JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The complainant, which is in the business of manufacturing hand-knitted woolen carpets received an export order for export of 28 rolls of woolen carpets to an overseas buyer namely, M/s. Designer’s Collections. This was followed by another export order from the same buyer, for export of 32 rolls of Indian hand-knitted carpets. The consignments were to be delivered at Hamburg in Germany. The complainant hired the services of the appellant, Brig Cargo International, which is a Clearing & Forwarding Agent, for the purpose of facilitating the shipment of the aforesaid goods. The appellant availed the services of the shipping line namely Dolphin Container Line which was operated by Transea Shipping Agency Pvt. Ltd., opposite party No.3 in the complaint. The bills of lading, called multimodal transport document were issued by Dolphin Container Line, describing the complainant as the consigner/shipper. The consignee was described as ‘unto – order’ in the said bills of lading. The address to be notified by the container line was of the overseas buyer namely, M/s. Designer’s Collections, Germany.

2.      The case of the complainant is that after the shipment of goods, the Bills of Lading were sent by it to the banker of the foreign buyer through its banker, M/s. Punjab National Bank. The overseas buyer had to collect one set of the Bills of Lading from the foreign bank after payment of the invoice value to its bank. Thereafter, the foreign bank was entitled to take delivery of the cargo from the warehouse of the shipping line at Hamburg. The foreign bank was expected to debit the amount of the invoice to the account of the foreign buyer and inform the Punjab National Bank, which was to credit the aforesaid amount to the account of the complainant. This is also the case of the complainant that it did not receive any intimation/advise from Punjab National Bank with respect to the payment of the aforesaid goods and on inquiry came to know that the bills had been returned unpaid to Punjab National Bank, having not been retired by the overseas buyer by making payment to the foreign bank.

3.      A letter dated 22-06-2001 was addressed by the foreign buyer to its local agent Mr. B. Verma, informing that due to very poor market and poor connections they were not in a position to pay the bills in question on due date and that the same would be paid before 21-05-2001. Vide aforesaid letter the overseas buyer also undertook to bear the storage and demurrage charges. Mr. Verma was impleaded as opposite party No.4 in the complaint.

4.      When the complainant took up the matter with the appellant, he was informed, vide letter dated 27-03-2002 that the inquiry with the shipping line had revealed that the shipment had been delivered in December, 2000, against the original bill of lading.

          The contention of the complainant is that it had received only three originals of the Bill of Lading and all the three originals were sent to its banker and, therefore, there could be no question of the consignment having been delivered against the original Bill of Lading. The case of the appellant on the other hand is that there were as many as four originals of the Bill of Lading. Attention is drawn to the letter dated 13-10-2000 written by the complainant to the appellant, requesting the appellant to arrange to issue four original of the Bill of Lading as per the requirement of its consignee and agent. The attention is also drawn to the copies of the Bill of Lading available on pages 68 and 69 of the paper book which clearly shows that as many as four original of the Bill of Lading were issued by Dolphin Container Line. The learned counsel for the complainant, on the other hand, refers to the letter dated 18-10-2000 written by the appellants to the Manager, Punjab National Bank, which contains reference to three and not four originals of the Bill of Lading.

5.      A conjoint reading of the aforesaid documents indicates that in fact four original of the Bill of Lading were prepared though only three out of the four were sent to the Manager, Punjab National Bank alongwith the letter dated 18-10-2000. The learned counsel for the appellants submits that in fact this letter was prepared by them on the instructions of the complainant and it was the complainant which had transmitted the said letter to the bank along with the originals of the Bill of Lading. Be that as it may what is relevant is that there were four originals of the Bill of Lading and since according to the complainant only three originals of the Bill of Lading were sent to the bankers, the fourth must have remained with the complainant. Hence, there are two possibilities in the matter. The first possibility is that Dolphin Container Line delivered the consignment to the overseas buyer without taking the original Bills of Lading from it whereas the second possibility is that the complainant itself had transmitted the fourth original of the Bill of Lading to the overseas buyer and taking advantage of that the overseas buyer took delivery of the consignment on the strength of the said original of the Bill of Lading.         Since this is not the case of the complainant that it had retained the fourth original with it, there is a strong probability of the fourth original having been sent by it directly to the overseas bank and the same having been utilized by the overseas buyer for the purpose of taking delivery of the consignment from the shipping lines.

