VIRENDRA KHULLAR Vs. AMERICAN CONSOLIDATION SERVICES LTD

JUDGEMENT

(1.) The complainant is a sole proprietor of M/s. Babusha International. On 23.12.1994, the complainant entrusted to opposite party 300 cartons containing men's wearing apparels for carriage from Bombay to Norkfolk, VA USA vide cargo receipts bearing Nos. 34307, 34308 and 34309 dated 28.12.1994 through the opposite party American Consolidation Services Ltd. (ACS for short). The consignee declared in the opposite party said cargo receipts was to the order of Central Fidelity Bank, Richmond, V.A. and the Notified Party was Zip Code Inc., Ports- mouth, V.A., USA. When the consignment did not reach the destination the complainant addressed a letter dated 2.3.1995 to the opposite party to enquire about the status of the shipment. It was not responded to. On 9.3.1995, the opposite party, re-faxed complainant's letter dated 7.3.1995 with an endorsement "as per Carrier Hoegh Lines, cargo has been delivered." The complainant made further inquiries from its concerned bank. The bank informed that there is no remittance pertaining to the said shipment. Notice was given through Counsel seeking compensation and costs to the opposite party. The claim was denied by the opposite party's lawyers letter dated 24.4.1995. The complainant filed complaint alleging deficiency in service for not delivering the goods in terms of the contract.

(2.) The opposite party contested the claim of the complainant, inter alia, taking the plea that the questions raised in the complaint were highly complex and disputed questions of fact. Therefore, at the best it would be proper to leave the matter for determination by a Civil Court. The opposite party is only an agent of the consignee, the buyer of the complainant as such there was no contractual relationship with the complainant. The goods were received on behalf of the consignee. No payment was made by the complainant to the opposite party, there was an agency agreement between the opposite party and the consignee viz. Coronet Group Inc, specifying, inter alia, the affiliate of the consignee as Zip Code Inc. The complaint was barred against them by the statutory provision of 230 of the Contract Act. The claim is based on cargo receipts indicating consignee by the order of Central Fidelity Bank in the cargo receipts. Subsequently, the name of the consignee was changed in the bill of lading dated 19.12.1994 from Central Fidelity Bank to Coronet Casuals Inc. The cargo receipt itself indicated that the bill was prepared at the instruction of Coronet Casuals Inc. The terms and conditions of the cargo receipt made it clear that the opposite party was to employ the carrier as per instructions of the cargo owners. This term not only included the shipper but also the consignee and any other person having interest in the goods also. Since bill of lading was executed prior to the cargo receipt Coronet Group was a party having interest in the goods. The letter of credit indicates that the two shipments were to be shipped on 13.12.1994 and 20.12.1994. The bill of lading indicates that the consignment was shipped on 13.12.1994. That bill of lading as well as cargo receipts were prepared after the shipment of the consignment when the complainant handed over the goods to the opposite party, the agent of the buyer-Coronet Group Inc. The complainant was entitled to negotiate the letter of credit and receive payment as Central Fidelity Bank as was shown in the cargo receipt. The letter of credit filed at the time of final arguments indicated that it expired on 21.12.1994 for the last date of shipment was 30.11.1994 and the letter of credit was not got extended and the consignments were delivered to the complainant's foreign buyer i.e. the Coronet Casuals Inc. The opposite party had the minor role of consolidating the various consignments on behalf of the buyer of complainant (Coronet Group Inc.). The goods were handed over and delivered to the carrier Hoegh Shipping Line. It also involved the liability of the two banks. The case could not be decided without bringing the aforesaid parties on record, they being the necessary and proper parties. The buyer i.e. Coronet Casuals Inc. as well as both the issuing and advising Banks should have been made parties of the proceedings. The present case was not based on any kind of deficiency of service on the part of opposite party. We have heard the learned Counsels for the parties.

(3.) There is no denial rather there is admission of the fact in Para 12 that the opposite party received the goods on behalf of the consignee named in the cargo receipt for and on behalf of the consignee named in the cargo receipt (to the order of the Central Fidelity Bank). In response to letter of Sh. H.L. Tiku and Associates dated 4th April, 1995, Counsel of the complainant, the opposite party has stated as under :