RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Complaint No. 110 of 2016
1- Longmarch International, a sole proprietorship firm,
Through it’s sole proprietor Naresh Srivastava,
S/o Late M.L. Srivastava, carrying on business at
107/89, Jawaharnagar, Kanpur Nagar-208012
2- Naresh Srivastava s/o Late M.L. Srivastava, sole
Proprietor of the firm Longmarch International,
107/89, Jawaharnagar, Kanpur Nagar-208012
…...Complainants.
Versus
1- Fed Ex Trade Network Transport & Brokerage
Pvt. Ltd., a company duly incorporated under
Company Act, having its registered office at Unit
No.708, 7th Floor, 215, Atrium, Andehri- Kurla
Road, Andehri East, Mumbai-400069 and a Branch
Office at Unit no.204, Tower B, Global Business
Park, M.G. Road, Gurgaon-122002
2- Tabor Freight & Logistics Pvt. Ltd., a company
Having its office at Room No.615, 6th Floor City
City Centre, The Mall, Kanpur-208011.
.…Opposite Parties.
Present:-
Hon’ble Justice Mr. Akhtar Husain Khan, President.
Hon’ble Mr. Rajendra Singh, Member.
Hon’ble Mr. Sushil Kumar, Member.
Mr. Pratul Srivastava, Advocate for complainants.
Ms. Renuka Singh & Ms. Shreya Dubey, Advocate for opposite parties.
Date 13.11.2020
JUDGMENT
(Delivered by Mr. Rajendra Singh, Member)
This complaint has been filed by complainants Longmarch International & another against opposite parties Fed Ex Trade Network Transport & Brokerage Pvt. Ltd. & anr. for the following reliefs.
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- i. A sum of USD 29,840.00 on account of loss of value of goods/shipment given to respondent no.1 for carriage and safe delivery to USA.
- A sum of Rs.1,59,545.00 towards compensation by way of interest paid by petitioner to Allahabad Bank and future damages @ 15.70% p.a. on the Rs.19,94,506.00 being unpaid value of invoice.
- A sum of Rs.1,00,769.00 being the cost of transportation charges paid to respondent no.1.
- A sum of Rs.41,820.00 on account of loss suffered by complainants by selling goods of pending orders at discounted price to other buyers.
- A sum of Rs.1,79,404.00 as damages on account of interest paid to Allahabad Bank on borrowed capital being cost Rs.31,33,690.00 of manufacturing pending orders.
- A sum of Rs.75,084.00 damages towards goods manufactured of pending orders to Allahabad Bank.
- A sum of Rs.60,00,000.00 as damages for loss of reputation, mental torture and future profit suffered by complainants.
- Any other order or direction which this Hon’ble Commission may deem just and proper may also be passed in favour of the complainants.
- The costs, legal fee and expenses of the present case may be allowed.
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In short, the complainants’ version is that they are sole proprietorship firm and the complainants for the last 26 years are carrying on a business of manufacture and exporter of leather saddler head stalls, breast collars and harness from 107/89, Jawaharnagar, Kanpur in the name and style of complainant no.1 firm which is an established name in the international market regarding export of these articles and they are regularly exporting these articles for horses to America and other countries. Opposite party no.1 is a subsidiary of foreign company having its registered office in Mumbai and branches in various cities including one at Gurgaon. At the time of dealing with the complainant, opposite party no.2 was the accredited representative and agent of opposite party no.1 at Kanpur which is evident from emails exchanged between them and copies of email are annexed.
The complainants in pursuance of orders exported saddles, head, stalls, breast collar sets to Dass Trading Company c/o Sachindra Dass, 2230, Maryann Drive, Turlock, CA 95380 USA of the value of US dollars 29,840.00 as per invoice no.L1/3028/15-16 dated 30.5.2013 as per settled terms cash against documents (CAD) details of which were given in the invoice.
