[Cites 4, Cited by 0]
Calcutta High Court
Limited vs Al Amanah Islamic on 2 December, 2025
Author: Aniruddha Roy
Bench: Aniruddha Roy
In the High Court at Calcutta
Commercial Division
Original Side
Judgment (2)
PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY
IA No. GA-COM/1/2024
In CS-COM/667/2024
ABHIRAJ ASSOCIATES PRIVATE
LIMITED
Vs
AL AMANAH ISLAMIC
INVESTMENT BANK OF THE
PHILIPPINES AND ORS
&
IA NO. GA-COM/3/2025
In CS-COM/667/2024
ABHIRAJ ASSOCIATES PRIVATE
LIMITED
Vs
AL AMANAH ISLAMIC
INVESTMENT BANK OF THE
PHILIPPINES AND ORS
For the plaintiff : Mr. Rupak Ghosh, Adv.
Mr. Sourath Dutt, Adv.
Ms. Abhipiya Sarkar, Adv.
For the defendant No. 2 : Mr. Ayan Dutta, Adv.
Ms. Sarmistha Das, Adv.
For the defendant No. 5 : Mr. Paritosh Sinha, Adv.
Mr. Jaydeep Roy, Adv.
Heard on : December 2, 2025
Judgment on : December 2, 2025
2
ANIRUDDHA ROY, J :
1. IA No. GA-COM/1/2024 is an application filed by the plaintiff
praying for an order of injunction against the defendants to protect
the alleged balance claim on account of price of goods sold and
delivered in connection with the Letter of Credit. The order of
injunction has already been granted by the Co-ordinate Bench on
May 10, 2024 and was then modified by an order dated January 13,
2025 to the extent to bring the defendant No. 2 within the purview of
the said order of injunction and since then the order of injunction is
also operating against the defendant No. 2.
2. Learned Counsel, Mr. Ayan Dutta appearing for the defendant No. 2
submits that his client has filed an application being IA GA-
COM/3/2025 which is appearing against the serial No. 14 in
today's cause list, inter alia, praying for rejection of plaint as against
the defendant No. 2 and the deletion of its name from the array of the
parties.
3. In the said application, the plaintiff has filed its affidavit in
opposition but the defendant No. 2 has not filed affidavit in reply.
4. At this juncture, Mr. Rupak Ghosh, learned Advocate appearing for
the plaintiff submits that the plaintiff shall not rely upon the affidavit
in opposition filed in the application filed by the defendant No. 2 and
he shall defend the application only on the basis of the statement
made therein.
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
5. In view of the above, by consent of the parties, both these
applications being the instant one and IA GA-COM/3/2025 are
taken up for consideration one after another.
6. Since the application filed by the defendant No. 2 is for rejection of
plaint, the same is taken up first.
In Re: GA-COM/3/2025
1. This is an application taken out by the second defendant, inter alia,
praying for rejection of plaint as against it and consequently, for
deleting the name of the second defendant from the array of the
parties.
2. The plaint case is that the plaintiff has sold certain goods/articles
to the defendant No. 4 at Bangladesh. Covering the entire price of
the goods, the defendant No. 4 has opened a Letter of Credit with
the defendant No. 1. The proforma defendant No. 5 is the banker of
the plaintiff who is to receive the entire proceed covered under the
Letter of Credit on account of the price of goods sold and delivered
and then make over the same to the plaintiff. The defendant No. 4
as the buyer of the goods accepted the proforma invoice on June
20, 2023 and then requested its banker, the second defendant
herein to arrange for issuance of irrevocable and unconditional
Letter of Credit (for short "LC") covering the entire value of
proforma invoice. The defendant No. 2 found it difficult to open the
said LC from its own counter and requested the defendant No. 1 to
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
issue the LC for an aggregated sum of USD1,77,000.00 equivalent
to Rs.1,47,26,400/- in favour of the plaintiff. In terms of such
request, the defendant No. 1 had issued LC dated August 8, 2023
for the above sum in favour of the plaintiff, which would expire on
November 30, 2023. The copy of the Letter of Credit is Annexure
B at page 37 to the instant application. The Letter of Credit as
advised by the proforma defendant being the advising bank, was
forwarded to it by a swift message by the defendant No. 2. The
plaintiff states in the plaint that the said LC had diverse terms and
conditions and the same was issued from the office of the defendant
No. 1, being the issuing bank, but routed through the defendant No.
2 to the proforma defendant No. 5. The LC was subsequently
amended by letters. The LC was then received by the plaintiff. Upon
being satisfied with the authenticity of the same, as advised by the
proforma defendant, the plaintiff had exported a total quantity for
about 196.02 MT of the goods. After completion of the export, the
plaintiff sent the entire set of negotiable documents as
contemplated under the LC, as amended, to proforma defendant.
The proforma defendant then sent the negotiable documents under
the said LC to the defendant No.1, the issuing bank, by its letter
dated November 3, 2023. The defendant No.1 did not raise no
discrepancy in terms of Article 14 of UCP-600 (for short "UCP") for
negotiation by the plaintiff through the proforma defendant. Part
payment of the purchase price has already been made. Having
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
failed to raise any discrepancy in terms of Article 14 of UCP, the
plaintiff states, the defendants have made themselves liable to pay
the entire proceed covered under the LC and have also forfeited
their right to dispute the documents sent for negotiation any
further. The defendant No.3 had affirmed the said LC issued by the
defendant no.1 as confirming bank as defined under Article 8 of
UCP. This was also confirmed by a letter dated January 4, 2024
issued by the defendant No.4, the purchaser of the goods showing
that the defendant No.3 has already made part payment under the
said LC. In paragraph 17 and 18 to the plaint, the plaintiff states
the role of the defendant No.3 as confirming bank. The plaintiff
further states that it has come to know that the defendant Nos.1, 2
and 3 have allowed the original negotiable documents to be parted
with in favour of the defendant No.4 to facilitate the delivery of
goods. In paragraph 20 to the plaint, the plaintiff states that the
defendant No.4 in collusion and conspiracy with the defendant
Nos.1, 2 and 3 have taken delivery of the entire goods but the part
of the sale consideration has not been paid. It is also stated that the
defendant Nos.1, 2 and 3 had issued No Objection Certificates
enabling the defendant No.4 to take delivery of the said goods in
collusion and conspiracy with each other. The plaintiff through its
letters, as stated in paragraph 22 to the plaint, had demanded
payment from defendant No.3 and defendant No.1. The case of the
plaintiff stated in the plaint is that liability of the defendant Nos.1, 2
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
and 3, as the issuing bank, banker of the defendant No.4 and
confirming bank respectively are co-extensive. Paragraphs 26 and
28 to the plaint state the collusion and conspiracy alleged by the
plaintiff by and between the defendant Nos.1 to 4. Paragraph
No.28, 31, 32, 35 and 36 show that the plaintiff has raised its
claims against the defendant Nos.1 to 4. Paragraph 36 to the plaint
read with prayer (b) to the plaint show that the plaintiff claims
compensation against the defendant Nos. 1 to 3.
3. Mr. Ayan Dutta, learned Counsel appearing for the defendant
No.2/applicant submits that the entire transaction is governed
under UCP. Referring to the relevant provisions from UCP, inter alia,
Article 7 and 8 thereof, Mr. Dutta submits that no liability can be
foisted upon the defendant No.2 in the facts of the case stated in
the plaint. Mr. Dutta submits that the defendant No.2 has neither
acted as confirming bank nor an issuing bank nor the nominated
bank. The defendant No.2 merely has forwarded/relayed the LC to
the proforma defendant No.5. He submits that, the issuing bank
being the defendant no.1 first sent the LC to Asia Pacific
Investment Bank of Malaysia (for short "Malaysian Bank"), which
in turn had forwarded the same to the defendant No.2 and the
defendant No.2 had forwarded the same to the proforma defendant.
4. Specifically referring to Article 8 from the UCP, Mr. Dutta, learned
Counsel for the applicant submits that the liability, if any, has to be
foisted upon the defendant No.1 first and then the confirming bank
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
being, the defendant No.3 and no liability can be foisted upon the
defendant No.2.
5. Mr. Ayan Dutta, learned Counsel for the applicant/defendant No.2
submits that since no liability can be fixed against the defendant
No.2 under the UCP, the plaintiff could not have raised any claim
even in the nature of compensation against the defendant No.2. The
entire transaction is governed under UCP. Indian laws have no
application on the transaction.
6. Mr. Rupak Ghosh, learned Counsel being ably assisted by Mr.
Sourath Dutt appearing for the plaintiff submits that the plaint case
clearly demonstrates the liability of the defendant No.2 towards the
unpaid sale consideration along with other defendants, arising out
of the said LC.
7. Referring to the reliefs claimed in the plaint, learned Counsel for the
plaintiff submits that the claims were made, specifically in
paragraph 29 and 36 to the plaint, against the defendant nos.1 to
3. The allegation of conspiracy is specifically pleaded in the plaint
including against the defendant No.2 along with other defendants.
He submits that the facts are complicated which are required to be
tried by way of witness action. Summarily, it cannot be said, from
the instant plaint, that the defendant No.2 is free from any liability
arising out of transaction alleged by the plaintiff in the plaint.
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
8. In the light of the above, Mr. Rupak Ghosh, learned Counsel
submits that this application should be dismissed and the plaint
must stand for trial against the defendants.
9. After considering the rival contentions of the parties and on perusal
of materials on record, at the outset, this Court reiterates the
settled principle of law while adjudicating an application praying for
rejection of plaint. While adjudicating of an application for rejection
of plaint, it is the duty of the Court to read the plaint and the
statements including the reliefs made therein and not beyond that.
The statements made in the plaint should be taken as true, correct
and sacrosanct. The defence or the probable defence defendant can
take to defend the plaint should not be the consideration of the
Court while adjudicating an application for rejection of plaint. If on
a plain and meaningful reading of the plaint, the Court is of the
view that the plaint is either barred by law or does not disclose any
cause of action against the defendant or any such defendants
and/or if the suit is bad for non-joinder or mis-joinder of the
parties, then the Court may reject the plaint in its entirety or
against such defendants, as the case may be.
10. On a plain and meaningful reading of the instant plaint, it appears
to this Court that the plaintiff has described a transaction relating
to sale of goods. The goods were sold to the defendant No.4 who has
consumed the goods. Part consideration paid, part not paid. The
sale consideration was covered under the said LC. The issuing bank
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
of the LC was defendant No.1. The confirming bank was defendant
No.3 and the banker of the defendant No.4/purchaser is the
defendant No.2 and the negotiating bank on behalf of the plaintiff is
the proforma defendant No.5. Collusion and conspiracy have also
been stated with the alleged particulars in the statements made in
the plaint. The plaint on the face of it does not show to be barred by
any law or that it does not disclose any cause of action against the
applicant/defendant No.2. At the stage of final trial, the suit may
fail against the defendant No.2 or may succeed. The bundle of facts
stated in the plaint which gave rise to the cause of action alleged in
the plaint, on a plain reading of the statements made the plaint
show an alleged involvement of the defendant No.2 in the
transaction. Segregation of cause of action is not possible without a
proper trial of the suit. Truth may come out at the time of trial but
not at this stage. From the Letter of Credit annexed to the plaint it
appears that the defendant No.2 has been described as "Sender"
therein. Therefore, the alleged involvement of the defendant No.2 in
the transaction qua the Letter of Credit cannot be ruled out
summarily, at this stage.
11. Considering the submissions made on behalf of the
applicant/defendant No.2, it appears to this Court that, if this
Court takes them into account at this stage, then a mini trial has to
be held, which is not permitted in law.
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
12. Considering the complicated set of facts involved in the transaction,
as pleaded in the plaint, inter alia, the allegations made against the
defendant No.2 in the plaint, this Court is of the firm and
considered view that, it is not a fit case for summary rejection of
plaint against the defendant No.2.
13. Accordingly, the suit stands for trial.
14. Resultantly, the instant application being IA No. GA-COM/3/2025
stands dismissed, without any order as to costs.
In Re: GA-COM/1/2024
1. Mr. Sourath Dutt, learned Advocate led by Mr. Rupak Ghosh,
learned Advocate appears for the plaintiff/petitioner.
2. Mr. Ayan Dutta, learned Advocate appears for the respondent No. 2.
3. Mr. Joydeep Roy, learned Advocate appears for the proforma
defendant No. 5.
4. This is the final hearing of an injunction application filed by the
plaintiff/petitioner in which by two different orders dated May 10,
2024 and December 13, 2024, the Co-ordinate Bench has passed
orders of injunction against the defendants/ respondents
restraining from withdrawing or transferring any amount from the
bank account as mentioned in paragraph 53 to the injunction
application without leaving the balance of USD1,10,000 equivalent
to Rs.91,57,500/-. Initially, the order of injunction was for a
limited period. Subsequently, the same was extended from time to
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
time and the same is subsisting till January 15, 2026 by virtue of
the last order of extension dated November 4, 2025.
5. The defendant/respondent No. 2 has only filed its affidavit in
opposition, to which the petitioner has filed affidavit in reply.
6. The rest of the defendants/respondents have not been represented
at any point of time, despite notices. The non-appearing
respondents have not filed their affidavit in opposition.
7. The appearing parties inform this Court that no appeal has been
preferred from the orders of injunction dated May 10, 2024 or
December 13, 2024.
8. The petitioner states that the petitioner has sold and delivered
goods to the respondent No. 4 upon proforma invoice being issued
by it dated June 20, 2023. Upon the said profroma invoice being
placed before the respondent No. 2, which has been described as
the banker of the respondent No. 4, the respondent No. 2 agreed to
issue the Letter of Credit covering the purchase price of the goods
sold and delivered in favour of the respondent No. 4.
9. However, for the crunch in foreign currency prevailing at the
relevant country where the respondent No. 4 is domiciled, the
respondent No. 2 requested the respondent No. 1 to issue Letter of
Credit. Accordingly, the Letter of Credit for a sum of USD 1,77,000
equivalent to Rs.1,47,26,400/- dated August 8, 2023, Annexure B
at Page No. 25 to the injunction application, was issued by the
respondent No. 1. The respondent No. 3 at all material time has
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
been described as the confirming bank by the petitioner and the
proforma respondent No. 5 has been described by the petitioner as
the negotiating bank who shall receive the amount covered under
the Letter of Credit (for short "LC") and shall ultimately make over
to the petitioner, the seller of the goods.
10. The Letter of Credit appearing at page 25 to the application shows
that the name of "Swift Output Sender" is the respondent No. 2
and the "Receiver" is proforma respondent No. 5.
11. The petitioner contends that part of the sale consideration has been
paid being the part of the amount covered under the LC. The
amount was initially released by the respondent No. 3 in favour of
the proforma respondent No. 5 and then was paid to the petitioner
by the proforma respondent No. 5.
12. Claiming the balance unpaid sale consideration, the instant suit
has been filed.
13. The instant injunction application was moved before the Co-
ordinate Bench on May 10, 2024 when the order of injunction was
passed to the effect, as already narrated above, and the same was
then extended from time to time and is still subsisting till January
15, 2026.
14. Subsequently after receiving further information, the petitioner has
filed a supplementary affidavit with the leave of the Co-ordinate
Bench when after hearing the petitioner, the Co-ordinate Bench had
modified the order of injunction dated May 10, 2024 by its order
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
dated December 13, 2024, to the extent that the defendant Nos. 1,
2 and 3 were also restrained from withdrawing or transferring any
amount from the bank account mentioned in the said order.
15. Mr. Sourath Dutt, learned Advocate appearing for the petitioner
submits that the Letter of Credit annexed to the petition clearly
bears the name of the respondent No. 2 as the Swift Output
Sender. Therefore, the involvement of the respondent No. 2 in the
transaction and qua the Letter of Credit cannot be denied.
16. The extent of liability, as pleaded in the petition, insofar as the
respondent No. 2 is concerned are, prima facie, apparent from the
Letter of Credit and the allied records disclosed in this proceeding.
17. Mr. Sourath Dutt, learned Advocate appearing for the petitioner
then refers to the orders passed by the Co-ordinate Bench and
submits that after recording the facts in detail and after being
satisfied, prima facie, on the basis of those facts, the order of
injunction has been passed and the respondent No. 2 has not come
up with any case which can demolish the said prima facie finding.
18. Hence, Mr. Dutt prays for continuation and confirmation of the
interim order till disposal of the suit.
