NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 89 OF 1995
VIRENDER KHULLAR
Proprietor,
Babushah International
B-4/40, Paschim Vihar,
New Delhi … Complainant (s)
Versus
1. AMERICAN CONSOLIDATION
SERVICES LTD.,
Akruti Trade Centre,
402, 4th Floor,
Andheri (East),
Mumbai – 400 093
2. CENTRAL FIDELITY BANK,
Richmond VA
3. ZIP CODE
2615, Elmhurst Lane,
Portsmouth, VA 23701
U.S.A.
4. HOEGH LINES
Leif Hoegh & Co.,
A/S Oslo
Norway … Opposite Party (ies)
ORIGINAL PETITION NO. 90 OF 1995
GIRISH CHANDER,
Proprietor
Gallant Exports
NP-67A, Mourya Enclave,
Pitampura,
New Delhi … Complainant (s)
Versus
1. AMERICAN CONSOLIDATION
SERVICES LTD.,
Akruti Trade Centre,
402, 4th Floor,
Andheri (East),
Mumbai – 400 093
2. CENTRAL FIDELITY BANK,
Richmond VA
U.S.A.
3. ZIP CODE
2615, Elmhurst Lane,
Portsmouth, VA 23701
U.S.A.
4. AMERICAN PRESIDENT LINES LTD.
Corporate Office at
Trade Plaza, 2nd Floor,
414, Veer Savarkar Marg (Cadell Road)
Prabhadevi,
Mumbai – 400 025 … Opposite Party (ies)
BEFORE :
HON’BLE MR. JUSTICE R.C. JAIN, PRESIDING MEMBER
HON’BLE MR. S.K. NAIK, MEMBER
APPEARANCE
For the Complainant (s) … Mr. H.L. Tiku, Sr. Advocate with
Ms. Yashmeet Kaur, Advocate
For the Opposite Party (ies) … Mr. Sumit Goel, Advocate with
Ms. Suman Yadav, Advocate
for O.P. 1
for O.P. 1
Mr. Arvind Varma, Sr. Counsel with Mr. G. Durga Bose, Advocate and Mr. Dipendra, Advocate for O.P. No. 2
DATED: 22nd MARCH, 2012
PER JUSTICE R.C. JAIN, PRESIDING MEMBER
ORDER
As the facts and questions of law involved in both these original petitions are similar, we propose to deal and decide both these complaints by means of this common order.
2. Original Petition No. 89 of 1995 has been filed by Mr. Virender Khullar in the capacity of Sole proprietor of Babusha International against the Opposite Party/American Consolidation Services Ltd. (For short, ‘ACS’) seeking a claim in the sum of Rs. 35,31,607/15P alleging deficiency in service on the part of the said opposite party under the following heads:
(a)
|
The price of the consigned goods as per invoices U.S. $ 67,190.40 at the rate of Rs. 31/- per dollar
|
Rs. 20,82,902.40
|
(b)
|
Damages incurred
|
Rs. 10,00,000.00
|
(c)
|
Simple interest at the rate of 21% per annum on the said amount i.e. (a) + (b) till the date of filing of the complaint from December, 1994 till 31st May, 1994
|
Rs. 03,23,704.75
|
(d)
|
Legal expenses likely to be incurred in prosecution of the complaint
|
Rs. 50,000.00
|
(e)
|
Compensation for loss of time and energy in pursuing the claim
|
Rs. 75,000.00
|
TOTAL
|
Rs. 35,31,607.15
|
3. The undisputed facts of the said complaint, which we may notice are that the above named complainant had entrusted a consignment of 300 cartons containing Men’s wearing apparels to the opposite party vide cargo receipt numbers 34307, 24308 and 24309 dated 28.12.1994. In the said cargo receipt issued by the opposite party (ACS), the consignment was to the order of the Central Fidelity Bank, Richmond VA, USA. The ACS in turn handed over the consignment to the Hoegh Lines/shipping line for its carriage and delivery of the consignment at the port of destination. In the Bill of Lading issued by the said shipping line, the name of the consignee was changed from the order to Coronet Group Inc. from Central Fidelity Bank besides there being several other changes in the name and description of the shipper as also the notified party, which was changed to Cavalier shipping company. The consignment reached the port of destination and as per the plea put forth by ACS it was taken delivery of by the consignee, Coronet Group Inc. sometimes in March, 1995 without making the payment of the price of the goods either to the complainant or to the above-named bank. The documents sent by the complainant through Syndicate Bank to the Fidelity Bank were returned unpaid. The payment of original invoices and company documents were not received from the foreign bank being not able to realize the price of the goods from the consignee through the bank the complainant has filed the complaint against the ACS. The ACS does not dispute the above referred facts but disputes its liability to make any payment of the goods to the complainant in view of certain terms and condition appearing in the cargo receipt dated 28.12.1994. It was pleaded by ACS that they acted merely as consolidated agent for the consignment in question as for other consignments under arrangement which they had with the principal Coronet Group and their obligations under the said agreement as also under the terms and conditions of the cargo receipt were limited only to arrange for the shipment of the consignment.
