This consumer complaint was decided by this commission vide order dated 9th August 2011. However, the opposite party Punjab National Bank filed an appeal against this order being Civil Appeal No.11316 of 2011 before the Hon’ble Supreme Court and the Hon’ble Supreme Court vide it's order dated 13th February 2012 remitted the matter to this commission for deciding the complaint afresh by considering all the technical objections raised by the opposite party.

2.      Accordingly, the matter has been heard again. Recapitulating the brief facts, the learned counsel for the complainant has stated that the complainant is a Government of India enterprise and is engaged in supplying raw material to various industries. The complainant entered into an agreement dated 9th November 1992 with M/s Bassein Metals Private Limited (in short BMPL)for supply of raw material under the raw material assistance scheme of the complainant. The opposite party Punjab National Bank was the collecting bank for the complainant and after collection of money the same was to be sent to the account of the complainant through State Bank of India which was the letter of credit (LC) issuing bank.

3.      The complainant realized in the year 1998 that about 27 LCs sent to Punjab National Bank were not received by the State Bank of India along with other documents and the amounts were also not credited to the account of the complainant. These 27 LCs were for the amount of Rs.1,23,48,700/-. The complainant wrote the letter dated 7^th  October 1998 to the opposite party informing them that an amount of Rs.1,65,69,554/- as on 15th October 1998 is outstanding against the LCs sent to the opposite party for The purpose of negotiations. The complainant again sent later dated 28th December 1998 to the opposite party in respect of the LC's which were not received by the State Bank of India. The opposite party vide their letter dated 31st December 1998 informed  the complainant that the opposite party has taken up the matter with the State Bank of India and as soon as they receive the reply from the State Bank of India, the complainant will be informed. The complainant has alleged that there was no response coming from the Punjab National Bank and therefore again letters dated 20th April 1999 and 12th October 1999 were sent to the opposite party for crediting the amount of LCs equivalent to Rs. 2,27,70,616/- as on 31st December 1998. It is the case of the complainant that the complainant received for the first time a letter dated 22nd October 1999 wherein it was informed by the opposite party that they had earlier written letters dated 31st December 1998, 18^th  May 1999 and 3^rd September 1999. The copy of the letter dated 3^rd September 1999 was also enclosed and it was informed that the LCs were lost in transit by the courier company. The letter of courier company dated 29th July 1999 was also enclosed. The complainant has categorically denied receiving letters dated 18th May 1999 and 3^rd September 1999. The letter of courier revealed that these dispatches were dated 20th April 1998, 6th May 1998 and 29th May 1998, however, the information about their loss was given by the courier only on 29th July 1999. When the complainant got a clear reply from the opposite party that the LCs were lost in transit, it decided to file a complaint against the opposite party for deficiency in service and for crediting the amount of LCs to the account of the complainant.

4.      The learned counsel for the complainant has stated that the opposite party has raised the preliminary issues regarding limitation and complainant not being a consumer. The opposite party has also raised an issue of non-joinder of necessary parties the State Bank of India and BMPL. The learned counsel stated that the complaint has been filed on 3rd September 2001 as would be clear from the stamp of this commission on the file cover. It was stated that the cause of action arose only on 22nd October 1999 when the complainant received the letter dated 22nd October 1999 informing that the LCs had been lost in transit. Before this letter, the opposite party had only informed that they were pursuing the matter with the State Bank of India. When the complainant was repeatedly writing letters to the opposite party in respect of the non-receipt of payment of the LCs, it was incumbent upon the opposite party to have taken action to verify from the State Bank of India and from the courier. It is true that the complainant was apprehending some lapse on the part of the opposite party bank and therefore the complainant was corresponding with them, however, no clear answer was being given by the opposite party bank before the complainant received the letter dated 22nd October 1999 and therefore cause of action has to be considered only from 22nd October 1999 and not from any date of earlier letters written by the complainant to the opposite party.

5.      Coming to the objection of the opposite party that the complainant is not a consumer, the learned counsel for the complainant stated that the amendment in respect of the service came in the year 2003 and the present complaint was filed in the year 2001, therefore, the objection of the opposite party was not valid. Before this amendment, all kinds of services and all kinds of entities availing these services were covered under the Consumer Protection Act 1986.

6.      The learned counsel for the complainant stated that the State Bank of India and BMPL have nothing to do with the deficiency in service on the part of the opposite party bank and therefore, there was no need to make them a party in the complaint case. The complaint is only in respect of the loss of the LCs and non receipt of payment against them.

7.      Coming to the merits of the case, the learned counsel for the complainant has stated that the opposite party bank has accepted that the LCs have been lost at their end and therefore, the deficiency against the opposite party is clearly established. There is no force in the argument of the opposite party that they are not responsible for the loss of the LCs as the same have been lost in transit by the courier services. The courier company was engaged by the opposite party and the complainant had no privity of contract with the courier company. The fact is that in spite of writing so many letters by the complainant to the opposite party, the opposite party bank did not try to verify from the State Bank of India or from the courier about the LCs for which the payment was not received in the account of the complainant. The opposite party bank cannot shirk its responsibility on the ground that the LCs have been lost in transit by the courier company.

8.      On the other hand, the learned counsel for the opposite party bank stated that the complainant in the complaint has clearly stated that during the last quarter of 1998, they observed that payment in respect of certain LCs was not received in their account and then they wrote letter dated 7th of October 1998. The complainant again wrote letter dated 26th November 1998 asking the bank to credit the amount of the subject LCs. In their letter dated 20th April 1999, the complainant again wrote to the bank asking about the payment of the subject LCs and also stated that they would take legal action if the amount was not credited in their account. The learned counsel for the bank argued that these letters clearly indicate that the complainant was aware about the loss of the subject LCs and therefore, the cause of action actually arose in the year 1998 itself. The complaint has been filed on 3rd September 2001 as alleged by the complainant though the complaint has been registered as complaint No.35 of 2002 which gives an indication that the complaint must have been filed in the year 2002. The affidavit accompanying the complaint has been sworn on 16th October 2001 and therefore, it is not possible to file the complaint on 3rd September 2001. Be that as it may, the fact is that the complaint is highly barred by limitation as the complainant had the knowledge of the alleged deficiency in service on the part of the opposite party bank in the year 1998 itself.

9.      The learned counsel for the opposite party further stated that vide order dated 4^th April 2016, this commission asked to submit the details of the LCs lost along with their dates of expiry. The complainant submitted these details by way of an affidavit dated 28th May 2016. The chart submitted by the complainant reveals that six LCs were presented to the bank after the date of expiry or on the same day when it was expiring. Even the remaining LCs were submitted only two three days earlier than the date of expiry. Thus, it was not possible to collect the amounts for the 6 LCs and to remit the same to the account of the complainant. Also for other LCs, it was difficult to do so as the time was very short. In all likelihood, the LCs would have been only returned with these objections to the issuing bank. In this regard, the learned counsel for the opposite party stated that it was necessary for the complainant to have made the State Bank of India a party in the complaint case so that the position could have been verified from them. The complainant has also not made the BMPL a party in the present complaint. Thus, the complaint really suffers from the non-joinder of necessary parties.

10.    It was further argued by the learned counsel for the opposite party that article 14 of the uniform rules for collections (URC 522) specifically provides that bank assumes no responsibility for the consequences arising on account of loss in transit of any documents. It was stated that although in terms of article 14 of the URC 522, the collection instructions must indicate that the collection is subject to URC 522 which admittedly is not the position in the instant case, yet the significance of URC 522 cannot be ignored and the principle remains the same. Thus, no liability can be fastened on the bank for the lost LCs.

11.    An argument was also advanced by the learned counsel for the opposite party that this case involves complicated questions of fact as well as of law and therefore, this Commission is not competent to decide the present complaint as it would require voluminous evidence to be adduced by both the parties and a civil court would be the right forum for deciding the present complaint. in this regard, the learned counsel relied on the judgment of the Hon’ble Supreme Court in TRAI Foods Ltd. Vs. National Insurance Company & Ors., III (2012) CPJ 17 (SC), where the Hon’ble Supreme Court has held the following:-

“6.  The only question to be decided is, when should this jurisdiction be exercised by the Commission.  In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the Civil Courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy.  The Consumer Forums have been given the responsibility of achieving this object.  They were not meant to duplicate the Civil Court, and subject the litigants to delays which have become endemic in the Civil Courts.

