JAKMANS ASSOCIATES Vs. PRAKASH TRANSPORTS

JUDGEMENT

(1.) The complainant M/s. Jackmans Associates are carrying on business in fabric and cloth materials and are also suppliers of fabric bales. They engaged the services of M/s. Prakash Transports the two branches of which have been impleaded as opposite parties for transporting 37 packages (bales) of cotton fabrics valued at Rs.5,75,505.35 to the complainant's customer M/s. Nepal Professional Garments (P) Ltd. , Balkumari, Imadol, Lalitpur, Kathmandu, Nepal - 526 688. As per the lorry receipt dated 26.4.1994, the opposite parties had to deliver the said materials to the consignee only after obtaining the consignee's copy of the lorry receipt endorsed by the consignee Bank. Inspite of that the opposite parties delivered the materials without obtaining such endorsement from the consignee's Bank with intention to make fraudulent and unlawful gain. Subsequently on 22.11.1994 the complainant's banker Dena Bank, G. T. Madras returned the bill alongwith invoice, packing list and original lorry receipt with the endorsement that they were being returned for the reason given by the Rashtriya Banijya Bank, Kathmandu that the payment was not forthcoming. As per the lorry receipt, the opposite parties could have delivered the goods only after the consignee produced the consignees lorry receipt after making payment of the value of the goods to the Rashtriya Banijya Bank, Kathmandu, Nepal. But the opposite parties delivering the goods without obtaining the original lorry receipt with the endorsement of the Bank of payment will clearly amounts to deficiency in service on their part. When the complainants made an enquiry with the consignees, they were informed that payment had already been made by the Nepal Professional Garments (P) Ltd. , directly to the opposite parties on delivery of the goods and no payment was due from them to the complainant. On account of the said act of the opposite parties, the complainant has suffered a loss of Rs.5,75,505.35p. being the value of the goods and further the complainant has undergone much hardship and mental agony. The complainant issued a lawyer's notice dated 9.11.1995 to the opposite parties and to that they replied by their letter dated 18.11.1995 stating that the goods were lying in the Agent's godown at Kathmandu and the godown rent had accumulated. If the goods are not delivered for any laches on the part of the consignee, the opposite party should have informed the complainant of the same immediately but the opposite parties had kept quiet for one and half years from the date of delivery of the consignment to them as early as 26.4.1994. This act would show that the opposite party had in violation of the terms and conditions stipulated in the lorry receipt had delivered the goods to the consignee and they are now setting out frivolous reasons stating that the goods were lying at their agent's office. On these goods the complainant has been filed praying for a direction to the opposite parties to pay the said sum of Rs.5,75,505.35 being the value of the goods with interest thereon @ 24% p. a. from 26.4.1994 and also to pay a sum of Rs.3,00,000/- as damages.

(2.) The opposite parties contend as follows : as per the lorry receipt the consignee to be notified was M/s. Nepal Professional Garments (P) Ltd. , Balkumari, Imadol, Lalitpur, Kathmandu, who were to take delivery of the consignment by producing the original lorry receipt and in payment of the dues on account of the custom duty, Panchayat tax, other taxes and clearing expenses on both the borders i. e. , of India and Nepal. But inspite of notice and repeated reminders, the consignee had not taken delivery of the goods on the ground that they had some disputes with the consignor, the complainant and that they would take delivery as soon as their dispute had been resolved. The goods have all along been lying in the godown of the foreign carrier subject to the godown charges. The complainant knew that the consignee was putting off taking delivery of the consignment. Admittedly, the complainant had received back the consignee copy of the lorry receipt on 22.11.1994, but the complainant Company never approached the foreign carrier with the said lorry receipt to take delivery of the consignment. It is after one full year, on 9.11.1995 the complainant sent a false and frivolous notice to the opposite parties alleging fraud and wrong delivery of the goods. In reply the opposite parties had written that the goods were still lying in the godown of the foreign carrier and could be taken delivery of. Instead of taking delivery of the goods or approaching the proper Forum, the present complaint has been filed which has no legs to stand. The complaint is bad for non-joinder of necessary parties and is liable to be summarily dismissed. The opposite parties being Indian Carrier cannot go beyond the Indian borders. The goods were entrusted to the Nepal Carrier i. e. , Prakash Transport (Nepal) Pvt. Ltd. , Khichapokri, Kathmandu, at India and Nepal border who safely carried the same to the destination. The goods are still lying in the godown of the Nepal Carrier M/s. Prakash Transport (Nepal) Pvt. Ltd. , Kathmandu. There was no deficiency in service on the part of the opposite parties, and the complaint has been filed with a view to blackmail them. The goods which had crossed the Indian-Nepal border cannot be brought back. The consignee had to take delivery of the goods. In these circumstances, the complaint is liable to be dismissed.

(3.) The complainant had filed a proof affidavit and rejoinder wherein the allegations made in the complaint have been merely repeated.