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For Complainant          :             Sri Aswini K. Patnaik, Advocate & associates.

For OP No.1                    :             Sri Ashok Mishra, Advocate & associates.

For OP No.2                    :             Sri Sudhir Kumar Padhi, Advocate.

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1.                         The brief facts of the case of the complainant are that she is the Proprietor of M/s. Divya Rice Mill at Konga, Jeypore and is engaged in paddy procurement and custom milling activities under the direct supervision of OP.2 with bank guarantee of Rs.20.00 lacs and the said Bank Guarantee (herein after B.G.) of the complainant is with OP.1 bank stands as guarantor to the procurement activities.  It is submitted that the complainant participated in the paddy procurement in the year, 2014-15 KMS and was issued with 10775 Qtls of paddy.  Out of the above quantity of paddy, a stock of 3500 Qtls was damaged and remaining rice after processing was delivered to the OSCSC Ltd.  The OP.2 had insured the Govt. stock with National Insurance Co. Ltd., Jeypore which fact was not known to the complainant but however, she is the beneficiary to the said insurance.  It is further submitted that in the night of 17.09.2015 there was a fire accident in the Mill premises causing severe damage to the Government and Private paddy stocks besides plants and machineries and on the impact of fire and subsequent operation of fire brigade, all stock of paddy including 3500 Qtls of Govt. paddy decomposed due to fire and water soaking in the affected godown.  The complainant further submitted that the OP.2 is neither showing interest towards settlement of insurance claim in order to release the milling and transporting charges for KMS 2014-15 in favour of the complainant nor allowed the complainant to participate in paddy procurement for the KMS 2015-16 and 2016-17 in spite of repeated request.  With further intention to harass and frustrate the complainant, the OP.2 vide its letter dt.06.03.2017 directed OP.1 to release the B.G. in its favour.  However, the OP.1 has renewed the B.G. No.6769ILG000114 and extended up to 14.09.2017 in favour of OP.2.  After extension of B.G. up to 14.09.2017 the OP.2 in his letter dt.15.5.2017 again requested the OP.1 to revoke the B.G.  The complainant submitted that the OP.2 is the insurer of the Government stocks in the mill premises and after fire accident he is not showing any interest for settlement of claim and no milling and transportation charges have been settled by the OP.2 in favour of the complainant for KMS 2014-15 in spite of assurances from the complainant that she is duty bound to pay the Government dues out of insurance settlement amount but the OP.2 is taking stringent steps against the complainant.  Thus alleging deficiency in service on the part of the Ops she filed this case praying the Forum to direct the OP.1 not to release the amount of B.G. in favour of OP.2 till finalization of this case and to OP.2 to withdraw his request letter dt.15.05.2017 addressed to OP.1 for revoking BG and to pay Rs.10, 000/- towards costs to the complainant.

2.                         The OP.1 filed counter denying the allegations of the complainant and contended that OP.1 is the guarantor for procurement activities of the complainant with OP.2 and the OP.1 binds himself to pay a sum of Rs.20.00 lacs.  It is contended that as per request of OP.2 vide its letter dt.09.09.2016, the B.G. was extended up to 14.03.2017.  Further as per request of the customer and OP.2, it was extended up to 14.09.2017 but the complainant has not deposited commission amount of BG for which the OP.1 is unable to continue the BG.  It is also further contended that the present case is purely civil in nature and hence this Forum has no jurisdiction to entertain this case.  Thus denying any fault on its part, the OP prayed the Forum to direct the complainant to pay commission amount along with cost of Rs.20, 000/- to OP.1.

3.                         The OP No.2 filed counter denying the allegations of the complainant but admitted that the complainant being the Proprietor of M/s. Divya Rice Mill was engaged in paddy procurement and custom milling activities under OP.2 and was issued 10,775 Qtls of paddy on her participation in the 2014-15 KMS after a bank guarantee of Rs.20.00 lacs executed by her through OP.1.  It is also an admitted fact that the mill premises of the complainant was insured by OP.2 and the fire accident occurred in the premises on 17.09.2015 night.  It is contended that mill premises of the complainant was insured with NIC, premium being paid by Head Office of OP.2 and as per clause-23 of the agreement it is the responsibility of the complainant for safe and scientific storage of paddy, rice and Gunny bags and the OSCSC Ltd is not responsible for any damage or loss to the stock.  It is further contended that during KMS 2014-15 the complainant has given BG as security and the said BG will continue till last delivery of rice and in case of default, the OP.2 is authorised to realize the outstanding amount due against the custom miller.  It is also contended that the complainant has neither preserved the paddy stock as per Clause 24 (b) nor taken any step after the fire accident to process and dispose the partial damaged stock.  The complainant has also not taken any step to process the insurance claim but when the OP.2 attempted to en-cash the BG, the OP.1 with one reason and other revalidated it and the OP.2 is due a sum of Rs.51.00 lacs against cost of paddy of 3500 Qtls.  It is also further contended that the OP allowed the complainant to participate as custom miller for KMS 2016-17 but the complainant did not show any interest.  The OP submitted that the complainant has filed W.C. (c) No.6685/2017 and a Misc. Case No.1018/17 on 02.05.2017 with prayer not to release the BG by bank in favour of OP.2.  Further the OP.2 and its Head Office have taken steps for settlement of insurance claim but no step has been taken by the complainant to that respect.  Thus denying maintainability of this case and also denying any deficiency in service on its part, the OP prayed to dismiss the case of the complainant.

4.                         The parties have filed certain documents along with affidavits in support of their cases.  Heard from the parties through their respective A/Rs and perused the materials available on record.

5.                         In this case it is an admitted fact that the complainant is the Proprietor of M/s. Divya Rice Mill and is engaged in paddy procurement and custom milling activities under OP.2 by executing BG of Rs.20.00 lacs through OP.1.  It is a fact that the complainant participated in the procurement activities in the year 2014-15 and was issued 10775 Qtls of paddy out of which a stock of 3500 Qtls of paddy has been damaged by fire accident in the night of 17.09.2015 and the fact was intimated to all concerned.  It is also not a disputed fact that the complainant is yet to deliver the rice of 3500 Qtls of paddy to OP.2 due to damage in fire accident.  The case of the complainant is that she was not allowed to participate in the procurement of paddy during the year, 2015-16 by the OP.2 but on different point of time the OP.2 is insisting OP.1 to release the BG amount in its favour without releasing the milling and transportation charges in favour of the complainant for the year 2014-15.  It is the further case of the complainant that the OP.2 had insured the mill premises with NIC Ltd. but after fire accident OP.2 is not taking any interest for settlement of claim.

6.                         The OP.2 stated that the stock of Govt. paddy kept in the joint custody with M/s. Divya Rice Mill was insured with NIC Ltd. and the premium was paid by the OSCSC Ltd. as per agreement at Clause-23 and as per terms of agreement, it is the responsibility of the custom miller for safe and scientific storage of paddy, rice and gunny bags kept under joint custody, supplied by the Corporation.  During KMS 2014-15 after giving BG the complainant has lifted paddy as per agreement at clause-10.2 but the complainant has neither delivered the targeted levy rice due to fire accident nor interested for settlement of insurance claim.  It is further stated that the OSCSC Ltd. allowed the complainant to participate in the procurement operation through its letter No.1230/MD dt.03.12.2016 for the year 2016-17 but the complainant did not participate.  The OP.2 also has taken number of steps for settlement of insurance claim but the Insurance Co. has repudiated the claim on 24.4.2017.

7.                         From the above rival contentions of the parties, we are to see the agreement dt.26.12.2014 signed by the complainant and OP.2 for the KMS 2014-15 which is binding on both the parties.  In the Agreement at Clause-8 it is mentioned that the said agreement shall come into force w.e.f. the date of execution and shall remain in force till 31.12.2015 or till the entire CMR dues are delivered.  Clause-10.2 of agreement states that BG shall be valid up to 31.12.2015.

8.                         Clause-23 speaks about responsibility of the custom miller for safe and scientific storage of paddy and rice.  It is further revealed that the OSCSC Ltd. head office on behalf of custom miller shall take up standard fire policy of the stock with Nationalized Insurance Co.  as insurance against fire and allied perils for stocks.  The insurance premium shall be borne by the miller.  It is seen from the record that the stock of premises has been insured with NIC Ltd. by OSCSC Ltd.  Further Clause-24 (b) of the agreement shows that “The Custom miller shall be responsible for any damage/deterioration of the quality of paddy received due to unsafe and unscientific storage by the miller. The OSCSC Ltd shall not be held responsible for damage/loss of stock of OSCSC due to fire and other natural calamities.  In case of shortage, the Corporation shall recover cost of paddy and all expenses incurred or to be incurred along with interest thereon till the date of recovery.”

9.                         A plain reading of above terms of agreement it clear reveals that the custom miller is responsible for preservation of stock in a safe and scientific manner and the OSCSC Ltd. shall not held responsible for any damage/loss of stock due to fire and other natural calamities.  However, in this case allegation of unsafe and unscientific storage is not forth coming but due to short circuit, the fire accident took place causing damage to Govt. stock.

10.                       Now it is to be seen as to what steps have been taken by the OP.2 after fire accident.  It is seen from the record that the OP.2 has deputed its officers on 19.9.2015 to the mill premises where the fire accident occurred, who have submitted their report to OP.2 on the same day.  The OP.2 on 22.9.2015 has intimated to the M. D., OSCSC Ltd. regarding fire accident in the mill premises of the complainant and the M. D. in turn on the same day has intimated the fact to NIC Ltd.  Further a number of request letters have been sent by OP.2 and its head office to the Insurance Company for settlement of claim but on 24.4.2017 the claim was repudiated by the Insurance Co.  After such repudiation, the OSCSC Ltd has requested the Insurance Co. in its letter dt.17.5.2017 & 24.7.2017 to reconsider the claim.  From the above facts, it was clearly ascertained that the OP.2 and its Head Office has tried their level best as co-insured for settlement of claim in favour of the complainant.

11.                       It is further seen from the record that the OSCSC Ltd. has allowed the complainant to participate in procurement operation for KMS 2016-17 but it is not understood as to who prevented the complainant to participate in the said operation.  The complainant submitted that she had prayed the OP.2 to allow her to do the business with existing BG but the OP.2 did not allow.  In this context, it can be said that both the parties are to perform as per terms of agreement and this Forum is nothing to say to that effect.  It is also the duty of OP.2 to bend upon for taking steps for realization of Government money and also to take up follow up action for settlement of insurance claim.

12.                       Agreement is an arrangement, a promise or a contract made between the parties and they are bound by the terms of such agreement.  It is a settled principle of law that no court can make a new contract.  The parties are bound by the terms of agreement and nobody is permitted to get away from the terms of agreement.

13.                       In the above premises, deficiency in service on the part of Ops has not been proved anywhere and hence the complaint petition fails which deserves to be dismissed.  In the result, we dismiss the case of the complainant but without costs in the peculiar circumstances of the case.

(to dict.)