7.  Although the reason given in the impugned order of the Commission for referring the present matter to the Civil Court is cryptic, we have been through the records filed before us and are satisfied that the Commission’s decision was correct.  There is no doubt having regard to the nature of the claim, the large amount of damages claimed, and the extensive inquiry into the evidence which would be necessary in order to resolve the disputes between the parties that this is not a matter to be decided summarily at all”

12.    The learned counsel for the opposite party bank also informed that the complainant in order to realize the amount of unpaid LCs, had entered into another agreement with the BMPL in January 1999 wherein the BMPL head executed a promissory note for a sum of Rs.2,83,70,700/- in favor of the complainant and had issued 2 post-dated cheques for Rs.90 lakhs and Rs. 1,77,80,849/- which on presentation were dishonored and therefore complainant has filed a criminal complaint under section 138 of the Negotiable Instruments Act. The complainant also filed a suit for recovery of the amount against the BMPL before the Hon’ble High Court of Bombay being  suit No.4441/2001. Thus, the complainant had fully safeguarded it's interest for the recovery of the amount against the unpaid LCs from the BMPL. Furthermore, right of the complainant to recover the loss suffered by it on account of the loss of documents has not been extinguished and in fact it can always recover the same from BMPL for which the complainant has admittedly already taken steps. Thus, in fact, the complainant has not suffered any loss due to loss of LCs. Consequently, the complainant is not entitled to any compensation from the opposite party.

13.    I have carefully considered the arguments advanced by the learned counsel for both the parties and have examined the record. Coming to the technical objections raised by the opposite party, it is seen that the cause of action actually arose on 22nd October 1999 when the complainant received this letter from the opposite party clearly stating that the LCs had been lost in transit by the courier company. It has been claimed by the complainant that letters dated 18th May 1999 and 3rd September 1999 were not received by the complainant. As the courier informed about the loss of the LCs only by letter dated 29th July 1999, therefore, at the most, the bank may have informed this fact to the complainant by their letter dated 3^rd September 1999. The complaint has been filed on 3rd September 2001 as brought out from the seal of this commission carrying this date on the cover of the file. It is true that the affidavit in support of the complaint has been sworn on 16th October 2001. The only possibility for reconciliation of these facts can be that the complaint may have been presented on 3rd September 2001 and the affidavit may have been appended later on. Clearly the Registry of this Commission has given number 35 of 2002 to this complaint which implies that the complaint was taken up for registration only in the year 2002. Now it is to be decided as to what should be the date of filing of the complaint. In my view, the date of filing of the complaint remains 3rd September 2001 as this seems to be the first date when the complaint may have been presented to the Registry of this Commission. Thus, if the complaint is filed on 3rd September 2001 and the cause of action has arisen either on 22nd October 1999 or on 3rd September 2001, there seems to be no delay in filing the complaint. Before 22nd October 1999 or 3rd September 1999, the complainant was only aware that something unusual had happened with the LCs at the level of the opposite party bank, but a specific cause of action had not arisen and the cause of action was only continuing till a proper response was sent by the opposite party bank which gave rise to the actual cause of action for filing the complaint.

14.    The learned counsel for the opposite party did not press the issue regarding complainant not being a consumer as the complaint was filed prior to the amendment in the Consumer Protection Act 1986 in 2003 when the exclusion for commercial purpose in availing the services was introduced. Thus, clearly there is no issue that the complainant is not a consumer.

15.    Coming to the question of State Bank of India and BMPL not being made the parties in the present complaint case, it is seen that the lapse had happened on the part of the opposite party bank only and the complainant did not want any relief from the State Bank of India or BMPL in this regard, therefore, the State Bank of India or BMPL cannot be considered as necessary party for the present complaint. Consequently, the complaint does not suffer from any defect of non-joinder of necessary parties.

16.    I also do not find any force in the argument of the learned counsel for the opposite party that the present matter involves complicated questions of facts and law and therefore, this Commission does not have the competence to decide the complaint and the same should be relegated to a civil court. In fact, the issue is quite simple and it relates to the deficiency in service on the part of the opposite party for the loss of 27 LCs. The basic facts are admitted by both the parties that the LCs were received by the opposite party and the same were lost in transit by the courier company. Thus, there is no dispute in respect of the facts. The consumer protection law is also now distinctly established and the complicated questions in respect of the consumer disputes are answerable within the ambit of the Consumer Protection Act 1986.The learned counsel for the opposite party has not referred to any complicated question of law in their arguments. Thus, the questions of facts and law involved in the present matter are answerable with the help of pleadings and evidence available on record. In taking this view, I am supported by the judgment of this commission in The Tax Publisher Vs. Chairman & Managing Director, UCO Bank and ors., FA No.106 of 2014, decided on 31.08.2017 (NC) wherein the following has been observed:-