The documents of the aforementioned goods exported i.e. invoice no.L1/3028/15-16 dated 30.5.2013 were discounted documents by the complainants’ banker Allahabad Bank, (IBD), Main Branch, Kanpur and complainant no.1’s account was credited with amount of Rs.19,11,252.00 and various charges. Discounted interest etc amounting to
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Rs.18,063.00 was debited. The documents of the said export along with the bill of lading were sent to the drawee bank, Bank of America Trade Operations Attn: Support Unit one Fleet Way Scranton PA 18507 USA as consignee. Copy of discounted documents were annexed. The complainant handed over and entrusted the goods of export consignment to opposite party no.2, the accredited local representative and agent of opposite party no.1 in Kanpur who got custom clearance of goods for carriage shipment and save delivery of the consignment to the consignee in USA and for which the opposite party no.1 issued bill of lading no.NDS 000002622 dated 5.6.2015. The opposite party no.1 through its local agent opposite party no.2 got the goods of the aforesaid export shipment as detailed in the bill of lading checked and cleared by the Custom Authority at Kanpur. The opposite party no.1 issued invoice no.NDSE 002635C01 and NESE 002635C02 for Rs.1,00,769.00 its charges for carriage and transport of goods and delivery to consigned which was paid by the complainant no.1 through its banker Allahabad Bank, Kanpur to opposite party no.1 for carriage by land and sea to Oakland CA US.
The salient terms and conditions of the aforementioned bill of lading no.NDS 000002622 are:-
- Exported/Shipper LONGMARCH INTERNATIONAL
- Consignee Bank of America Att. Support
Unit One Fleet Way Scranton PA
18507 USA.
- Notify Party/ Dass Trading Company C/o
-
-
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- Forwarding Agents Fed Ex Trade Network Transport
& Brokerage Pvt. Ltd., Unit no.
204, Tower B, Global Business
Park, M.G. Road, Gurgaon-
-
- Destination Agent Fed Ex Trade Network Transport
& Brokerage, Inc 19601
Hamilton Ave Torrance, CA
90502-1309 US
- Place of Receipt Kanpur India
- Port of Loading Nhava Sheva(Jawahar Lal Nehru)
- Port of Discharge Oakland, CA, US
- Place of Delivery Oakland, CA, US
- That on the reverse side of bill of lading the following terms and condition are printed:
Clause 2 contains Definitions:
2.2 “Carrier” means FedEx Trade Networks Transport & Brokerage Inc. on whose behalf this bill of lading has been signed.
2.3 “Merchant” includes the Shipper, the Receiver, the Consigner, the Consignee, the Holder of this bill of lading and any person having a present or future interest in the goods or any person acting on behalf of any of the above mentioned person.
2.4 “Goods” mean that Cargo described on the face of this bill of lading and if the cargo is packed into containers supplied or furnished by or on behalf of the Merchant, includes the container(s) as well.
Clause 14 contains delivery:
14.1 Carrier shall have the right to deliver the goods at any time place designated by the Carrier within the Commercial
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or geographic limits of the port of discharge of place of delivery shown in this bill of lading.
14.2 Carrier’s responsibility shall cease when delivery has been made to Merchant, any person authorized by the Merchant to receive the goods or in any manner or to any other person in accordance with the custom and usage of the port of discharge or delivery.
The opposite party no.1, the carrier in pursuance of the terms and conditions of the bill of lading for carriage shipment and safe delivery of the goods of the shipment (cargo) was bound to deliver the said goods to the person named and described as consignee in the aforesaid mentioned bill of lading i.e. Bank of America, after receiving the duly discharged bill of lading at the place of delivery Oakland CA, USA. Opposite party no.1 as per terms and condition agreed to in annexure C-3 (bill of lading) has not delivered the goods of bills of lading to the consignee i.e. Bank of America or any person duly authorized of the said consignee/merchant to receive goods at Oakland US after receiving the goods of bill of lading no.NDS 000002622 from the consignee/merchant or any person duly authorized by them in pursuance of clause 14.2.
