Savvy Corporation and Others Vs. Consolair and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1147785
CourtRajasthan State Consumer Disputes Redressal Commission SCDRC Jaipur
Decided OnApr-15-2014
Case NumberFirst Appeal No. of 2007, 1040, 1041, 1053 of 2007
JudgeTHE HONOURABLE MR. ASHOK PARIHAR, PRESIDENT, THE HONOURABLE MR. SHASHI KUMAR PAREEK, MEMBER & THE HONOURABLE MRS. SUNITA RANKA, MEMBER
AppellantSavvy Corporation and Others
RespondentConsolair and Others
Excerpt:
1. in all the above appeals since the order dated 21.5.2007 passed by the district forum ii, jaipur is under challenge, the same have been heard together and are being decided by this common order. 2. the savvy corporation ( hereinafter reffered to as œthe company?) has prayed for enhamcement of the compensation as also preponing the interest from prior date whereas the consolair ( hereinafter referred to as œthe shipping agency? ) as also royal jordanian ( hereinafter referred to as œthe airlines? ) have challanged the findings and directions of the district forum against them. the district forum vide impugned order dated 21.5.2007 while allowing the complaint of the company has directed the shipping agency as also the airlines to pay a sum of rs. 4,12,319/- with interest as also other expenses. mr.rajesh maharshi counsel for the shipping agency as also mr.namish nigotia counsel for the airlines while making great stress on two documents filed by the complainant alleging some interpolation and forgery in the same. the learned counsel for the shipping agency submitted that there has been no contract between the parties and the shipping agency was not responsible for the consignment sent by the company on the stipulated date whereas the learned counsel for the airlines repeating the same argument has also submitted that the airlines had their own limitations and they are expected to deliver the consignment within reasonable time. 3. having considered the submissions of the counsel for the parties, we have carefully gone through the material on record. 4. the matter appears to have chequered history. the district forum while proceeding ex-parte against the airlines directed the shipping agency as also the airlines to pay a sum of rs.4,52,319/- with interest and other expenses to the complainant vide order dated 5.3.2004. however, on appeal filed by the airlines the state commission vide order dated 12.6.2006 remanded the matter back to the district forum to decide the complaint afresh after giving proper opportunity of hearing to the parties concerned. it appears that during pendency of the complaint before the district forum two more separate applications have been filed by the shipping agency; one for calling the complainant for cross examination as also for impleading one of the agents of the airlines i.e. m/s.vin cargo pvt.ltd. both the applications were dismissed by the district forum vide order dated 2.1.2007 as also dated 13.2.2007 respectively. again revision petition had been filed by the shipping agency before the state commission challanging the orders passed by the district forum as referred above. however,both the revision petitions came to be dismissed by the state commission vide order dated 10.5.2007. however, the state commission gave liberty to the shipping agency to prove the alleged letter of m/s.vin cargo pvt.ltd. by way of filing proper affidavit before the district forum. subsequently the shipping agency submitted before the district forum that they do not want to file any affidavit,the liberty which had been given by the state commission. consequently the district forum after hearing all parties while allowing the complaint issued directions vide impugned order under challenge in the above appeals. 5. as has come on record on receiving an order from sna astuces, 7ru sainte apolline 75003 paris, the company got a letter of credit issued by punjab national bank on 12.4.2002. in the letter of credit, it was clearly mentioned that latest date of shipment must be 30.4.2002. it has been submitted by the company that the consignment was handed over to the shipping agency on 27.4.2002 and the same was further handed over to the airlines on the same date for which an airway bill was also issued by the authorised agent on 27.4.2002. in the airway bill so produced by the complainant apart from the number of letter of credit even the number and date of flight have also been mentioned. the learned counsel for the shipping agency as also the airlines has submitted that in the airway bill issued by the agent there was no mention of the flight details and the same has subsequently been forged by the complainant. a subsequent letter issued by m/s.vin cargo pvt. ltd. has heavily been relied by the counsel for the shipping agency as also the airlines in which it has been submitted that in the airway bill as referred by the complainant, the agency had not mentioned the flight details. however, inspite of opportunity given by the state commission the counsel for the shipping agency failed to prove the alleged letter sent by m/s.vin cargo pvt. ltd. moreso the letter as sent by m/s.vin cargo pvt. ltd. is neither here nor there since the same does not mention any details. furthermore a bare perusal of the airway bill document anx. 13 shows the number of letter of credit in which also it has clearly been mentioned that the shipment has to be made latest by 30.4.2002 and even the flight details as typed on the airway bill do not appear to be forged. however, inspite of flight number and date mentioned in the airway bill, the consignment was sent by the airlines first to amman on 5.5.2002 and then further to paris on 8.5.2002. in the meanwhile it appears that considering the conditions laid down by the company in paris for sending the consignment prior to 30.4.2002 the order came to be cancelled resulting in the total loss as alleged by the company. the shipping agency has failed to prove the forgery and interpolation made in the airway bill. on the other hand the airlines tried to take a defence that on 30.4.2002 being tuesday and 1.5.2002 being wednesday, there was no flight to amman and it was only on availability of next flight on 5.5.2002 the consignment was sent to amman and then further to paris on 8.5.2002. 6. the learned counsel for the airlines could not satisfy as to what should be presumed to be a reasonable time in which the consignment is to be delivered at the destination. furthermore there is nothing on record to show that the airlines or their agent had made it clear to the company that consignment shall not be dispatched by air prior to 2.5.2002. in such international trade deals the time factor is most important moreso when the entire payment is made on the basis of letter of credit and at times the parties has suffer a great loss because of cancellation of the order as also the interest to be charged by the bank. having accepted the consignment without clarifying the position in regard to date of dispatch to be made the airlines or even the shipping agency either should have refused to accept the consignment or could have made alternative arrangements to send the consignment on the promised date. under the circumstances the whole act becomes not only unfair trade practice but also of deficiency in service. 7. the learned counsel for the shipping agency as also the airlines have also submitted that the district forum was not right in directing the shipping agency as also the airlines to pay the amount of rs.44,787/- against duty draw bank amount and the company could have recover the amount from the customs department. the learned counsel for the company however, clarified that duty draw bank amount is only a concession given by the central government on export. however, since the order not been completed, the amount of concession as deposited in the bank account of the company had already been paid back to the customs and since there has been gross deficiency of service on part of the shipping agency as also the airlines in not delivering the consignment in time, the company was entitled for the duty draw bank amount which otherwise the company was entitled for. 8. so far as the prayer for enhancement of compensation and preponing the date of interest as made by the company is concerned since the district forum has used proper discretion in granting adequate relief to the company, we find no error or illegality in the same. the district forum on the basis of material and evidence available on record after having come to the findings has used proper discretion in granting appropriate relief to the company as against the shipping agency and also the airlines, we find no error or illegality in the discretion used by the district forum so as to call for any further interference in the present matter. 9. the appeal filed by the company is dismissed. however, considering the conduct of the shipping agency as also the airlines who had been adopting delaying tactics by raising frivolous grounds and the company has been deprived of their legal dues for about a decade, in the facts and circumstances we deem it proper to levy heavy cost on both, the shipping agency as also the airlines. both the respective appeals filed by them are dismissed with costs of rs. 25,000/- ( twenty five thousand ) in each appeal which may be paid to the complainant company within thirty days alongwith compliance to be made that of directions issued by the district forum. however, the appellants shall be at liberty to withdraw the amount deposited by them if any before the district forum in the present appeals after compliance of the directions given above.
Judgment:

