Order-17.
Date-28/09/2015.
In this complaint Complainant Shiv Shankar Expeller Industries by filing this complaint has submitted that on 30.04.2014 complainant submitted an export invoice, packing list, bill of exchange, exchange control copy and 3 copies of bill of lading, all in originals for sending it for collection to the buyer.s bank at Jeddah to the op no.2 vide their forwarding letter and op no.2 forwarded the same to the op no.1 for sending it ahead and in course of furtherance of the matter the op no.1 entrusted the papers to their courier agent/op no.3 for delivering it to National Commercial Bank, Jeddah on 05.05.2014 vide Consignment no. 275607979.
But unfortunately the documents were not delivered at a reasonable time, the complainant raised alarm with the op no.1 and eventually op no.1 raised enquiry with the op no.3 and op no.3 then informed the op no.1 vide their e-mail dated 08.05.2014 inter alia that they are in the process of coordinating with their counterpart and will keep the op no.2 informed about the status of their consignment.
On 16.05.2014 finally op no.3 confirmed to the op no.1 that they have lost the shipment, made against the above consignment number and subsequently op no.2 informed the matter to the complainant and also confirmed the same by way of their forwarding letter dated 18.05.2014, Ref. No. nil.
At the very instance of receiving such communication from the op no.2, complainant contacted their shiping line, M/s. Pan Asia Logistics India Pvt. Ltd. through which the cargo was shipped for obtaining the duplicate bill of lading and in course of doing this the complainant narrated the whole fact to them vide their letter dated 16.05.2014 and the correspondences continued till 30.05.2014.But the shipping line was insisting on giving them the bank guarantee for 150 percent CIF value of the goods shipped and the complainant was trying to convince them to issue Duplicate Bill of Lading without Bank Guarantee but unfortunately they expressed their inability to do so as because it was against their Company Policy.
Accordingly on 30.05.2014 complainant submitted the Bank Guarantee for Rs. 20 lakhs issued by the op no.2 in favour of M/s. Pan Asia Logistics India Pvt. Ltd. to get the duplicate BL/release order for releasing the cargo from Dubai Port.In the meantime several charges were imposed on the said consignment/cargo for the delay caused due to such loss of original documents by the op no.3 and as a result complainant.s buyer/purchaser would not get the said consignment/cargo unless the demurrage charges was paid from the Jebel Ali Port Authority as well as the Shipping Line Company/M/s. Pan Asia Shipping Line LLC. i.e. total sum of Rs. 53,975/-.But the complainant was very much annoyed and disgusted with the casual attitude of the ops in the matter and in as much as complainant was able to make out from the ops that they would not give a speedy resolution to the complainant and any resolution at all and this would be a time-taking affair with the ops and in that event the same is evidently going to be increasingly penalizing upon the complainant in terms of money in the form of mentioned detention/storage/demurrage charges.So the complainant had with full clarity took up efforts/actions and intimated the matter to his buyer/purchaser party and requested to take the consignment/cargo released by making some arrangements for payment of the demurrage charges, on behalf of the complainant and with an assurance that complainant would make payment to them sooner the complainant gets appropriate redressal in the matter.
The said purchaser party being in continuous business relationship with the complainant for considerable time span, has that much trust and faith upon the complainant and in as much as they too were in requirement of the subject consignment, the buyer/purchaser for the time being agreed to pay the said demurrage sum and thereby took release of the consignment/cargo.On release of Cargo, the buyer sent the account of charges to the complainant which the said buyer had to pay in lieu of demurrage and bill for the said charges was raised to the complainant for making immediate payment.But the op bank also debited their charges for issuing bank guarantee and apart from that complainant had to suffer loss in terms of demurrage charges, interest loss, bank charges, currency difference etc.
Complainant started communicating verbally with the op no.2 as well as the branch manager regarding this claim and requested to take up the issue with their superior offices and try to resolve the matter at the earliest.But after a few rounds of discussions and verbal communications, complainant found that the outcome from them was absolutely irrelevant and baseless, so finally complainant submitted their claim for the loss sustained by them with the op no.2 on 14.06.2014 illustrating the different heads for the same.But bank reported that they have taken up the matter with the courier company/op no.3 and they would inform the complainant of the further development hearing from the op no.3.