The consignee of shipment in the bill of lading of complaint, Bank of America has returned back the documents of export along with the original bill of lading of the complaint to the complainant no.1’s banker Allahabad Bank, IDB, Main Branch, Kanpur. Pursuant to complainants frantic phone calls, emails, opposite party no.1 sent email dated 14.8.2015 regarding status report of the consignment, a true
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copy of the said report is filed with the complaint, accordingly, goods were unloaded from ship at Oakland on 3.8.2015, they were taken out from inbound Terminal for delivery to consignee on 10.8.2015. Empty container was returned from customer on 11.8.2015. On learning of return of documents from Bank of America, the consignee of the shipment in the aforementioned bill of lading, the complainants through their advocate sent notice dated 10.2.2015 by speed post to opposite party no.1. Mr. Thomas Quinlen, Attorney of opposite party no.1 sent email to complainant and wanted to correspond with their advocate. The complainant craves leave of this Hon’ble State Commission to reproduce relevant emails exchanged in between the complainants’ advocate and attorney of opposite party no.1 Thomas Quinlen, Attorney of opposite party no.1 in email dated 9.10.2015 wrote “while I do not hand the cargo over to the consignee- I certainly agree that your client and bank should be paid for the goods sold.”
The complainants through their advocate email dated 13.10.2015 called upon the opposite party no.1 to reship the goods of the cargo to the petitioners at their cost and expenses. Opposite party no.1’s counsel Mr. Thomas Quinlen in his email dated 15.10.2015 replied “Fedex Trade Networks does not have possession of the Cargo, what I meant was that Fedex Trade Networks was not a party who released the cargo to the Consignee.”
The complainants’ advocate sent email dated 16.10.2015 to Mr. Thomas Quinlen “The status report of the shipment sent to my client by Fedex shows that the goods
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were taken out from inbound Terminal for delivery to consignee, under the bill of lading Fedex was to deliver the goods of shipment (cargo) to the consignee, in case they have not delivered the goods to the consignee after receiving the original bill of lading from the consignee bank of America. You may also note that original bill of lading has been returned back by the consignee- Bank of America to my client’s banker Allahabad Bank, Kanpur.
In case your client Fedex has not delivered the goods of the cargo, please asked them to reship the goods to my client……..”
The opposite party no.1’s attorney Mr. Thomas Quinlen sent email dated 27.10.2015 along with an attachment dated 23.10.2015 to complainants’ advocate as under:
“Dass Trading Company took possession of the above described shipment in Aug. 2015 without making payment for the shipment and without presenting the original bill of lading (OBL) despite the fact that arrival notice that Fedex Trading Networks sent to Dass Trading clearly required the OBL …. (original bill of lading).” The opposite party no.1 in gross breach of terms and conditions of the aforementioned contract of carriage without receiving the original bill of lading from the consignee/merchant-Bank of America or the person duly authorized of the consignee/merchant to receive the goods of the consignment, willfully and malafidely delivered the goods of shipment/cargo Dass Trading Company c/o Sachindra Dass without obtaining original of lading and opposite party no.1 has knowingly caused loss and damage to the complainants to US Dollar 29,940.00 being the
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value of the goods of the shipment. Apart from the said loss the complainants hired the services of the opposite party no.1 and paid Rs.1,00,769.00 for carriage and safe delivery of the goods of shipment to the consignee at Oakland, USA. Due to negligence and deficiency in service provided by the opposite party no.1 in transport, carriage, post to port shipment to Oakland, USA and willful default in delivering the consignment to Dass Trading Company instead of the named consignee in the original bill of lading has resulted in non payment of goods of the consignment to the complainants.
The complainants have suffered heavy financial losses/ damages being export value of the invoice, payment of interest and other charges paid by the complainant has paid to its banker Allahabad Bank. The complainants without any heading mentioned the following detailed amount of various as follows:
i. Value of Invoice No.L1/3028-15-16 USD 29,840.00
ii. Forward Contracts Availed USD 29,940.00
iii. Amount Discounted/Negotiated in INR 11,11,252.00
IND rate 64.05
iv. Charges recovered postage/cable/ INR 18,062.00
discount commission/discount
interest Rs.14,989.00
v. Crystallization rate 66.84 date of INR 19,94,506.00
Crystallization rate 8.9.2015 i.e.
