Shri Inderjit Kaushik, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member...

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1 FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.1437 of Date of Institution: Date of Decision: M/s Chaman Lal Setia Export Limited, Company incorporated under the Indian Companies Act, 1956 with its Regd. Office At Meerankot Road, Amritsar, through its Director Sh. Rajeev Setia S/o Sh. Chaman Lal Setia, Resident of 344-A, Green Avenue, Amritsar. Versus..Appellant. 1. Export Credit Guarantee Corporation of India Limited, Regd. Office Express Tower, 10 th Floor, Nariman Point, Mumbai through its Chairman/ Executive Director. 2. Export Credit Guarantee Corporation of India Limited, Suryakaran Complex, 92, The Mall, Ludhiana through its Branch Manager. Respondents. Before:- First Appeal against the order dated of the District Consumer Disputes Redressal Forum, Ludhiana. Shri Inderjit Kaushik, Presiding Judicial Member. Shri Vinod Kumar Gupta, Member Present:- Sh. Sandeep Khunger, Advocate, counsel for the appellant. Sh. Pawan Kumar Mutneja, Advocate, counsel for the respondents INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:- M/s Chaman Lal Setia Export Limited, appellant/complainant (In short the appellant ) has filed this appeal against the order dated passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short the District Forum ). 2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, the Act ) against

2 First Appeal No.1437 of the respondents/opposite parties (hereinafter called as the respondents ), on the grounds that the appellant company is a registered company and is carrying on the business of manufacturing, Trade and Export of different varieties of Rice and is recognized as one star Trading House vide certificate No dated and is exporting Rice to many parts of the world, such as Middle East countries, Singapore, Europe, America, Canada & Australia. Sh. Rajeev Setia, Director is well conversant from the facts of the case and is competent to file the complaint. 3. Respondent no.1 is Export Credit Guarantee Corporation of India Limited (hereinafter called ECGC ). The ECGC has its branches scattered throughout India and one such branch is located at Ludhiana and respondent no.2 is sued through its Branch Manager. The ECGC is floated by Govt. of India with a view to encourage export from the country by providing Export Credit risk coverage policies of different kinds and suitability Exporters from India. The exporter pays premium for insurance of credit risk coverage to ECGC and standard or comprehensive or other policies are issued to exporters and the exporter has to obtain individual buyer credit limit from the ECGC for its respective buyers and the credit risk is covered as per the terms and conditions of the sanctioned limit of the buyer. Once insured, the exporter has to file the monthly returns, stating the export during the month in prescribed format along with premium before 15 th day of the following month. There is another product called Export Factoring Agreement offered by ECGC and under this scheme, agreement is entered between the exporter and ECGC. The credit risk coverage is non-recourse to exporter and risk coverage is to the extent of 100% as against 90% in case of normal ECGC policy. 4. The appellant obtained the whole turnover Standard Policy from respondent no.1, excluding letter of credit business for all its Overseas Buyers, except one for whom the appellant had Factoring Agreement with respondent no.1, namely Basmati Rice GmbH (Europe) (hereinafter called

3 First Appeal No.1437 of the Buyer ). The appellant company entered into Factoring Agreement No.FACT/0001 dated with respondent no.1 by paying setting up charges of Rs.10,000/- which was renewed vide fresh agreement dated The Factoring limit of Rs.250 lacs was set up for the buyer and the buyer was notified as approved debtor under the agreement. 5. The appellant company had Export Contract dated for supply of unpolished Indian Basmati rice at USD: 620 pmt CIF for 1500 tons with buyer Basmati Rice GmbH (Europe), Germany. The appellant company was regularly shipping rice to the said buyer with payment term 120 days DA from the date of bill lading and was regularly getting payments on due dates. As per the Factoring Agreement, the appellant company was filing Factoring returns shipment wise with respondent no.2 along with premium for all shipments to the said buyer after tendering the complete set of documents to its bankers Punjab National Bank, IBB, The Mall, Amritsar, for collection. 6. The appellant company shipped nine containers under the contract vide its invoice nos.4408 for USD 29060/-, 4409 for USD 39060/- & 4431 for USD 41850/-. All containers were stuffed at the premises of appellant company in Amritsar, taking all due precautions. The rice of the appellant was being shipped to the above buyer and was examined by the Expert Inspection Agency Office, Jalandhar, a department under Ministry of Commerce, who issued certificate of authenticity of Basmati quality which entitles the foreign buyers to claim duty abatement in Europe. The certificate so issued is given as per the quality specifications prescribed by Ministry of Commerce, including colour appearance, purity, smell, size of the grain, free from foreign matters etc. 7. A Bill of Lading dated for nine containers was issued earlier, but the container numbers were incorrectly mentioned in the Bill of Lading which had to be got corrected and after correction, the same were received by the appellant on or before 9/10 th April, The nonnegotiable set of documents was sent to the Buyer vide letter dated