6.      The learned counsel for the petitioner has also drawn my attention to para No.7 of the complaint wherein it is clearly stated that the shipping line has prepared four originals of the Bill of Lading one set of which was meant for the complainant which he subsequently received. This Bill of Lading has the ‘First Original’ printed on the top of it and a photocopy of the same is Annexure No.4 to the complaint.

7.      The next and more important question in this case is that assuming that the shipping lines i.e. Dolphin Container Lines delivered the consignment to the overseas buyer without taking any original of the Bill of Lading, the deficiency in providing the service would be of the shipping line and not of the appellant which was merely a custom clearing and forwarding agent. Section 146 of the Customs Act provides for licensing of the custom house agents. Sub-Section (1) of Section 146 A entitles a person to appear before an officer of custom officer or appellate tribunal, through an authorized representative. Section 146 A (2) of the Customs Act, inter alia, provides that authorized representative means a person authorized by the person referred to in Sub-Section (1) to appear on his behalf, he being a customs house agent licensed under Section 146. It would, thus, be seen that a custom house agent is the authorized representative of a person who engages himself for the purpose of representing him before the custom authorities. Admittedly, the appellant before this Commission was engaged by the complainant. Therefore, it was an agent of the complainant and not of the overseas buyer or even of the shipping lines. Hence, the complainant cannot be said to be a consumer of the appellant. Moreover, even if it is assumed that the complainant had engaged the service of the appellant for the purpose of handling the custom clearance and shipment of the goods, no deficiency in the services provided by the appellant to the complainant has been made out. The duty assigned to the appellant was to engage a shipping line and deliver the goods to the shipping line for being shipped to an overseas destination. This is not the case of the complainant that the goods were not handed over to the shipping line for being shipped to Germany. The case of the complainant rather is that the goods were shipped to Germany and were delivered by the shipping line to the overseas buyer without any instructions from the complainant and without taking any original of the Bills of Lading from him. Thus, even according to the complainant this was a case of deficiency in providing services by the shipping line and not by the appellant before this Commission.

8.      The learned counsel for the appellant had also drawn my attention to the provision of the Multimodal Transportation of Goods Act, 1993. Section 2 M (II) of the said Act which defines multimodal transport operator to mean any operator to act as principal and not an agent either of the consignor or of the consignee or of the career, participating in the multimodal transportation. Thus, being an agent of the complainant, the appellant before this Commission cannot be said to be a multimodal transport operator within the meaning given in the aforesaid Act. This is also pointed out by the learned counsel for the appellants that the Bills of Lading issued on the instructions of the complainant were negotiable multimodal transport documents, since they were made to order and did not indicate the name of the consignee. The contention is that taking advantage of the shipping bill being a negotiable multimodal transport document, the overseas buyer took delivery from the shipping lines using one of the four originals of the Bills of Lading which were provided to the complainant, the three originals having been sent to the bank and one having been sent by the complainant to the overseas buyer.

9.      For the reasons stated hereinabove, I am of the considered view that no case of any deficiency in providing service by the appellant has been made out in this case, even if its assumed that the complainant did not send any original of the bill of lading to the overseas buyer, though the facts and circumstances of the case do suggest a strong probability of the complainant having received four originals of the bill of lading and having sent one of them to his banker.

10.    The impugned order to the extent it is directed against the appellant before this Commission is hereby set aside. In the facts and circumstances of the case, there shall be no order as to cost.          The First Appeals are disposed of. The statutory deposit of Rs.35,000/- which the appellant has made with this Commission be returned to the appellant along with interest, if any, which may have accrued on the said deposit.