National Consumer Disputes Redressal
M/S. Ups Freight Services India Pvt. ... vs M/S. Bawa Paulins Pvt. Ltd. & Ors. on 30 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 6 OF 2010 (Against the Order dated 09/02/2009 in Complaint No. 217/2000 of the State Commission Delhi) 1. M/S. UPS FREIGHT SERVICES INDIA PVT. LTD. & ORS. Regd.Off:G-3, T. V. Industrial Estate, 248/A,S.K.Ahire Marg, Worli, MUMBAI-40003 2. M/s.Fritz International 383/1/2-A,National Highway No.8, Mahipalpur Extension NEW DELHI-1100037 3. Fritz Companies Inc 706,Mission Street,St.Fracisco CA-94103, U.S.A ...........Appellant(s) Versus 1. M/S. BAWA PAULINS PVT. LTD. & ORS. 46-D(East) Azad Nagar, DELHI-110051 2. Bank of Boston 150,Feckral Street, BOSTIN MA 02110 3. M/s.County Seat Stores 489,Seventh Avenue, New York NY-1018 USA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER For the Appellant : Ms. Usha Srivastava, Advocate For the Respondent : For Respondent No. 1 : Mr. Ashish Garg, Advocate Mr. Sanjay Gupta, Advocate For Respondent Nos. 2&3 : NEMO Dated : 30 Apr 2015 ORDER JUDGMENT JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainant company sold goods to opposite party no. 5, M/s. County Seat Stores, New York. The goods were carried from New Delhi to Baltimore by opposite parties no. 1 to 3. The Forwarder Cargo Receipt (FCR) dated 22.02.1999 was issued to the complainant by opposite party no. 1, M/s. Fritz Freight Forwarding India Pvt. Ltd. The documents of the shipment of the goods including the aforesaid FCR was presented by the complainant to its banker Canara Bank for negotiating with the opposite party no. 4, Bank of Boston, which was to release the payment against the Letter of Credit which it had opened in favour of the complainant.
2. Vide letter dated 08.03.1999, the opposite party no. 4 informed the banker of the complainant, namely Canara Bank that in accordance with UCP 500, the documents had been refused on account of (1) late shipment and (2) showing port of loading to be JNPT. It would be pertinent to note here that the correct port of loading was FOB, New Delhi and not JNPT. On being notified by Canara Bank, the complainant approached opposite party no. 1, which then issued a letter/certificate dated 30.03.1999 mentioning therein that the shipment was from FOB, New Delhi and was being effected from JNPT, Bombay. Vide letter dated 18.03.1999, which the learned counsel for the complainant has placed before us during the course of hearing, the opposite party no. 4, bank of Boston informed the banker of the complainant that they had contacted the applicant/opposite party no. 5 for approval to pay, but they were not willing to agree for payment and thereafter the documents were being returned to Canara Bank for their disposal.
3. The case of the complainant, as set out in para 7 of the complaint is that after rectification of FCR by opposite party no. 1 and acceptance of the rectified certificate by opposite party no. 4, Bank of Boston, the documents were released by opposite party no. 4, Bank of Boston as would be evident from the endorsement made by the said bank on the reverse side of the FCR. This is also the case of the complainant that opposite party no. 5, i.e. M/s. County Seat Stores colluded with opposite party no. 4 i.e. Bank of Boston and the documents including the FCR were returned to the Bank of Boston, which put ink on the aforesaid endorsements in order to camouflage their misdeeds. It was further alleged that the complainant on receiving the documents including the FCR, got infrared scanning of the reverse side of the FCR done and detected the aforesaid misconduct of the opposite party no. 4. Being aggrieved from non-payment of its dues, the complainant approached the concerned State Commission by way of a complaint.
4. Neither opposite party no. 4 nor opposite party no. 5 contested the complaint. The opposite parties no. 1 to 3, however, contested the complaint, denying their liability.
5. Vide impugned order dated 09.02.2009, the State Commission directed all the opposite parties to pay a sum of Rs. 79,901/- to the complainant alongwith compensation amounting to Rs. 50,000/- and cost of litigation amounting to Rs. 10,000/-. Being aggrieved from the aforesaid order, the opposite parties no. 1 to 3 are before us by way of this revision petition.
6. It is an admitted position that a mistake was committed by the appellant no. 1 while issuing the FCR to the complainant by showing the shipment to be from JNPT, Bombay, whereas it was FOB, New Delhi. The aforesaid mistake was not noticed by the complainant while forwarding the documents to its banker though by exercise of due diligence the complainant could have noticed the aforesaid mistake and got the documents rectified from appellant no. 1, before submitting the same to its banker. Therefore, though there was some deficiency on the part of the appellant no. 1 in rendering services to the complainant, it could have been redressed, had the complainant been vigilant. The main question which requires consideration in this case is as to whether the payment was denied to the complainant on account of the aforesaid mistake committed by it while issuing the FCR.
