IN THE HIGH COURT OF DELHI AT NEW DELHI
O.M.P. 149/2010
Reserved on: December 1, 2011
Decision on: January 23, 2012
PEC LIMITED ..... Petitioner
Through: Mr. Ramji Srinivasan, Senior
Advocate with Mr. Jayant K. Mehta
and Mr. Sukant Vikram, Advocates.
versus
THAI MAPARN TRADING CO. LIMITED
& ANR ..... Respondents
Through: Mr. Jay Savla with
Ms. Meenakshi Ogra and Mr. Suresh
Singh Bisht, Advocates for
Applicant/R-1 in IA 7140 of 2011.
Mr. S.L. Gupta and
Mr. Ram Gupta, Advocates for SBI.
CORAM: JUSTICE S. MURALIDHAR
JUDGMENT
23.01.2012 I.A. No. 7140/2011
1. This is an application by Thai Maparn Trading Company Ltd. (`Thai Maparn') under Section 144 read with Section 151 Code of Civil Procedure, 1908 (`CPC') for a direction to the Petitioner PEC Limited ('PEC') to pay Thai Maparn an amount of US$827,897.80 for the loss occurred on account of fluctuation in foreign currency while remitting the amount payable to Thai Maparn under a Letter of Credit (L/C) pursuant to an order dated 27th April 2010 passed by this Court and in terms of the subsequent order dated 9th March 2011 passed by the Supreme Court in SLP (C) No. 27500 of 2010. Thai Maparn has also IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 1 of 16 prayed for exemplary costs.
Background facts
2. The background to the present application is that several contracts were entered into between the PEC and Thai Maparn during the period 2008-10 for sale of Thai Parboiled long grain rice whereunder Thai Maparn was the Seller and the PEC was the Buyer. It is stated that in relation to one such contract dated 8th January 2008 for supply of 22,000 metric tonnes ('MTs') of Thai Parboiled long grain rice disputes arose between the parties which were referred to arbitration under the Grain and Feed Trade Association ('GAFTA') Rules for Arbitration, London. An Award dated 4th March 2010 was passed by the GAFTA Arbitrators in favour of PEC. Thai Maparn was asked to pay PEC US $ 14,520,000 plus interest and costs.
3. During the pendency of the above arbitral proceedings a separate contract was entered into on 4th January 2010 between the parties in respect of supply of 25,000 MT of Thai parboiled long grain rice. The payment under the contract was by an irrevocable and unrestricted L/C On 12th January 2010 L/C was issued by PEC through the issuing bank, State Bank of India (`SBI'). Under the L/C the advising bank was Krung Thai Bank Public Co. Ltd., and the confirming bank was Intesa Sanpaolo SPA, Singapore. The beneficiary was Thai Maparn and payment was to be remitted at the Krung Thai Bank Public Co. Ltd., at Thailand. It is not in dispute that the L/C was covered by the Uniform Customs and Practice 600 Rules (`UCP 600'). It is further not in dispute that under Article 4 of UCP 600, the undertaking of the issuing bank on the day of the credit was not subject to any claims or defences and under Article 14
(b) UCP 600, the bank had a maximum of five banking days to IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 2 of 16 determine if the presentation was in compliance with the requirements.
4. On 11th March 2010 PEC filed OMP No. 149 of 2010 in this Court under Section 9 read with Sections 47 and 48 of the Arbitration and Conciliation Act, 1996 (`Act') seeking an ex parte relief against Thai Maparn (Respondent No. 1) and the Corporate Accounts Group Branch of the SBI at New Delhi (Respondent No. 2). The prayer was that pending the hearing and final disposal of the petition for enforcement of the GAFTA Award dated 4th March 2010, a direction should be issued to the SBI to hold the Bills of Lading (B/L) submitted to it under L/C No. 0999610IM0000014 and the amendments thereto.
5. It was stated by PEC in OMP No. 149 of 2010 that the aforementioned L/C was opened on 12th January 2010 in favour of Thai Maparn by SBI at the instance of PEC for a sum of US $ 14,162,500. The payment was to be made against production of certain documents including ten B/Ls accompanied by the commercial invoice, certificate of origin, a phytosanitary certificate, certificate of quantity, quality and packing list, certificate of fumigation, surveyor's certificate and other requirements as per the L/C. It was stated that the documents had been tendered to Thai Maparn with a view to collect the payment under the L/C as per the Contract dated 4th January 2010. PEC stated that Thai Maparn had submitted the documents to Krung Thai Bank Public Co. Ltd., which in turn had forwarded them to Intesa Sanpaolo SPA, Singapore and thereafter to SBI. It was stated that the B/Ls issued on 17th February 2010 and 23rd February 2010 had reached New Delhi on 11th March 2010 and were with the SBI. It was stated that the SBI was "likely to accept and/or reject the documents by 15th March 2010." The cargo ownership rested with Thai Maparn but was physically outside this Court's IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 3 of 16 jurisdiction and was in transit between the load port Kohsichang, Thailand en route to Cotonou, Benin and/or discharge port at Harcourt, Nigeria. It was stated that the B/Ls were within the jurisdiction of this Court in the custody of SBI and that "the Respondent No. 1 have no other assets within the jurisdiction of this Hon'ble Court, or anywhere in India that the Petitioners are able to obtain a security pending the enforcement of the London Arbitration Award." Since Thai Maparn had till then not honoured the GAFTA Award, PEC prayed that the Court should direct the attachment of the five B/Ls for the entire cargo intended for discharge at Port Harcourt, Nigeria as well as at Port Cotonou, Benin as these were "the only available assets". It was stated that once the SBI found the documents tendered by Thai Maparn to be in order, SBI would be obliged to release payments under the L/C. An order was sought to declare SBI as garnishees and/or holders in trust of the monies of Thai Maparn of an amount estimated at US $ 12,038,125 and not exceeding the awarded amount of US $ 14,520,000 plus interest and costs. As an interim measure PEC prayed that pending the enforcement of the BAFTA Award SBI should hold the B/Ls submitted and not to make payment of the proceeds under the L/C to Thai Maparn, or to the confirming or advising bank.
6. OMP No. 149 of 2010 came up first for hearing before this Court on 15th March 2010. It was again listed on 16th March 2010 when while directing notice to issue to the Respondents returnable 9th April 2010 this Court directed that SBI would be allowed to negotiate and accept the documents under the L/C but could not remit the amount. SBI was directed to retain the amount not exceeding the awarded amount of US $ 14,520,000 plus interest and costs "as a garnishee till further orders". It was further made clear that "in case this Court ultimately reaches the IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 4 of 16 conclusion that interim order is liable to be vacated, this Court would saddle the petitioner with not only exemplary costs but also interest." Soon thereafter the Petitioner filed IA 3944 of 2010 which was heard on 26th March 2010. On that date counsel for the SBI stated that SBI would have no objection to releasing the B/Ls to PEC on receipt of the amount from PEC. Senior counsel for PEC sought a direction that SBI should keep the amount received from PEC in Indian currency in an interest bearing account. He further stated that in case SBI suffered any fluctuation loss or damage, PEC would reimburse SBI. The Court then passed an order on those terms.
7. On 6th April 2010, Thai Maparn filed IA 4343 of 2010 seeking vacation of the interim order dated 16th March 2010 on the ground that PEC had concealed the fact that Thai Maparn was contemplating filing an appeal against the GAFTA Award. It was further urged that the petition seeking stay of remittance of the amount under the L/C in question was not maintainable at all since the GAFTA Award was passed in an unrelated contract which Award was in any event under appeal. A garnishee notice could not be issued to injunct SBI from honouring its commitment under the L/C as payment had to be released to the confirming bank which had the first lien on the amount payable under the L/C.
