SUNBRIGHT EXPORTERS vs Air France

THE complainant had consigned 1300 pieces of leather bags in 27 cartons valued at DM 20,568.75 (inclusive of freight charges) from Madras to Bratislava through the opposite party under an Air Way Bill dated 9.11.1995. Under the Airway Bill the consignee was "Slposkvy, Slovenska Pol Nohospodarska Banka, A.S. International Division, Bratislava 83265, Vajnorska 21, Slovak Republic". THE name of the customer has been indicated in the Airway Bill as "M/s. Comint Ltd., Lucky 7/1,972.01 Bojnice, Slovak Republic" who had to negotiate the documents with the consignee Bank and take delivery of the consignment. THE complainant received information from the consignee that the customer had not negotiated the documents through them but had taken delivery of the consignment directly from the opposite party without any authorisation from them. THE complainant therefore addressed a letter dated 10.5.1996 to the opposite party calling upon them to remit to the complainant the invoice price of the goods since it had not received payment from the customer. To that, the opposite party replied making a wrong statement that under the rules and regulations of Slovak Republic, Banks are prohibited from being consignees unless the Bank''s letter of credit had been arranged prior to the despatch of the consignment. THE complainant then wrote a letter dated 20.4.1996 to the opposite party bringing to its notice that the consignment had been sent in fact under an irrevocable letter of credit issued by the consignee Bank. THEre were further correspondence between the complainant and the opposite party and also the consignee Bank. In these circumstances, according to the complainant, he was surprised to receive from the opposite party a letter dated 20.7.1996 taking a stand that the goods were still in the warehouse of the opposite party''s agents M/s. Czech Airlines. In that letter the opposite party also wanted the complainant''s instructions for re-forwarding the consignment to Madras. But since the complainant had reliable information that the goods had been taken delivery of by the customer directly in violation of the terms of the opposite party''s Airway Bill, the complainant had reason to believe that the goods, if any, lying with the opposite party''s agents were not the goods consigned by the complainant and the complainant had no option but to hold the opposite party liable for the same. THE complainant therefore issued a notice through their Counsel on 31.7.1996 claiming payment of the value of the consignment viz., DM 20,568.75 and expenses and losses sustained by the complainant in respect of the same. But the opposite party had not till date sent any reply. Alleging deficiency in service on the part of the opposite party the complaint has been filed claiming the value of the consignment as per the invoice besides freight charges paid by them and other amounts.

THE opposite party in their written version contend that on receipt of letter dated 10.5.1996 from the complainant stating that the opposite party had delivered the consignment to the consignee without any authorisation from the Bank, the matter was taken up at once by the opposite party with M/s. Czech Airlines to whom the consignment was delivered at the last lap of transit from Prague to Bratislava, who informed the opposite party that as per the rules at their end, Banks cannot be a consignee of the goods and as such the release order from the Bank could not be insisted upon. This was intimated to the complainant. Subsequently since the fate of the cargo was not clear, the opposite party pursued the matter with M/s. Czech Airlines at Prague. This was also intimated to the complainant and the complainant also expressed satisfaction at the efforts taken by the opposite party. Subsequently the opposite party was also informed by M/s. Czech Airlines that the said consignment was not delivered but was lying in their warehouse at Bratislava. On receipt of this information, the opposite party by their letter dated 20.7.1996 informed the complainant about this and requested them to give instructions for the consignment''s disposal including return to Madras. At this, the complainant suddenly issued a legal notice dated 31.7.1996 wherein they took a stand that the goods available in the warehouse at M/s. Czech Airlines were not their goods and that they had reliable information to that effect. In the said notice, apart from making a claim on the opposite party, the complainant had finally stated that if the consignment was brought back at the cost of the opposite party they could, after a joint inspection, be sold and the amount adjusted against the claim made by the complainant. This offer was not acceptable to the opposite party. In these circumstances the complaint is liable to be dismissed. The point for determination is whether there was any deficiency in service on the part of the opposite party and if so, what relief can be granted to the complainant.