7. As noted earlier, in its letter dated 08.03.1999, the opposite party no. 4, Bank of Boston had pointed out two discrepancies in the documents, the first being late shipment and the other being port of loading being shown as JNPT. However, the documents were not returned to the banker of the complainant on account of the aforesaid discrepancy and they were kept on hold by Bank of Boston awaiting instructions from opposite party no. 5 as to whether it was willing to accept the documents despite the aforesaid discrepancy or not. The letter dated 18.03.1999 sent by the Bank of Boston to Canara Bank, a copy of which has been placed before us during the course of arguments, would show that when contacted opposite party no. 5, informed opposite party no. 4 that they were not willing to accept the document for payment and therefore, the Bank of Boston were returning the same to the Canara Bank. It cannot be gathered from the aforesaid letter as to why the opposite party no. 5 was not willing to accept the document for payment. It is not known whether the aforesaid unwillingness on the part of the opposite party no. 5 was due to late shipment of the goods or due to the wrong port being indicated in the FCR or because of some other reasons. No evidence has been led by the complainant to prove that opposite party no. 5 was unwilling to accept the documents solely on account of the loading port being shown as JNPT instead of FOB, New Delhi. In our opinion, the aforesaid mistake in the document could not have been the reason for opposite party no. 5 declining to accept the documents for payment unless the consignment itself had not reached its destination on account of the aforesaid mistake. This is not the case of the complainant that the consignment in question had not reached Baltimore at all. The description of the port of loading therefore could be inconsequential. In any case, what is material is that there is no evidence produced by the complainant to prove that the return of documents was solely on account of the mistake committed by opposite party no. 1, while issuing the FCR.
8. As noted earlier, the case of the complainant as set out in the complaint is that after the mistake in the FCR had been rectified by opposite party no. 1 vide its letter dated 30.03.1999, the aforesaid certificate was accepted by Bank of Boston which thereafter released the documents to opposite party no. 5, but later on the documents were returned by opposite party no. 5 to opposite party no. 4 which, in order to camouflage their misdeeds put ink on the endorsement which the opposite party no. 4 had made in the back of FCR. If that is so, the letter dated 18.03.1999, whereby documents purport to have been returned by Bank of Boston to Canara Bank would be a false document. The other possibility in this regard is that the case set out by the complaint to the effect that the certificate dated 30.03.1999 was accepted by Bank of Boston which later on released the documents to opposite party no. 5 by making an endorsement on the reverse side of the FCR is incorrect.
9. If we presume that there was some mistake committed by the complainant while drafting the complaint and in fact the endorsement on the reverse side of the FCR had been made prior to issue of the letter dated 18.03.1999 by Bank of Boston to Canara Bank, the said return would be on account of the connivance between opposite parties no. 4 and 5 and not on account of the mistake committed by the opposite party no. 1 while issuing the FCR. In other words, if there is an endorsement made at the back of the FCR, which was later on sought to be concealed by putting ink on it, as the emphatic case of the complainant is, the return of the documents cannot be attributed to the mistake in the FCR but would be solely on account of the connivance on the part of the opposite party no. 4, Bank of Boston and opposite party no. 5, M/s. County Seat Stores. This would be so irrespective of whether the endorsement by opposite party no. 4 in favour of opposite party no. 5 was made before or after 18.03.1999. Therefore, it cannot be said that the complainant lost the price of the good exported by it to USA on account of the aforesaid mistake committed by opposite party o. 1 while issuing the FCR.
10. For the reasons stated hereinabove, the order of the State Commission holding opposite parties no. 1 to 3 liable to the extent of the price of the goods and also asking them to pay Rs. 50,000/- as compensation and Rs. 10,000/- as cost of litigation cannot be sustained. However, we are of the view that some compensation needs to be paid to the complainant by opposite party no. 1 for the mistake which it had committed while issuing the FCR, though the said mistake could have been detected by the complainant and had later come to be rectified vide certificate dated 30.03.1999. We, therefore, direct the opposite party no. 1 to pay a sum of Rs. 10,000/- as compensation to the complainant for committing the aforesaid mistake, alongwith interest on that amount at the rate of 9% per annum from the date of filing of the complaint till the date of the payment. The Registry is directed to release the aforesaid amount to the complainant, out of the amount deposited by the appellants with this Commission. The amount which the appellants had deposited with this Commission be returned to them after deducting the amount payable to the complainant in terms of this order.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER