State Consumer Disputes Redressal Commission
M/S Old Gold Overseas Pvt Ltd., vs Wan Hai Lines (Japan) Ltd., on 8 December, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section-9 Clause (b) of the Consumer Protection Act, 1986) Date of Decision: 08-12-2008 Complaint Case No. C-295/2000 1. M/s Old Gold Overseas Pvt Ltd., Regd Office-A-29, Naraina Industrial Area. New Delhi. 2. Mr. Jas Pal Batra, Director, Regd Office-A-29 Naraina Industrial Area. New Delhi. . Complainants Versus 1. Wan Hai Lines ( Japan) Ltd., Tokya-Daiei Building 3rd Floor, NO.1-1 Kyobashi 3-Chome, Chuo-Ku, Tokyo 104-0031 Japan. . Opposite Party No.1 2. M/s Omega Shipping Pvt. Ltd. 505-507, Ansal Tower, Nehru Place, New Delhi. . Opposite Party No.2 3. Mr. G.D. Grover, Regional Manager, M/s Omega Shipping Pvt. Ltd. 505-507 Ansal Tower, Nehru Place, New Delhi. . Opposite Party No.3 CORAM JUSTICE J.D. KAPOOR, PRESIDENT MS. RUMNITA MITTAL, MEMBER
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR (ORAL)
1. Brief facts leading to this complaint as alleged by the complainant are that the complainant on 10.03.1999 confirmed the purchase order for supply of used four colour offset Printing Machine Adast dominant-745P size 485 x 660 mm age 1976 with all its standard accessories and equipments for US$ 18500 CIF ICD New Delhi to M.P.M. Ltd. 801 Palm House 1-20-2. Hommachin, Shi Buya Ku Tokyo, Japan. T-151, on the terms and condition mentioned in the said purchase order dated 10.03.99. The supplier agreed to supply the said machine as per their Proforma Invoice dated March 12,1999 and had asked for the shipping instructions so that the machine can be shipped accordingly. The said supplier agreed to ship the said machine and documents on collection basis D/P at site. Vide letter dated 14 March 1999, the complainant company accepted the terms mentioned in Proforma Invoice dated 12.03.1999. The complainant categorically spelt out the terms and conditions including the shipment of machine latest by 31st March 1999 and said that the complainant company shall retire the documents from the Bank and payment will be remitted immediately. The supplier, vide letter dated 25 March 99, informed the complainant stating that the supplier had handed over machine to the shipping company - Opposite Party (in short O.P) NO.1 and the scheduled vessel was Assian Pegasus S: 139 ICD, New Delhi ETD. 31 March, 1999 and ETA, April, 28,1999 (Mumbai Port). The said company has further requested the complainant to release the shipping documents from the complainants Banker at the earliest.
2. That vide letter dated 1 April, 1999 the supplier / Seller Company issued a certificate verifying the details of shipping of the said Machine. The complainants company received the import documents i.e. B/L, Bill of Exchange, packing list and other documents through their banker State Bank of Bikaner and Jaipur, after remitting full payment to the supplier on dated 12.05.1999 and then after the said documents were presented to the Customs authorities for the assessment of duty and clearance of the said Machine. The Customs authorities alleged that since the sticker has been pasted to show the date of issue as well as the date of loading of the goods on Board in the B/L was March 31st 1999, and whereas the IGM was dated Ist April 1999 and ordered for further investigations as to whether B/L was manipulated or not and for this reason the customs authorities detained the said machine. The customs authorities during the investigations, searched the complainants premises and no incriminatory material was recovered. Thereafter statement of the complaint was recorded under section-108 of the Customs Act. The complainants had reiterated that the said documents including the B/L and other documents such as inter charge receipt were received by them through their banker. The complainants vide letter dated 04.08.1999 requested the authorities for the release of consignment at the earliest to avoid further demurrage and detention charges but to no avail. Office of the Commissioner of Customs issued a Show Cause Notice dated 24.01.2000 calling upon the complainants to show cause to the Joint Commissioner of Customs ICD, Tughlakabad, New Delhi as to why the consignment should not be confiscated in terms of section 112 (a) of the Customs Act 1962.
