PUNJAB NATIONAL BANK vs WORKS OF ART PVT. LTD.

THIS is an appeal against the order dated 17.7.92 passed by the State Consumer Disputes Redressal Commission, Rajasthan in Complaint Case No. 91/ 91. The present Appellant who was the opposite party in the complaint (hereinafter referred to as such) has been directed to pay Rs. 20,429/-within one month from the date of receipt of the order to the respondent herein who was the complainant before the State Commission (hereinafter referred to as such). According to the complaint, the complaint deals in artistic goods and generally supplies them in foreign countries. The complainant delivered to the opposite party on 24th January, 1990 following documents: (1) original invoice, (2) duplicate of G.R. Form No. GMO 18882, (3) original airway bill dated 22nd January, 1990, (4) bill of exchange in triplicate, and (5) GSP No. 2062799

These documents were to be forwarded to the foreign buyer M/s. Gulf International (U.K.) Ltd., London through the United Bank of Kawait, London. The documents were delivered to the opposite party with a letter dated 24th January, 990givinginstructionsthatthedocuments were to be delivered to the buyer against payment and Reserve bank of India clearance. These documents were to be sent by the opposite party to the foreign Bank by Courier so that the documents might reach the consignee before the goods reached the destination. The complainant received a letter dated 1st March, 1990 from the foreign buyer stating that the consignment arrived at the Heathrow Airport on 28th January, 1990 while the foreign Bank received the documents only on 24th February, 1990 and the consignment has incurred exhorbitant storage costs and as such the total cost to him will be completely out of proportion to the value of the goods. The foreign buyer, therefore, refused to take the delivery of the documents from the Bank and consequently did not take delivery of the consignment.

IT was the further case of the Complainant that the documents should have been forwarded by the opposite party by courier to the foreign Bank on 24th January, 1990 on which date those were delivered to it but it was only after complaint was made by the complainant on 7th February, 1990 that the documents were forwarded to the foreign Bank. It who averred by the complainant that the consignment contained artistic hand made items valuing Rs. 14,350/-. Due to delay in the delivery of the documents, the consignment incurred exorbitant storage charges and therefore, the foreign buyer refused to take delivery of the document from the Bank. In such circumstances, according to the complainant, it was neither possible nor profitable to get the consignment booked back. The consignment was left to the local custom/port authorities for disposal. His further case was that the cargo charges were payable by the consignee but as the consignee refused to take delivery of the consignment the cargo charges amounting to Rs. 6,079 /- had to be paid by the complainant to the Swiss Air. The complainant thus suffered loss of Rs. 14,350/- plus Rs. 6,079/-. He also claimed compensation to the tune of Rs. 1.00 lakhs from the opposite party on account of loss of profit and loss of foreign buyer for future. The Bank i.e., the opposite party contested the complaint. It was pleaded that three bills for collection were submitted to the Bank by the complainant on 24th January, 1990. Out of those bills, two bills were drawn on the corresponding Bank of the opposite party which, after removing certain discrepancies, were sent for collection (there is no dispute between the parties about those two bills). The dispute is about the third bill for which the opposite party pleaded that it was drawn on a Bank (i.e. United Bank of Kuwait, London) other than an approved corresponding Bank of the opposite party. The main plea of the Bank is contained in para No. 5 of the counter which has been reproduced by the State Commission and reads as follows : "5. That in reply to para No. 5 of complaint it is submitted that since complainant deals in Export-Import business, it can be presumed that complainant is aware of foreign exchange rules and Regulations and as per such rules in order to avoid any complication or delay in collection of a such documents bills should be drawn on a correspondent-Bank of the Non-appellant Bank. This fact was well within the knowiedge of the complainant that "United Bank of Kuwait-PIC" was not a correspondent Bank of Non-application. Complainant himself is responsible for the fate of collection of documents drawn on bank other than corresponding Bank. In such case Branch had to seek the prior permission of the Head Office situated at Delhi to collect the documents. This fact was made clear to the complainant and the matter was referred to Head Office to seek the permission for collection of documents. The documents were sent through Courier service, however it is not for the Bank to ensure that document reach before the goods despatched reaches port of destination."

Thus according to the opposite party negligence was on the part of the complainant. Permission was sought by the Branch Office, Jaipur from the Head Office at Delhi to collect the document drawn on an unapproved Bank which was not the corresponding Bank of the opposite party. The permission was received on 9th February, 1990 and the documents were sent per courier on 10th February, 1990 and those must have reached the United Bank of Kuwait on or before 15th February, 1990.

AFTER consideration of the record and documents on the file and hearing the learned Counsel for the Appellant, we are of the opinion that in the present case the Bank cannot be said to be wholly responsible for the loss suffered by the complainant. The documents were received by the said foreign Bank on or before 15th February, 1990. At page 34 of the paper book is a letter dated 1st March, 1990 written by the foreign buyer, Gulf International, U.K. Ltd. in which one of the reasons given by the buyer for refusing to take delivery of the consignment was that the consignment had arrived at Heathrow Airport on 28th January, 1990 but the Bank only received the document on 25th February, 1990. That contention of the foreign buyer does not appear to be correct because at page 36 is a letter written by the said buyer to United Bank of Kuwait which has reference to the said Bank''s letter dated 15th February, 1990 and to subsequent telephonic conversation advising the Bank that delivery of the consignment has been refused. Thus documents must have reached United Bank of Kuwait, London on or before 15th February, 1990. The delay in sending the documents by opposite party occurred, as stated above, as permission of the Head Office had to be taken for sending the documents to an unapproved corresponding Bank.

IT is further to be noted that the buyer did not refused the delivery of the consignment merely on the ground of delay in the receipt of documents but he had given five other reasons as narrated by them in their letter dated 1st March, 1990 addressed to the complainant. Those are also follows: "We were notified by Art world Shipping that a consignment had arrived but were very surprised to note : (1) The two wood panels are missing. (2) Two marble spouts should have gone to Kuwait not London. (3) You were instructed to ship by sea not air. (4) The consignment arrived Heathrow 28th January and the Bank only received documents 24th February. (5) Consequently the consignment has incurred exorbitant storage costs during that month. (6) The invoice sent through the Bank was incomplete and would mean having to pay a large amount for customs and VAT. You should have sent the detailed invoice by fax or air mail to avoid these charges."

Hence in such circumstances it is difficult to hold that the complainant suffered loss solely on the ground that some delay was caused in sending the document by the opposite party to the United Bank of Kuwait, London. In the light of the above discussion we hold that in the present case the Bank cannot be solely held liable for the total loss caused to the complainant. The complainant is himself guilty for some of the causes for the loss. As some delay has been caused on the part of the opposite party in sending the documents as the Head Office accorded the sanction after much delay, we think that in the circumstances of the case the ends of justice will be met if the Bank is held liable to pay 1,000/- as damages to the complainant. Accordingly, we partly accept the present appeal, modify the impugned order to the extent that the opposite party will pay to the complainant a sum of Rs. 1,000/- only within one month from the date of receipt of the order failing which said sum will bear interest at the rate of 15% p.a. from the date of order. We make no order as to costs.