4 First Appeal No.1437 of , but before the appellant could tender the full set of documents complete in all respects to its banker i.e. Punjab National Bank, IBB, The Mall, Amritsar, for collection, there was a mail from the Buyer which is reproduced as under:- Monday, April 11, PM Sub: Re. Attn. Mr. Setia Dear Rajeev You should reconsider the way you are handling this matter. We are not going to accept the documents of the 9 containers until you have solved the problem. All the losses will be charged to you and you are concerned about the SGS charges?! I hope we can avoid a heavy court case, so reconsider and then act. Best regards Masoud pajouh 8. The above mail was due to the reason that some rice shipped earlier had awful smell and the Director of the appellant company was insisted to come over to Stockholm, Sweden and Germany, to resolve the problem. The Director of the appellant applied for visa to Germany Embassy, but the same was declined vide letter dated by the Germany Embassy. The appellant company deputed the Crawford & Company, Stockholm, Authorized Settling Agents of the New India Assurance Co. Ltd. to visit the premises of Svensk Risimport, Jafaralla, Stockholm to conduct the survey. Necessary fee was paid and as per the survey report dated , there was no rice consignment alleged to have been damaged available for examination. The buyer was entitled to claim for the alleged loss, if any, had he got the rice examined at the pint of discharge/delivery at port of destination, but by removing the rice therefrom the buyer failed to substantiate his complaint and made payment ultimately on due date of the said consignment.

5 First Appeal No.1437 of Without taking any further risk, the appellant company on reading the mail of the Buyer dated , and keeping in view the huge financial involvement, decided to recall the consignment of nine containers back from the transit and fax dated was sent to the shipping company and called back the nine containers to India, while in transit at Singapore which finally arrived at the factory premises through ICD, Chehharta, District Amritsar. 10. The mail dated of the Buyer was a wrongful refusal by the Buyer, an approved debtor to accept delivery of the goods shipped to him by the appellant company and it amounted to unilateral, arbitrary repudiation of the contract on the part of the buyer. The repudiation of the contract is one of the insured perils under the Factoring Agreement. The advice was also sought from respondent no.2 as to what should be done in the circumstances. 11. The appellant company vide its letter no.sel/3075/2005 dated filed the factoring return under the agreement with premium thereon amounting to Rs.1,14,812/- vide cheque no dated drawn on ICICI Bank Limited, Lawrence Road, Amritsar. This return was accepted by respondent no.2 without any objection and respondent no.2 also got encashed the cheque and at the time of encashing the cheque, the respondents were well aware of the fact of recalling the containers/consignments in pursuance of wrongful repudiation of the contract by the buyer/approved debtor, as apprised vide letter dated and reiterated vide letter dated The respondents firstly accepted the return and got the cheque of the premium encashed, but on a second thought replied vide their letter dated that as per clause-31 of the Factoring Agreement, every receivable must be notified immediately upon shipment and Factoring Charges must be paid thereon. It was also asked from the appellant as to why the Buyer had refused to take the delivery of nine containers covered under invoice nos.4408, 4409 and It was

6 First Appeal No.1437 of further mentioned in the letter that for want of notifying the receivables in time, respondent no.2 was returning the factoring charges of Rs.1,14,812/-. This stand taken by respondent no.2 was illegal and unjustified. 12. The appellant never accepted the return of the premium of the premium and till date, the cheque of respondent no.2 drawn on Canara Bank, Ludhiana is lying un-encashed with the appellant. The appellant through various letters, communications, telephonic conversations including by personal meeting, pursued the claim for reimbursement of actual expenses incurred on the shipment under the valid contract and after repudiation of the contract by foreign Buyer, but without any result. Vide letter dated , the respondents repudiated the claim invoking clauses 3.1, and of the factoring agreement. The appellant vide letter dated requested to review the decision, but the respondents informed vide letter dated that on reconsideration, they did not find any reason to revise the earlier decision. The said repudiation is illegal. The appellant company in the past has been filing the factoring returns since September, 2002 for all shipments made to the Foreign Buyer Basmati Rice GmbH (Europe) Germany on whom factoring limit of Rs.250 lacs is granted by respondent no.1 and about 49 shipments were made to the Foreign Buyer and a sum of Rs.18,44,634/- was paid towards premium under the factoring agreement to the respondents. Nothing was concealed by the appellant company and the repudiation was wrongfully made and the claim of the appellant under the factory agreement amounting to Rs.18,26,881/- was not accepted. 13. It was prayed that the respondents may be directed to pay a sum of Rs.18,26,881/- on account of freight and shipment expenses for despatch and calling back the shipment from transit at Singapore, Rs.50,000/- on account of compensation on account of mental agony and harassment suffered by the appellant, along with 18% p.a. and to pay costs of litigation.

7 First Appeal No.1437 of In the written version filed on behalf of the respondents, preliminary objections were taken that the appellant has not annexed any document on which it intended to place reliance. 15. The present complaint arises out of the Factoring Agreement dated As per the said Factoring Agreement, the service provider under the said agreement is specifically excluded U/s 2 (d) (ii) of the Act. In the present case, ECGC had provided non-recourse Maturity Export Factoring service under which the appellant was given the benefits of full factoring services through a Maturity Factoring Scheme effectively addressing the needs of the appellant to avail of pre-finance of the receivables for their working requirement which enable them to increase the turnover of their business. Under the said agreement, the appellant used to submit the export documents to its bank (referred to as Designated Bank in the agreement) for collection and take advance against those bills which were given to the appellant on the strength of inbuilt guarantee of the respondents under the Factoring Agreement, to pay to the bank the amount of bills if the same remained unpaid at the time of maturity. Thus, the very purpose of availing this service was commercial in nature and the appellant is not a consumer under the Act. 16. The respondent ECGC of India Limited is a fully owned Govt. Company, established with a view to promote exports from the country by providing export credit insurance to the Indian Exporters through its various products. One of such products of the respondents is Maturity Export Factoring. Under this scheme, exporters enter into an agreement with the respondents whereby they offer all their notified receivables to the respondents. Against all their notified receivables, they are allowed to avail 100% pre-finance (advance) from their banks. All such advances are guaranteed by the respondents. In case of non-realization of any of the notified receivables on its maturity due to any of the insured perils provided in the agreement, the same is paid by the respondents to the bank.

8 First Appeal No.1437 of The appellant on affected a shipment to M/s Basmati Rice GMBH, Germany an overseas buyer. On the basis of threatening mail from the buyer on , the appellant recalled the shipment on The perusal of the mail dated shows that the buyer had some dissatisfaction from the contact performance by the appellant and threatened non-acceptance of the documents for the shipment under transit unless his grievance was attended. It was admitted by the appellant that there was a complaint from the buyer and none of the bills were dishonoured by the buyer. None of the insured perils in Clause 1.1 (15) of the Factoring Agreement covers loss occurring due to recall of shipment due to any complaint by the buyer for the goods earlier supplied. In fact, recall of shipment instead of making efforts to resolve the dispute is repudiation of the contract by the appellant himself which is not an insured peril under Clause 1.1(15). The shipment never reached the port of destination and the documents were never presented to the buyer for the acceptance. Once the documents were never presented to the buyer for acceptance, the subject matter of risk i.e. Receivable does not come into existence at all. 18. The notification for the aforesaid shipment was submitted vide letter dated and the factoring return along with factoring charges for the same were paid vide letter dated The bills were never submitted to the bank for collection and no finance is reported to have been availed by the appellant from the bank against the said bills. Under the factoring scheme, in case of non-realization of the bills, the banker of the appellant lodges the claim with the respondent after crystallization of the bills on due date, but no claim was lodged by the bank under the Factoring Agreement between the parties. 19. The respondents have been considering and paying the claims for all genuine export transactions under the factoring scheme as liberal as they can. The appellant has been pursing its case on the belief that the case was a case of contract repudiation by the buyer which is covered under the

9 First Appeal No.1437 of insured peril under clause 1.1(15) of the Factoring Agreement. Treating the buyer s mail dated as repudiation of contract, even then also, the loss which has already taken place cannot be insured by paying premium subsequently. In the present case, the buyer on threatened not to send the documents and the shipment was recalled by the appellant on The shipment was notified on and the factoring charges were remitted on The factoring charges i.e. consideration for the factoring services was paid by the appellant after the risk, alleged to have been covered, had already been materialized. Therefore, the factoring charges were duly returned to the appellant vide letter dated of the respondents. 20. On merits, similar pleas as taken in preliminary objections were repeated. It was further submitted that there was no repudiation from the buyer. The buyer only wanted the appellant to attend to his grievance. In fact, the recall of the shipment due to the complaint by the buyer is repudiation by the appellant himself which is not an insured peril under the agreement. In reply to the letter of the appellant dated , immediately it was pointed out vide letter dated that the invoices under reference were not notified. Receiving a factoring return and cheque does not amount to acceptance of the same. The encashment of the cheque was done in a routine manner since different people are placed for different jobs. However, at the time of adjustment, it was found that since the notification was submitted after the loss had occurred, the factoring charges were returned vide letter dated As per principle of Law of Insurance, there cannot be insurance of the risk that has already materialized. Clause 3.1 of the Factoring Agreement provides for immediate notification together with payment of factoring charges as applicability of insurance cover starts from the date of shipment and there cannot be valid insurance without consideration. Under clause 9.1 of the agreement, only the approved

10 First Appeal No.1437 of receivables are covered and in the present case, no receivables came into existence. 21. Clause 9.1 (ii) provides that in case of contract repudiation, the credit protection would be to the extent of freight, demurrage and handling of the unsold goods and /or on account of any discount allowed on a resale of such unsold goods to an alternate buyer or 1/4 th of the notified value of the relevant notified receivable whichever is lesser. In any case, the claim cannot be beyond 25% of the notified value. As per the working sheet given by the appellant, the total value of the three invoices in Indian currency was Rs.52,45,088/- and 25% of the same would have been Rs.13,11,272/- and there is not even a remote liability of the respondents for Rs.18,26, 881/-, as alleged in the complaint. Other allegations of the complaint were denied and it was prayed that the complaint may be dismissed with costs. 22. Parties led evidence in support of their respective contentions by way of affidavits and documents. 23. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant admitted that his unilateral action of recalling of nine containers was most economical. The contract repudiation clause (c) relates to wrongful refusal by an approved debtor to accept for payment. The Bill of Exchange is not applicable. In fact, the buyer had put pressure on the appellant to find out the root clause of obnoxious smell in rice of earlier shipment and to take preventive measures in this regard, by not accepting the documents of nine containers until the said problem is sovled. The onus lies on the appellant to satisfy the buyer regarding the quality of rice and to attend to the related complaint, rather rushing for further shipment of rice. In fact, the recalling of shipment instead of making efforts to resolve the complaint of the buyer is repudiation of the contract by the appellant himself. Such like repudiation is not covered in Factoring Agreement s clause (c), being not an insured peril. Shipment never reached at the above port of

11 First Appeal No.1437 of destination and the documents were never presented through bank by the appellant, as admitted by the appellant, to the buyer for acceptance. In this case, the appellant paid the factoring charges as consideration to cover the already alleged materialized loss. The notification by the appellant was submitted after the loss has occurred and there cannot be insurance of risk which has already occurred. The appellant has failed to make the compliance of the provisions of Clause 3.1, and 13.1 of the Factoring Agreement. The plea of the appellant that receivables used to be notified later as per practice, do not hold the ground within the ambit of the said agreement, as no laxity can be considered at the cost of Factoring Agreement. The appellant is responsible for its unilateral action of recalling the shipment in transit, ignoring the parameter of Factoring Agreement and the claim was rightly repudiated by ECGC. The complaint was dismissed. 24. Aggrieved by the impugned order dated , the appellant has come up in appeal. 25. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties. 26. The appellant obtained the Whole Turnover Standard Policy from respondent no.1 and entered into Factoring Agreement with respondent no.1 on and Rs.10,000/- were paid and the same was renewed vide fresh agreement dated As per the appellant, it has been regularly shipping the rice to the Buyer Basmati Rice, GMBH, Europe, Germany. The appellant company shipped nine containers under the contract vide its invoices no.4408, 4409 and The Bill of Lading dated for nine containers was issued but due to the number of the containers wrongly written, the said Bill of Lading was got corrected and after correction, the same was received by the appellant on and the Nonnegotiable Set of documents was sent to the buyer vide letter dated , but before filing the complete set of documents to the banker i.e.

12 First Appeal No.1437 of Punjab National Bank, IBB, The Mall, Amritsar, the appellant received a mail dated from the buyer. The relevant portion of the same is reproduced as follows:- We are not going to accept the documents of the 9 containers until you have solved the problem. All the losses will be charged to you and you are concerned about the SGS charges. 27. The appellant admitted that the said mail was sent due to the reason that some rice shipped earlier had awful smell. The appellant on receipt of above said dated , recalled the consignment of nine containers back from the transit on while the said containers were in transit at Singapore. 28. The version of the appellant is that the mail dated of the buyer amounts to refusal by the buyer to accept the goods shipped to it and is a repudiation of the contract on the part of the buyer. On the other hand, the version of the respondents is that the buyer refused to accept the shipment, as there was dispute already pending regarding the previous shipment of rice which were giving awful smell and instead of resolving that dispute, the appellant sent the shipment again. The appellant has placed on file Annexure A-2 wherein under clause-17 it is provided as follows:- What is the time limit for declaration of shipments? On or before 15 th May of every month, the policy holder is required to declare to ECGC in a prescribed form, all the shipments made by him in the preceding calendar month. If no shipment made in a month, a Nil declaration should be sent 29. Clause-24 reads as under:- When does an exporter become eligible for receiving payment of a claim under the policy? The relevant portion is reproduced as follows:-

13 First Appeal No.1437 of Where the buyer does not accept goods or pay for them because of disputes over fulfillment of the terms of contract by the exporter counter-claims or set off, ECGC considers the claim after the dispute between the parties is resolved and the amount payable is established, by obtaining a decree in a court of law in the country of the buyer. This condition is waived in cases where ECGC is satisfied that the exporter is not at fault and that no useful purpose would be served by proceeding against the buyer. 30. The Factoring Agreement is the most vital document which is required to be discussed to adjudicate the matter. Ex.P-24 is the Export Factoring Agreement and Claluse-1 (14) Factoring Charges, is defined as under:- Factoring Charges, means the charge payable in Indian rupees by the Client to ECGC being a percentage of the value of every Notified Receivable, calculated by applying the rate specified in paragraph 3.2 of the Schedule and the same may be varied from Debtor to Debtor and from time to time. 31. In Clause-15 (c), Insured Perils are defined as under:- Contract Repudiation, means the wrongful refusal by an Approved Debtor to accept for payment the Bill of Exchange drawn on such Debtor by the Client and/or to accept delivery of the goods shipped to him by the Client under a currently valid Supply Contract. 32. Clause-3 deals with Notification of Receivables and sub clause 3.1 reads as under:- In respect of each Receivable coming into existence on or after the Commencement Date in respect of any of the Approved Debtors, the Client must send a Notification to ECGC in the Prescribed Form immediately upon that receivable coming into existence or within such period as ECGC may specify. 33. Clause provides as follows:-

14 First Appeal No.1437 of To promptly notify ECGC in such manner and with such particulars and documents as ECGC may from time to time require, of every Receivable in respect of any Approved Debtor coming into existence after the Commencement Date and to have all the relevant goods duly insured to the full extent with commercial insurers, and if so required by ECGC, in their joint names or with ECGC s interest noted on such insurance policy with ECGC as the first loss payee. Directions, if any, given by ECGC with regard to the name of the insurer or the terms of insurance will be confidential and binding on the Client. 34. Clause-9 deals with Credit Risk Protection and Settlement by ECGC and clause 9.1 reads as under:- ECGC offers credit risk protection to the Client in respect of all the Approved Receivables. In the event of an Approved Receivable remaining unpaid in whole or in part after its Maturity Date owing to any of the Insured Perils, ECGC will make payment to the Client through the Designated Bank in Settlement so much of the amount as is overdue and outstanding on an Approved Receivable on its Maturity Date provided however that- (i) all such payments made by ECGC shall be in Indian Rupees of an amount arrived at as equivalent to the loss suffered on account of the unpaid Approved Receivable on the basis of the Amount Crystallized on that Receivable by the Designated Bank; (ii) the credit protection offered by ECGC under this agreement for losses that may be suffered by the Client owing to Contract Repudiation risk shall not exceed the actual expenses incurred by the Client on freight, demurrage and handling of the unsold goods and/or on account of any discount allowed on a resale of such unsold goods to an alternate buyer or one-forth Notified Value of the relevant Notified Receivable, whichever is lesser; and that

15 First Appeal No.1437 of (iii) no credit protection shall be available in respect of any amount remaining unpaid on a Receivable due from any of the Associate Companies. 35. Clause 13.1 reads as under:- Client agrees to pay to ECGC Factoring Charges for ECGC s services and credit protection under this agreement on each and every Notified Receivable in accordance with and at the rate specified in paragraph 3.2 of the Schedule. 36. From the above, it is clear that the factoring charges are payable in Indian Rupees by the client to ECGC being the percentage of the value of every notified receivable. As per the definition of Approved Receivable, the receivables shall be treated for this period in the order in which they become due for payment. In the present case, the appellant had earlier sent the consignment to the buyer M/s Basmati GmbH Company and the dated received from the said buyer shows that there was some dissatisfaction of the buyer, as the rice shipped earlier had awful smell and the Director of the appellant was asked to come to Stockholm, Sweden and Germany to resolve the problem. Immediately on receipt of the on , the appellant re-called the shipment, of his own, and not on account of any repudiation of the contract by the said buyer and this is not covered under the clause 1.1 (15) i.e. Insured Perils. Under the term Insured Perils, the sub clause (c) deals with the Contract Repudiation, which is reproduced as follows:- Contract repudiation means the wrongful refusal by an approved debtor to accept for payment the Bill of Exchange drawn on such debtor by the Client and/or to accept delivery of the goods shipped to him by a client under a currently valid Supply Contract. 37. As discussed above, the buyer never refused wrongfully to accept the bill of exchange nor refused to accept the delivery of goods

16 First Appeal No.1437 of shipped to him, but he only cautioned the appellant, who was supplier, that the supply of rice should be of high quality and not like that shipped earlier which was giving awful smell. This cannot be considered to be Contract Repudiation, but it is only a sort of business talk between the supplier and the buyer and, as such, there was no insured peril and the respondents were not liable. Complete set of documents was not supplied to the bank and the documents were never presented to the buyer for acceptance. The notification was submitted by the appellant after the loss and for that reason, the same was returned after going through the documents. 38. In view of above discussion, the order passed by the District Forum is detailed and speaking one and there is no ground to interfere with the same. 39. Accordingly, the appeal filed by the appellant/complainant is dismissed and the impugned order under appeal dated passed by the District Forum is affirmed and upheld. No order as to costs. 40. The arguments in this appeal were heard on and the order was reserved. Now the order be communicated to the parties. 41. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases. (Inderjit Kaushik) Presiding Judicial Member May 31, (Gurmeet S) (Vinod Kumar Gupta) Member