3. That the complainants vide his written statement dated 02.02.2000 categorically refuted the charges. However, on 9th May, 2000 the complainants received an order dated 10.04.2000 confiscating the goods imported under B/E No.210269 dated 26.05.1999 under section III (d) of the Customs Act. 1962. However, an option was given to redeem the goods on payment of redemption fine of Rs.3,50,000/- under section 125 of Customs Act 1962 and penalty of Rs,2,00,000/- on the company and a sum of Rs.2,00,000/- on Sh. Jaspal Singh, the complainant NO.2 was imposed. The said fine and penalty had been imposed in addition to the customs duty on other charges levied on the goods. he complainants without prejudice to their rights of filing the appeal against the impugned order, and in order to avoid further demurrage charges, business losses, deposited the redemption fine, personal penalty and duties payable to the custom authorities and requested for redemption of goods.
4. That on 10.05.2000 the complainant visited the office of the OP No.2 and handed over the bank drafts for a sum of Rs.7,13,690/- as demanded towards there charges and informed them that since the delivery order in respect of the container NO.FSCU-3135837 (20FT), B/L NO.TYDEC-001G9 issued earlier had expired on 10.05.2000, therefore, the same required revalidation and requested for revalidation the ame to enable them to secure the said goods. The officer of the said OP insisted the complainant official for furnishing an undertaking in writing, to the effect that the complainant shall not hold the OPs liable the responsible for the said consignment. Since the OP NO.2 insisted that the said undertaking alongwith the payment of a Sum of Rs.7,13,690/- is a pre-condition for the revalidation of delivery order, therefore, the complainants after having paid custom duty, personal penalty, redemption fine, having no option forwarded the letter dated 10.05.2000 to the OP NO.2 under duress.
5. That thereafter on 15.05.2000 the complainant wrote to the Regional Director of the OP NO.2. The OP NO.2 has sent reply dated 30.05.2000, through their lawyers asking the complainant to give an undertaking that we hereby confirm that we undertake full responsibility for taking delivery and we will not hold you responsible in any manner. OP NO.3, Regional Manager, the agents of OP NO.1 as mentioned in the order dated 10.04.2000 has admitted the sticker taps was pasted on the B/L showing the date of issue of the B/L and date of goods laden on 31.03.1999.
6. That OP No.3 falsely stated that they have received verbal request from the consignee to get the B/L in the IGM changed from 01.04.1999 to 31.03.1999. The supplier had repeatedly represented to the complainants that the goods were shipped on 31.03.1999 as per shipping instructions given by the seller on behalf of the complainant.
7. As per the complainant, the OPs, in order to cover up their own deficiency in service and the faults committed by them, have falsely stated before the customs authorities in respect of the said pasting of sticker on the B/L and because of such a negligent act of the OPs the complainants have suffered loss and the damage not only in the business but also in the unwarranted litigation, loss of reputation. The OPs have failed to perform their obligations acted negligently firstly by pasting the stickers on the documents and thereafter made false statements causing losses to the complainants. On the above allegations the complainant claimed the following reliefs:-
i) Rs.3,50,000/- paid towards redemption fine by complainant NO.1.
ii) Rs.2,00,000/- towards penalty on complainant NO.1.
iii) Rs.2,00,000/- towards personal penalty on complainant No.2
iv) Rs.7,60,225/- paid towards demurrage/detention charges etc.
v) Rs.2,84,300/- concord charges.
vi) Rs. 1.00 Lac as compensation for mental agony and harassment and loss of business etc.
vii) Rs. 1.00 Lac towards cost of litigation.
viii) Interest @24% on the above amounts till realization.