8. On 27th April 2010, a detailed order was passed by this Court whereby the interim order dated 16th March 2010 was vacated. It was observed that the power under Section 9 of the Act, after the passing of an Award, was available only where it was a "domestic award". Although the GAFTA Award could be enforced in this Court under Section 48 of the Act, the said proceedings were required to be deferred since an appeal IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 5 of 16 had been preferred against the GAFTA Award by Thai Maparn. In the operative portion, this Court in exercise of the powers under Section 48 (3) of the Act directed Thai Maparn to furnish security to the satisfaction of the Registrar General of this Court for the awarded sum within a period of four weeks and granted SBI the liberty to repatriate the amount retained by it under the L/C. The case was listed before the Registrar General on 25th May 2010 for Thai Maparn to furnish security.
9. Aggrieved by the above order the Petitioner filed FAO (OS) No. 301 of 2010 which came to be disposed of by the Division Bench of this Court by an order dated 30th April 2010. The amount under the L/C was ordered to be released to Thai Maparn immediately upon it "furnishing security to the satisfaction of the Registrar General of this Court."
10. Thai Maparn filed SLP (C) No. 27500 of 2010 in the Supreme Court against the order 30th April 2010 of the Division Bench in FAO (OS) No. 301 of 2010. In the meanwhile the appeal preferred by Thai Maparn in the GAFTA Appellate Board was allowed and the Award in favour of PEC was set aside. In its order dated 9th March 2011 the Supreme Court observed that since the very basis of the orders of the High Court did not exist, the SLP had to be allowed. The operative portion of the order dated 9th March 2011 of the Supreme Court disposing of SLP (C) No. 27500 of 2010 reads as under:
"Having heard learned counsel for the parties, while we appreciate the submissions made on behalf of the respondents, we are afraid that once the very foundation of the proceedings has been obliterated, it is not within our province in these proceedings to pass any order of the nature, as prayed for on behalf of the respondents. The respondents will, of course, be free to make such submissions before the GAFTA Appellate IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 6 of 16 Board, where its application is pending.
We, therefore, dispose of the special leave petition by setting aside that part of the order of the learned Single Judge directing the petitioner to furnish security to the satisfaction of the Registrar General of the High Court for the awarded sum and also the impugned order of the Division Bench directing that the amount of the Letter of Credit be released to the petitioner- company only upon the petitioner-company furnishing security to the satisfaction of the Registrar General of the High Court. The special leave petition is allowed to the said extent. Since the amount involved in this transaction, which was released on the Letter of Credit, issued in favour of the petitioner-company, had been deposited by the respondent during the pendency of the appeal before the learned Single Judge, the respondent No.2 herein, we further direct that the said amount be released to the petitioner-company, forthwith along with accrued interest.
We also keep the question of law relating to furnishing of security for invocation of a Letter of Credit, open for determination in other proceedings."
11. Consequent to the above order of the Supreme Court the SBI repatriated to Thai Maparn between 28th March 2011 and 15th April 2011 US $ 12,894,988.05 applying the prevalent exchange rate of the US $ vis-à-vis the Indian rupee. In is affidavit dated 28th November 2011, SBI stated that Thai Maparn received US$ 856,863.05 in addition to the L/C amount payable on the dates of the maturity of the two B/Ls, i.e., 16th August 2010 and 23rd August 2010. According to SBI, Thai Maparn thus received "additional US$ 313,104.53 on account of depreciation in the rate of US Dollar, US$ 330,773.92 on account of interest from the respective due dates till the date of payment and US$ 212,984.60 being interest because of payments of Bills amount by PEC before the due dates."
12. In the meanwhile, on 8th April 2011, IA No. 5 of 2011 was filed by IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 7 of 16 PEC in the disposed of SLP (C) No. 27500 of 2010 for a direction that the liability to pay interest on the L/C amount accrued only after the 180 days. The Supreme Court declined to entertain the said application stating "no orders". Thereafter on 30th April 2011 the present application, IA 7140 of 2011 was filed by Thai Maparn.