1. In all the above appeals since the order dated 21.5.2007 passed by the District Forum II, Jaipur is under challenge, the same have been heard together and are being decided by this common order.

2. The Savvy Corporation ( hereinafter reffered to as œthe Company?) has prayed for enhamcement of the compensation as also preponing the interest from prior date whereas the Consolair ( hereinafter referred to as œthe Shipping Agency? ) as also Royal Jordanian ( hereinafter referred to as œthe Airlines? ) have challanged the findings and directions of the District Forum against them. The District Forum vide impugned order dated 21.5.2007 while allowing the complaint of the Company has directed the Shipping Agency as also the Airlines to pay a sum of Rs. 4,12,319/- with interest as also other expenses. Mr.Rajesh Maharshi counsel for the Shipping Agency as also Mr.Namish Nigotia counsel for the Airlines while making great stress on two documents filed by the complainant alleging some interpolation and forgery in the same. The learned counsel for the Shipping Agency submitted that there has been no contract between the parties and the Shipping Agency was not responsible for the consignment sent by the company on the stipulated date whereas the learned counsel for the Airlines repeating the same argument has also submitted that the Airlines had their own limitations and they are expected to deliver the consignment within reasonable time.

3. Having considered the submissions of the counsel for the parties, we have carefully gone through the material on record.

4. The matter appears to have chequered history. The District Forum while proceeding ex-parte against the Airlines directed the Shipping Agency as also the Airlines to pay a sum of Rs.4,52,319/- with interest and other expenses to the complainant vide order dated 5.3.2004. However, on appeal filed by the Airlines the State Commission vide order dated 12.6.2006 remanded the matter back to the District Forum to decide the complaint afresh after giving proper opportunity of hearing to the parties concerned. It appears that during pendency of the complaint before the District Forum two more separate applications have been filed by the Shipping Agency; one for calling the complainant for cross examination as also for impleading one of the agents of the Airlines i.e. M/s.Vin Cargo Pvt.Ltd. Both the applications were dismissed by the District Forum vide order dated 2.1.2007 as also dated 13.2.2007 respectively. Again revision petition had been filed by the Shipping Agency before the State Commission challanging the orders passed by the District Forum as referred above. However,both the revision petitions came to be dismissed by the State Commission vide order dated 10.5.2007. However, the State Commission gave liberty to the Shipping Agency to prove the alleged letter of M/s.Vin Cargo Pvt.Ltd. by way of filing proper affidavit before the District Forum. Subsequently the Shipping Agency submitted before the District Forum that they do not want to file any affidavit,the liberty which had been given by the State Commission. Consequently the District Forum after hearing all parties while allowing the complaint issued directions vide impugned order under challenge in the above appeals.