The complainant have written Ex. A-4 letter dated May 10, 1996 to the opposite party stating that they had been informed by the foreign Bank i.e., Slposkby that the goods had been taken delivery by the buyer M/s. Comint Ltd. without the Bank''s authority i.e., without making payment to the Bank and getting the necessary documents from them. The complainant in their letter have further written that therefore they had lost the goods and the opposite party had to make good the loss worth DM 20,568.75. To that letter, the opposite party had written Ex. A-5 letter dated 20.5.1996 stating: "Sending a shipment consigned to a Bank for third party on a Bank release order is prohibited as Banks without legal position to force third party to pay the shippers Invoice unless the Bank letter of credit is arranged prior to the despatch of the consignment."

It is further written that due to the above rule, "your consignee has taken delivery without the Bank endorsement." A reading of this letter shows that according to the opposite party the buyer had taken delivery of the goods without Bank endorsement i.e., without making payment. Then the complainant wrote back Ex. A-6 letter dated 24.5.1996 to the opposite party stating that the consignment was sent under irrevocable letter of credit as per the Slposkby Bank, Bratislava. The complainant''s Bank i.e., Central Bank of India also had written a letter Ex. A-7 dated 8.6.1996 to the opposite party questioning as to how when the foreign Bank had not executed any delivery challan the goods could be delivered to the party since the goods were consigned to the Bank. It was then the opposite party wrote to the complainant Ex. A-8 dated 20.7.1996 stating that on completion of their investigation into the matter with M/s. Czech Airlines they found that the goods were very much in the warehouse of M/s. Czech Airlines in Bratislava and they would like to know if the same could be forwarded to Madras on complainant''s account. After this the complainant caused a lawyer''s notice Ex. A-9 dated 31.7.1996 issued to the opposite party stating inter alia that they had reliable information that the goods had been delivered to the buyer directly and however if the goods were available with the agents of the opposite party as alleged by them the complainant were willing to take delivery of the consignment after a joint inspection provided the opposite party made available the goods at Madras at their cost. Thereafter there was no correspondence between the parties and then the complaint has been filed.

THE opposite party in their letter Ex. A-5 dated 20.5.1996 had categorically stated that since sending the consignment to a Bank as consignee enabling the buyer to pay the price to the Bank and with their endorsement getting the documents delivered was prohibited unless a letter of credit had been arranged prior to despatch of the consignment, the buyer had taken delivery without the Bank''s endorsement. Subsequently the complainant has written Ex. A-6 dated 24.5.1996 stating that the consignment was sent under irrevocable letter of credit and this has not been disputed. This shows that the opposite party had made a wrong statement about letter of credit and that it is definite that the consignee buyer had taken delivery of the goods. In the subsequent correspondence, they have not explained as to why they had made the said categorical statement that the buyer had taken delivery of the goods. Only after the complainant''s letter Ex. A-6 dated 24.5.1996 stating that an irrevocable letter of credit had been already issued and further the complainant''s Bank in India also has written Ex. A-7 dated 8.6.1996 questioning the opposite party as to how they could deliver the goods without the Bank''s endorsement, the opposite party had written Ex. A-8 letter dated 20.7.1996 stating that on investigation with their agent M/s. Czech Airlines they found that the goods were very much in the warehouse of the said M/s. Czech Airlines. Considering the above circumstances, it is difficult to believe the statement of the opposite party in Ex. A-8 letter dated 20.7.1996 that the goods were available. In this position, if really the goods were available it would be just and reasonable that the opposite party should have sent the goods back to Madras at their cost whether they agreed to other conditions stipulated by the complainant or not. But the opposite party has not sent any further communication to the complainant and the complaint has been filed on 3.10.1996. Considering all these, we are of the view that the opposite party has committed deficiency in service in respect of the consignment. There is no gainsaying that the opposite party shall pay the value of the consignment and also the freight charges to the complainant both aggregating to DM 20,568.75 which is equivalent to Rs. 5,14,218.75 (@ Rs. 25/- per DM). The consignment had been sent on 9.11.1995. The complainant has claimed interest on the said amount from 1.12.1995. This appears to be reasonable. But as regards the rate of interest, we are of the view that 15% would reasonable. As regards all other claims madeby the complainant, there is no evidence or justification.

IN the result, therefore, we direct the opposite party to pay to the complainant: (i) a sum of Rs. 5,14,218.75 and also interest thereon @ 15% p.a. from 1.12.1995; (ii) cost of the proceedings of Rs. 1,000/-; (iii) we further order that the said amounts shall be paid within three months from today.

Complaint disposed of.