4. Original Petition No. 90 of 1995 has been filed by Mr. Girish Chander in the capacity of Sole proprietor of Gallant Exports against the Opposite Party/American Consolidation Services Ltd. (For short, ‘ACS’) seeking a claim in the sum of Rs. 29,17,844.76/P alleging deficiency in service on the part of the said opposite party under the following heads :
(a)
|
The price of the consigned goods as per invoices U.S. $ 49,272.96 at the rate of Rs. 31/- per dollar
|
Rs. 15,27,461.76
|
(b)
|
Damages incurred
|
Rs. 10,00,000.00
|
(c)
|
Simple interest at the rate of 21% per annum on the said amount i.e. (a) + (b) till the date of filing of the complaint from December, 1994 till 31st May, 1994
|
Rs. 02,65,383.50
|
(d)
|
Legal expenses likely to be incurred in prosecution of the complaint
|
Rs. 50,000.00
|
(e)
|
Compensation for loss of time and energy in pursuing the claim
|
Rs. 75,000.00
|
TOTAL
|
Rs. 29,17,844.76
|
5. The undisputed facts of the said complaint are that the above named complainant had entrusted a consignment of 220 cartons containing Men’s wearing apparels to the opposite party No. 1(ACS) vide cargo receipt numbers 34116, 34117 and 34118 dated 13.12.1994. In the said cargo receipt issued by the opposite party (ACS), the consignment was to the order of the Central Fidelity Bank and Zip Code was notify party. The ACS in turn handed over the consignment to the American President Lines for its carriage and delivery of the consignment at the port of destination. However, in the Bill of Lading issued by the said shipping line, the name of the consignee was changed from the order of Central Fidelity Bank to Coronet Group Inc. Besides there being several other changes in the name and description of the shipper as also the notified party, were changed to Cavalier shipping company. The consignment reached the port of destination and as per the plea put forth by ACS it was taken delivery of by the consignee, Coronet Group Inc. sometimes in March, 1995 without making the payment of the price of the goods either to the complainant or to the above-named bank. The documents sent by the complainant through Syndicate Bank to the Fidelity Bank were returned unpaid. The payment of original invoices was not received from the foreign bank being not able to realize the price of the goods from the consignee. Therefore complainant filed the complaint against the ACS. ACS did not dispute the above referred facts but disputed its liability to make any payment of the goods to the complainant in view of the terms and condition appearing in the cargo receipt dated 13.12.1994. It was pleaded by ACS that they acted merely as consolidating agent for their principal qua the consignment in question as for other consignments under arrangement which they had with the principal Coronet Group and their obligations under the said agreement as also under the terms and conditions of the cargo receipt were limited only to arrange for the shipment of the consignments.
6. After hearing, this Commission (a three-Members Bench) vide order dated 20.01.2004 decided both the complaints by separate orders and allowed the complaints by holding as under:
In O.P. No. 89/1995
“As regards the next objection relating to the complicated question of law and the submission that the matter should be left to be decided by the Civil Court in view of the judgment in Dr. J.J. Merchant and Ors. Vs. Shrinath Chaturvedi – JT 2002 (6) SC 1 we think it would neither be proper nor desirable to do so. The Judgment relied upon by the Learned Counsel in the case decided by this Commission reported in M/s. Special Machines, Karnal Vs. Punjab National Bank and Ors. 1 (1991) CPJ 78 , would not be of any help for two reasons – firstly, in view of the judgment of Dr. J.J. Merchant & Ors. (Supra), the view taken by this Commission in the aforesaid would not prevail. Secondly, in that matter the Civil Suit was already pending before the Learned Sr. Sub-Judge, Karnal. It is not so, in this matter. Accordingly, we reject this contention.
Now coming to the question of amount of compensation, complainant is entitled to get from the opposite party. According to the complainant the price of the consigned goods as per the invoice was US$ 67,190.40 @ Rs. 31/- per dollar i.e. Rs. 20,82,902.40.
The complainant also claimed a sum of rupees 10.00 lakhs for the loss of damages, simple interest @ 21% on the aforesaid amount. Legal expenses amounting to Rs. 50,000/- and compensation for loss of time and energy in pursuing the claim.
As regards the price of the consigned goods as per invoice the value has not been controverted by the opposite party by any cogent evidence. Only there is simple denial. Consequently, in view of the affidavit of the complainant, the value of the goods consigned is to be taken at Rs. 20,82,902.40P. As regards damage, simple interest and compensation, we are not inclined to consider them separately for the interest would cover that aspect also. We feel it proper in the above mentioned circumstances to award interest @ 18% p.a. on the sum of Rs. 20,82,902.40P, on the above amount from the date of the complaint till payment. The complainant shall also be entitled to costs which is valued at Rs. 10,000/-. The complaint is disposed of accordingly.”
In O.P. No. 90/1995
“As regards the next objection relating to the complicated question of law and the submission that the matter should be left to be decided by the Civil Court in view of the judgment in Dr. J.J. Merchant and Ors. Vs. Shrinath Chaturvedi – JT 2002 (6) SC 1 we think it would neither be proper nor desirable to do so. The Judgment relied upon by the Learned Counsel in the case decided by this Commission reported in M/s. Special Machines, Karnal Vs. Punjab National Bank and Ors. 1 (1991) CPJ 78 , would not be of any help for two reasons – firstly, in view of the judgment of Dr. J.J. Merchant & Ors. (Supra), the view taken by this Commission in the aforesaid would not prevail. Secondly, in that matter the Civil Suit was already pending before the Learned Sr. Sub-Judge, Karnal. It is not so, in this matter. Accordingly, we reject this contention.
Now coming to the question of amount of compensation, according to the complainant, the complainant is entitled to get from the opposite party, the price of the consigned goods. As per the invoices referred to in Cargo receipts, it was US$ 49,272.96P. @ Rs. 31/- per dollar i.e. Rs. 15,27,461.76P. The price of the consigned goods as per invoices referred to in the Cargo Receipts the value has not been controverted by the opposite party by any cogent evidence. Simple denial is of no help to the opposite party. Consequently, in view of the affidavit of the complainant, the value of the goods consigned is to be taken at Rs. 15,27,461.76P. The complainant is obviously entitled to get this amount.
The complainant also claimed a sum of rupees 10.00 lakhs for the loss of damages, simple interest @ 21% on the aforesaid amount. Legal expenses amounting to Rs. 50,000/- and compensation for loss of time and energy in pursuing the claim amounting to Rs. 75,000/- In so far as damage, simple interest and compensation on other count, we are not inclined to consider them separately for the interest would cover all these three aspects as well. We feel it proper in the above mentioned circumstances to award interest @ 18% p.a the rate of interest prevalent on business transaction those days on the sum of Rs. 15,27,461.76P on the above amount from the date of the complaint till payment.