13. It is contended by Thai Maparn that on account of the orders passed by this Court the repatriation of the monies under the L/C to it was delayed. As a result of the weakening of the US currency against the Thai Baht during the said period Thai Maparn had suffered a huge loss by way of currency loss due to the foreign exchange fluctuation. Thai Maparn in the application states that the SBI remitted the total principal amount of US$ 120381258 to the Krung Thai Bank Public Co. Ltd., through Intesa Sanpaolo SPA, Singapore along with the interest payment of US $ 8568305 on 30th March 2011 in two tranches. The said US $ amount was converted into Thai Baht at an exchange rate of 1 US$= 30.33 Thai Baht. It is stated that had these amounts been remitted by the SBI by 16th March 2010 in the normal course, Thai Maparn would have received a higher amount since as on that date, i.e., 16th March 2011, the exchange rate was 1 US$ = 32.16 Thai Baht. In the circumstances, in the present application, Thai Maparn has prayed for a direction to PEC to pay Thai Maparn an amount of US $ 827897.80 for loss occurred on account of fluctuation in foreign currency apart from exemplary costs.
Submissions of counsel
14. Mr. Jay Savla, learned counsel for Thai Maparn submitted that the present application under Section 144 CPC was maintainable as it was based on the principle of restitution. He submitted that the said provision would be equally applicable to proceedings for enforcement of a foreign IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 8 of 16 Award under Section 48 of the Act in this Court. Reliance was placed on the decisions in Kavita Trehan v. Balsara Hygiene Products Ltd. (1994) 5 SCC 380, Special Officer (Revenue), Kerala State Electricity Board v. MRF Ltd. JT 1995 (9) SC 368 and South Eastern Coalfields Ltd. v. State of MP 2003 (8) SCC 648. It is submitted that Thai Maparn would be entitled to be placed in the same position as it was on 16th March 2010 when by an interim order the repatriation of the money due to it under the L/C was stayed by this Court. It is submitted that the powers of restitution of this Court are wide and include the power to award damages, compensation, mesne profit, interest etc. It is stated that the power could be exercised by the Court in the event the order passed by it on 16th March 2010 was set aside or varied. Since the very foundation for the passing of the said interim order, i.e., the GAFTA Award in favour of PEC had been set aside in appeal, and the Supreme Court set aside this Court's aforementioned order as well as the order dated 30th April 2010 of the Division Bench, Thai Maparn was liable to be restituted and compensated for the loss caused to it on account of foreign exchange fluctuation.
15. Mr. Jayant Mehta, learned counsel for PEC first submitted that the present proceedings under Section 144 CPC were not maintainable since the order of the GAFTA Board of Appeal had been challenged by PEC in the Courts in England. Thai Maparn could therefore not invoke Section 144 CPC till the conclusion of the said proceedings. There was no final order on merits of the said Award which could give rise to a claim for restitution. Secondly, the totality of the transactions between the parties, the contract as well as the L/C were denominated in one currency only, i.e., US $. None of the documents contemplated conversion of the US $ amount into any other currency be it Indian Rupee or Thai Baht. The IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 9 of 16 conversion of US $ into another currency was, therefore, beyond the contemplation of the parties. Thirdly, there was in fact no loss caused to Thai Maparn. It not only received the full and complete payment in US $ in terms of the L/C but received interest thereon beyond its entitlement, i.e., for the period from March 2010 to August 2010. Fourthly, it was open to Thai Maparn to have furnished security to the satisfaction of the Registrar General of this Court and receive the payment. The delay, if any, in doing so was of Thai Maparn's own making. Lastly, in any event even SBI had confirmed that Thai Maparn has already received amounts far in excess of its entitlement. It is submitted that it is only with a view to pre-empting a claim against it by PEC for refund of the excess payment that Thai Maparn has filed the present application. Mr. Mehta relied on the decisions in Special Officer (Revenue), Kerala State Electricity Board v. MRF Ltd., Puni Devi Sahu v. Jagannath Mohapatra AIR 1994 Orissa 240; Bhagwant v. Shri Kisen Dass AIR 1953 SC 136; Karnam Chand v. Kamlesh Kumari AIR 1973 MP 6 and Karnataka Rare Earth v. Senior Geologist (2004) 2 SCC 786 Maintainability of the application
16. The first issue to be considered is the maintainability of the present application under Section 144 CPC. The said provision states that "insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted, the court which passed the decree or order shall, on the application of any party entitled in any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in a position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified and, for this purpose, the Court may make any orders, IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 10 of 16 including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order."
