in respect of two of the ten dered ballot papers, the Judicial Commission er, in our opinion, should now call upon the respondent to adduce his evidence.
The evidence of the respondent would be confined not merely to the two tendere ballot papers in respect of which the appellant has adduced evidence but can also relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced any evidence After the said evidence is examined, learned Judicial Commissioner would decide the matter in the light of the legal position relating to tendered ballot papers as set out above.
We accordingly accept the appeal, set aside the judgment of the learned Judicial Commissioner and remand the case to him for fresh decision after recording the evidence of the respondent in accordance with law as ex plained above.
The parties in the circumstances shall bear their own costs of the appeal.
We are conscious of the fact that the election matters should be dis posed of as soon as possible and that the remand of the case would have the effect of further prolong ing the matter, yet looking to the face of the case, we find no escape from the conclusion of remand.
Learned Judicial Commissioner, we are sure, would try to expedite the dispos al of the case.

Output:
Rule 42, Conduct of Election Rules, 1961, shows that the occasion for marking tendered ballet paper would arise if a person representing himself to be a paticular elector ap plies for a ballot paper after another person has already voted as such elector.
The person so applying, would then be questioned by the presiding officer regarding his identi ty, and in case he gives a satisfactory answer, he would be supplied a tendered ballot paper which would then be marked by such person.
has to sign his name against the entry relating to him in a list in Form 15, prescribed under the Rules.
The tendered ballot paper shall be the same as other ballet papers used at the polling, except that it would be serially the last in the bundle of ballot papers issued for use at the polling station.
The words 'tendered ballot paper ' have to be endorsed on the back of the ten dered ballot paper and its counterfoil by the presiding officer in his own hand and has to be signed by him.
The tendered ballot paper is not to.
be put in the ballot box, but is to be kept in a separate cover.
According to r. 56(6) no cover containing tendered ballot papers shall be opened or counted at the time of the counting of the votes.
But even though the tendered ballot papers are thus excluded at the time of counting they can be taken into account in proceedings to challenge the validity of the election of the returned candidate provided, ( 1 ) the person who cast the initial vote as a voter on a particular serial number in the electoral roll was someone other than the genuine voter mentioned at that number; (2) it was such genuine voter who marked the tendered ballot paper; and (3) the difference between the number of votes polled by the candidate declared elected and his nearest rival is so small that there is a possibility of that difference being wiped out and the result of the election being materially affected.
In such a case, the Court would exclude the vote initially cast from the number of votes of the candidate in whose favour it was cast; and take into account the tendered ballot paper in favour of the candidate in whose favour it is duly marked.
In the present case, the appellant and respondent were two candidates for election to a Legislative Assembly, and the respondent was declared elected having secured just two votes more than the appellant.
The appellant challenged the respondent 's election and contended that there were ten tendered votes and that they should be counted, after remov ing the votes initially and improperly cast.
At the trial of the election petition, the appellant examined on his behalf two witnesses, who had, according to the appellant, marked tendered ballot papers at the time of the polling.
The trial court however, took the view that the evidence of the two witnesses did not relate to tendered ballot papers but related to ordinary ballot papers, and dismissed the election petition.
Allowing the appeal to this Court, and remanding the case to the trial Court HELD: (1) The evidence of the two witnesses of the appellant is sufficient to prove that their evidence relates to tendered ballot papers.
Even though some of the formal ities which were required to be observed in connection with the tendered ballot papers were not complied with by the presiding officer, as for example, he did not note on the back of the counterfoil of the tendered ballot paper that it related to tendered ballot paper, the parties cannot 943 be made to suffer for such an omission.
The evidence of the two witnesses cannot also be discarded on the ground that they have not deposed about their having affixed two thumb impression instead of one.
[948 F G] (2) In view of the fact that the appellant has adduced prima facie proof in respect of the two tendered ballot papers the trial court should now call upon the respondent to adduce his evidence.
The respondent 's evidence need not be confined to the two tendered ballot papers but may relate to some or all of the other eight tendered ballot papers in respect of which the appellant has not adduced evidence.
The trial court should thereafter decide the matter in the light of the legal position.
[949 D] Borough of St. Andrews (4 Orielly & Hardcastle 32), The Stepney Division the Borough of Tower Homlets (4 Orielly & Hardcastle 34), Kalicharan Singh vs Ramcharitar Raj Yadava & Ors.
and .4.
K. Subharava Gounder vs
G. Pala nisami Gounder & Ors.
referred to.