The complainant shall also be entitled to costs which is assessed at
Rs. 10,000/-.
Rs. 10,000/-.
The complaint is accepted and compensation is awarded accordingly.”
7. Aggrieved by the said orders, the ACS filed Appeals No. 2079 of 2004 and 2080 of 2004 before the Hon’ble Supreme Court. The said appeals were decided by the Hon’ble Supreme Court vide common order dated 10thSeptember, 2009 and the complaints remitted to this Commission for deciding the same by observing as under:
“Heard learned counsel for the parties.
These appeals have been filed against the impugned judgment of the National Consumer Disputes Redressal Commission, dated 20th January, 2004. By that judgment, certain amount has been decreed against the appellant.
Mr. R.F. Nariman and Mr. P.H. Parekh, learned senior counsel appearing for the appellant, contended that the appellant was only an agent of the consignee, Zip Code Inc., which is part of the Coronet Group. It appears that the grievance of the claimant (respondent in this case) is that certain cartons, which were to be shipped to a party in USA, were allegedly not delivered there. A claim was made for damages in that respect.
Mr. Nariman has contended that the appellant is only an agent of the consignee and not the consignee himself. We agree with the contention. In our opinion, the claimants should have impleaded the consignee as well as the carrier as parties in the claim petitions apart from impleading the appellant. The rules of natural justice require that necessary parties have to be impleaded, which appears not to have been done in this case before the National Commission.
For the reason given above, we set aside the impugned judgment of the National Commission and remand the matters to be National Commission with liberty to the respondents-claimants to implead the consignee as well as the carrier in their claim petitions. Notice will be issued to the newly impleaded parties and case will be decided by the National Commission preferably within six months from the production of a copy of this order.
We make it clear that we have not expressed any opinion on the merits of the case. All points of law and fact are expressly left open to the parties.
The amount deposited here by the appellants will be refunded to them with accrued interest.
The appeals are accordingly disposed of.
No order as to costs.”
8. Pursuant to the said order of the Supreme Court, the complainant moved applications for impleading the Central Fidelity Bank (O.P. No. 2) and Zip Code (O.P. No. 3) and Hoegh Lines, Carrier (O.P. No. 4). The applications were allowed and the above named three parties, added in the array of parties. Notices were issued to the said opposite parties No. 2 to 4 but since it was not possible to serve them in the ordinary way, these opposite parties were served through substituted service by means of publication of proclamations in their names in the Overseas Edition of Statesman dated 30.4.2011. Despite publication there was no appearance on behalf of opposite party No. 3 & 4 and therefore vide order dated 13.5.2011 the O.P. No. 3 & 4 were ordered to be proceeded ex-parte. However, there was representation on behalf of O.P. 2/Central Fidelity Bank, but they also did not file any written version to the complaint but chose to defend the complaint against them by filing a synopsis of their submissions.
9. In case O.P. No. 90/1995, the Opposite Party No. 3 & 4 were served through publication of proclamation in their name in the Overseas Edition of 8.10.2011 and 3.10.2011 respectively. Since nobody was present on the date of hearing, vide an order dated 21.10.2011 both these opposite parties were proceeded with ex-parte. O.P. No. 2 however, disputed their liability to the claim by filing a synopsis of submission.
10. We have heard Mr. H.L. Tiku and Ms. Yashmeet Kaur, advocates, learned counsel representing the complainants and Mr. Dipendra, Advocate on behalf of opposite party No. 2/Central Fidelity Bank. O.P. No. 3 & 4 remained unrepresented on record and were ordered to be proceeded ex-parte. O.P. No. 1(ACS) was earlier represented through their Advocate Mr. Sumit Goel of Kahitan & Company but at the fag end of the hearing, he pleaded no instruction from O.P. No. 1 and accordingly sought his discharge. However, on the request of the Commission he readily agreed to assist the Commission on the questions of law involved in the matter.