66.84 x 29,840.00 USD
vi. Overdue interest charged 8.9.2015 INR 40,170.00
vii. Overdue interest charged on export INR 18,743.00
bill letter Dt. 7.10.2015
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viii. Interest from bill purchase date till INR 60,065.00
due date i.e. 8.6.2015 to …….
ix. Transport charges paid to respondent INR 1,11,769.00
no.1
The complainants have paid a sum of Rs.1,59,546.00 towards interest to Allahabad Bank IBD, Main Branch, Kanpur on the overdue amount on account of the export invoice. The Allahabad Bank is charging the complainants future interest @ 15.70% p.a. till date of recovery of amount due. A true statement of account has been annexed. The complainants had borrowed Rs.31,33,690.00 from the overdraft amount of complainant no.1 with Allahabad Bank, Kanpur to manufacture and produce pending orders dated 30.3.2015 for CIF USD 35,076.00 and 14.5.2015 for CIF USD 27,286.00 equal to Rs.41,78,254.00 @ Rs.67.00 per USD from Dass Trading Company. The complainants had manufactured the goods of the said orders were ready exports but due to the mess up/blunder committed by the opposite party no.1 in the wrong and unwarranted delivery of goods of the shipment of bill of lading no.NDS 000002622. The complainants had to sell the goods of the aforementioned orders at a discounted price of USD 33,000.00 x @ 67.00 equal to Rs.22,11,000.00 and thus, they suffered a loss of Rs.41,820.00. The complainants paid Rs.1,79,404.00 interest to the Allahabad Bank, Kanpur on the cost of manufacturing the goods i.e. Rs.31,33,690.00 for the period May, 2015 to October, 2015. The complainants paid Rs.75,084.00 as interest on the remaining stock of unsold goods after selling a part of stock i.e. Rs.19,67,254.00 (Rs.41,78,254.00 –
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22,11,000.00) for the period of November, 2015 to March, 2016 @ 11.45%. Due to the negligence and deficiency in service and goofing up/gross blunder in willfully delivering the goods of shipment of bill of lading by the opposite party no.1 to Dass Trading Company without obtaining original bill of lading has resulted in loss of long standing buyer of complainants in USA with whom the complainants were having an annual business of Rs.1,50,00,000.00. The complainants estimate token loss of profit to the tune of Rs.60,00,000.00 per annum.
The cause of action arose to the complainants to file this complaint against the opposite parties on 30.5.2015 when the complainants handed over the goods of the shipment to opposite party no.1 and 2 at Kanpur and on 8.9.2015 when IBD informed the petitioner that the documents/bill of lading for export invoice had been returned back and on 8.6.2015 and all dates when the Bank had debited the complainants bank account and on all dates when the complainants sent notice to opposite parties and opposite party no.1’s attorney exchanged various emails and mail dated 27.10.2015. The complainants are entitled to a sum of Rs.41,820.00 on account of sale of part of manufactured stock of pending orders at discounted price as per details in para 25 of the complaint. The complainants are entitled Rs.1,79,404.00 interest paid to Bank of cost of manufacturing the stock and Rs.75,084.00 as interest on cost of remaining stock. The complainants have suffered loss of reputation in the eye of its banker Allahabad Bank, Kanpur and Reserved Bank of India for non recovery of export proceeds loss of future business
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and also is suffering mental torture as the work of domiciles is hanging over his head as in case the export prceeds are not received or recovered then the complainants face penalty under Foreign Exchange Management Act and complainants claim a token amount of Rs.60,00,000.00 as token amount for loss of business profit, reputation and mental torture on above counts.
The Hon’ble State Commission has jurisdiction to try the present complaint as cause of action arose at Kanpur. The requisite fee of Rs.4,000.00 is being filed. The complainants pray for the following reliefs.
- A sum of USD 29,840.00 on account of loss of value of goods/shipment given to respondent no.1 for carriage and safe delivery to USA.
- A sum of Rs.1,59,545.00 towards compensation by way of interest paid by petitioner to Allahabad Bank and future damages @ 15.70% p.a. on the Rs.19,94,506.00 being unpaid value of invoice.
- A sum of Rs.1,00,769.00 being the cost of transportation charges paid to respondent no.1.
- A sum of Rs.41,820.00 on account of loss suffered by complainants by selling goods of pending orders at discounted price to other buyers.
- A sum of Rs.1,79,404.00 as damages on account of interest paid to Allahabad Bank on borrowed capital being cost Rs.31,33,690.00 of manufacturing pending orders.
