State Consumer Disputes Redressal Commission
Allahabad Bank N.R.I. Branch, vs Raghu Exports (India) Pvt. Ltd., on 14 March, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 490 of 2009
Date of institution: 9.4.2009
Date of Decision: 14.3.2014
Allahabad Bank N.R.I. Branch, Civil Lines, Jalandhar through its Branch
Manager.
.....Appellant/Opposite party
Versus
Raghu Exports (India) Pvt. Ltd., 12 Leather Complex, Kapurthala Road,
Jalandhar through its M.d. Sh. Parveen Kumar.
.....Respondent/Complainant
Argued By:-
For the appellant : Sh. Balwinder Singh, Advocate
For the respondent : Sh. R.K. Bhatti, Advocate
First Appeal against the order dated 5.3.2009
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Shri Harcharan Singh Guram, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The appellant/opposite party (hereinafter referred as "opposite party") has filed the present appeal against the order dated 5.3.2009 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter referred as "the District Forum") in consumer complaint No.247 dated 9.5.2008 vide which the complaint filed by the respondent/complainant(hereinafter referred as 'the complainant') was allowed with the direction to the opposite party to 2 FIRST APPEAL NO. 490 OF 2009 pay a sum of Rs. 83,342/- alongwith interest @ 12% p.a. from the date of payment till its realization.
2. The complaint was filed by the complainant on the allegations that they had submitted to the opposite party invoice No. REIPL/062-2006-2007 dated 22.8.2006 for US Dollars 98,945.15 alongwith relevant export documents for negotiating the same. Those documents were despatched on 4.9.2006 under Bank Reference No. NRJ/P/110185 dated 1.9.2006 but the documents did not reach the correspondent bank at the place of destination in Italy although the container had reached the destination on 25.9.2006. The complainant issued a letter to the opposite party on 9.10.2006 that the complainant Company shall be burdened with heavy damage and loss of goodwill. As a general practice, the documents negotiated by the opposite party should have reached the place of destination before the consignment. Another invoice bearing No. REIPL/064- 2006-2007 dated 26.8.2006, which was despatched on 6.9.2006 had reached the destination on 8.9.2006. The export documents ultimately reached the destination on 10.10.2006 whereas the goods had reached the destination on 25.9.2006, accordingly, the Company's overseas buyer had been levied with heavy damage to demurrage of Euro 540.12 approximately Rs. 30,600/- and the Company had to reimburse this amount to the overseas buyer. The overseas buyer had also asked the complainant to indemnify the financial loss suffered by him. The opposite party had issued realization certificate on 31.10.2006 in which opposite party charged a sum of Rs. 53,742/- on account of overdue interest. In case the 3 FIRST APPEAL NO. 490 OF 2009 documents would have reached in time then the complainant Company was not liable to pay that amount whereas the opposite party was shifting the responsibility to M/s DHL Express India Pvt. Ltd., the Courier Company. The action of the opposite parties of charging overdue interest is totally un-warranted and the opposite parties are also liable to pay Rs. 30,600/- by way of damages paid by the complainant to the buyer. Accordingly, this amount alongwith compensation and litigation expenses was demanded from the opposite party.
3. The complaint was contested by the opposite party, who filed written statement taking preliminary objections that the complaint is not maintainable under the Act as the complainant does not fall within the ambit of the 'consumer'; the complainant company is not a 'consumer' being legal entity; no proper resolution has ever been passed by the complainant Company; the resolution attached with the complaint only authorises to complete the formalities in the present case and nothing more; the complaint is bad for non-joinder of parties; M/s DHL Express India Pvt. Ltd. is proper and necessary party; the opposite party had issued a letter dated 16.7.2007 in which the details were mentioned and that the complaint has been filed with malafide intention only to drag the opposite party into an unnecessary and frivolous litigation. On merits, it was denied that Mr. Parveen Kumar is M.D. of the complainant Company. It was further stated that the documents Invoice no. REIPL/062-2006-2007 dated 22.8.2006 for US$ 98,945 were entrusted to Branch office of DHL Express Pvt. Ltd., Jalandhar on 4.9.2006, which was sent at BANCA POPOLARE 4 FIRST APPEAL NO. 490 OF 2009 DI VERONA E NOVARA, BRANCH LONIGO, VIA CESARE BATTISTI CODE CIN K, CODE ABI 5188, CODE CAB 60450, CC 454411, ITALY, which was to reach there within a reasonable time. It has been denied that the complainant Company had suffered any loss of goodwill or peculiar loss as alleged. The bank had acted with promptitude in accordance with banking norms. In case the consignment had reached destination on 10.10.2006 it was not delayed by the Bank but DHL Express, therefore, there is no cause of action to file the complaint against the OP. It is without merit and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Parveen Kumar Ex. CA, extract of resolution Ex. C-1, invoice Ex. C-2, letter dt. 9.10.2006 Ex. C-3, invoice Ex. C-4, letter of Rajan Exports Ex. C-5, invoice/bill Ex. C-6, realisation certificate Ex. C-7, Bank certificate Ex. C-8, legal notice Ex. C-9, postal receipt Ex. C-10, letter dt. 16.7.2007 of Bank Ex. C-
