State Consumer Disputes Redressal Commission
M/S Namix Chemicals Pvt. Ltd. vs The Oriental Bank Of Commerce on 1 July, 2008
H H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA-9 F.A. No. 117 of 2007 Decided on 1.7.2008 M/s Namix Chemicals Pvt. Ltd. Through Sh. Manuj Nayar (Director) Post Box 4, Dhangu Road, Pathankot, (V & P O Lodhwan, Tehsil Nurpur, District Kangra, (H.P). ....Appellant. Versus The Oriental Bank of Commerce, Air Auto House, P.K.Road Mumbai, Through its Manager. .Respondent. ------------------------------------------------------------------------------ Honble Mr. Justice Arun Kumar Goel (Retd.),President. Honble Mrs. Saroj Sharma, Member. Whether approved for reporting ? For the Appellant. Mr. Dushyant Dadwal, Advocate. For the Respondent. Mr. Ramesh Verma, Advocate. ---------------------------------------------------------------------------- F.A. No. 552 of 2007 The Oriental Bank of Commerce Air Auto House P.K. Road, Mumbai (W), Mumbai-400080, Through its Manager, Smt. Jyoti Bhat W/o Sh. T.R.Bhat C/o Oriental Bank of Commerce at MULUND, Mumbai. Appellant. Versus M/s Namix Chemicals Pvt. Ltd. Through Sh. Manuj Nayar (Director) Post Box-4. Dhangu Road, Pathankot, V.P.O. Lodwan, at Nurpur, District Kangra, H.P. .Respondent. For the Appellant. Mr. Ramesh Verma, Advocate. For the Respondent. Mr. Dushyant Dadwal, Advocate -------------------------------------------------------------------------------------- ORDER
Justice Arun Kumar Goel (Retd.) President, (Oral).
1. As both of these appeals have arisen out of the order dated2.3.2007, passed by District Forum, Kangra at Dharamshala in Consumer complaint No. 334/2003, as such we have heard these together and are disposing of by this order. Complainant M/s Namix Chemicals Pvt. Ltd., hereinafter being referred to as such, and The Oriental Bank of Commerce, is being referred to hereinafter as the Bank.
2. Complainant sent a courier to the respondent Bank vide Annexure-CWI/A through First Flight Couriers Ltd. It is admitted case of the parties that consignor is the complainant and its consignee is the Bank. According to the complainant besides other documents, forwarding letter Annexure CW1/E, dated 24.7.2002 was sent to the Bank with specific instructions which reads as under :-
You are kindly requested to release the material to M/s Trends Exports Pvt. Ltd., Thane on payment of the invoice amount and issuance of form H pertaining to this sale. In case the form H is not available please charges 10% of the invoice amount extra. The D.D. should be payable at your Pathankot branch. The D.D. and form H should only be sent by courier to our Pathankot address. List of courier First Flight Courier, Overnite courier service.
All charges of your bank are to be recovered form the buyer.
3. Further case of the complainant is that the Bank instead of following its instructions as contained in Annexure-CW1/E supra, it delivered the goods to M/s Trends Exports Pvt. Ltd., without receipt of the amount despite there being specific instructions to the contrary. In these circumstances the Bank was deficient in rendering service as a Banker through whom the goods were to be negotiated as per instructions contained in Annexure CW1/E.
4. Before filing of the complaint, the complainant had issued legal notice Ex. CW1/F. However, it was not replied to by the Bank. Despite legal notice when the amount was not paid by the bank, complainant filed the complaint.
5. When put to notice, stand of the Bank by way of preliminary objections was that the complainant had no cause of action, court had no jurisdiction to decide the matter, complaint was not maintainable and was also bad for non-joinder of necessary parties. On facts, its stand was that the Bank received information on telephone from Courier office of a delivery for which freight/octroi, handling charges were to be paid. The said parcel was meant for M/s Trends Exports Pvt. Ltd. The papers, such as, forwarding letter and invoice were not delivered to it.
And as the situation demanded, in view of the export of product and payment of freight and other handling charges, the Bank then contacted M/s Trends Exports Pvt. Ltd., to pay the handling charges. Such instructions to pay freight and other handling charges to collect the documents were given by the complainant to M/s Trends Exports Pvt. Ltd. It was on these instructions of the complainant, that M/s Trends Exports Pvt. Ltd. was delivered the papers etc. who was asked to pay the octroi/handling charges, as the parcel of the sample drug was urgently needed to be sent before expiry. In these circumstances information about quantity of product supplied, the Bank was not informed in advance either by the courier or by the complainant.