11. In view of the above stated position and that the complainants have not made any allegation of deficiency in service and have not claimed any relief against the opposite party No. 2/Central Fidelity Bank and opposite party No. 4/Hoegh Lines (Carrier) in complaint No. 89 of 1995 and American President Lines Ltd., in Complaint No. 90/1995, we may straightway hold that the complaint is liable to be dismissed against O.P. No. 2 and 4. In any case, no liability would have been fastened on O.P. No. 4/Hoegh, the shipping line as there is ample evidence and material on record to show that the said carrier had carried the consignments and had delivered the same to the named consignee in the Bills of Lading as per the instructions contained in the Bill of Lading. Similarly, O.P. No. 2/Bank is not liable for any deficiency in service inasmuch as the documents were sent to it on collection basis and since the amount was not collected by them from the consignee, they could not remit the same to the complainant through their negotiating Bank.
12. Now coming to the role of O.P. No.3/Zip Code, sufficient material has been brought on record to show that it is a subsidiary of Coronet Group. There is no denial of the factual position that the complainant had received the orders for the supply of wearing Apparels from O.P. No.3 and pursuant to that supply order they fabricated the Men’s apparels and handed over the same to O.P. No.1. It is also not disputed that O.P. No.1 put the consignments on board of a vessel of Hoegh Line and reached the port of destination and O.P. No.3 effected delivery of the consignments on its arrival at the port of destination of course, without making payment of the consignment either to the Fidelity Bank or to the complainant. In other words, the O.P. No. 3 had received the goods without paying its price. O.P. No. 3 is therefore, liable to pay the price of the goods to the complainant. Therefore, there is no difficulty in allowing these complaints against O.P. No. 3 to the extent of the price of the consignments i.e. Rs. 20,82,902.40P in Complaint No. 89 of 1995 and Rs. 15,27,461.76P towards the price of the consignment in O.P. No. 90 of 1995. Since the price of the consignments remained unpaid by O.P. No. 3 for quite a long period i.e. since March, 1994, the complainant need to be compensated further by awarding reasonable interest on the said amounts. In our view, having regard to the nature of the transaction i.e. a commercial transaction, the award of interest @ 12% per annum on the aforesaid amount is considered reasonable and should meet the ends of justice.
13. This takes us to the next and crucial question in this case, viz. whether the O.P./ACS is also liable to compensate the complainant either individually or jointly with O.P. No.3. The plea put forth by O.P. 1/ACS is that they were working as the agents of their principal Coronet Group Inc., USA of which O.P. No. 3 was a subsidiary and in relation to the two consignments in question they have only discharged their duties and responsibilities as agents of their principal and therefore, they have no liability to pay any compensation to the complaints. In fact, this was the only plea of the O.P. No. 1, which was pressed before the Hon’ble Supreme Court in appeals and was accepted by the Supreme Court by observing as under
“Mr. Nariman has contended that the appellant is only an agent of the consignee, and not the consignee himself. We agree with the contention.”
Mr. Tiku, learned counsel for the complainant has not and perhaps could not have possibly make any submission in regard to the above finding of the Apex Court. However, he submitted that in the penultimate paragraph of the order dated 10th September, 2009, the Supreme Court had itself made it clear that they were not expressing any opinion on the merits of the case and left open to the parties all points of law and facts to be canvassed before the Commission.
14. So far as the legal position in regard to the liability of an agent for the action of the principal is concerned, the same is governed by Chapter X-‘Agent’ of the Indian Contract Act, 1872 and in Section 230 of the said Act. The above provision of Law contains a general principle that in the absence of any contract to the contrary;
(i) An agent cannot personally enforce contract entered into by him on behalf of his principal;
(ii) He is not personally liable of such contract, except in the following three cases it can be presumed that agent has so contracted
(i) where the contract is made by an agent for sale or purchase of goods for a merchant resident abroad;
(ii) Where the agent does not disclose the name of his principal;
(iii) Where the principal, though disclose cannot be sued. Therefore, we must consider the question as to whether the O.P. is an agent of its principal and if so, whether the present case he can be brought within any of the above referred three special exceptions.
15. Mr. Tiku emphatically argued that in the case in hand O.P. No. 1 had not disclosed the name of the principal either in the cargo receipts or by means of any other communication. For the facility of reference, we would like to extract one of the cargo receipts as the cargo receipts are almost identical:
“AMERICAN CONSOLIDATION SERVICES LTD.
COPY CARGO RECEIPT (NON-NEGOTIABLE)
No. 34307
SHIPPER (PRINCIPAL OR SELLER LICENSEE)
BABUSHA INTERNATIONAL
A-31, Naraina International
Area, Phase-II, New Delhi
110 029
|
Date Cargo
Received
12/3/1994
Also Notify Party
|
Country of Origin
India
| |
Consignee (Name and Address)
To order of Central Fidelity Bank
RICHMOND VA.
|
Export Carrier
(Vessel, Voyage)
HOEGH CLIPPER
|
0226
| |
Notify Party/Intermediate
Consignee
(Name & Address)
ZIP CODE INC.
2615 ELMHURST LANE,
PORTSMOUTH, VA 23701
U.S.A.
|
Export Reference
Port of discharge
NORFOLK, VA
|
Port of Loading
BOMBAY
Final Destination
NORFOLK, VA
| |
DESCRITPION OF PACKAGES AND GOODS
| |||
Marks and Numbers
|
No. of Pkgs.
|
Particular furnished
By shipper
|
Gross
Weight/
Measure-
Ment
|
As per commercial Invoice
|
100 CTNS
|
Short sleeve Mens
Knit shirts 100
Percent cotton
Style No.
15575
Total PCS:4800
Invoice No. B1-P
88/94-95
Dt. 23.11.1994
Gr. No. AG-800
823 dt. 23.11.1994
SB No.:11790 dt.
21.12.1994
FCR fees Rs.150/-
One Hundred CTNS
Only
|
“FREIGHT
COLLECT”
Kgs. CBM
1478.40 6.90
|
Statement: In Accordance with
Instructions of CORONET
Casuals Incorporated
We received 1 Original 3 copies
Of the following documents
Which plus 2/3 original bills
Of lading would be dispatched to
The parties at Port of Discharge
At the time of shipment and
Instructed by the consignee
Commercial invoice packing
And weight list single country
Declaration textile VISA No.
41N419821
|
American Conso-
Lidation Services
Ltd. “ACS” hereby
Acknowledges
Receipt for and on
Behalf of the
Consignee named
Above of the
Packages or other
Shipping units
Said to contain
The goods dis-
Cribbed above
(“The Goods”)
In apparent
External good
Order and condi-
tion unless other-
Wise stated. The
Shipper consignee
And all others
Having an interest
In the goods (The
“Cargo Owners”)
Are advised, and
Forwarding of the
Goods, by acts on
Behalf of the cargo
Owners are subject
To all the terms &
Conditions set forth
And incorporated
By reference on
This side and the
Reverse hereof,
Whether written,
Stamped or printed
Number of: original
Of the cargo
Receipt, issued by
As American Con-
Solidation Ser-
Vices Ltd.
By: Sd/- 12/28/94 “
|
16. The Cargo receipts on its reverse contain certain other terms and conditions, which are under the Heading “Forwarder Cargo Receipt Additional Terms and Conditions”. To extract the relevant portions of the said Additional Terms and Conditions:
“FORWARDER CARGO RECEIPT
ADDITIONAL TERMS AND CONDITIONS
1. The receipt, custody……………. ACS undertakes to receive the goods on behalf of the consignee, hold the same as an agent and deliver or forward them to carriers or transporters in accordance with the instructions of the consignee or other cargo owners for subsequent transportation by water, or air carriers and for distribution and ultimate delivery to the consignee…..
2. In receiving the goods and pending the consolidation services covered by this agreement, ACS is acting as agent only for the consignee named on the face thereof and not as a carrier, transporter or distributor of the goods. From and after the delivery by ACS to a carrier in accordance with the instructions of the consignee or other cargo owners…….
3. The responsibility …………………. ACS has established its regular, lower rates and charges for goods limited in value as hereinafter agreed. The cargo owners may however, elect to pay an additional ad valorem charge of 6% by declaring the true value of the goods at or before the time of receipt by ACS, in which case the liability of ACS for loss or damage to the goods or for delay shall be the true value of goods unless the cargo owners so declare the value of the goods and pay the ad valorem charge, the cargo owners are deemed to have elected the regular, lowest charges of ACS for of or damage to the goods or for any delay, the value of the goods shall be the lesser of (i) their value or (ii) US$500 per package, or in the case of goods not shipped in packages US$500 per customary freight…..
4. The shipper warrants ……………. The shipper hereby acknowledges that ACS acts solely as agent on behalf of the consignee and shall be under no liability whatsoever in respect of any failure by the consignee or any other party to do any act or pay any amounts due in respect of the cargo received hereunder including but not limited, to the purchase price of such cargo, freight, storage charges, insurance premium, lighterage charges demurrage, salvage charges or general average contributions.
…….”
17. A bare perusal of the said recitals in the cargo receipts makes it manifest that the cargo receipt was issued by O.P. No. 1/ACS on behalf of the consignee of the packages i.e. Zip Code Inc. in the case in hand. That apart, the receipts find a mention of the name of Coronet Casual incorporated against the statement. It is true that in the column of consignee “to order of Central Fidelity Bank Richmond VA” is mentioned but notified party / consignee is shows as Zip Code Inc. 2615 Elmhurst Lane Portsmouth, VA USA. That apart in para 2 of the complaint, the complainant has itself described the opposite party i.e. American Consolidation Services Ltd. as the cargo consolidators and forwarders engaged in the service of booking cargo from India and abroad. Not only this, when the complaint’s legal Adviser, H.L. Tiku and Company slapped a legal notice dated 4th April, 1995 on O.P. No.1, the same was replied by Mr. David C Gomes vide their letter dated 24th January, 1995 by clarifying the position in the following manner:
“The cargo receipt issued by my clients indicates that they are receiving the goods for and on behalf of the consignee from the shipper. My clients accept the goods from the shipper on behalf of the consignee for the purpose of effecting shipment of the goods to the port of destination. In acknowledgement of having received the goods on behalf of the consignee from the shipper, my clients issue the cargo receipt to the shipper. Normally, the bill of lading would be the negotiable document which would enable the shipper to encash it through his bank for receiving payment from the consignee’s bank which bank acts on instructions from the consignee. However, in these matters, the consignee agrees that the shipper may receive the payment for the goods on the strength of the cargo receipt. Yourclients consignee/buyer, therefore, authorizes my clients to issue such a cargo receipt to the shipper as a negotiable document to enable the shipper to receive payment for the goods from the consignee’s bank without such payment being unduly held up until the arrival of the goods at destination. This agreement is between your client’s consignee / buyer and the shipper pursuant to which my clients are authorized by the consignee to issue the negotiable cargo receipt to your clients so that your clients need not wait for receiving the payment for the goods until the bill of lading is negotiated but the shipper is enabled to receive payment from the consignee’s bank on the strength of the negotiable cargo receipt. My clients receive the goods into their possession/custody on behalf of the consignee and once the goods are in my client’s possession/custody, my clients become the agents of the consignee in respect of the goods for the purpose of effecting shipment thereof to the consignee at the port of destination and my clients issue the cargo receipt as a negotiable document to the shipper also on behalf of the consignee. If as in the instant case, your clients’ consignee / buyer took delivery of the goods on production of the original bill of lading duly discharged at the port of destination, but if he failed to retire or honour the negotiable cargo receipt resulting in your clients not receiving their payment, your clients remedy is against their consignee/buyers and not against my clients nor even against the carrier. The non-payment for the value of the goods by your clients’ consignee/buyer to your clients for any reason whatsoever is a matter entirely between your clients and their consignee/buyer and your clients’ alleged claim, if any, for non-payment of the value of the goods can only lie against their consignee / buyer.”