“12.     In CCI Chambers Coop. Hsg. Society Ltd. (supra) the Hon’ble Supreme Court highlighted the same principle as enunciated in Dr. J.J. Merchant (supra) to determine the question whether adjudication on the issue arising in the Complaint require a detailed and complicated investigation of facts, incapable of being undertaken in a summary and speedy manner. It was observed that the decisive test is not the complicated nature of the questions of fact and law arising for decision – the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of detailed and complicated method of recording evidence.

13.     It is thus, well settled that the procedure prescribed under the Act for disposal of the Complaint is adequate to decide cases involving complicated questions of the law and fact as well albeit, the issues which, in the opinion of a Consumer Fora, cannot be decided without lengthy evidence, not envisioned under Section 13 of the Act.”

17.    There seems to be no merit in the argument of the learned counsel for the opposite party bank that there is no responsibility of the bank for lost LCs as the LCs have been lost by the courier company in transit and as per Article 14 of the URC 522, there is no liability of the bank in this regard. First of all, there is no privity of contract between the courier company and the complainant and therefore, complainant cannot raise any claim against the courier company. The complainant is a consumer of the opposite party bank for availment of service as collecting bank. Thus, whatever relief can be sought, it can only be sought from the opposite party bank. It is further seen that the universal rules for collections i.e. URC 522 has been framed by International Chamber of Commerce and these rules are mainly in connection with the collection of payments in the international business i.e. in respect of exports and imports. The opposite party has also admitted that these rules are not applicable until the instructions clearly state that these rules will be applicable and in the present case this is not the position, therefore, these rules are not applicable in the present case.

18.    The opposite party has also informed that a summary suit was filed by the complainant for recovery of the amount from BMPL before the Hon’ble High Court of Mumbai and there was another agreement signed between BMPL and the complainant in the year 1999 safeguarding the interests of the complainant wherein a promissory note was executed by the BMPL for an amount of Rs.2,83,70,700/-. Thus the complainant has already safeguarded it's due amounts including that involved in the subject LCs. Thus, the complainant has not suffered any loss due to loss of the LCs in transit. It is true that the complainant should have disclosed all these legal cases in the complaint or in subsequent pleadings, however, the fact is that the opposite party bank has not confirmed whether the complainant has received the payments from BMPL, rather, it has been mentioned in the written arguments that the two cheques which were taken by the complainant after the new agreement have bounced when they were presented for realization by the complainant. One thing is clear that the payment has to come from BMPL though the complainant has suffered due to loss of LCs by the bank and the complainant had to take multipronged steps including litigation to recover the amounts involved in the LCs from the BMPL which definitely involved money and time on the part of the complainant. Therefore, the complainant may not be entitled under this complaint to get the amount involved in the lost LCs, however, the complainant is definitely entitled to a compensation that should be commensurate with the sufferings that the complainant had to undergo in terms of pursuing various legal cases at different fora. At this juncture it is to be noted that when this Commission earlier passed the final order dated 9th August 2011 by directing the opposite party bank to pay Rs.6,00,000/-to the complainant, the complainant did not prefer any appeal against that order which indicates that the complainant was not expecting order in respect of the amount of the lost LCs. It means that either the amount of lost LCs has been recovered by the complainant or different proceedings are on for the same.

19.    From the above discussion, it is clear that the opposite party bank is guilty of deficiency in service in respect of the loss of the 27 LCs. As bank is not found liable to pay the amounts involved in the lost LCs, it does not matter whether the list of 27 LCs included some LCs which were either expired or were expiring on the day of presentation. Even those LCs have been lost which were valid for collection of amounts.

20.    On the basis of the above discussion, the complaint is partly allowed and the opposite party bank is held guilty of deficiency in service for loss of 27 LCs. The opposite party bank is directed to pay a consolidated compensation of Rs.12 lakhs ( rupees twelve lakhs only) for this deficiency in service to the complainant. This order be complied by the opposite party bank within a period of 45 days from the date of receipt of this order, failing which, the opposite party bank will pay this amount along with interest @7% per annum from the date of this order till actual payment.