Haryana

StateCommission

CC/85/2015

E.G.PHARMACEUTICALS - Complainant(s)

Versus

STATE BANK OF PATIALA - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

06 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Remand Complaint No: 85 of 2015

Complaint No.17 of 2009

Date of Institution:26.03.2009/28.05.2015

Date of Decision: 06.01.2017

 

E.G. Pharmaceuticals Village Mandala (Bhaguwala) Pinjore, Baddi Highway, Tehsil Kasauli, District Solan, Himachal Pradesh, through its Partner Lokesh Sharma having General Power of Attorney. 

                                      Complainant

Versus

1.      State Bank of Patiala through its AGM, Sh. K.D. Vashishst SCO No.99-107, Sector 8-C, Madhya Marg, Chandigarh.

2.      Chief Manager Vinod Pathak, State Bank of Patiala, SCO No.3-A, Madhya Marg, Sector 7-C, Chandigarh.

3.      Manager Satish Kumar Negi, (C&I) State Bank of Patiala, SCO No.3-A, Madhya Marg, Sector 7-C, Chandigarh.

4.      Punjab National Bank, SCO No.1 to 3, Sector 28, Chandigarh through its Chief Manager.

5.      IND Swift Ltd. through its V.P. (Commercial) Gaurav Aggarwal, 781, Industrial Area, Phase-II, Chandigarh.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

 

Argued by:          Shri Lokesh Sharma-authorised representative e on behalf of Complainant.

                             Shri S.C. Thatai, Advocate for Opposite Parties No.1 to 3.

                             Ms. Neelam Chaudhary, Advocate for Shri R.S. Badhran, Advocate for Opposite Party No.4.

                             None for Opposite Party No.5.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          E.G. Pharmaceuticals, a partnership firm-complainant has filed the present complaint alleging deficiency in service against Opposite Parties No.1 to 3 with the allegations that Ind Swift Limited-Opposite Party No.5 placed an order for supply of two lacs AGIZone injections and one lac CAFZ injections with the complainant. The complainant is engaged in manufacture and sale of medicines. The payment was to be made by the opposite party No.5 by opening a Letter of Credit (for short ‘the LC’) (Exhibit C-7) with Punjab National Bank-Opposite Party No.4 with a limit of Rs.26,86,600/-. The complainant supplied the medicines vide invoice Exhibits C-1 and C-2, valuing at Rs.24,17,940/- and Rs.2,68,660/- total valuing Rs.26,86,600/-. The goods were delivered through goods receipts Exhibits C-3 and C-4 and the certificates of delivery (Exhibits C-5 & C-6) were given by the transporter. The complainant approached for opening current account with opposite party No.3, Branch Office of Opposite Party No.1. The Opposite Parties No.1 to 3 credited the discounted amount of LC of Rs.25,98,946/- on 12.09.2008. It was submitted that on 14.05.2009 the opposite parties No.1 to 3 debited a sum of Rs.26,86,600/- by adding interest of Rs1,37,789/- from the date of credit till the date of debit unauthorizedly. It was submitted that the opposite parties No.1 to 3 debited the amount stating that the opposite party No.4 did not honour the LC and wrote letter dated 27.10.2008 to the opposite parties No.1 to 3 intimating that Ind. Swift Limited-the purchaser of LC has intimated that the goods supplied by the complainant had failed to quality test and thus rejected the same, besides the LC expired on 05.10.2008 and was presented after the date of expiry. Pursuance thereto, the opposite parties No.1 to 3 wrote a letter to the complainant intimating that since the opposite party No.4 had refused to honour the LC, therefore, the complainant should deposit the amount with interest. Submitting that since the opposite parties No.1 to 3 have purchased the LC by giving discounted amount during the subsistence of LC and unauthorizedly debited the amount with interest and submitting the same to be deficiency in service filed the complaint seeking directions to the opposite parties No.1 to 3 to refund the amount debited in its account.

2.                Notice being issued, the opposite parties contested the complaint. Opposite Parties No.1 to 3 in their joint written version stated that as per terms of LC, the amount was claimed by the PNB, so the opposite parties No.1 to 3 are bound to remit the same by debiting the amount to the account of the complainant. The opposite parties have acted as per terms by debiting the amount in the account of the complainant. Denying the allegations of the complainant, it was prayed that the complaint be dismissed.