- A sum of Rs.75,084.00 damages towards goods manufactured of pending orders to Allahabad Bank.
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- A sum of Rs.60,00,000.00 as damages for loss of reputation, mental torture and future profit suffered by complainants.
- Any other order or direction which this Hon’ble Commission may deem just and proper may also be passed in favour of the complainants.
- The costs, legal fee and expenses of the present case may be allowed.
The opposite party no.1 in their written statement has submitted that complainant has not come with clean hands and suppressed material fact. In the present case, goods have been transported to a foreign buyer who has taken possession of the goods without paying the complainant and had stated that the complainant has supplied defective material to him in the past and that he would adjust the cost of the shipment in the running account on account of previous supply of defective material. Thus, it is a civil dispute. The complainant approached the opposite party no.1 for transport of the goods from Kanpur to Oakland US subject to both parties being bound to the standard terms and conditions of the bill of lading. The original bill of lading was sent to Bank of America with instructions to Dass Trading Company to pay Bank of America the cost of the shipment and thereafter, to take the original bill of lading. Thus, it is clear that they were to be notified upon arrival of goods and granted permission to customs clear the goods subject to payment to Bank of America to get the original bill of lading released. The relevant extract of arrival notice is as follows:
“We hereby authorize Dass Trading Company or order
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to make customs entry of the above mentioned merchandise. Prior to cargo release, payment and original properly endorsed bill of lading must be received by this FedEx Trade Networks office.”
Goods were transported to Oakland and it appears that instead of fulfilling the requirement of making payment to Bank of America, Dass Trading Company instead engaged a customs broker and without making any payment or submitting the original bill of lading but the opposite party no.1 instead illegally instructed his customs broker and connived with him to pick up the shipment from the Oakland International Container Terminal on 10.8.2015 without making the payment. The opposite party no.1 was not involved in the handover of the shipment. It was material between container terminal and Oakland. When the opposite party no.1 did not receive the original bill of lading from Dass Trading Company then at the request of complainant, opposite party no.1 wrote to Dass Trading Company asking them to return the shipment to the complainant. Dass Trading Company stated that there was a dispute between it and the complainant. The opposite party no.1 had fulfilled its responsibility to transporting the shipment to Oakland and given that shipment was illegally taken by Dass Trading Company, why has the complainant not taken any legal action against Dass Trading Company? Dass trading Company and complainant are known to each other and complainant had made no effort to make them a party showing their connivance. The opposite party no.1 has not role in their dispute and has been unnecessarily dragged into a contractual
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dispute between two contracting parties which needs to be settled in a civil court. The present complaint is completely devoid of action against the opposite party no.1. The complainants have mischievously and purposely did not make M/s Dass Trading Company, a party. The dispute of complainant is purely contractual in nature and has nothing to do with opposite party no.1. In Harjit Kaur Dhingra vs. Pan Americal World Airways & anr. decided on 6.8.2010, the Hon ‘ble High Court, Delhi has held that “This court does not find any justification in making the carrier liable for the frauds committed by the foreign buyer especially since no satisfactory explanation has been rendered by the plaintiff as to why recovery has not been sought or initiated against the consignee and the foreign buyer also……. . The issue is thus decided against the plaintiff holding that defendant no.1 had carried and released the shipment in accordance with the terms and conditions of the contract..”
There is not a single averment in the entire complaint wherein the opposite party no.1 has been accused of deficiency in service. There is no privity of contract between the complainant and opposite party no.1. The liability of opposite party no.1 being the carrier of goods in terms of clause 14 of the bill of lading shall come to an end once delivery has been made. Clause 14 of the bill of lading is reproduced below:
“14. Delivery
14.2 Carrier’s responsibility shall cease when delivery has been made to merchant, any person authorized by merchant to receive the goods or in any manner or to any other person in
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accordance with the custom and usage of the port of discharge of place of delivery ..”