False complaint has been filed against it, the Bank.
5. In paragraphs-3 and 4 of the complaint there is specific mention, as well as reference to the letter dated 24.7.2002. Reply to these paras of the complaint in our opinion cuts at the very bottom of the defence set out. For ready reference paras 3 & 4 of the complaint with reply is extracted hereinbelow :-
Paras 3 & 4 of the complaint.
3. That the material supplied to the opposite party by the complainant was amounting to Rs. 1,44,000.00 and this material was to be released/delivered by the opposite party in favour of M/s Trend Exports Pvt. Ltd., after receiving the payment of Rs. 1,44,000.00 i.e invoice amount as has been mentioned in the forwarding letter dated 24.7.2002.
Copy of letter is attached.
4. That the opposite party has deliberately delivered the material/3 K.G. Triasolen to M/s Trend Export Pvt. Ltd without receiving/taking payment of Invoice amount of Rs. 1,44,000.00. The opposite party is negligent in performing its duties and there is deficiency in services on the part of opposite party.
Paras 3 & 4 of the reply.
3. Reply to paras 3 and 4 It is wrong and incorrect that the opp. Party had received any instructions from the complainant to release the material only after receiving payment of Rs. 1,44,000/-. It is also denied that the material was supplied without getting payment from M/s Trends export. The opp. Party was never told about the commercial papers which were never given to them in advance. The papers were inserted inside the parcel and in the absence of any instructions and the importance of the product, the opp. Party could not dare to open the same. The complainant has deliberately not sent the bill and the parcel separately. The opp. Party is not negligent in any manner. The dispute is between the complainant and M/s Trends export and a false complaint has been filed against the opp. Party.
6. Further defence set out by the Bank is that it is not liable to pay Rs. 1,44,000/-, as it was payable by M/s Trends Export Ltd. who could explain as to what was the dispute.
What is pleaded in para-5 of the reply of the complaint is as under :-
.However, it has been learnt that the material (Drug) supplied was of a sub-standard quality which was outrightly rejected.
7. In rejoinder to the reply stand of the Bank was repudiated and facts pleaded in the complaint were reiterated .
8. Mr. Manuj Nayar, Director of the complainant filed his own affidavit in evidence, whereas affidavit of one Sh. V.N. Sundareswaran , Branch Manager of the Bank has been filed by the Bank. He has reproduced what is contained in its reply.
9. Sh. Dushyant Dadwal, learned counsel for the complainant stated that from the proved as well as the admitted facts, courier was sent to the Bank. Therefore, unless envelope containing forwarding letter, and other documents was opened by the Bank, how could it know as to who was the consignee. Further according to him there is nothing on record to suggest even remotely, that who the consignee was could be made out from the receipt of the courier Annexure CW1/A by the Bank. It is also not the case of the Bank that it received anything other than the courier. Per Sh. Dadwal this clearly shows the falsity of the defence set out by the Bank.
10. Regarding rejection of the goods by the consignee, Sh. Dadwal, submitted that if that was the factual position, how did the Bank come to know of the rejection of the consigned goods, as there was no occasion for it to have known this fact. He further pointed out that there were no instructions given by his client to the Bank to give open delivery to the consignee, nor is this defence set out by the latter.
11. All these pleas have been contested by Sh. Ramesh Verma, learned counsel for the Bank. According to him, even if it be assumed for the sake of argument without conceding that there was any deficiency, even then no relief can be granted to the complainant, because there is no pleading regarding its having not received the payment from the consignee of the goods. Sh. Verma further urged that the complaint was not properly constituted as there is no authorisation in favour of Sh. Manuj Nayar to file the complaint, out of which these appeals have arisen. In this behalf the copies of authorisation letter Annexure CW1/C filed with complaint and subsequent authorisation letter placed on record by the complainant were relied upon by him. By both these, he (Mr. Manuj Nayar) was authorised to file suits only, and there is no mention about filing of any other type of litigation including the complaint out of which these appeals have arisen.