Despite several visits of the complainant with verbal reminders made to the branch managers of the op Bank regarding the development of the claim of the complainant, no concrete reply was given by the bank till now.Ultimately complainant reminded to the op no.2 for relief but they did nothing.
In the above circumstances for negligent and deficient manner of service and also for harassing the complainant in such a manner, complainant has filed this complaint praying for refund of Rs. 1,05,950/- and compensation and litigation cost also.
In fact in the complaint, relief is prayed by the complainant against op nos. 1 & 2, but op no.3 is proforma op against whom no relief is prayed for against him.
Practically in this case op nos. 1 & 2 Indian Bank &Ors. by filing written statement submitted that the op no.1 Bank is a Foreign Exchange Authorised Branch of the Bank who has undertaken all foreign exchange transactions M/s. Shiv Sankar Expeller Industries is the customer of the op no.2 and submitted a bill for collection in the Branch Office of the op no.2.Since the said Branch Office cannot undertake foreign exchange transaction, the said Branch Office has forwarded the bills to the op no.1 Bank on 02.05.2014 as the 3rd May was Saturday and 4th May was Sunday, the same has been forwarded by the op no.1 on 5th May 2014 for collection without any delay.Since there is no such specific instruction from the complainant for sending the collection bill in specific mode or through any specific courier company, the op no.1 sent the collection bill through its regular courier being the op no.3 in normal course.After sending the mail, as a normal practice op no.1 has received an e-mail from TNT courier being the proforma op on 08.05.2014 stating inter alia that the consignment is in transit and update, if any, it will be communicated to the bank shortly.As the normal transit period is of 25 days, the bank was waiting for the confirmation of receipt of the bill or payment from the overseas buyer.But getting no information about the same neither from the overseas buyer nor from the complainant who should have the headache to know whether the consignment is reached to the buyer or not.But the bank has enquired the matter with TNT courier service on 12.05.2014 when the TNT courier service by its e-mail has requested the bank to wait for the updates as the bag with multiple shipment is not traceable and the said courier service was trying to find out the said shipment with Airlines Authority and Warehouse in Dubai.
After that complainant informed the bank that the bill has not reached the destination, as informed to them by their overseas buyers.When bank has sent the bill for collection on 05.05.2014 whereas the information regarding the non-receipt of the said invoice of the bill comes on eight days thereafter by this time the bank in its own accord has enquired the matter with the courier service for two time and the courier service has always assured the bank they will inform about the fate of the said assignment immediately after discussion with their counterpart.However after receiving the complaint from the complainant, bank could make a communication with the courier office and on 14.05.2014 the details of shipment have been given to the courier service for their prompt reply and ultimately the courier service on 16.05.2014 finally informed that the said above consignment has been lost.Apart from the scenario of the facts as stated, it is also not out of the place to mention that on receipt of the oral information from the complainant on 14.05.2012, the bank has suggested the complainant to accept various options to substitute the said lost documents and bank is ready to provide the true copy said lost documents and bank is ready to provide the true copy and certified copy of the said bills including the invoice to the said complainant for placing the same to its logistic company.
But fact remains that the said complainant has not accepted any of the suggestions and for nothing has delayed the process in its own way, not only that the said complainant thereafter stopped communication with the bank keeping the bank in dark about the measure taken by the said complainant.By this time bank received the inward/payment remittance for full invoice value on 26.05.2014 which is within normal transit period of 25 days.From the aforesaid facts, it will be clear that there was no such negligence on the part of the op bank. If there is any negligence, the negligence is on the part of the complainant for not acting in a diligent manner.