17. The principle of restitution has been explained by the Supreme Court in Kavita Trehan v. Balsara Hygiene Products Ltd. It was held that Section 144 CPC incorporates "only a part of the general law of restitution. It is not exhaustive." It further held (SCC, p.391):
"The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. It will be exercised under inherent powers where the case did not strictly fall within the ambit of Section 144. Section 144 opens with the words "Where and in so far as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose,..." The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court."
18. In Special Officer (Revenue), Kerala State Electricity Board v. MRF Ltd., the principle was explained as under (JT, p. 379):
"24. There is no manner of doubt it is an imperative duty of the court to ensure that the party to the lis does not suffer any unmerited hardship on account of an order passed by the Court. The principle of restitution as enunciated by the Privy Council in Alexander Rodger, Charles Carnie and Richard James Gilman v. The Comptoir D'Escompte De Parid [1871 LR (Privy Council Appeals) 465] has been followed by the Privy Council in later decisions and such principle being in conformity to justice and fair play be followed. It should, however, be noted that in an action by way of restitution, no inflexible rule can be laid down. It will be the endeavour of the Court to ensure that a party who had suffered on account of decision of the Court, since finally reversed, should be put back to the position, as far as practicable, in which he would have been if the decision of IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 11 of 16 the court adversely affecting him had not been passed. In giving full and complete relief in an action for restitution, the court has not only power but also a duty to order for mesne profits, damages, costs, interest etc. as may deem expedient and fair confirming to justice to be done in the facts of the case."
19. The judgments in South Eastern Coalfields Ltd. v. State of MP and Zafar Khan v. Board of Revenue AIR 1985 SC 39 also reiterated the above basic principles concerning restitution. The decision of the Bombay High Court in Oil & Natural Gas Commission v. McDermott International Inc. 2000 (1) Bom CR 369 is relevant as it has applied Section 144 CPC to grant restitution in a case arising out of arbitration proceedings.
20. As far as the present case is concerned, the proceedings were initiated for enforcement of the Award dated 4th March 2010. It was only on account of the order dated 16th March 2010 as further modified by the order dated 26th March 2010 that the repatriation of the monies payable under the L/C to Thai Maparn was stayed. While by the subsequent order dated 27th April 2010, the earlier orders were vacated the repatriation of the L/C amount was made conditional upon Thai Maparn furnishing security to the satisfaction of the Registrar General of this Court. There is no dispute that the actual repatriation did not take place till after the order dated 9th March 2011 of the Supreme Court in SLP (C) No. 27500 of 2005 by which the order dated 27th April 2010 of the learned Single Judge requiring Thai Maparn to furnish security as well as the order dated 30th April 2010 of the Division Bench modifying it were vacated. The order dated 9th March 2011 of the Supreme Court was in the nature of a final order in the enforcement proceedings that commenced with the filing of OMP No. 149 of 2010. With the payment having been made to IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 12 of 16 Thai Maparn eventually only as a result of the order of the Supreme Court, one essential condition for maintaining an application under Section 144 stood satisfied. Thai Maparn could maintain an application under Section 144 CPC for any loss it may have suffered as a result of the orders of this Court which were set aside in appeal by the Supreme Court. Consequently, this Court negatives the objection of PEC to the maintainability of this application under Section 144 CPC.
Merits of the application
21. The claim by Thai Maparn that PEC should be directed to restitute it for the alleged loss suffered by it as a result of the fluctuation in the rate of foreign exchange is based on the principle of restitution. In Special Officer KSEB v. MRF Ltd., the Supreme Court cautioned (SCC, p. 379):
"But in giving such relief, the Court should not be oblivious of any unmerited hardship to be suffered by the party against whom action by way of restitution is taken. In deciding appropriate action by way of restitution, the court should take a pragmatic view and frame relief in such a manner as may be reasonable, fair and practicable and does not bring about unmerited hardship to either of the party."
