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Judgment
THIS is a complaint under Sec. 17 read with Sec. 12 of the Consumer Protection Act.
THE complainant is a Public Limited Company carrying on business of import of surgical equipments. It imported two surgical equipments (1) a Pentax Endoscope with accessory and ancillary medical equipments with GIF value of Rs. 14,26,135-85 from M/s. Asahi Optical Co. Ltd. Japan and (2) 3 sets of Binocular operating microscopes for ENT surgery with accessories of CIF value of Rs. 10,31,568/- from M/s. Nagashima Medical Instruments Co. Ltd., Japan. THEse items were imported on behalf of M/s. Southern Railways. THE first consignment landed in Madras on 5.6.91 and the second consignment on 16.6.91. THE complainant had been enjoying overdraft facilities with the Opposite Party Bank for a long time. On 21.5.91 it wrote to the Opposite Party to debit their account the amount of the first consignment and by letter dated 27.6.91 asked the Opposite Party to debit their account the amount in respect of the second consignment for payment to the foreign sellers. THE Opposite Party did not take action. At this stage the Indian rupee was devalued by 25% first on 3.7.91 and second on 5.7.91. As a result of the devaluation , the value of these goods increased by 25% and the increase value was Rs. 6,54,693/- According to the complainant, the Opposite Party is responsible for this situation and must pay the enhanced value. THE Opposite Party cannot rely upon various import restrictions imposed by Reserve Bank of India blame the ANZ Grindleys Bank for not providing the details . It is only on 18.7.91 the Opposite Party has written to the Reserve Bank for permission to remit the amount in foreign currency1 to the foreign sellers and the Reserve Bank granted the permision on 14.11.91. THE complainant issued Lawyer''s notice to the Opposite Party claiming this amount of Rs. 6,54,693/- but without response. This complaint is, therfore, filed to recover the sum of Rs. 6,54,693/- with interest thereon at 24% p.a. from 21.5.91 and costs. Complaint is resisted by the opposite party. According to the opposite party a letter of the complainant dated 21.5.91 was submitted to the bank on 31.5.91 and the letter instructed the bank to debit their account on the respective due dates which fell in this case on 15.6.91. But the complainant did not maintain sufficient balance with the Opposite Party on that date. Further a fresh debit instruction was given with regard to this bill on 11.7.91 by which time the devaluation has taken place . According to the circular of the Reserve Bank of India PMD 42/90-91 dated 19.3.91" Imports of all capital goods irrespective of value will hence-forth be only under Foreign Currency lines of credit available with the Financial Institutions", No sale of free foreign exchange should be permitted for import of capital goods under any circumstances until further orders ". The Bank cannot effect remittance from free Foreign Exchange to the Foreign sellers. Further as per Reserve Bank of India''s circular No. EC.CT.1907/42 (Lc) 90/91 dated 3.6.91 in case the importer is having multiple bank consortium arrangements all records of import transactions of such importer should be kept with one designated Bank and if such transactions exceed Rs.2 crores , the bank has to seek prior permission from Reserve Bank for further imports. The complainant had arrangements both with the opposite party and ANZ Grindlays Bank and in order to know the total import liability of the complainant, the Opposite Party had to get documentary proof from ANZ Grindlays Bank and wrote to it on 1.7.91 and reminded on 10.7.91,. The Grindlays Bank replied only on 16.7.91 and thereupon the Opposite Party wrote to the Reserve Bank on 18.7.91 seeking, approval for payment of Foreign Exchange, The Reserve Bank granted permission only on 14.11.91 The complainant has been an importer for decades and is in full knowledge of all these formalities and rules and regulations. It cannot plead ignorance of the restrictions or formalities in connection the permission of Reserve Bank of India, the Opposite Party immediately made payments without any delay. There was no deficiency of service or negligence. Devaluations of rupee is a circumstance beyond the control of Opposite Party. It is further pleaded that under Sec. 78 of the Foreign Exchange Regulation Act of 1973 no suit , prosecution or other proceedings shall lie against the Central Government or Reserve Bank or any officer of the Government or officer of the Reserve Bank or any other person. It, therefore, prayed for the dismissal of the complaint
Exh. AL. to A26 and BL to B32 are marked by consent. Proof affidavits are filed. No oral evidence has been let in .
THE points that aries for considerations are (1) Whether there has been any deficiency in service or negligence on the part of the Opposite Party; (2) Whether the claim against the Opposite Party is not maintainable'' (3) To what relief is the complainant entitled; Point No. 1; The complainant has imported in the month of March, April 1991, two surgical equipments for the hospital run by the Southern Railways; (1) a Pentax Endoscope with accessory and ancillary medical equipments of C.I.F. value of Rs. 14,26,135-85. Exh. A2 and A2 (a) are the invoice. (2) 3 set of Binocular operating microscopes for ENT surgery with accessories of CIF value of Rs. 10,31,568/- Exh. Al and AL (a) are the Bill of Entry and Invoice. Both these equipments were imported from Japan and are payable in Foreign currency. The complainant has written to the opposite party with whom the complainant had been enjoying overdraft facilities under Exh. A3 dated 21.5.91 to debit their account the amount due for the first consignment. Under Exh. A4 dated 27.6.91 the complainant wrote to the Opposite Party to debit their account, the amount due in respect of the second consignment. It is the grievance of the complainant that the Opposite Party has not done anything to these letters. Meanwhile on 3.7.91 and 6.7.91 the Indian rupee has been devalued by 25% as a result of which the value of the goods increased by 25% in Indian rupees; the increase is to the tune of Rs. 6,54,693/-. According to the complainant it is due to the negligence on the part of the Opposite Party, the complainant has to incur the enhanced amount of Rs. 6,54,693/- and this complaint filed to recover the said interest and costs.