11. On the other hand, the opposite party had tendered into evidence affidavit of Joginder Sandhu, Sr. Manager Ex. O-A.
6. After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the learned District Forum vide impugned order observed that export documents were entrusted to the bank not to the Courier Company. In case the Courier Company has caused the delay, the complainant does not have any direct dealing with the 5 FIRST APPEAL NO. 490 OF 2009 Courier Company, therefore, that Company was not a necessary party. Due to delay in reaching the Export document, the purchaser had to pay the damages, which were claimed from the complainant and the bank has also charged Rs. 53,742/- on account of overdue interest in respect of said Export transaction. Accordingly, the complaint was accepted as stated above.
7. Feeling aggrieved with the order passed by the learned District Forum, the appellant/opposite party has filed the present appeal.
8. In the grounds of appeal, it has been contended that the order passed by the learned District Forum is liable to be set-aside as there was no wilful and intentional delay on the part of the Ops. The complainant does not fall within the definition of the 'consumer', there is no proper resolution authorising Parveen Kumar to manage the complaint. In case there is delay on the part of Courier Company for that the OP Bank cannot be held liable.
9. Firstly taking the preposition whether the complainant Company is 'consumer' or not! It has been contended by the counsel for the appellant that the respondent Company is a complainant and the transaction was a commercial one, therefore, the complainant/respondent is not a 'consumer'. However, on the other hand, counsel for the respondent has referred to the judgment of the Hon'ble Apex Court (2006) 5 SCC 727 "Standard Chartered Bank Ltd. Versus Dr. B.N. Raman". In that case, the respondent is NRI stayed in Libya from 1975 to 1992, who placed with the Bank US$ 5000 in the FCNR for a certain period @ 9% interest p.a. and the 6 FIRST APPEAL NO. 490 OF 2009 said deposit was prematurely withdrawn by the bank, accordingly, consumer complaint was filed. It was observed that the Banking is a commercial function. Banking means acceptance for the purposes of lending or investment of deposit of money from the public, repayable on demand or otherwise. The intention of the 1986 Act is to protect consumers of such services rendered by the banks. The Banks provides or render service/facility to its customers or even non- customers. As such, the customers are 'consumers' within the meaning of Section 2(1)(d)(ii) of the Act. Against this judgment, the counsel for the appellant has not cited any judgment to say that the complainant does not come within the definition of 'consumer'.
10. With regard to the liability, there is no dispute that the export documents had reached on 10.10.2006 although they were despatched on 4.9.2006 whereas the consignment had reached there on 25.9.2006, therefore, for the excess period the buyer had to pay the charges, which were paid by the complainant to the buyer and overdue interest was also charged by the bank. In case there is deficiency in services on the part of the Bank itself then how they can charge the overdue interest. In case export documents would have reached before the consignment then certainly, the consignment would have been taken by the Purchaser; there should have been no damage or overdue interest, therefore, certainly, deficiency is on the part of the appellant/OP.
11. So far as the plea that the deficiency was on the part of the Courier company DHL Express India Pvt. Ltd., since there was no privity of contract between the complainant and the DHL Express, 7 FIRST APPEAL NO. 490 OF 2009 therefore, DHL was not a Service provider of the complainant. It may be service provider to the OP, therefore, in this complaint, the Courier cannot be made a party. In case the appellant/OP feels that he had to pay damages on account of deficiency in service on the part of the DHL, he can move the petition against the DHL Express for damages, as there is no privity of contract between the complainant and DHL Express.
12. No other point has been raised.
13. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
14. The arguments in this appeal were heard on 11.3.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 95,175/- in compliance with the order dated 20.5.2009. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member March 14, 2014. (Harcharan Singh Guram) as Member 8 FIRST APPEAL NO. 490 OF 2009