5. As has come on record on receiving an order from SNA ASTUCES, 7ru Sainte Apolline 75003 Paris, the company got a letter of credit issued by Punjab National Bank on 12.4.2002. In the letter of credit, it was clearly mentioned that latest date of shipment must be 30.4.2002. It has been submitted by the company that the consignment was handed over to the Shipping Agency on 27.4.2002 and the same was further handed over to the Airlines on the same date for which an Airway Bill was also issued by the authorised agent on 27.4.2002. In the Airway Bill so produced by the complainant apart from the number of letter of credit even the number and date of flight have also been mentioned. The learned counsel for the Shipping Agency as also the Airlines has submitted that in the airway bill issued by the agent there was no mention of the flight details and the same has subsequently been forged by the complainant. A subsequent letter issued by M/s.Vin Cargo Pvt. Ltd. has heavily been relied by the counsel for the Shipping Agency as also the Airlines in which it has been submitted that in the Airway Bill as referred by the complainant, the agency had not mentioned the flight details. However, inspite of opportunity given by the State Commission the counsel for the Shipping Agency failed to prove the alleged letter sent by M/s.Vin Cargo Pvt. Ltd. moreso the letter as sent by M/s.Vin Cargo Pvt. Ltd. is neither here nor there since the same does not mention any details. Furthermore a bare perusal of the airway bill document Anx. 13 shows the number of letter of credit in which also it has clearly been mentioned that the shipment has to be made latest by 30.4.2002 and even the flight details as typed on the Airway Bill do not appear to be forged. However, inspite of flight number and date mentioned in the Airway Bill, the consignment was sent by the airlines first to Amman on 5.5.2002 and then further to Paris on 8.5.2002. In the meanwhile it appears that considering the conditions laid down by the company in Paris for sending the consignment prior to 30.4.2002 the order came to be cancelled resulting in the total loss as alleged by the company. The shipping agency has failed to prove the forgery and interpolation made in the Airway Bill. On the other hand the Airlines tried to take a defence that on 30.4.2002 being Tuesday and 1.5.2002 being Wednesday, there was no flight to Amman and it was only on availability of next flight on 5.5.2002 the consignment was sent to Amman and then further to Paris on 8.5.2002.

6. The learned counsel for the Airlines could not satisfy as to what should be presumed to be a reasonable time in which the consignment is to be delivered at the destination. Furthermore there is nothing on record to show that the Airlines or their agent had made it clear to the company that consignment shall not be dispatched by air prior to 2.5.2002. In such international trade deals the time factor is most important moreso when the entire payment is made on the basis of letter of credit and at times the parties has suffer a great loss because of cancellation of the order as also the interest to be charged by the bank. Having accepted the consignment without clarifying the position in regard to date of dispatch to be made the Airlines or even the Shipping Agency either should have refused to accept the consignment or could have made alternative arrangements to send the consignment on the promised date. Under the circumstances the whole act becomes not only unfair trade practice but also of deficiency in service.

7. The learned counsel for the Shipping Agency as also the Airlines have also submitted that the District Forum was not right in directing the Shipping Agency as also the Airlines to pay the amount of Rs.44,787/- against duty draw bank amount and the company could have recover the amount from the Customs Department. The learned counsel for the company however, clarified that duty draw bank amount is only a concession given by the Central Government on export. However, since the order not been completed, the amount of concession as deposited in the bank account of the company had already been paid back to the customs and since there has been gross deficiency of service on part of the Shipping Agency as also the Airlines in not delivering the consignment in time, the company was entitled for the duty draw bank amount which otherwise the company was entitled for.

8. So far as the prayer for enhancement of compensation and preponing the date of interest as made by the company is concerned since the District Forum has used proper discretion in granting adequate relief to the company, we find no error or illegality in the same. The District Forum on the basis of material and evidence available on record after having come to the findings has used proper discretion in granting appropriate relief to the company as against the Shipping Agency and also the Airlines, we find no error or illegality in the discretion used by the District Forum so as to call for any further interference in the present matter.

9. The appeal filed by the company is dismissed. However, considering the conduct of the Shipping Agency as also the Airlines who had been adopting delaying tactics by raising frivolous grounds and the company has been deprived of their legal dues for about a decade, in the facts and circumstances we deem it proper to levy heavy cost on both, the Shipping Agency as also the Airlines. Both the respective appeals filed by them are dismissed with costs of Rs. 25,000/- ( twenty five thousand ) in each appeal which may be paid to the complainant company within thirty days alongwith compliance to be made that of directions issued by the District Forum. However, the appellants shall be at liberty to withdraw the amount deposited by them if any before the District Forum in the present appeals after compliance of the directions given above.