GANESH POLYTEX LTD. vs TRANSPORT CORPORATION OF INDIA LTD.

THE complainant, a public limited company manufacturing and selling yarn and exporting fabric, entrusted to the opposite party-Transport Corporation with five consignments through invoices dated 28.10.92, 5.11.92, 14.12.92, 30.1.93 and 25.2.93 for transportation from Ahmedabad to Benapole in Bangladesh. THE goods covered by the respective consignment notes were to be delivered upon production of the relevant consignee copies after the same were duly retired by the importer''s Bank i.e., the Islami Bank Bangladesh Ltd. alongwith invoices, bills of exchange etc. However, when the said bank did not retire the documents even after a lapse of considerable time, the complainant through its Bank''s (American Express Bank) letter dated 19.3.93 recalled the documents in order to reimport the goods; the documents were returned to the American Express Bank in June, 93. THE chronology of events, thereafter as reported by the complainant is as follows. THE complainant asked the opposite party to re-book the goods covered under these documents. When the complainant did not receive any response, a notice calling upon the opposite party to re-book all the five consignments in question to New Delhi was issued on 12.7.93. THE opposite party through its letter dated 22.7.93 while assuring to re-book all the five consignments required the complainant to surrender the original consignee copies and also pay the return freight and octroi at its Ahmedabad office. THE complainant again asked the opposite party on 31.7.93 to confirm that (i) the said goods were in good condition and available with the opposite party; (ii) the place where they were available; (iii) the freight and octroi amount payable; and (iv) the approximate time that would be taken to deliver the goods back. THE opposite party replied on 16.8.93 that the goods would be delivered within 15 to 20 days after the receipt of original consignee copies. However, according to the complainant this letter was evasive and vague and it sent another letter on 28.8.93 asking the opposite party to give unequivocal confirmation regarding the queries raised. THE opposite party confirmed on 11.9.93 that all the consignments were lying at its godown in safe and sound condition and that upon receipt of the original consignee copies and freight, the said goods would be re-booked to Delhi; however, this was followed by another letter dated 29.9.93 from the opposite party informing for the first time that four out of the five consignments were exported and documents sent to the party directly and that the 5th consignment was lying at its Calcutta godown. On this the complainant sent a notice to the opposite party on 12.10.93 demanding payment of US $ 87,733 representing the value of the goods covered under the four consignments together with interest thereon @ 21% p.a. and a sum of Rs. 5 lakhs as damages, without prejudice to its claim in respect of the 5th consignment. When the complainant sent its representative to Calcutta for rebooking the goods under the 5th consignment, the opposite party refused to hand over the same unless and until the claim made for the four consignments was withdrawn and demurrage charges of Rs. 80,000/-, for storing the goods at Calcutta were paid. THE complainant has contended that the opposite party has either lost or misappropriated or wrongfully and illegally delivered the goods covered by the four consignment notes without any authorisation or basis and without even collecting the consignee copies and has wrongfully and illegally refused to deliver the 5th consignment. THE complainant, has alleged that the opposite party has been negligent and grossly deficient in its service and also guilty of unfair trade practice and has prayed before us for relief''s aggregating to Rs. 40,98,164.04 covering (i) the value of the consignments, (ii) interest @ 21% p.a. from the respective consignment dates upon December 7,1993 and (iii) damages. A claim for pendente-lite and future interest @ 21% p.a. on (i) & (ii) and costs was also made.

THE main points in the opposite party''s version are as under : THE transporter''s duty is to reach the consignment to the importing country''s custom warehouse and it is for the importer''s bank to get the goods released by retiring the export documents under a valid Letter of Credit. THE consignment notes were made on owner''s risk. THE consignments were meant for carriage by lorry transport from Ahmedabad to Benapole (Bangladesh) and as per export procedure and/ or customary the said goods were to be unloaded and delivered after crossing India border at Petrapole into the warehouse of Bangladesh Customs at Benapole. THE opposite party duly transported the four consignments and delivered the same at Benapole. Regarding the 5th consignment, there was some difficulty at Indo- Bangladesh border in exporting it from Calcutta to Benapole at the relevant time and the said fact was known to the complainant and when the consignment was ready for export, the opposite party received a letter from the complainant for rebooking the same. THE opposite party contended that there was no deficiency of service and that besides demurrage charges for the 5th consignment it is entitled to claim from the complainant other charges also for which it reserves its rights to file a regular suit. THE opposite party has also pointed out inter- alia that the complainant had not made the consignor bank and the consignee bank as parties to the case. As directed by this Commission both the parties filed affidavits in evidence and also synopsis of their respective cases. An additional affidavit was filed by the complainant on 29.1.96 and a reply affidavit was filed by the opposite party in March, 1996. We heard the Counsel on both sides and have carefully perused the available records. In its synopsis the complainant has referred, inter- alia, to the purported certificate of entry endorsed by the Customs Authorities of Bangladesh on the invoices annexed by the opposite party at pages 61, 63, 65 & 67 of the paperbook as proof on behalf of the opposite party that the said consignments are lying in the Customs warehouse at Benapole and has contended that the invoices are proforma invoices and do not pertain to the goods in question and are for amounts and quantities of goods which are substantially different from the amounts and quantities entrusted to the opposite party for shipment as is apparent from the copies of the original consignment notes and invoices annexed with the complaint at pages 15-17,18-20,21-23 and 24-26 of the paper book. The complainant has further alleged that even the number of cartons mentioned on the individual consignment notes does not tally with the number of cartons on the invoices filed by the opposite party and that it is hard to believe that the opposite party carried and delivered to the Customs cartons of goods whose physical numbers and identification numbers (CTN) did not tally with the number on the consignment notes. Further it is the complainant''s case that having first confirmed that the cargo was lying in its godown in safe and sound condition the opposite party has either misappropriated it, thereafter, or lost it or wrongfully delivered it to some other party and had committed fraud upon it.

The total number of cartons for export, according to the complainant was 114 with 72934 meters of cloth valued at US $ 94814/20. The opposite party has admitted that one consignment of 8 cartons of 5447 meters of cloth valued at US $ 7081/10 was-not exported and was lying at its Calcutta godown. On this reckoning, 106 cartons with 67487 meters of cloth valued at US $ 87733/10 should have been handed over to the Bangladesh Customs Authorities. However, as per the invoice copies filed by the opposite party containing endorsement of Bangladesh Customs Authorities 106 cartons containing 72925 meters of cloth valued at US $ 94802.50 were handed over to the Custom Authorities. The above basic discrepancy leads to the conclusion that documents filed by one of the parties cannot be relied upon. In the light of the aforesaid and having regard to the controversy about the documents relevant for the case, we are of the view that the dispute cannot be satisfactorily adjudicated upon in the time bound proceedings of the Consumer Forum; we therefore dismiss the Petition. The complainant can seek redressal by way of Civil Suit if so advised. It is hoped that the time spent before us would not be counted for the purpose of limitation in the civil proceedings. No costs. Petition dismissed. ______________