GOLDEN NEEDLE APPARELS Vs. FORBES GOKAK LTD

JUDGEMENT

(1.) THE case of the complainant is that in the course of its business it received an order from M/s. Petro Gold International, Dubai, for export of 21,000 pcs. of 100% cotton T Shirt. As per the order placed, the shipment of the goods was to be made not later than 4.4.1992 from any Indian Port. The said order was accepted by the complainant on 20.2.1992. The complainant engaged the services of the opposite party for clearing and forwarding the goods to M/s. Petro Gold International, Dubai. The complainant made it clear to the opposite party that the shipment should be made on or before 31.3.1992 as the consignment consisted of garments made for summer wear and the complainant's overseas buyers were particular that it should reach them in time. The opposite party agreed to ship the consignment by vessel 'Orient Triumph ETD. Bombay on 2.4.1992 but they did not ship the consignment in that vessel. Thereafter the opposite party informed the complainant that they were arranging to ship the goods in vessel "General Blazhevich" ETD., Bombay on 12.4.1992 but the opposite party did not ship the consignment in that vessel also. Thereafter the opposite party informed the complainant on 21.4.1992 that the consignment had been loaded on vessel MAKAROV. The opposite party vide their letter dated 20.4.1992 informed the complainant of having received the complete set of documents for shipment on 19.3.1992 and also of having received the goods from the complainant's supplier at Thirupur on 30.3.1992 at Bombay for shipment to Dubai. In the meanwhile the complainant was informed by his foreign buyer that due to the delay in shipping the consignment they were left with no other alternative but to cancel the contract. Since the shipment was delayed by the opposite party even though time was the essence of the contract, it resulted in breach of contract. This breach of contract resulted in the foreign buyer canceling his contract with the complainant. On the above grounds, the complaint has been filed claiming from the opposite party damages of Rs. 9,73,292/ - being the value of the contract entered into between the complainant and its foreign buyer, Rs. 16,708/ - as freight charges and Rs. 10,000/ - towards loss of reputation, mental pain, in all totalling to Rs. 10,00,000/ -.

(2.) THE opposite party Company in their written version contended that when the complainant approached the opposite party on 16.3.1992, it was mentioned that subject to the availability of containers and vessels the opposite party should endeavour to send the cargo as early as possible on or before the date of expiry of Letter of Credit i.e. 31st March, 1992. At that time it was not mentioned by the complainant that time was the essence of the contract or that the cargo should reach the destination before any particular date. The complainant could arrange for supplying a part of the cargo viz. 250 cartons from Tirupur by 21st March by road. It was informed by the opposite party's Bombay office that the first set of documents was received on 24th March, 1992 but there was no information about the despatch of the cargo to Bombay, and hence on 25th March, 1992 the opposite party's Bombay office informed the opposite party's Madras Office that because of the complainant not sending the cargo in time there was no possibility of the cargo reaching Dubai by 31st March, 1992 as requested by the complainant. On 26th March, 1992 the Bombay office of the opposite party informed the Madras Office that the cargo was not received by them and on the same day the opposite party's Madras office sent a telex to the complainant that it (complainant) had failed to despatch the balance of the cargo from Tirupur and hence there was no possibility of the cargo reaching Dubai on 31st March, 1992. On 27th March, 1992 the Bombay office of the opposite party informed the Madras office that the order copy or the contract and samples requested by the Customs had not been despatched by the complainant. On making enquiry the opposite party was advised by the complainant that 100 cartons alone were despatched on 21st March, 1992 and the balance would be despatched on27th March, 1992 and the complainant assured the opposite party that they would send all the documents and samples required by the Customs expeditiously. On 31st March, 1992, only part of the cargo was sent to the godown of the transporting Company at Bombay and the documents as well as samples. The total cargo of 950 cartons was despatched by the complainant only on 1st April, 1992. The opposite party made it clear to the complainant that they should give the total volume of the cargo to enable the opposite party evaluate it whether it should be stuffed in one 20' container or 40' container. As the complainant failed to give the size of the cargo and the volume, the opposite party was not able to evaluate and advise the complainant regarding its loading possibility. Ultimately it was stated by the complainant that the cargo could be sent in two 20' containers. Since the complainant delayed in informing the size of the container, the opposite party could not get the container readily with the result the complainant agreed on 6th April, 1992 after discussion, that they would airlift the cargo instead of sending it by sea thereby admitting that the delay was only due to them. Ultimately on 8th April, 1992 the opposite party was able to obtain a 40' container but the space tried in the vessel "General Blazevich" could not be obtained and the opposite party after best efforts were ultimately able to stuff the cargo by the vessel "Makarov E.T.D." Bombay on 21.4.1992 and the Bills of Lading were also issued by the said Liner with B.L. dated 31.3.1992. The complainant had not objected to the loading of the cargo by that vessel and it had also not stated that they would face difficulties with the buyer for a time bound contract and by their own conduct allowed the cargo by that vessel which sailed on 21st April, 1992. Thus there was no delay at all on the part of the opposite party and if at all there was any delay it could be attributed to the non -availability of documents and delayed dispatches by the complainant to Bombay. The opposite party further submitted that the buyer M/s. Petro Gold International, Dubai have cleared the goods at Dubai and forwarded the same to Frankfurt to the ultimate buyer and this is evident from the telex message dated 7.5.1992 from the buyer to the complainant. For these reasons the complaint is liable to be dismissed. The points that arise for consideration are : (1) Whether there was any deficiency in service on the part of the opposite party ? and (2) If so, to what relief the complainant is entitled ? 4. There is no written agreement as to when the consignment should be shipped by the opposite party. In para 4 of the complaint it is stated that the complainant instructed the opposite party that the consignment should be shipped not later than 31.3.1992, but in para 5 it is mentioned that the opposite party had agreed to ship the consignment by "Vessel Orient Triumph ETD, Bombay" on 2.4.1992 but the opposite party did not do so. While that is the case of the complainant, the contention of the opposite party is that when the complainant approached the opposite party on 16.3.1992 it was stated that subject to availability of containers and vessels the opposite party should endeavour to send the consignment as early as possible and it was not mentioned at that time that time was the essence of the contract between the complainant and the consignee. Only on this understanding the opposite party agreed to ship the goods. Thus there was no clear agreement between the complainant and the opposite party as to within what date the consignment must be shipped by the opposite party. It is stated on behalf of the complainant that the documents between the complainant and the purchaser were shown to the opposite party and the opposite party knew the contents thereof and as per those documents the consignment should have been sent by sea not later than 4.4.1992 from any Indian Port and that time was the essence of contract and the delayed shipment will be liable to be rejected, and, therefore, the opposite party should not have delayed the shipment and if it has delayed, it would be guilty of deficiency in service. But inasmuch as, as stated above, there was no agreement between the complainant and the opposite party as to within what date the shipment should be made, if there was some delay in shipment beyond the time stated in the documents between the complainant and the purchaser, the opposite party cannot be held to be guilty of any breach of contract which resulted in delay and, therefore, it was deficient in service. According to the opposite party, the delay mainly occurred due to the late sending of the document and also the cargo to them by the complainant. In this context, Ex. A6 letter dated 20.4.1992 sent by the opposite party to the complainant is relevant. It reads as follows : "Dear Sirs, Re : 950 cartons of Garments for shipment to Dubai Consignee CITI BANK N.A. DUBAI With reference to the above, we confirm having received the complete set of documents from you for shipment on 19.3.1992 and