18. Reference has also been made to the consolidation procedure laid down by the O.P. No. 1 in relation to the consignments of Coronet Group Inc., which enjoin a particular procedure to be followed in the matter of preparation of the bill of lading etc.
19. From a perusal of the above material, there is no escape from the conclusion that for all intents and purposes, O.P. No. 1 were acting as consolidating and forwarding agents for Coronet Group Inc. or for that reason, O.P. No. 3/Zip Code, the principals/consignee. The cargo receipts and bills of lading clearly disclosed the name of O.P. No. 3 and Coronet Group Inc., as the principals. Going by the provision of Section 230 of the Contract Act, the O.P. No. 3 could not have been sued for any act of deficiency on the part of their principal. What the complainant did was that they left out the principals in the complaint as it was originally filed and arrayed the agent ACS only as O.P. and claimed the relief against them which was not maintainable. It was pursuant to the order of the Hon’ble Supreme Court that the complainant had impleaded O.P. No. 2, 3 and 4 in the complaint, which were necessary parties in the complaint going by the facts and circumstances of the case.
20. Mr. Tiku, learned counsel then argued that the O.P.1/ACS has committed certain acts amounting to grave deficiency in service on their part. Basis of this submission is that the O.P. No. 1 after issuing the cargo receipt (Supra) had substantially altered the said description in the bills of lading which was got issued from the forwarding agent of Hoegh Line(shipping lines) inasmuch as in the bill of lading the name of the consigner, consignee and notified party were altogether changed and by doing so they have totally altered / mutilated the terms and conditions of the cargo receipts under which the consignment was received by them. There is no denial of this position but it is sought to be explained that the bills of lading were got prepared in accordance with the Consolidation Procedure (CP) relevant to the Coronet Group Inc. and bill of lading were prepared in terms of Exhibit 3. In our view, the O.P. No. 1 in getting prepared the bills of lading in accordance with the procedure agreed to between them and Coronet Group Inc. cannot be said to have committed any wrong because they were governed by the consolidating and forwarding procedure as agreed to between them and the Coronet Group Inc. Even if we accept the contention of the learned counsel of the complainant that they had no right or authority to make such alteration in the bills of lading, they will be deemed to have done so at the instance of their principal i.e. Coronet Group Inc., and going by the provisions of Section 230 of the Contract Act, only the principal would be liable for any such deficiency arising out of the said alteration of the description in the bills of lading. We have already found the Principals-O.P. No.3 guilty of deficiency and held them liable to pay the price of goods of the consignments.
21. Thus having considered the matter from different angles and in view of the material placed on record and the settled legal position, there is no escape from the conclusion that the O.P. No.1/ACS were simply the consolidating and forwarding agent of their principal viz. Coronet Group Inc., of which O.P. No.3/Zip Code was a subsidiary. This fact was very well known to the complainant from the time they received the order for the supply of Men’s apparels from O.P. No. 3 and also from the recitations appearing on the cargo receipts as also from the bills of lading. In our view, the complaint filed against O.P. 1 is misconceived and wholly without any cause of action as they have no liability to compensate the complainant for any alleged deficiency on their part.
22. In the result the complaints are dismissed as against Opposite Party No. 1, 2 and 4 is concerned. However, complaints are partly allowed against O.P. No. 3/Zip Code in the following manner:
(i) In Original Petition No. 89 of 1995, the Opposite Party No. 3 shall pay a sum of Rs. 20,82,902.40P with interest @ 12% per annum with effect from 01.04.1995 till payment;
(ii) In Complaint No. 90 of 1995, O.P. No. 3 is directed to pay a sum of Rs. 15,27,461.76P with interest @ 12% per annum with effect from 01.04.1995 till its payment.
In the facts and circumstances of the case, we make no order as to costs.
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(R. C. JAIN, J.)
PRESIDING MEMBER
...………………………
(S.K. NAIK)
MEMBER
SB/2
