Per Mr.Narendra Kawde, Member
[1] Both these complaints filed by the complainants separately against the opponents, State Bank of India alleging deficiency in service for not following the terms of Bill of Exchange to ensure delivery of consignment of goods. Complainants have claimed total compensation of Rs.12,67,000/- in CC/02/453 and Rs.17,82,300/-in CC/02/454.
[2] Both the complaints involve common question of law and identical question of facts. Hence, both these complaints are simultaneously disposed off by this order.
[3] Facts giving rise to file these complaints are summarized by the complainants as hereinunder:
Both the complainants are sole proprietor of the trading companies individually named as Nikita Exports and Shialesh Traders respectively. In both the complaint, complainants sent shipment of chana dal to Quandhar General Trading Co. located at Dubai, UAE of 40MT each in the month of March 1996. For the purpose of this deal, complainants availed the facility of Bill of Exchange for US$25,400/- in each case issued by opponent no.2 bank. Bill of Exchange was conditional to comply the requirements of proceeds within 45 days from date of issue. It is alleged that the opponent bank, though it was obligatory to return to the shipping company i.e. bill of lading in case drawee fails to pay entire amount of Bill of Exchange. Opponent allegedly failed to observe this condition and delivered the documents without obtaining the value of consignment from the consignee Bank. Consignee failed to settle the consignment price. Therefore, the complainants were put to loss. Hence, there is alleged deficiency in service.
[4] Opponent by filing written version denied the claims and contentions of the complainants. Opponents stated that Bill of Exchange was discounted by the opponent no.1 [branch] and complainant received the amount of Bill of Exchange in advance. Subsequently, opponent sent the Bill of Exchange to the drawee bank, however it was dishonoured for non-payment. Complainants have suppressed the material fact that the opponents have filed Special Civil Suit No.91/97 and 90/97 in the Competent Civil Court for recovery of amount of Rs.9,33,331/- and Rs.12,83,658/- each paid by the opponents against the discounted bill of exchange. It was submitted that these consumer complaints are counter blast to avoid recovery of dues payable by the complainants in each case to the opponent. Finally prayed for dismissal of consumer complaints being frivolous ones.
[5] Moreover, it is further averred that the cause of action occurred in the month of February 1996, when the complainant approached the opponent for drawing the Bill of Exchange. However, both these consumer complaints have been filed belatedly i.e. on 31/12/2002 i.e. after lapse of statutory period provided under the Consumer Protection Act, 1986. Bill of Exchange was “Usuance” documentary bill which means the bill payable within specific period and the documentary means bill accompanied by documents of title of goods such a railway permit, lorry receipt, bill of lading etc. This bill was not payable at sight, but it was an Usuance bill and was payable within 45 days from the date of acceptance. The drawee’s bank i.e.Habib Bank of the consignee handed over the documents of title to the drawee upon the acceptance of the bill. Habib Bank acted in accordance with the terms of the said bill while delivering the documents of title to the drawee. In absence of instructions to the opponents that documents of the title were to be given to the drawee against payment, contentions of the complainant are not at all tenable. Though the bill if exchange is having tenure of 45 days, complainant never instructed about handing over the documents of the title of goods to the drawee only after drawee makes payment.
[6] Opponent has also contended that the complainants have not made party to the drawee bank or drawee to these proceedings. On this count also, these consumer complaints are liable to be dismissed for non-joinder of necessary party.
[7] Further it is stated by the opponent that both these complaints are frivolous and filed only as a counter blast to the recovery suit by suppressing the facts. Since the discounted amount has already been released against the Bill of Exchange to the complainants and no payment whatsoever has been received by the opponents from the drawee’s bank, there can be no deficiency against the opponent and the complaint deserves to the dismissed as frivolous and vexatious u/s.26 of Consumer Protection Act, 1986 with the added cause as barred by limitation.
[8] Heard learned counsel Mr.Bhaskar Yogi for the complainant and learned counsel Mr.V.N.Abhyankar for the opponents. Perused the record and documents placed before us.
[9] Transaction of shipment for which facility of Bill of Exchange provided is not in dispute. From the face of the documents available in the record. Bill of Exchange amounting to US$ 25,400/- in each case was issued by the opponent bank on request of the complainants, which specifies condition of 45 days for making payment. Well within the stipulated period, opponent without waiting for receipt of amount from the drawee’s bank discounted the Bill and made the payment to each complainant is also not in dispute. Obviously, Complainants have suppressed the material fact that the opponents have filed recovery suit against them in competent civil court as no amount was received from the drawee’s bank against the payment made by the opponents in advance to the complainants. There is sufficient reason to infer that the complainants have not filed these consumer complaints to knock the doors of the State Commission with clean hands. Complainants, moreover, failed to adduce documentary evidence to demonstrate that the documents to title of goods were to be delivered only after receiving the entire amount of Bill of Exchange. . The Learned Advocate of the complainant could not pointedly demonstrate from the record to counter the argument of the opponents that the Bill of Exchange was Usuance documentary bill and any instructions contrary to the stipulations as alleged were issued for delivery of documents only after receiving the payment against the consignment.
[10] Complainants have failed to satisfy as to how these consumer complaints are within limitation from the date occurrence of cause of action accrued in their favour in the month of November 1996. The delay of approximately 1500 days from the date of cause of action has not been explained by submitting sufficient reasons, though there is application for condonation of delay filed in each case. We do not find any order to condone delay nor it is brought to our notice. Mere issue of notice and reply thereto amounting to correspondence between the parties would not extend the cause of action as presumed to be by the complainants on this ground alone, the complaints are not tenable. However, we are not going further into aspect of delay, but we do not find any merit in the complaints. Either complainant has not justified as to how the proceedings of recovery in civil suit between the parties were not revealed while filing the consumer complaints since the special civil suits were filed on 07/11/1997 much before knocking the doors of this Commission for invoking its jurisdiction. Opponents’ pleadings to treat these consumer complaints as counter blast to recovery civil suit and being vexatious one cannot be watered down.
[11] In view of the above, we have sufficient reason to believe that both this complaints have not been filed with bonafide intentions for invoking original jurisdiction of this State Commission. On the contrary, opponents have every reason to recover the amount paid against the Bill of Exchange in advance to the complainants for failure of re-imbursing the same from drawee’s bank. No deficiency can therefore be attributed against the opponents as we find opponents duly discharged their obligations to protect the pecuniary interest of the complainants in advance. These consumer complaints ought not to have been filed as complainants themselves were beneficiary under the arrangement of Bill of Exchange and not suffered any financial loss and especially they owed payment to opponents for failure of drawee’s bank.
[12] There is no valid reason as to why the complainant failed to make drawee’s bank and drawee as a necessary party to the consumer complaint for their failure to settle the dues.
[13] In view of this, we are of the opinion that fine quantified to Rs.10,000/- in each case for filing frivolous and vexatious complaints to consume the precious time of this Commission would meet the ends of justice especially opponents are entity under the domain of Govt. of India
[14] In view of the observations above, complaints deserve to be dismissed with fine quantified to Rs.10,000/- in each case payable to the opponents for dragging them in avoidable litigation. Hence, the order.
ORDER
- Consumer complaint no.CC/02/453 and CC/02/454 stand dismissed.
- Complainants to bear their own costs and pay Rs.10,000/- in each complaint [Rs.Ten Thousand only] to the opponents within period of 60 days from date of the order failing which interest @9% p.a.shall be payable on amount of costs imposed till ralisation.
- One set of the complaint compilation be retained and rest of the sets be returned to the complainant.
- Copies of the order be furnished to the parties free of cost forthwith.
Pronounced
Dated 17th July, 2015.