22. In the present case, it is seen that the contract between the parties was denominated only in US $. The payment of the amount under the L/C had to be made, and in fact was made by SBI only in US $. SBI's affidavit dated 28th November 2011 is significant in this regard. It points out that the amount under the L/C was payable after 180 days. The maturity date in one B/L for US$ 9772125 was 16th August 2010 and in the other B/L for US$2266000 it was 23rd August 2010. This meant that the SBI had to make payment under the L/C on the said dates. This much is not disputed by Thai Maparn. It however claims in para 3 of its rejoinder in the present application that if PEC had not obtained an IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 13 of 16 interim order, the amount of US $ 12038125 under the L/C "would have been paid and credited to the account of the Applicant on or about 16 August 2010 and 22 August 2010 for USD 9,772,125 and USD 2,266,000 respectively."
23. From SBI's affidavit it transpires that on 27th March 2010 it converted US$12,038,125, being the amount payable under the L/C into Indian Rupee at the conversion rate of Rs. 46.01= 1US $ which worked out to Rs. 55,38,74,131. The said amount deposited by PEC was in terms of the order dated 26th March 2010 kept by SBI in an interest bearing account. In addition PEC deposited a sum of Rs. 1.83 crores with SBI towards security for exchange risk. This too was kept in an interest bearing amount. After the order dated 9th March 2011 of the Supreme Court, when Thai Maparn approached the SBI for payment, the conversion rate was 1 US$ = Rs. 44.67. The entire amount which had accrued till then with interest (Rs. 57,57,91,062.84) was converted by SBI into US$ at that exchange rate or thereabouts and paid to Thai Maparn in the following manner:
Payment date Amount paid Rate of Rupees Amount
(USD) Conversion
28.03.2011 9,772,125.00 44.67 43,65,20,823.75
28.03.2011 2,266,000.00 44.67 10,12,22,220.00
11.04.2011 323,889.83 44.29 1,43,46,700.00
15.04.2011 523,973.22 44.47 2,37,01,319.00
Total 12,894,988.05 57,57,91,062.84
24. SBI therefore rightly points out that Thai Maparn has in fact received IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 14 of 16 not only the amount payable under the Bills of Lading, i.e., US$120,38,125/- but additionally US$ 856,863.05. This is in fact confirmed by Thai Maparn itself in para 20 of the present application. Consequently, Thai Maparn received the entire amount payable to it under the L/C in US $ and an additional sum of US$ 856,863.05.
25. There was no guarantee held out to Thai Maparn in the contract or the L/C or any other document incidental to the contract that it would be paid in a currency other than US $. In other words, there was no assurance that Thai Maparn would be paid in Thai Baht at the foreign exchange rate prevalent on a date five days after the production of the B/Ls to SBI. What the prevalent exchange rate might be on the date when the amount against the B/Ls became payable under the L/C was a matter of speculation. It was therefore not contemplated by the parties at the time the contract was entered into. Also, since there is in international trade a time lag between the transaction and receipt of proceeds, hedging of risks associated with currency exchange fluctuation is not unknown. Exporters and importers are exposed to and therefore anticipate and account for such risks.
26. The condition imposed in the order dated 16th March 2010 of this Court was that in the event the stay stood vacated, PEC would have to pay exemplary costs and also interest. As it has turned out the entire amount payable under the L/C was deposited by PEC with the SBI and kept in an interest bearing account. An amount of around Rs. 1.83 crores deposited with SBI by PEC to cover the exchange rate fluctuation loss was also placed in a fixed deposit. SBI repatriated both sums together with the interest accrued to Thai Maparn. In fact, in the present application Thai Maparn has not even prayed for any interest. This being IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 15 of 16 the factual position, it is not possible to entertain the prayer by Thai Maparn for a direction to PEC to compensate Thai Maparn for the alleged loss in view of the fluctuation in the foreign currency.
27. Consequently, the application is dismissed, but in the circumstances, with no order as to costs.
S. MURALIDHAR, J.
JANUARY 23, 2012 akg IA No. 7140 of 2011 in OMP No. 149 of 2010 Page 16 of 16