THE contention of the Opposite Party is that on 21.5.91 when the complainant wrote to the Opposite Party to debit their account, the amount due on the first consignment there was only a sum of Rs. 14,26,135-85 to the credit of the complainant with the Opposite Party and this is not disputed before us. On 21.6.91 the Southern Railway has remitted into the Bank Rs. 13,84,765/- and on 25.6.91 another sum of Rs. 28,17,554/-. It is thus only on 25.6.91 the full amount payble for the two imports totalling Rs. 24,57,763-85 has been recieved. It is only thereafter the payment could be made, but not immediately in view of the restrictions Reserve Bank of India. Under the Reserve Bank of India circular dated 19.3.91 in PMO/42/90-91 no sale of Free Foreign Exchange should be permitted for import of capital goods under any circumstances. THE circullar dated 3.6.91 of the Reserve Bank of India lays down that where the party has accounts in more than one bank, the total import liability of the complainant has to be ascertained before the permission of the Reserve Bank is applied for. Admittedly the complainant had accounts with ANZ Grindlays Bank also and it was their principal banker. Consequently, the Opposite Party wrote to ANZ Grindlays Bank on 1.7.91 to ascertain the import liability of the complainant and there was no reply. A reminder was sent by the opposite party to ANZ Grindlays Bank on 10.7.91 and the Grindlay Bank replied only on 16.7.91 and furnished the information of the total import liability of the complainant with them. On receipt of this information the opposite party wrote to the Reserve Bank on 18.7.91 seeking approval for payment of foreign exchange. THE Reserve Bank of India by its letter dated 14.11.91 under Exh. A11 gave permission for payment of foreign exchange in respect of the first consignment and under Exh. A 20 dated 7.1.92 gave permission for payment of Foreign exchange in respect of the second consignment and thereafter the opposite party had made the payment to the foreign sellers. THE facts stated above clearly show that there has been no laches on the part of the opposite party. The contention of the complainant that the opposite party has not informed it the rules and regulations of the Reserve Bank of India has little substance . As pointed out by the learned Counsel for the opposite party, the complainant has been an importer for decades and must be conversant with the rules and regulations imposed by the Reserve Bank of India in dealing with Foreign Exchange. Whatever it may be the opposite party as a scheduled bank is bound to act in accordance with the directions of the Reserve Bank of India and cannot pay the foreign sellers in Foreign Exchange without the requisite permission from the Reserve Bank of India. As the complainant was having account with ANZ Grindlays Bank also the import liability of the complainant had to be ascertained and consequently the opposite party has written to ANZ Grindlays Bank on 1.7.91 itself within 4 days of the receipt of the entire amount on 26/5/91. This in our view does not amount to any inordinate delay or deficiency. ANZ Grindlays Bank has replied on 16.7.91 and immediately thereafter on 18.7.91 the opposite party has written to the Reserve Bank of India for permission and the Reserve Bank of India has granted permission on 14.11.91 and 7.1.92. But in the meanwhile on 3.7.91 and 5.7.91 the Indian rupee has been devalued which is an unforseeable circumstance, for which the opposite party cannot be held liable. Even if the opposite party had written to the Reserve Bank for permission on 25.6.91 on which date the entire amount from the purchaser has come into the bank of the opposite party, the permission of the Reserve Bank could not have been obtained before 3.7.91 or 5.7.91 when the devaluation of the Indian rupee has taken place. As a matter of fact it has taken more than 3 months from the Reserve Bank of India to grant the place permission in respect of the first consignment and 5 months in respect of the second consignment, while so it could not have granted permission within a matter of days even if the opposite party had applied for permission on 25.6.91 itself. On a consideration of all these facts and matters, we are convinced that there has been no deficiency service or negligence on the part of the opposite party. The point is found against the complainant. Point No. 2:-Our attention has been invited to Sec. 78 of the Foreign Exchange Regulation Act 1973 which runs thus; "No suit, prosecution or other Proceedings shall lie against the Central Government or Reserve Bank or any officer of the Government or officer of the Reserve Bank or any other person exercising any powers or discharging functions or performing any duties under thgis Act for anything in good faith done or intended to be done under this Act or any rule direction or order made thereunder."
It is not the case of the complainant that the opposite party has acted malafide. The opposite party has acted in good faith in seeking the import liabilities of the complainant from ANZ Grindlays Bank and applying for the permission to the Reserve Bank before paying the foreign sellers in Foreign Exchange. They have acted and no claim of or compensation can therefore lie under Sec. 78 of the Foreign Exchange Regulation Act of 1973.
POINT No. 3:-In view of findings on points No.1 and 2 the complainant is not entitled to any relief.
IN the result, the complaint fails and is dismissed , but without costs. Complaint dismissed.