Complainant/appellant is a registered partnership firm and is doing business of export of handicrafts items to different countries.  Appellant shipped 150 packages of 1628 pieces of artistic wooden iron handicraft articles to their buyer M/s Nora Fenton, US through the principal of the respondent.  M/s Nora Fenton refused to accept the consignment.  Appellant requested the principal of the respondent to reimport the articles to Delhi.  Appellant neither received the goods nor received any payment of losses suffered by them.  Being aggrieved appellant filed the complaint before the State Commission without impleading the principal of the respondent.

             Respondent filed the reply and took the stand that the respondent was only an agent and not the principal; that the appellant had hired the services of US Broker Incorporated India directly and, therefore, the respondent was entitled to benefit of Section 230 of Contract Act, particularly when the complainant/appellant was one of the exporters who had engaged the services of forwarder of principal of the respondent.

             State Commission disposed of the complaint by observing thus:

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         “However the liability of such an agent is limited to the extent of deficiency in service in not delivering the consignment at the port, as the further role of delivering the consignment to the consignee is assumed by the principal, which in this case was P&O Containers.  In this case the communication in this respect of the non-delivery of the consignment was exchanged between the complainant and the OP.  So much so, P&O Container (Indian Agencies) Pvt. Ltd., received payment of Rs.2,11,511/- by way of demand draft dated 14.09.1995 through courier for importing the shipment of 150 baggage from New York to Delhi.  However, according to the OP this payment was received on account of demurrage and was payable to the US Port authority and the custom authority.

            Had there been no direct contract between the complainant and OP the question of payment received by way of demurrage of the aforesaid shipment from the complainant would not have arisen as such payment should have been demanded and received by the principal. 

             Taking overall view of the matter and nature of deficiency in service on the part of the OP and there being no specific term of the contract between the complainant and OP that the OP shall be liable to indemnify the complainant as to the actual cost of the consignment if not delivered or wrongly delivered.  We deem that lump sum compensation of Rs.50,000/- would meet the ends of justice, which shall include the cost of litigation also. The payment shall be made within one month.”

             Being aggrieved, appellant has filed the present appeal.

             As per practice prevailing at that time, respondent filed reply to the appeal and took the preliminary objection that the respondent was no longer in existence.  Appellant did not take any steps to bring on record the successor of the respondent company.  Case came up for hearing 17.10.2012.  Counsel for the respondent reiterated his objection

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that the appeal could not proceed as the respondent company is no longer in existence.  Counsel for the appellant took time