the goods i.e. 950 cartons from your Thirupur Office on 30.3.1992 at Bombay for shipment to Dubai. While the documents as well as the cargo have been cleared by the Customs and other authorities, but due to non -availability of container, we were not able to move the cargo to the destination. However, we are doing our best and assure you that the cargo will be moved to destination by the first available service. Regretting for the inconvenience caused." From this it is indisputable that the cargo has been sent by the complainant to the opposite party's Bombay office on 30.3.1992. Thereafter on 2.4.1992 the opposite party's Madras office has sent Ex. B 10 Fax message to their Bombay office as follows : "1. PLEASE REFER YOUR FAX OF DATE OF SUBJECT 2. AS PER TELEPHONIC CONFIRMATION KINDLY STUFF 950 CARTONS IN 2 X 20' CONTAINERS AS SHIPPER HAS AGREED FOR SAME....." This shows that the Madras office of the opposite party, in reply to a telephone message from the Bombay office, has sent a fax message that they have ascertained from the complainant that the cartons may be stuffed in 2 x 20' containers. Then the Bombay office has sent a telex dated 4.4.1992 (Ex. B 11) to the Madras office as follows : 'TO : DHARMESH FFC MAA FM : AJIT PATIL FFC BBY SUB : GOLDEN NEEDLE : REF. YR. TLX ON DATED 4/4. PLS NOTE THAT WE ARE TRYING OUR LEVEL BEST TO CLEAR THE SHMPT. BUT DUE TO NON AVAILABILITY OF CONTRS WE ARE UNABLE TO SHIP THE SAME IMMEDIATELY. WE HAVE CONTACTED VARIOUS S/LS BUT THERE IS A SHORTAGE OF 20' AS WELL AS 40' CONTRS. WE ARE INFORMED THAT WE MAY REC THE CONTRS ON 6/4. WUD REVERT ON THE SAME ASAP." This shows that the Bombay office was trying to send the shipment as early as possible but there was some difficulty in getting the containers. When the matter stood thus, the Madras Office has sent Ex. B12 dated 8.4.1992 telex message which reads thus : "TO : FFC BOM MR AJIT PATIL FM : FFC MAA DHARMESH SB : GOLDEN NEEDLE PLS RYT OF DT ON SUBJECT IRO CHANGE OF MODE OF SHPMNT FM SEA TO AIR. PLS NOTE MR GOENKA WHO IS IN BBY (TEL : 4941256/4926648) WL PAY FOR AIRFRT AND ALLIED CHARGES PLS DO THE NEEDFUL AND ASSIST." From this it is apparent that the complainant of which Mr. Goenka appears to be the Proprietor, had come to Bombay for making arrangements for sending the cargo by air. But however, Ex. B 13 talex message has been sent by the Bombay office to the Madras office as below : "TO : CHETAN FFC MAA FM : AJIT PATIL FFC BBY SUS : STATUS GOLDEN NEEDLE : PLS NOTE THAT WE HAVE OBTAINED A FEU AND THE CGO WUD BESTUFFED AT CHANDIVALI ON 8/4 AND THE SAID SHMPT IS PLANNED ON VSL IBN ABDOUN ETD BBY 12/4 OR 13/4........" From this it is clear that subsequently an FEU has been obtained and arrangements have been made to stuff the cargo on 8.4.1992 in the Vessel IBN ABDOUN ETD, Bombay and the shipment was planned in the vessel on 12.4.1992 or 13.4.1992. Probably Mr. Goenka has agreed to this arrangement. It is then the Bombay office sent Ex. B 14 dated 9.4.1992 stating that the stuffing will be made on 9.4.1992 on VESSEL GENERAL BLAZEWICH ETD. Bombay on 13.4.1992. Then follows Ex. B 15 telex message dated 11.4.1992 from the Bombay office to the Madras office to the effect that the cargo was planned to be sent in VESSEL GENERAL BLAZEWICH. Subsequently on 21.4.1992 the Madras office has sent to the complainant Ex. B16 telex informing them that the container has been loaded on VESSEL MAKAROV ETD. Bombay on 21.4.1992. 5. While so, it was only on 7.5.1992 the foreign buyer has sent a telex message Ex. A7 to the complainant, a reading of which shows that the cargo had reached the destination but however since the consignee's purchaser refused to take it because of the delay the consignee had to cancel the contract with the complainant. 6. From the facts and circumstances noted above, it is easily understandable that there was delay on the part of the complainant in making the cargo available for shipment and thereafter in getting suitable containers and also vessel for the shipment some delay had occurred, but the opposite party had all along been diligent and not careless. Here it must be recollected that the contention of the opposite party in their written version that when the complainant approached them it was stated that subject to availability of containers and vessels, the opposite party shall endeavour to send the cartons as early as possible. In this position, it is difficult to hold that there was deficiency in service on the part of the opposite party. 7. In the result, therefore, the complaint has to be dismissed. We order accordingly. However there will be no order as to costs. Complaint dismissed.