19. Mr. Ayan Dutta, learned Advocate appearing for the respondent No.
2 at the threshold refers to the statement from paragraph 13 of the
injunction application. He submits that it is the specific case of the
petitioner that the proforma respondent was acting as advising
bank and the negotiating bank on behalf of the petitioner and after
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
receipt of the negotiable documents under the said LC, the same
were forwarded duly by the proforma respondent to the respondent
No. 1. He then refers to Article 12 of the UCP-600 and submits
that unless a nominated bank is the confirming bank, an
authorization to honour or negotiate does not impose any obligation
on that nominated bank to honour or negotiate, except when
expressly agreed to by that nominated bank and so communicated
to the beneficiary. He then refers Article 8 of UCP-600 and submits
that the same provided the stipulated documents are presented to
the confirming bank or to any other nominated bank and that they
constitute a complying presentation then only the confirming bank
must honour the Letter of Credit. In the facts of the instant case, as
would be evident from the statement made in paragraph 13 of the
petition, the LC was presented before the respondent No. 1 being
the issuing bank. Therefore, no liability on the part of the
respondent No. 2 arises under the said UCP-600 or otherwise in
any manner.
20. Mr. Ayan Dutta, further refers to Annexure B at page 21 from the
affidavit in opposition and submits that in the said document, the
name of the Swift Output Sender is mentioned as one Asia Pacific
Investment Bank Limited and not the name of the respondent No. 2,
but the name of the respondent No. 2 has been mentioned as
Receiver. Therefore, there is no responsibility on the part of the
respondent No. 2 to make any payment to the petitioner under the
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
said Letter of Credit. The name of the respondent No. 2 even does
not feature at the relevant Letter of Credit.
21. In the light of the above submissions, Mr. Ayan Dutta, learned
Advocate appearing for the respondent No. 2 submits that no prima
facie case has been made out based on available documents on
record that any liability can be foisted upon the respondent No. 2
arising out of said LC. He further submits from page 23 of affidavit
in opposition that the name of Sender to the Receiver is
mentioned as Asia Pacific Investment Bank Limited.
22. Hence the interim order should be vacated.
23. After considering the rival contentions of the parties and upon
perusal of the materials on record, it appears to this Court that, the
transaction of sale of goods by the petitioner in favour of the
respondent no.4 has not been denied. The opening and existence of
the said Letter of Credit is also not denied. The plaintiff admits that
part of the sale consideration has been received. The part payment
has been released by the respondent no.3 in favour of the proforma
respondent no.5 and in turn, the respondent no.5 has paid the
petitioner. Therefore, the transaction on record stands admitted,
prima facie. The question whether any further sum, is payable to
the plaintiff or not is the subject matter of the trial in the suit.
24. Save and except the respondent no.2 and proforma respondent
no.5, the other respondents have not entered appearance. The
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
respondent no.2 and proforma respondent no.5 have also filed their
written statement.
25. In between two documents at page 25 to the injunction application
and page 21 to the affidavit in opposition filed by the respondent
no.2 which one is to be taken as correct, that will also depend on
trial of the suit. The document disclosed by the petitioner in its
petition at page 25, prima facie, shows that the name of the Swift
Output Sender is mentioned as the name of the respondent no.2.
26. The affidavit in opposition filed by the respondent no.2 also shows
the involvement of the respondent no.2 in the transaction, but it
may so happen at the time of final trial of the suit it may fail or
succeed against the respondent no.2 after ascertaining its actual
role in the transaction but prima facie involvement of the
respondent no.2 has been found by this Court, of course with a
triable issue.
27. The provisions referred to from the UCP-600 and its applicability, as
raised by the respondent no.2 would also depend upon the correct
facts being ascertained after conducting a detail fact finding trial.
28. This Court is of the view that, on a prima facie finding, this Court
now is not in a position to decide whether any liability can be
foisted upon or not on the respondent No.2 by applying the
provisions under UCP-600 unless concrete finding of facts are
arrived at.
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
29. In view of the foregoing reasons and discussions, this Court is of the
considered and firm prima facie view that the orders of injunction
passed by the Co-ordinate Bench, as referred to above, should
continue and accordingly the same stand confirmed until disposal
of the suit. The balance of convenience and/or inconvenience is also
in favour of confirmation of the interim orders already passed.
30. In view of the above, the instant application being IA No. GA-
COM/1/2024 stands allowed.
(ANIRUDDHA ROY, J.)
Sbghosh/RS
IA No. GA-COM/1/2024 and GA-COM/3/2025
In CS-COM/667/2024
A.R., J.
