PEARL SYNTEX PVT LTD Vs. KLM CARGO

JUDGEMENT

(1.) THESE three complaints are of similar nature, cause of action is the same, there is no material difference in facts as well as in evidence except the weight and value of the gold jewellery that was exported, the dates of invoices and their dispatch; in short, the complainants have sold gold jewellery to M/s. F.M. Mir Jewellers, a partnership firm of the United Kingdom, as one of the partners of the firm came to India and agreed to purchase the same. Consignor was the complainant, consignee was M/s. National Westminster Bank (hereinafter referred to the Bank), and notified party was M/s. FM Mir Jewellers. The said gold articles were dispatched through the Carrier, M/s. KLM Royal Dutch Airlines (hereinafter called the KLM). Thereafter, the goods were delivered, without verification of the required documents, within minutes of customs clearance, by the agent or employees of the KLM, on the basis of so -called fax message. That was a fraud committed by some persons against whom prosecution was launched in the Crown Court of Northampton, the United Kingdom, and some of them were convicted. The aforesaid complaints are filed for recovery of the amount of loss suffered by the complainants, from the carrier. In addition, in two cases, namely, (i) O.P. No. 47 of 1998, and (ii) O.P. No. 296 of 1998 complaints are filed against the Insurance Companies on the ground that the complainants have taken insurance policies for a loss in such cases.

(2.) FURTHER , it is established on record that for the alleged fraud committed in taking the delivery of the goods without producing original bank release notes, prosecution was launched before the Crown Court, Northampton. In that case it was alleged that there was an agreement of dishonest use of forged instrument, namely, bank release notes, which were altered and then used for obtaining the release of jewellery from the cargo agents. It was the say of the prosecution that to secure the system for payment of the amount on the basis of the arrangement between banks in India and in the U.K., Fine Arts was able to obtain credit which they were not entitled to. After the goods were dispatched from India, the necessary documents were sent to English Bank. The procedure for obtaining delivery of consignment is, once the goods arrive at the port of destination the importer goes to the bank, signs the bill of exchange and collects the documents. According to the terms of the bill he may make payment immediately on sight or within 30 days or 60 days, as per the terms.

(3.) ON these two counts the Jury awarded the following sentences to the four accused: