National Consumer Disputes Redressal
Agarwal Enterprises vs Maersks India Ltd. And Ors. on 15 January, 2008
Equivalent citations: I(2008)CPJ480(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. The above named complainant has filed this complaint claiming compensation amounting to Rs. 24,48,160 for the loss suffered due to wrong delivery of consignment of shoes exported by the complainant.
2. Brief facts of the case are as follows. On 4.12.97 at the instructions of Seipi International (Brussels), O.P. No. 2 a Letter of Credit bearing No. 9083095674 was opened by Credit General Bank, Brussels, O.P. No. 3 in favour of Gold Foot Pvt. Ltd., Delhi, O.P. No. 5. The said Letter of Credit contained the arrangement as to how the goods were to be shipped from India to Venezuela. As per the agreement and after acceptances of the Letter of Credit on 14.3.1998, an order was placed by Gold Foot (Delhi) upon the complainant for manufacture and supply of 4770 pairs of shoes, valuing US D 42930. Letter of Credit was to be transferred in favour of the complainant as soon as it was to be received by the Gold Foot, New Delhi from a foreign bank. Accordingly, the Letter of Credit was transferred in the name of complainant and goods were shipped on 31.3.1998 through Maersks India. The complainant sent all the requisite documents to its banker for onward transmission to the consignee bank, Credit General Bank to secure the payment. A photo copy set of complete documents was sent to Seipi International vide courier "Elbee Express Services". The Bank Guarantee was given by ANZ Grindlays Bank, New Delhi which is not a party in this complaint. The Letter of Credit was to expire on 30.12.1997. However, it was further extended till 20.4.1998 and other conditions remained the same.
3. On 15.4.1998 the Punjab National Bank, Agra sent the original three sets of Bills of Lading and other related documents to Credit General Bank, Brussels which reached to them on 20.4.1998. But till the first week of June, 1998 no payments were received by the PNB, Agra. On 19.6.1998 Maersks India vide their fax message informed the complainant that the consignment had reached La Guairaon4.6.1998 and the consignee had taken the delivery of the goods on 17.6.1998. Cm 30.6.1998 the complainant wrote to PNB, Agra to confirm that the payment had been received. By letter dated 29.7.2007 the Punjab National Bank asked the complainant to remit the delinking charges of Rs. 1,27,931 on the ground that the payment had not been received. On 30.7.1998 the complainant sent a legal notice to Maersks India alleging that they had committed breach of trust by delivering the goods without receiving the original documents. In its reply dated 3.9.1998 the Maersks India informed the complainant that they had placed the goods at the disposition of the Customs Authorities at Venezuela and clearance of cargo was in the exclusive domain of the Customs Authority. The complainant had also gathered the information that the goods had been delivered by the Custom Authority at Venezuela to a party called "Consorcio Corrona on 17.6.1998 against presentation of original Bill of Lading and a letter from the Bank. However, on4.9.1998 the CreditGeneral Bankreturned all the original documents to the Punjab National Bank, Agra communicating that all the documents have been refused by the consignee, Seipi International, Brussels.
4. On 28.9.1998 the complainant informed Seipi International Brussels about the receipt of documents instead of payment. By letter dated 23.11.1998 to the complainant the Maersks denied their liability. Learned Counsel for the complainant submits that there was gross deficiency in service on the part of Maersks inasmuch as goods were released without recovery/perusing original Bill of Lading and opposite party No. 1 was guilty of abandoning the goods at the Port Trust of Customs Authority (Venezuela). The Gold Foot (Delhi) knowingly got transferred the Letter of Credit in favour of the complainant to cheat them in collusion with other parties and the Credit General Bank had failed to perform any of its duties and colluded with Seipi International to get the goods illegally released in favour of a party called "CONSORCIO CORRONO". Hence, the complaint was filed against M/s. Maersks India Ltd., Seipi International, Credit General Bank through its Manager, Banco Exterior, Gold Foot Pvt. Ltd. and Punjab National Bank, Agra.
5. Opposite party Nos. 2, 3 and 4 are non-Indian parties and they have been proceeded ex parte. No relief has been sought against the Punjab National Bank, Agra.
6. In view of the facts stated in the complaint, it is apparent that the goods have been delivered to Customs Authority, Venezuela. It is notable that the Indian Carriage of Goods by Sea Act, 1925 provides that the carrier shall properly and carefully, load, handle, stow, carry for and discharge the goods carried.
(Emphasis supplied)
7. It would be relevant to produce the definition of "Contract of Carriage" as well as "Carriage of Goods" given in Clauses (b) and (e) of Article 1 of the rules mentioned in Schedule to the Indian Carriage of Goods by Sea Act, 1925 which is as under:
(b) 'contract of carriage' applies only to contracts of carriage covered by a Bill of Lading or any similar document of title, insofar as such document relates to the Carriage of Goods by Sea including any Bill of Lading or any similar document as aforesaid issued under or pursuant to a charter party from the moment at which such Bill of Lading or similar document of title regulates the relations between a carrier and a holder of the same.
(e) 'Carriage of goods' cover the period from the time when the goods are loaded on to the time when they are discharged from the ship.
8. As per bill of lading the party to be notified was M/s. Seipi International and name of the consignee was 'Banco Exterior Caracas'.
9. However in Venezuela there are certain specific rules regarding the customs regulation which are reproduced below:
Article 20. The receipt of cargo and its documentation, when this pertains to the Customs Authority will be carried out based on the internal procedures established for customs houses by the Finance Ministry in conformity with the rules set forth in the Regulations.
When the receipt of cargo and its documentation pertains to a public or private entity other than customs, the cargo should be placed at the disposition of the Customs Authority under the conditions set forth in the Regulations. The application of the legal rules corresponding to the cargo and its clearance through Customs will be the exclusive dominion of the Customs Authority.
10. If we read this Article along with definition of Carriage under the Indian Carriage of Goods by Sea Act, 1925, then it would mean that the shipper would stand discharged the moment goods were delivered to Customs Authorities in Venezuela. If the goods were required to be at the disposition of the Customs Authority in terms of Regulations as mentioned hereinabove and it would be exclusive domain of the Customs Authorities to clear the same, it would be difficult to accept that the matter could be decided without impleadment of the Venezuelan Custom Authorities against any of the opposite parties. When it has become that Custom Authority of Venezuela is involved, the matter should not proceed in view of the policy contained in Sections 82 and 83 of Code of Civil Procedure without certain permission from the Ministry of External Affairs. Since the Customs Authority discharged sovereign function of the State of Venezuela, it would be against the international treaty to proceed against the Authority without approval of the Ministry of External Affairs of the Government of India.
11. In view of the aforesaid circumstances this matter cannot be disposed of in summary proceedings and the matter is required to be left to be decided by the Civil Court.; With4hese observations, the complaint is dismissed with liberty reserved to the complainant to approach the Civil Court and they may be entitled to the benefit of the observations of the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute , for the purpose of exclusion of time spent before this Commission for the purpose of computation of limitation.