T.T. Limited vs Sonali Bank And Ors.
2002 Latest Caselaw 1236 Del

JUDGMENT

C.K. Mahajan, J.

1. This is a suit filed by the plaintiff for recovery of US $ 42,371.15.

2. Briefly the facts are that on 18.1.1996, an order was placed on the plaintiff by one M/s. Inaa Trading & Company, Dhaka, Bangladesh in the name of defendant No. 2 for exporting to Bangladesh the goods described as "Cotton combed Yarn on Autocone".A letter of credit for Us $ 40,680/- was advised on 24.1.1996 through State Bank of India, Overseas Branch, New Delhi. As per the terms of the Letter of Credit, the goods were shipped to defendant No. 2. An authorised representative of defendant No. 2, M/s. Sincere Export conducted pre-shipment inspection of the consignments and confirmed that the merchandise had been shipped strictly as per specifications/quality/quantity and others terms as per the terms of Letter of Credit dated 18.1.1996. Vide letters dated 12.2.1996 and 13.2.1996, plaintiff advised the defendant No. 3 that the consignments had been properly shipped to defendant No. 2 and the same were delivered to the authorities at Land Customs Station, Benapole, Bangladesh as per the terms of the Letter of Credit. Thereafter, the export documents under the terms of Letter of Credit were sent to defendant No. 1 for reimbursement on 3.4.1996 by the bank of plaintiff. Vide letter dated 6.4.1996, the plaintiff requested defendant No. 2 to accept the documents and to sent the payment by due date. But the defendants No. 1 and 2 have failed to make the payment in spite of repeated requests and reminders. Even the defendants No. 1 returned the documents without assigning any reason and declined to make the payment of the goods exported by the plaintiff. Vide another letter dated 3.3.1997, the bank of the plaintiff again requested the defendant No. 1 to remit the payment together with interest. Vide letter dated 17.3.1997, defendant No. 1 informed the plaintiff and the bank of the plaintiff that defendant No. 2 had not accepted the documents as they were discrepant and had not cleared the goods from the customs. Vide letter dated 3.6.1997, the forwarding agents M/s. Abdul Haque & Sons informed the plaintiff that goods worth US $ 27,000/- had been burnt into ashes while lying at the place of stores at Mongal Port Authority at the time of accidental fire at godown which occurred on 18.3.1996 and the goods worth US $ 13,680/- had been delivered by them to defendant No. 2 on 9.4.1996. Thereafter, the defendant No. 1 on 12.9.1997 made the payment of US $ 13,595/- against the export documents for the value of US $ 13,680/- thereby making a short payment of US $ 85/-. Hence the present suit.

3. Summons of the suit were issued to the defendant and they were served. Since the defendant No. 1 having been served did not file the written statement within the stipulated time, the written statement was ordered to be taken on record subject to payment of Rs. 500/- as costs. However, later on none appeared on behalf of the defendants. The defendants were proceeded ex parte and the plaintiff was allowed to lead ex parte evidence by way of affidavits.

4. The plaintiff has filed affidavits of Mr. Rikhab Chand Jain, Chairman and Managing Director of the plaintiff and of Mr. V.N. Suryanarayanan, Asstt. General Manager of the Oriental Bank of Commerce to prove its case.

5. Mr. Rikhab Chand Jain has proved that the goods were shipped to defendant No. 2 under Invoice No. GEX/165 dated 6.2.1996 for US $ 27,000/- and goods worth US $ 13,680/- under Invoice No. GEX/169 dated 12.2.1996. He has proved packing lists and invoices in respect thereof as Exh. PW-1/2 PW-1/3, PW-1/5 and PW-1/6 respectively. He has also proved the certificate Exh. PW-1/8 issued by the authorised representative of defendant No. 2 on 8.2.1996 to the effect that the merchandise had been shipped strictly as per the specifications/quality/quantity and other terms as stipulated in the Letter of Credit. He has also proved that vide letter dated 7.3.1996 (Exh. PW-1/9), the plaintiff requested its bank to negotiable the documents in respect of shipment made to defendant No. 2. It has also been proved that vide letter dated 6.4.1996 (Exh. Pw-1/10), the plaintiff informed defendant No. 2 that the documents pertaining to the consignment shipped to it against the Letter of Credit had been forwarded by the bank of the plaintiff t o defendant No. 1. Vide letter dated 12.12.1996 (Exh. PW-1/11), plaintiff informed the defendant that till date the bank of the plaintiff had not received payment of the goods. He has also proved that vide letter dated 3.3.1997 (Exh. PW-1/12) addressed to defendant No. 1, the bank of the plaintiff reiterated its request to remit the payment of the shipments together with interest. It has also been proved that defendant No. 1 vide letter dated 17.3.1997 (Exh.PW-1/3) informed the plaintiff and its bank that defendant No. 2 had not accepted the documents as they were discrepant and the shipping documents were thus returned unpaid. He has also proved that vide letter dated 24.5.1997 (Exh. PW-1/14), the bank of the plaintiff asked the Joint Commissioner, Land Customs Station Benapole, Bangladesh to give information about delivery of the goods to defendant No. 2. The deponent has also proved the certificate (Exh. PW-1/15) issued by Mongal Port Authority to the effect that goods had been lost. He has also proved two letter dated 18.6.1997 (Exh. PW-1/16 & Exh. PW-1/17). The statement of account showing the amount due to the plaintiff has also been proved by the deponent as Exh. PW-1/18. The deponent has also proved the export overdue statement maintained by the bank of the plaintiff duly certified by the Bankers' Books Evidence Act as Exh. PW-1/19.

6. Mr. V.N. Suryanarayanan, Asstt. General Manager of the plaintiff's bank in his affidavit has proved letter of credit dated 18.1.1996 for US $ 46,080/- and the credit advice as Exh. PW/2/1 and PW-2/2 respectively. He has also proved that defendant No. 1 made the payment of US $ 13,595/- against invoice No. GEX/169 12.2.1996 of the plaintiff.

7. From the averments made in the plaint as well as the affidavit filed by way of ex parte evidence and in the absence of any evidence in rebuttal, I have no reason to disbelieve the contentions of the plaintiff. It is clear that the goods were shipped by the plaintiff to defendant No. 2. It is also proved that defendant No. 2 took delivery of some of the goods while part of the goods were destroyed in fire. It has also been proved that the plaintiff received payment of US $ 13,595/- against invoice No. GEX/169 for Rs. 13,680/- and the remaining balance of US $ 85/- remained to be paid and the plaintiff has not received payment of US $ 27,000/- against Invoice No. GEX/165 dated 6.2.1996. Thus, it is proved that the plaintiff is entitled to recover US $ 27,085/-.

8. In the circumstances, a decree for US $ 27,085/- is passed in favor of the plaintiff and against the defendants jointly as well as severally. The plaintiff shall also be entitled to interest @ 12% per annum from the date of filing of the suit till the date of decree. In case the decretal amount is not paid within three months from today, the plaintiff shall also be entitled to interest on the decretal amount @ 12% per annum from the date of decree till realisation.

9. A decree sheet be prepared accordingly.

The suit stands disposed of.