12. After hearing both the parties, District Forum below found as a question of fact, that there was deficiency in service on the part of the Bank who instead of delivering the goods sent by courier after receipt of Rs. 1,44,000/- with H form etc., District Forum allowed compensation and cost etc. against the Bank of Rs. 25,000/-, payable within 30 days after receipt of copy of order, failing which this amount was to carry interest @ 9% per annum from the date of complaint i.e. 29.7.2003 till realisation. Bank was also burdened with litigation cost of Rs. 1000/-.
13. In the aforesaid background, complainant has filed the appeal seeking directions for payment of Rs. 1,44,000/- with interest, costs, compensation and damages etc., whereas the Bank has filed the appeal for setting aside the impugned order and consequently dismissing the complaint.
14. At the risk of repetition, we may observe that it is admitted case of the parties that a courier was sent by the complainant to the Bank. Unless the courier itself was opened by the Bank, we are of the view that in no case it could have known as to who was the consignee and what it contained.
15. Here an attempt was made by Sh. Verma by referring to the pleadings regarding some information having been received by his client from the courier, for the payment of freight/octroi etc. We are sorry to say in this behalf that courier could not have known the consignee of goods. As such it had rightly asked the bank to arrange for such payments, being the consignee as per Annexure-CW1/A.
16. When courier was addressed to the Bank then how it came to know as who was the consignee, Mr. Verma on behalf of the respondent-Bank stated at the bar, that what is stated in the reply he cannot improve upon it.
And as already noted, that consignee was not named in courier receipt. Therefore, we hold that after having opened the envelop which contained the information from Annexure CW1/E, it was only then that the Bank came to know as who was the consignee of the goods to whom those were to be delivered, that too only after receipt of the price of consignment and also form H. In case H form was not given then 10% of consignment value i.e Rs. 14,400/-, only then goods were to be delivered to the named consignee. Plea to the contrary urged by Sh. Verma that there is no pleading that this amount was not received by the complainant, as well as those had been rejected by the consignee i.e M/s Trends Exports Pvt. Ltd., are of no consequence. Because how the Bank came to know of these facts there is nothing on record.
Particularly, regarding rejection of goods by the consignee. In our opinion Bank has taken a false and frivolous defence in this case, in face of Annexure CW1/A and CW1/E.
17. In view of the above discussion we are satisfied that either for some unknown or for reasons best known to the Bank, and at the same time without bothering to follow the instructions of the complainant as contained in Annexure CW1/E, the Bank chose to deliver the goods to the consignee without following the instructions of the complainant. Though Sh. Verma persisted that so far his client is concerned, there is no deficiency on its part. This plea is being noted simply to be rejected.
18. In the circumstances of this case, we are fully satisfied that Bank was thoroughly deficient in rendering service by not following the instructions as to how to deal with the consignment and having delivered the goods without receipt of the payment etc. from the consignee contrary to instructions, (supra).
19. For taking this view we are also supported by a decision of National Commission in the case of Air India Versus SVNR Exports, 2005 CTJ 61 (CP)NCDRC, also on a decision of the Honble Supreme Court in Transport Corpn. Of India Ltd. Versus Veljan Hydrair Ltd., (2007) 3 Supreme Court Cases 142.
20. In view of the aforesaid discussion, appeal filed by the Bank i.e Appeal No. 552/2007 is without any merit and same merits dismissal. At the same time appeal filed by the complainant i.e Appeal No. 117/2007 deserves to be allowed. Ordered accordingly.
21. No other point was urged.
22. As a result of the above, it is ordered that while allowing the complaint the Bank is held liable for indemnifying the complainant in the sum of Rs.
1,44,000/- together with 9% interest from the date of filing of the complaint i.e 29.7.2003 and to pay compensation of Rs. 25,000/-, with Rs. 10,000/- being punitive damages as well cost of litigation, and the order of District Forum below dated 2.3.2007 in consumer complaint No. 334/2003 is modified to this extent. Both the appeals stand disposed of.
23. All interim orders passed from time to time in Appeal No. 552/2007, shall stand vacated forthwith.
24. Office is directed to place an authenticated copy of this order on the file of Appeal No. 552/2007.
25. Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Reader as per Rules in both the appeals.
(Justice Arun Kumar Goel) Retd.
President (Saroj Sharma) Suneera Member 01.07.2008