Fact remains that complainant himself has taken time from 16.05.2014 to 30.05.2014 with his logistic company i.e. M/s. Pan Asia Logistics India Pvt. Ltd. through which the cargo was shipped. The op /bank has also not taken into confidence in dealing the matter with the logistic company by the complainant rather on 30.05.2014 for the first time after 14.05.2014 when the complainant has made a complaint that the overseas buyer has not received the consignment as has been informed by the complainant that they went to that logistic company and insisted for the bank guarantee.So on getting the calls from the complainant, the bank without any delay immediately issued the bank guarantee in favour of the logistic company so that complainant can resolve this matter as soon as possible, not only that the bank will also be proved from the letter of the bank dated 15.05.2014 requesting the said logistic company to make arrangement by way of issuing duplicate BL/any inward document as convenient for the sake of logistic company so that the caption consignee got the delivery of the cargo as early as possible and this letter has been sent by the bank to the logistic company only to facilitate the complaint before courier company on 16.05.2014 has disclosed the consignment has been permanently lost that means not waiting even for the fate of the consignment from the courier service the bank themselves have taken an endeavor to go one step ahead and taking into probabilities of missing on 15.05.2014 requested the logistic company to take alternative steps so that entire issue can be resolved immediately and the said letter has been enclosed by the complainant in page 25 of the complaint.
It is further submitted that the damage claimed in the said complaint is completely uncalled for.The aforesaid facts once again proved that the foreign buyer has obviously received the goods before 20 days at lest and as such, question of sustaining the damage or demurrage to be paid to the port authorities, as alleged.The aforesaid facts once again proved that the entire claim made by the complainant is actually a pressure tactics upon the bank to get some money utilizing the unforeseen situation and circumstances and it is submitted that there is no lacunae, lapses and negligence on the part of the op bank while forwarding the bills to the said consignment by the courier service.It is submitted that missing of document can happen to anybody and a man of ordinary prudence cannot go beyond the probabilities.If the courier service after taking due care and caution, due to some reason or otherwise, has missed the consignment that does not mean vicarious liabilities lie upon the bank but it has to be examined whether courier service is at all negligent for the said incident or not.In the instant complaint, complainant by making the courier service as a proforma op has given a clean cheat to the said courier service.
On the other hand International Chamber of Commerce – Uniform Customs and Practices for Documentary Credit version 600 revised – Article 35 the Bank assume no liability or responsibility for the consequences arising out of delay, loss in transit, mutilation or other errors arising in the transmission of any messages or delivery of letters or documents, when such messages, letters or documents are transmitted or sent according to the requirements stated in the credit, or the bank may have taken the initiative in the choice or delivery service in the absence of such instructions in the credit.
If a nominated bank determines that a presentation is complying and forwards the documents to the issuing banks or confirming banks, whether or not the nominated bank has owned or negotiated, an issuing bank or confirming bank must honour or negotiate, or reimburse that nominated bank, even when the documents have been lost in transit between the nominated bank and issuing bank or confirming bank, or between the confirming bank and the issuing bank.Bank has no liability or responsibility for errors in interpretation of technical terms and may transit credit terms without translating them.This is the worldwide acceptability of the rule and regulation of UCPDC-600 framed by ICC and as per said rule, bank has not liability for such loss of paper when it is not the fault of the bank.
On the other hand bank is ready and willing to give true copy/certified copy of the said bills so that the matter can be expedited early and a request to the logistic company to issue duplicate bill of lading to facilitate the customer as its optimum level has been taken but till 15th to 30th May 2014 complainant has taken 16 days. time for their internal communication with the logistic company and if there are any delay, the said delay has been caused at the sole risk and responsibility of the complainant for which the bank is not at all responsible. In the above circumstances, the entire claim of the complainant are false and fabricated for which the claim should be dismissed.
On the other hand op no.3 by filing written statement submitted that complainant never hired services of the proforma op TNT India Pvt. Ltd. and also has not paid any consideration to it which was paid by one of the op.So, the present complaint is not maintainable against op no.3.Moreover no relief has been prayed against op no.3 for which the present complaint should be dismissed against op no.3.
Decision with reasons
On careful consideration of the entire materials on record including the complaint and written version and further the document as produced by the both parties and further after assessment andevaluation of the documents including the materials and also on relying upon the argument of the Ld. Lawyers of both the parties, it is found that Shiv Sankar submitted a bill for collection in Branch Office op no.2 and op no.2 forwarded the bills to the op no.1 Bank who has foreign exchange transaction right and ultimately op no.1 Bank on 02.05.2014 as 03.05.2014 was Saturday and 04.05.2014 was Sunday.So, the same has been forwarded by the op no.1 on 05.05.2014 for collection without any delay and after that op no.1 received an e-mail from TNT Courier op no.3 and an e-mail on 08.05.2014 stating that the consignment is in transit and update status shall be communicated to the banks.
