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Judgment
THE complainant M/s. Tirupati Agencies is a proprietorship firm based in Kolkata. THE complainant was awarded an overseas contract for consignment of 2300 dozens of goods of children garments to Abdullah Hassan Balubaid Est. having its office in Jeddah, Saudi Arabia. THE said foreign buyer has obtained a documentary Credit No. DCBJD 100149 dated 22.1.2001 for US D 37,300.00 issued by Saudi British Bank, Saudi Arabia in favour of the complainant. This above documentary credit in their favour in accordance with the terms of Article 7(A) of UCP 500 was received by the opposite party No. 1 Hongkong and Shanghai Bank on 23.1.2001. Opposite Party No. 1 entrusted the job of delivery of the said Letter of Credit to their agent an authorized courier M/s. First Flight Courier Ltd. opposite party No. 2, for onward delivery of the said Letter of Credit to the complainants on 24.1.2001 at their office at 11, Clive Row, Room No. 21, 2nd Floor, Kolkatta-700 001. In spite of all the correct details given regarding the particulars of the office address, opposite party No. 2 returned the said envelope containing the Letter of Credit with the remark "Party shifted to unknown place" on 5.2.2001 to O.P. No. 1. It is submitted that O.P. No. 2 did not care to ring up to ascertain the location of the complainant''s office. It is contended that O.P. No. 1 based on the report of O.P. No. 2 has given this information that the complainant is unreachable and hurriedly informed the foreign buyer M/s. Abdullah Hassan Balubaid Est. On the basis of the report of O.P. No. 1, the foreign buyer became suspicious about the very existence of the firm and cancelled the Letter of Credit immediately.
LEARNED Counsel for the complainant states that on inquiry, complainant came to know that O.P. No. 1''s Mumbai office was asked by its Kolkata office to send the same Letter of Credit to the complainant on or before 27.2.2001which was received by the complainant on 27.2.2001 at the same address. An amount of Rs. 1,500 was paid towards commission for the said Letter of Credit to the O.P. No. 2 by way of Cheque No. 575555 dated 23.2.2001 and encashed by O.P. No. 2 on 3.3.2001. LEARNED Counsel for the complainant further states that meanwhile he came to know about the cancellation of Letter of Credit through a Swift Message of Saudi British Bank and the same was communicated to the O.P. No. 1 on 28.2.2001. LEARNED Counsel for the complainant contended that O.P. Nos. 1 and 2 are deficient and negligent in their service; O.P. No. 2 for not ensuring to deliver the Letter of Credit in time at the address given and O.P. No. 1 for hurriedly giving the wrong information to the foreign buyer. Learned Counsel for the complainant claimed payment of an amount of Rs. 17,35,000 for loss arising out of loosing foreign consignment transaction, Rs. 10,000 for loss of goodwill along with loss of profit of Rs. 4,50,000 out of this consignment thereby totalling to Rs. 31,85,000 together with cost, legal expenses etc. for rendering deficient and negligent services by O.P. Nos. 1 and 2.
In reply learned Counsel for the O.P. No. 1 submits that Letter of Credit was received on 23.1.2001 and they delivered the same to the complainant at the address mentioned in the Letter of Credit. But O.P. No. 2, First Flight Courier was unable to deliver the said Letter of Credit to the complainant as complainant was not present at the said address. It is further stated that O.P. No. 2 made various efforts to deliver the said L/C to the complainant and finally returned the same to the opposite party No. 1 on 5.2.2001. O.P. No. 1 contended that he was constrained to inform the issuing Bank i.e., Saudi British Bank on 6.2.2001 about the non-delivery of the L/C under the bona fide belief that the complainant must have moved away from that address to an unknown address.
LEARNED Counsel for O.P. No. 1 contended that L/C was duly received by the complainant on 26.2.2001. The issuing bank of the L/C gave a message on 28.2.2001 asking for cancellation of the said L/C. It is submitted by O.P. No. 1 that the L/C has been received by the complainant on 26.2.2001. O.P. No. 1 further submitted that they informed the complainant on 19.3.2001 that SBB had asked them to return the L/C for cancellation with the consent of beneficiary i.e., the complainant. It was further stated therein that if the complainant was agreeable to such cancellation, they should have consented accordingly and send the same to O.P. No. 1. A reminder to the same was given on 22.3.2001 by O.P. No. 1 to complainant. O.P. No. 1 on 4.5.2001 (Ex. RW-1/4) sent a letter to the complainant explaining that once L/C is issued and received by the beneficiary, it cannot be cancelled by the issuing bank, without the consent of the beneficiary but same remained unreplied. Thus the said L/C was received by the complainant on 26.2.2001, he had ample time to supply the garments before the expiry of the last date and shipment i.e., 21.4.2001 and then SBB was legally bound to honour the L/C. Hence, for reasons best known to the complainant he preferred not to supply garments and hence he is responsible and liable for the loss, if any.
IT is further submitted by O.P. No. 1 that their role is to : (i) Forward the L/C to the beneficiary, i.e., the complai-nant herein. (ii) In the event, i.e., O.P. No. 1 was unable to deliver the L/C to the beneficiary than to inform the issuing bank i.e., SBB about the same. Learned Counsel for the O.P. No. 1 argued that they have acted timely, diligently and fairly whatever was required to be done on their part and there was no deficiency in service or negligence and that the complainant is not entitled to any consequential damages since Courier Company, i.e., O.P. No. 2 are only liable to pay damages restricted to Rs. 100 as per the conditions given in overleaf of receipt. We heard the arguments and perused the record carefully. In view of the submission made by the opposite parties that the L/C cannot be cancelled without the written consent of the complainant, it cannot be said that there was deficiency in service by O.P. No. 1. Regarding loss of consequential damages for not exporting the garments in question, it is seen from the record that the said L/C was sent through 1st flight Courier, O.P. No. 2 but the courier could not deliver the L/C to the complainant and returned the same on 5.2.2001 after having made vigorous and bona fide attempts to deliver the same. O.P. No. 1 had acted in good faith on the basis of the report of O.P. No. 2 and informed the issuing bank about the return of the L/C. Then there is the fact that it was sent again and admittedly received by the complainant on 27.2.2001. The complainant could have sent the consignment as per the contract between themselves and the foreign buyer very much within time. It is an admitted position that as per law once the L/C reached the beneficiary the issuer cannot unilaterally cancel the same. O.P. No. 1 rightly informed the same by a reminder to the complainant and the complainant did not bother to send the consignment within the time frame of L/C nor did he reply to the letters written by O.P. No. 1. Complainant at a later stage cannot take a view that O.P. No. 1 had hurriedly sent a message to the issuing bank. In the light of the complainant''s own conduct, we find that the so-called intention to export seems questionable. The consequential damages he has claimed cannot be awarded as there is no deficiency in service by O.P. No. 1. As per O.P. No. 2, it is clear that if at all any damages to be paid by O.P. No. 1 then it is to be restricted to Rs. 100.
IN view of the above discussion, we find there is no deficiency in service by the opposite parties. There is no merit in the complaint and hence dismissed. No order as to costs. Complaint dismissed.