As per clause 2.3 under the bill of lading, the term “Merchant” includes the Shipper, the Receiver, the Consignor, the Consignee, the Holder of the Bill of lading and any person having a present or future interest in the goods or any person acting on behalf of any of the above-mentioned persons. Accordingly, the consignee’s broker shall also be covered under the aforesaid clause thus possessing the authority to receive the goods on behalf of the Receiver M/s Dass Trading Company. However in an attempt to exclusively implicate the opposite party no.1 herein, the complainant has concealed the fact that delivery of the shipped goods was taken by the broker of M/s Dass Trading Company-Ability Customs Brokers (based in 13910 Doolittle Drive, San Leandro, CA 94577), who at the instance of M/s Dass Trading Company got the goods custom cleared before hand on the basis of available documents and fraudulently took the delivery of the goods. Surprisingly, instead of pursuing the issues with M/s M/s Dass Trading Company and accusing it of fraudulently taking the delivery of goods by violating the procedural norms and retaining the goods without dispensing any consideration in lieu of them, the complainant is seeking to falsely implicate the opposite party no.1 herein as a defaulter in the process of delivery.
Clause 19 under the said bill of alding coutlines the jurisdiction clause governing disputes between the parties and is reproduced below:
“(19) Jurisdiction
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Any claim or dispute arising under this bill of lading shall be determined according to the laws of the United States. Actions against the carrier may only be instituted in the United States District Court for the Southern District of New York. The laws of the United States shall apply to any dispute…”
In the case of ABC Laminart (P) Ltd. vs. AP Agencies: (1989) 2 SCC 163 the Hon’ble Supreme Court has held that:
“21. As regards construction of the ouster clause when words like ‘alone’, only’, ‘exclusive’ and the like have been used there may be no difficulty. Even without such words in appropriate cases the maxim ‘expressio unius est exclusion alterius’- expression of one is the exclusion of another- may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a contract an intention to exclude all others from its operation may in such cases be inferred. It has therefore to be properly construed ….”
The present complaint is mischievous and frivolous and is purely abuse of the process of law.
The following inferences and facts can be safely established based on the admission made by M/s Dass Trading Company in the aforementioned email dated 20.8.2015 as reproduced above:
- The complainant has been supplying leather merchandise to M/s Dass Trading Company since many years and have a long standing business relationship:
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- M/s Dass Trading Companyhas admitted to having possession of the entire shipment for which the consideration amount is USD 29,840 as per the invoice dated 30.5.2015 and has categorically refused to return the same.
- M/s Dass Trading Company has complained of defective merchandise being supplied by complainant over a period of years.
- M/s Dass Trading Company and complainant are already in discussions to resolve their issues inter se.
- Despite having trust issues with respect to quality of goods since many years. M/s Dass Trading Company has continued to avail the services of the complainant only.
- Mr. Sachin K. Dass of M/s Dass Trading Company has admitted that he is in discussion with the complainant to adjust the correct invoice against all the damages suffered previously.
- Though defective merchandise has been supplied by the complainant, instead of returning the same to the supplier, the merchandise has been retained thus indicating that “supply of defective merchandise” is just a framed and concocted story so as to evade payment against the purchased merchandise.
It is pertinent to mention here that the present case is not a case of goods lost in transit, for which the opposite party no.1 may be held liable to compensate the supplier of goods subject to the complainant being a consumer. In this case, it is an admitted position that the goods are in the possession of
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the buyer, that on a perusal of the contents of the aforementioned email dated 20.8.2015 reproduced above. It is apparent that M/s Dass Trading Company and complainant are already in discussions to resolve their issues inter se relating to the impugned shipment and payment of invoice dated 30.5.2015 for consideration amount of USD 29.840 which forms the basis of this complaint and to which discussions opposite party no.1 is neither a party nor privy thereto.
However, the opposite party no.1 has bonafidely extended its hand and offered to arrange for pick up of the goods from M/s Dass Trading Company and have them delivered back to the supplied complainant at its own costs. The complainants’ conduct is tainted since the complainant being based in India is well aware of Indian law of Contract which categorically provides that sums due to be recovered under a contract of sale can only be recovered com the contracting party and not a third party.
