T.C.C. CARRIERS PVT. LTD. vs TAPE MANUFACTURING COMPANY

THIS order will dispose of two Miscellaneous Applications, one, dated 11.3.1998 made by the appellant and two dated 1.5.1998 made by the respondent.

IT appears that M/s. Tape Manufacturing Company, complainant for short, booked 29 cartons of adhesive tapes which were transported by M/s. T.C.C. Carriers Pvt. Ltd., hereinafter called opposite party from Noida to Indore. The invoice value of the consigned goods was Rs. 48,451.00. The case of the complainant was that contrary to the instructions of the consignor the goods were delivered without payment to Amar Electronics. The opposite party failed to appear and by an ex-parte order dated 17.9.1996, the District Forum-I directed the opposite party to pay to the complainant Rs. 48,451.20 alongwith interest @ 15% per annum from 24.12.1994 till realisation "after deducting transportation charges, if not paid earlier, within two months". The decree-holder took out execution. During the pendency of those proceedings, application dated 21/22 July, 1997 for setting aside the exparte order was made but the same was dismissed by the District Forum as barred by limitation by its order dated 25.9.1997. The opposite party has preferred Appeal No. 535/1997 which is pending. At the time of admission of the appeal by order dated 28.10.1997, recovery of the amount was stayed "Subject to the appellant furnishing Bank Guarantee of the amount within four weeks". On behalf of the respondent, application for vacating the ex-parte stay order dated 1.5.1998 was followed by an undated application made on 6.8.1998. The contention of the respondent is that the appellant failed to furnish the Bank Guarantee of the amount in compliance with the order of the Commission dated 28.10.1997. Firstly, the Bank Guarantee was not furnished within four weeks but after nearly l00 days and secondly it was not furnished of the full amount but only of Rs. 50,000/-. Mr. Tyagi, learned Counsel for the consignor further contended that it had been expressly made clear by order dated 20th February, 1998 by this Commission that the appellant should furnish further Bank Guarantee of Rs. 20,000/- over and above the Bank Guarantee of Rs. 50,000/- already furnished. The appellant-carrier had failed to comply with that order and the stay should, therefore, be vacated.

According to the appellant (carrier) Miscellaneous Application made by it, dated 11.3.1998 was still pending and the order, as may be clarified, would be complied with and there was no intention to shirk from furnishing the Bank Guarantee. The contention of the learned Counsel is that the terms and conditions appearing on die reverse side of the goods receipt, inter alia, included the condition that goods will be delivered a t the destination in the Company''s godown against payment of all charges. Under Condition No. 5, it was further stipulated that a demurrage of Rs. 2.00 per quintal/packing per day was liable to be paid if the consignee failed to take delivery within seven days of their arrival at the destination. Further case of the appellant was that the goods, i.e. the delivery of the goods had not been taken by the consignee with the result that the goods were lying in the Company''s godown and the consignee was liable to pay demurrage which in the present case would work out to be more than the amount of interest. Strictly in terms of the order passed by the District Forum, the amount payable would not be more than Rs. 50,000/-. With regard to the order dated 20th February, 1998, it has been contended that Miscellaneous Application dated 11.3.1998 was still pending and the appellant was a waiting an order thereon so that the ultimate order can be complied with.

AFTER careful consideration of the respective submissions, we are of the view that the conditional order staying recovery subject to furnishing of Bank Guarantee has been substantially complied with and the stay will continue till decision of the appeal. A copy of this order be furnished to both sides. Appeal disposed of.