Thereafter no doubt bank enquired about the matter of op no.3 TNT on 12.05.2014 when op no.3 requested the bank to wait for the updates as the bag with multiple shipment is not traceable and op no.3 was trying to find out the said shipment with Airlines Authority and Warehouse in Dubai and it is fact that in that situation bank informed the complainant that bill had not reached the destination of their overseas buyers.It was reported by the complainant that non-receipt of the said invoice of the bills come on eight days. Op bank communicated with the courier service for two times and courier service op no.3 finally informed that the above consignment has been lost.Regarding communication, the bank has suggested the complainant to accept various options to substitute the said lost documents and bank is ready to provide the true copy/certified copy of the said bills including the invoice to the said complainant for placing the same to its logistic company.Bank also offered alternative option on receiving of the complaint from the complainant expressing his readiness and willingness to provide true or certified copy of the said bill so that matter can be expedited early and requested to logistic company to issue duplicate bill ready to facilitate the customer and no doubt op/bank took prompt action to facilitate the customer and that is true.
It is also proved that on 12.05.2014 op by sending e-mail requested the bank to wait for the updates as the bag with multiple shipment is not traceable and the said courier service was trying to find out the said shipment with Airlines Authority and Warehouse in Dubai and on receipt of the said e-mail bank requested for taking step that is admitted by the complainant and on the same day op/Bank also suggested the complainant to deliver bill issued by the ship line which is also admitted by the complainant.But complainant did not accept any of the suggestion and stopped communication with the bank keeping the bank in dark about measure taken by the said complainant from 15th to 30th May 2014 that is true.
Complainant has admitted that complainant was taking time from 16.05.2014 to 30.05.2014 with his logistic company.But ultimately complainant asked the bank for bank guarantee.In fact consignment arrived on 12.05.2014 and has been released from sea on 02.06.2014 and in fact as per cargo rules the transaction must be made within 25 days that is normal as per normal transit period and as per receipt of Pan Asia authority cannot be ruled out and cannot be disbelieved.
Further it is proved from the bill of lading bearing No. PANCCUJEA 02528 dated 25.04.2014 issued by M/s. Pan Asia Logistics India Pvt. Ltd. 14 days is gestation period for which port and storage charges is exempted for releasing goods and in the present case complainant took 14 days.time to come to a decision that the bank guarantee is required which decision ought to have been taken forthwith by the complainant when the matter was reported by the op that the document is lost by the op no.3.But truth is that from 15 May to 30th May 2014 about 14 to 15 days complainant did not take any step and no interest was shown, though bank reported that they are willing to give all sorts of help by supplying all documents and the reported the matter to the M/s. Pan Asia Logistics India Pvt. Ltd.
After proper considering of the entire materials, it is found that no doubt the document was lost from the op no.3 not from the bank, complainant did not file any application praying for sending the same by his choice able courier if any, so, bank as usual through their courier sent it and chance of loss of document cannot be predicted by any theorization because it is on transit, it is handled by different authorities, sea authorities, air authorities etc.If there is any fault that is fault on the part of the op no.3 but not the bank.But complainant cannot claim any such demurrage against op no.3 because complainant did not hire services from op no.3.
So, apparently no liability can be fixed upon op bank under any circumstances.Moreover as per Article-14 of Uniform Rules for Collection (URC 522), it is found that in respect of transmission of document or message etc.But any foreign country bank has also no liability or responsibility for the consequences arising out of delay or in transitof any messages, letters or documents or for delay, mutilation or other errors arising in transmission of any telecommunication or for errors in translation and/or interpretation of technical terms.When that is the uniform rule in respect of the Foreign Exchange, same is applicable to the complainant also because complainant took service of the bank accepting that rules regarding Foreign Exchange of document etc.
At the same time it is proved that the overseas buyers purchased cargo without any copy, without any objection or deduction and there is no such document produced by the complainant to show that complainant was asked by the overseas buyers to pay such amount as claimed by the complainant as demurrage and no document is produced by the complainant to show that deduction was made by the overseas buyer from his other account or anything.At the same time as per the letter of M/s. Pan Asia Logistics India Pvt. Ltd. ship landed on 13.05.2014 whereas it is reported by the complainant that ship arrived on 12.05.2014.