It is submitted here that it is not the case whether the goods are lost in transit, thus shifting the liability of goods on the transporting company i.e. opposite party no.1. Both the buyer and the goods have been traced and thus it is imperative on the part of complainant to pursue his contractual dispute independently before a competent court of civil jurisdiction, without unnecessarily impleading the answering opposite party no.1. A case of this nature cannot be adjudicated upon without undergoing the evidence procedure under a civil trial and without detailed evidence and technical questions being adjudicate upon. The complainants under the
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pretext of deficiency in services are attempting to take a short cut to address their grievances on a contractual dispute in a summary procedure, whereas they ought to have been approaching the civil court against M/s Dass Trading Company who ironically or perhaps intentionally has not even been made a party to the complaint and in the absence of the receiver of the goods no meaningful adjudication of the compliant is possible, without admitting that any complaint exists at all or whether the complainant is a consumer at all. It is re-iterated that in terms of clause 14.2 of the bill of lading the carrier’s responsibility shall cease when delivery has been made to merchant, any person authorized by merchant to receive the goods or in any manner or to any other person in accordance with the custom and usage of the port of discharge of place of delivery …” Undisputedly, the delivery has reached the receiver, the carrier/opposite party no.1 can not be implicated with any liability. Thus, it is categorically denied that opposite party no.1 was bound to deliver the said goods to the person named and described as consignee in the bill of lading.
It is denied that this Hon’ble Commission has the jurisdiction to entertain the present complaint in view of clause 19 under the said bill of lading which outlines the jurisdiction governing disputes between the parties and is reproduced below:
“19. Jurisdiction
“Any claim or dispute arising under this bill of lading shall be determined according to the laws of the United States. Actions against the carrier may only be instituted in
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the United States District Court for the Southern District of New York. The laws of the United States shall apply to any dispute… “.
Evidently, this Hon’ble Commission lacks the territorial jurisdiction to try the present case against opposite party no.1 when by virtue of the contract between the parties, the parties have submitted themselves to the jurisdiction of the courts of New York. The present complaint is liable to be dismissed out rightly on this ground alone.
In view of aforementioned facts, it is submitted that the present complaint be dismissed with exemplary costs on account of harassment against opposite party no.1.
We have heard both the parties’ counsels and perused pleadings.
After having gone through the pleadings of the parties as well as documents on record, it is clearly established that the complainant is a manufacturer and exporter of leather saddler head stalls, breast collars and harness and in the course of his business, he supplied said items to Dass Trading Company, USA through shipper Longmarch International. Bill of lading of the goods consigned shows that the consignee of the goods consigned was Bank of America Trade Operations and notify party and intermediate consignee was Dass Trading Company, purchaser of the goods consigned. Indisputably, the Bank had to collect the money from the intermediate consignee Dass Trading Company and to remit the same to complainant consigner.
In view of facts mentioned above, it is crystal clear that service of the opposite party was obtained by complainant for
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commercial purposes and the complainant is not a consumer under section 2(1)(d) of the Consumer Protection Act, 1986 or under section 2(7) of the Consumer Protection Act, 2019.
Ld. Counsel for the complainant has referred following judgments of Hon’ble Apex Court.
- American Consolidation Service Ltd. vs. Virendra Khullar (Civil Appeal No.2080 of 2004)
- Virendra Khullar vs. American Consolidation Service Ltd., 2016(15) SCC 308.
- Harjit Kaur Dhingra vs. Pan American World Airways & anr., 2010 SCC Online Del 2614
- Contship Container Lines Ltd. vs. D.K. Lall, (2010) 4 SCC 256
- Bharathi Knitting Co. vs. DHL Worldwide Express Courier, (1996) 4 SCC 704
- ABC Laminart Pvt. Ltd. & anr. vs. AP Agencies, Salem,
- AIR 1239, 1989 SCR (2) 1
We have perused the above judgment of the Hon’ble Apex Court respectfully.
After amendment in section 2(1)(d) of the Consumer Protection Act, 1986 vide section 2 of Act 62 of 2002 the judgment referred by the ld. Counsel for the complainant are not helpful to complainant.
In view of conclusion drawn above, we are of the view that the complainant’s case does not fall under the Consumer Protection Act, 1986 and is liable to be dismissed with liberty to complainant to approach appropriate court as per prevailing laws.
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ORDER
The complaint is dismissed with liberty to approach appropriate court as per prevailing laws.
(Sushil Kumar) (Rajendra Singh) (Justice Akhtar Husain Khan)
Member Member President
Jafri PA II
Court No.1