3.                Opposite Party No.4 – Punjab National Bank in its separate written submission took the plea that the complainant firm has no legal entity and there is no proper power of attorney in favour of the complainant to file the present complaint. However, it was admitted that LC was opened by the opposite party No.4 on 25.08.2008 in favour of the complainant on the request of Ind Swift Limited. It was further stated that as there was no privity of contract between the complainant and the opposite party No.4, therefore there was no legal obligation on the part of the bank. It was admitted that the LC had expired on 05.10.2008. As per condition No.15 of the LC, the bill of exchange was to be got accepted from the opposite party No.5 by the complainant before being presented for payment but the complainant did not comply with this condition of LC, so the opposite party No.4 was not liable to pay any amount. The document under the credit in the present were received on 23.10.2008 and as the documents were not in terms of the credit issued, the claim was rejected vide letter dated 27.10.2008 by the opposite party No.4 and the same was done within the stipulate time frame under UCPDC.

4.                Opposite Party No.5 – Ind Swift Limited, in its written version stated that the complainant is seller of goods and not the purchaser of goods, so as per Section 2(1)(d) of the Consumer Protection Act, 1986 seller-complainant does not fall within the definition of “consumer”.  Moreover, the complainant sold the goods to the opposite party No.5 and the opposite party No.5 had to further sell the goods, therefore commercial transaction was involved in the present case. It was admitted that LC was issued by the opposite party No.5 in favour of the complainant for the assurance of amount of Rs.26,86,600/-. LC was issued on 25.08.2008 and same was valid for 90 days, that is, up to 05.10.2008, that is, the date of expiry. The complainant has already been paid Rs.20,00,000/- by the opposite party No.5.  Thus, denying the allegations of the complainant, it was prayed that the complaint be dismissed.

5.                Parties led evidence in support of their respective claims.

6.                Earlier this complaint was dismissed by this Commission vide order dated 23.01.2013. First Appeal bearing No.261 of 2013 being filed before Hon’ble National Commission, the order passed by this Commission was set aside and the case was relegated to the board of the State Commission for adjudication on merits.

7.                Counsel for the parties have been heard. File perused.

8.                There is no denying fact that the complainant supplied goods in the shape of injections to the opposite party No.5. It has also not been denied that the opposite party No.5 opened a LC (Exhibit C-7) with opposite party No.4 to the extent of Rs.26,86,600/-.

9.                Lokesh Sharma-complainant appearing as his own witness submitted that the goods were supplied vide invoices Exhibits C-1 and 2 and same were sent through transport vide goods receipts Exhibits C-3 and C-4. The delivery of goods was received from the transporter vide receipts Exhibits C-5 and C-6. The complainant firm opened a bank account with Opposite Party No.3- Branch Office of opposite parties No.1 and 2. Though LC was for Rs.26,86,600/-, however opposite party No.3 credited a sum of Rs.25,98,946/-, having purchased the LC on 12.09.2008. LC is on the file as Exhibit C-7. Its date of expiry is 05.10.2008, though as per opposite party No.4 it was lodged after 05.10.2008. The refusal by opposite party No.4 is dated 27.10.2008 (Exhibit OP1/4). State Bank of Patiala got issued notice to Punjab National Bank-Opposite Party No.4 vide Exhibit OP-1/6, which was replied by PNB vide reply Exhibit OP-1/7 reiterating that the LC was valid upto 05.10.2008 while the claim was lodged after the date of expiry. Therefore, PNB was within its right to dishonour the same.

10.              Opposite Party No.5 – Ind Swift Limited in its written version raised a specific plea that it had paid Rs.20.00 lacs to the complainant after negotiations and settlement. The Opposite Parties have also placed on the file Statement of Account of complainant showing credit of Rs.20.00 lacs in account of complainant on 28.08.2009. The complainant who is present in person during the course of arguments though admitted having received Rs.20.00 lacs on 28.08.2009, however tried to explain that it was on account of some different transaction however he was unable to correlate any other transaction against which the complainant may have received the amount of Rs.20.00 lacs. No rejoinder was filed by the complainant to the written version filed by the opposite party No.5 that this payment pertained to some different transaction. Not only that, the complainant in his evidence also did not state a word that the amount of Rs.20.00 lacs stated to have been paid by the opposite party No.5 was on account of some different transaction. Prem Kumar Batra-Manager State Bank of Patiala tendered his affidavit into evidence and specifically stated in para No.14 of the affidavit that the complainant has received the entire amount from opposite party No.5. He was not cross-examined by complainant on this point. Thus, the fact stated in examination-in-chief, which is in the shape of affidavit, and not cross-examined would be deemed to have been admitted. So, it is held that the entire payment has been received by complainant. Therefore, since complainant has received entire payment, the complaint is liable to be dismissed.

11.              There is another aspect that the complainant in his complaint has prayed relief only against State Bank of Patiala. He has not sought any relief against Punjab National Bank or opposite party No.5, to whom the goods were supplied. No reason has been given in this respect.

12.              In view of the above, the complaint is dismissed. However, no order as to costs.

 

 

Announced: 06.01.2017

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL