JOTHI ENGINEERING WORKS vs STATE BANK OF BIKANER

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE Complainant is carrying on engineering business. He has been availing of trade advances from the Opposite Party under bill Discounting Facility. In February 1982 the Complainant discounted two bills for Rs. 34,690.56 with the Opposite Party representing sale of tea factory machineries, spares and die. THE buyer failed to pay the bill amount and consequently the Opposite Party appropriated the value of the bill from the amount available in the cash credit account of the Complainant. THE Opposite Party has also taken possession of the goods from the carrier and keeping the same in its possession. It has no right to do so. THE machinery has not lost its value. It is further alleged that the complainant had deposited on various dates a sum of Rs. 1,61.095.75 with the Opposite Party and withdrawn only Rs. 30,210.33. But the Opposite Party dishonoured two cheques issued by the Complainant for Rs. 10,000/-on 26.6.1990 and another for Rs. 40,000/- on 7.9.1991, even though there were amounts in the account of the Complainant. Hence this complaint for recovery of the value of the machineries detailed by the Opposite Party with interest thereon and for compensation in the sum of Rs. 3.00 lakhs, in all Rs. 4,18,336.56. The Opposite Party has resisted the application. According to the Opposite Party when the Complainant issued two cheques for Rs. 10,000/- and Rs. 40,000/- there was no credit balance in its account and the cheques have therefore to be dishonoured. There was no deficiency of service. The Complainant discounted two bills covered by lorry receipts for a total sum of Rs. 34,690.56, but the buyer refused to honour the bills. The Complainant was advised by the transport company ABT Parcel Service by registered notice dated 26.11.1982 and 31.8.1982 and by the Opposite Party by letters dated 22.5.1992 and 1.6.1992 about the dishonouring of the bills. The Opposite Party had no option but to take delivery of goods covered by the two bills to avoid demurrage and loss of security. The Opposite Party is thus lawfully holding this machineries. The Complainant has not chosen to pay the bill amount and take possession of the machineries. There is no deficiency of service.

When the case was taken-up for hearing, the learned Counsel for the Complainant made an endorsement in the complaint that the claim regarding the dishonouring of the two cheques was being given up. We are, therefore, concerned only with a retention of the machineries covered by the two lorry receipts.

THE Complainant by virtue of the facility offered by the Opposite Party for discounting the bills has discounted during the month of Feburary 1982 two bills covered by lorry receipts L.R. No. 115590 and 225568 for the value of Rs. 34,690.56. THE bills were however not honoured by the buyer. Consequently the bank has taken possession of the goods and has been keeping the same. Though it is averred in the complaint that the Opposite Party has appropriated the value of the bills from the amounts available in the cash credit account of the Complainant, there is absolutely no evidence to substantiate this contention. According to the Opposite Party, the bill amounts are still due and the complainant has not chosen to pay the bill amounts and take delivery of the goods covered by these bills. Under Section 176 of the Contract Act, the banker is entitled to retain the goods till payments are made. THEre is therefore nothing illegal or unauthorized in the conduct of the Opposite Party in retaining the machineries covered by the lorry receipts. It was contended by the Complainant that the machinery has been kept by the bank for over ten years and they must have rusted and have lost their value. An advocate Commissioner was appointed to inspect the machineries and his report is that the machinery are new and not rusted. He has noted some variations between the machineries mentioned in the bills and the machineries actually found. According to the Bank-Opposite Party they got the machineries from the lorry transport company in good faith, that they were covered by the receipts. The Opposite Party cannot be found fault for the variation. The complainant has even now failed to pay the amounts covered by the bills which were discounted by the Complainant. He cannot get back the machinery without paying the bill amount. The only relief to which the Complainant is entitled to get back the machineries on payment of the bill amounts.

IN the result, we direct the Opposite Party to return the machineries as found by the Commissioner to the Complainant on payment of the sum of Rs. 34,690.56. There will be no order as to costs. Order accordingly.