8. In its defence the OPs have come with the objection that the complaint is not maintainable on the as the subject matter has been adjudicated by the Joint Commissioner of Customs and the complainants were held guilty of having committed an offence under the Customs Act and as such they cannot come before this Court to claim relief . Admittedly, the complainant wrote the letter dated 10.05.2000 discharging the OPs from any liability in respect of the the said consignment. The Consignor of the goods, MPM Ltd did not categorically specify that the goods were to be delivered on board the ship on the 31st of March 1999 and as such, time was not the essence of the contract between the OP and the said consignor. Hence, there was no deficiency in service on the part of the OPs. The Consignor of the goods, MPM Ltd., was the party with whom the OP NO.1 has a privity of contract. The said Consignor is a proper and necessary party in order to properly adjudicate the matter. There is no board resolution on record either authorizing the complainant NO.2 to sign on behalf of the complainant NO.1 or authorizing the institution of the complainant itself.
9. It was further averred by the OPs that nowhere in the letter dated 25th March 1999 as filed by the complainants and marked Annexure C has the supplier mentioned that instruction were given to the OP NO.1 that the consignment should be shipped positively on 31st March 1999. Moreover, the said letter states the ETD as 31st March, 1999, which shows the expected time of departure to be 31st March, 1999. Tokyo Port is one of the main terminals that form a part of Tokyo Bay. The other ports that form a part of Tokyo Bay are Yokohama Port and Nagasaki Port.
Yokohama Port is only 10 miles away from Tokyo Port. As the distance between the two ports is not much, shipping lines or carriers consider these two ports as one port. If any ship arrives in one of the said ports on one day and in the other port the next day, it is the general commercial practice in Japan to revise the Bill of lading by pasting stickers, if so requested by the consignor. The vessel Asian Pegsus Voy No.137 arrived at Yokohama Terminal on 31st March 1999 and thereafter arrived at Tokyo Port on Ist April 1999. On the request of the consignor, MPM Ltd. the date of the bill of lading was revised by pasting a sticker and showing the date as 31st April 1999 when originally the date was Ist April, 1999. This was done by the OP NO.1 in good faith and in keeping with the commercial practice that is prevalent among carriers in Japan.
10. Further that the Joint Commissioner of Customs (Import) in his order dated 10.04.2000 had stated that at the time of hearing the complainant NO.2 admitted to having given verbal instructions for amendment.
11. That the complainants as well the consignor, MPM Ltd. requested the OP NO.1 to amend the date of the B/L from 1st April, 1999 to 31st March 2000, and on their request the amendment in the date in the B/L was made and this is explicit from the order of the Joint Commissioner of Customs referred to above. The OP NO.3 requested for the amendment in IGM on the verbal request of the complainant No.2 and on production of a photocopy of the bill of lading by the complainant NO.2 and in the genuine belief that the ship was loaded on 31.03.1999. The said order of the custom authority does not mention anything incriminating against the Op and the order is mainly against the complainants. Despite this, a penalty of Rs. one Lac was imposed against the OP NO.3. The OP however, did not go into appeal against the penalty imposed against him keeping in view the financial expediency as the cost of time and litigation. Moreover, since the OP NO.1 is a foreign shipping company, it did not want to engage itself into costly and time consuming litigation.
12. A search was also conducted at the premises of the OP NO.3 and nothing incriminating was found. On 09.05.2000, the CHA of the complainants visited the office of the OP NO.2 and orally requested the OP NO.2 to issue delivery orders. The OP NO.2 insisted upon a letter of request, which is absolutely, rightful and cannot be held to be illegal. The CHA of the complainants sitting in the office of the OP NO.2 sent a fax message drawn up by him to the complainants office.
13. It was further pleaded that the amendment in the B/L was made on the specific request of the consignor and the OP NO.3 made the request for the amendment in the IGM to the customs authorities on the verbal request of the complainant NO.2 and on production of the photocopy of the B/L by the complainant NO.2 as aforesaid and hence the OPs are in no way liable for the said discrepancy.
14. The complainant filed its rejoinder and affidavit in evidence reiterating its claims and contentions against the OPs and refuting their pleas. Similarly the OPs have also filed their affidavit in evidence which are on record. In the rejoinder the complainant has stated that the proceedings initiated before the Joint Commissioner of Customs, related to the determination/assessment of customs duty on the import of the machine in question and was not in relation to the deficiency, carelessness and negligence in providing the agreed services by the OPs in the present complaint. In any event, the complainants have already preferred the appeal against the order passed by the Joint Commissioner of Customs. The complainant had no knowledge of the amendment in the bill of lading and has not requested the supplier, to make any amendment in the same.
15. We have accorded careful consideration to the rival claims and contentions of the parties and have also heard the counsel for the parties at length. As is apparent from the aforesaid conspectus of rival claims and contentions of the parties, the OPs have abjured their liability on the premise that there was no such condition and the consignor of the goods did not categorically specify the date of shipment as 31-3-1999 and as such time was not the essence of the contract between the Ops and the consignor/complainant and further nowhere in the letter dated 25-3-1999 as filed by the complainant (Annexure-C) as the supplier mentioned that instructions have been given to the OP that the consignment should be shipped positively on 31-3-1999 and more over the said letter states the EDD as 31-3-1999 which shows that the expected time of departure to be 31-3-1999. However, the customs authorities suspected the consignment having been shipped on 31-3-1999 as declared by the complainant because of one sticker on the Bill of Lading showing the shipping of the consignment as on 1-4-1999 and this sticker caused so much of havoc to the complainant as the goods were confiscated as there was a change in the policy from 1-4-1999 to the effect that old printing machines cannot be shipped and as a result the complainant was imposed penalty of Rs. 2.00 Lacs as well as warehousing charges, whereas the complainant / being the Director was personally penalized.
16. The details provided by the customs authorities with regard to the said penalty are as under:-
i) Penalty imposed on the complainant - Rs.2,00,000-00
ii) Towards personal penalty on the Director of the complainant.
Rs.2,00,000-00
iii) Towards demurrage charges /detention charges. Rs.7,60,225-00
iv) Concord charges Rs.2,84,300-00
v) Redemption Fine Rs.3,50,000-00
-------------------- Rs. 18,94,525-00
--------------------
17. It was only after making payment of the above amounts the machinery was released to the complainant. As is apparent the complainant is heavily relying upon the Order dated 10-04-2000 passed by the Customs authorities wherein it was found that the ship birthed at the Port of Lading at 6.50 hrs on 1-4-1999 and this fact was duly admitted by the OPs.
18. The complainant has also relied upon Annexure-A, a letter sent by the OP itself which clearly states the shipment schedule as latest by 31-03-1999.
19. May be, the OPs were not aware of any changes in the policy and if there was delay it was a delay of one day in shipping the consignment inspite of there being instructions to ship the consignment positively on 31-03-1999. But in the process the complainant has suffered so much because of change in the policy and the declaration on the presumption that the Ops will ship the consignment on 31-3-1999.
20. For putting a wrong sticker and giving a wrong statement that the shipment would be made on 31-3-1999 which made the complainant to declare the same before the Customs authorities the complainant has suffered immensely for the acts of omissions and commissions of the OPs. The reason for putting the sticker given by the OPs is that two Ports in Japan being so closer it is a trade practice of putting the sticker of the date of shipment in respect of the consignment if any ship arrives in one of the said ports on one day and in the other Port the next day.
21. Taking over all view of the matter, we deem that a lump sum compensation of Rs.5.00 Lac shall meet the ends of justice.
22. Complaint stands disposed of in aforesaid terms. Order shall be complied with within one from the date of receipt of a copy of this order.
23. Copy of Order, as per statutory requirement be forwarded to the parties and thereafter the file be consigned to record.
(JUSTICE J.D. KAPOOR) PRESIDENT (RUMNITA MITTAL) MEMBER HK