Most interesting factor is that cargo service is made a proforma op no.3.No doubt op no.2 hasadmitted the fact that the consignment was lost and in that case it was the duty of bank to start proceeding or to claim compensation from the op no.3, but complainant cannot claim it.So, this Forum cannot impose any penalty against op no.3 and in the above circumstances, when no complaint was lodged by bank against op no.3. There is no scope to grant any relief to the complainant against op no.3.
Whatever it may be after thorough study of the entire materials and relying upon the above findings, we are of the view that bank cannot be liable for such loss of document.The whole liability can be fixed against op no.3 but there is no complaint against op no.3.Truth is that bank did not take any action for such loss against op no.3 for that reason complainant cannot file such claim application against op no.3, except that no relief can be granted against op no.3.
Most interesting factor is that complainant has failed to produce any document or letter claiming any amount from the complainant by the overseas buyer.At the same time it is also proved that bank was always keeping touch with the complainant and also the cargo-ship including logistic ship of the foreign land asked the complainant to take such a step.But complainant was sitting idle from 15.04.2014 to 30.04.2014 because in the meantime complainant kept the fact in darkness to settle the matter with the logistic company but they did not respond for which ultimately complainant submitted the bank guarantee and that is the business of the complainant with the logistic company but Bank did not ask the complainant to submit bank guarantee.So, it is proved that bank was not liable for any reasons regarding loss or damage.Moreover we have minutely considered the document and it is found that complainant has miserably failed to prove that foreign buyer asked the complainant to pay that amount for delay etc.
On the contrary it is also proved that delay was caused for the complainant for not taking the matter immediately after 15.04.2015, though bank asked and requested the complainant to take alternative step and bank will help in all step.But complainant did not take any initiative and complainant was sitting idle for 16 days, thereafter submitted the same.
On critical appreciation of the entire materials and relying upon the above findings, we find that none has claimed any excess amount from the complainant for any letter or by any means and moreover complainant has failed to prove by any cogent evidence what is the incidental charges for getting delivery order from the shipping company against the said billand foreign buyers did not report it to the complainant.Then how foreign cargo services issued such paper?Practically all documents were collected by the complainantbut there is no document to show that foreign buyers deducted that amount from the total price of the said total consignment.
In the light of the above observation and considering the entire materials, we are convinced to hold that in reality for loss of the document, there is no liability on the part of the bank.Bank discharged their duties promptly.But complainant did not respond and as per the logistic company advice, he submitted the said bond and there was no prayer by the complainant, but complainant was sitting idle for 16 days from 15.04.2014 to 30.04.2014 when he was compelled by the logistic company he submitted the said bond, but before that 15.04.2014 op/Bank asked the complainant to do the needful and op/Bank assumed to help him and this is common practice of the foreign exchange business men who are continuing tradewith foreign countries and no doubt this transaction is a commercial transaction on the ground this sale is not sale to the consumers.But bulk goods were sold to foreign buyers and he is also a business men.Then this transaction is no doubt commercial transaction.Even if he runs a business or his business comes under the purview of any family business.But truth is that it is a commercial transaction.In this context it is to be mentioned that as per foreign rules any trade is continued by traders of different countriesas per common foreign trade rules same shall be treated as commercial transaction.In respect of that there must be a license issued by the Department of Commerce and Foreign Exchange Department and as per said foreign exchange rules all transactions in between any business men of India and purchasers of foreign country shall be treated as commercial transaction not domestic transaction.So, we are convinced that the present transaction is commercial transaction as per Foreign Exchange Rules and Foreign Trade Rules.
So, in the eye of law the present complaint is not maintainable as transaction is commercial transaction.Moreover no negligence and deficiency or adopting any unfair practice by the op/bank is proved by the complainant and in view of the above findings, this complaint fails.
Hence, it is
Ordered,
That the complaint be and the same is dismissed on contest against the op nos. 1 & 2 and as because no relief is claimed against the op no.3 and same is dismissed against op no.3.
