Central Bank Of India vs Delhi Motors Traders Association
2002 Latest Caselaw 710 Del

JUDGMENT

Vikramajit Sen, J.

1. These twoAppeals are against the Judgment dated 21.9.1972 of the learned Single Judge, and shall be disposed of by this common judgment.

2.The facts in both cases are similarin essential features. The Respondent had filed Suit No.285/1969for the recovery of Rs.34,864.38/- (Rs.thirty four thousand eight hundred sixty four and thirty eight paise only) together with interest; it is the subjectmatterof RFA (OS) No.18/1972. In the plaint it was averred that on 15th October, 1965 the Respondent Delhi Motor Traders Association (hereinafter referred to as the `Motor Association') had appliedto the Appellant/Defendant for the opening of a Letterof Credit (in short LC) in favor of the West German supplier of the imported consignment of ball-bearings. The L.C. was opened on 19th October, 1965. On 4th March, 1966and 5th March, 1966, the German supplier drewtwo Drafts (Ex. P1 and P2) on the Bank, and these werehonoured by their London office in due coursein March/April,1966.Thereupon the Bank presented two Bills dated 15.3.1966 (Ex.P-3) and 21.4.1966 (Ex.P4) to the Motor Association.

3.In respect of the other transaction which is the subject matter of Suit No.295/1969 and RFA(OS) 19/1972, the supplier of the imported consignmentof ball-bearings was located in theUnitedStatesof America. The date of opening of the LC was 7.10.1965 and the Supplier's Draft was honoured in March 1966 and the Bill (Ex.P-2) was presented on 29.3.1966. The Motor Association's Claimin this suit is for the sumof Rs.1,38,693.26. This supplier was paid against the L.C. in March, 1966 and the Bank similarly presented a Bill dated 29.3.1966 (Ex.P-2) to the Motor Association for a sum of Rs.1,83,117.26. All the three Bills were not paid immediately.

4.The legal conundrum which has arisen is a consequence of thedevaluation of the Indian Rupee, which took place in June, 1966. The consignments appear to have been retired by the Motor Association in July 1966and it was at this juncture that the Bank debited the account maintained by the Motor Association with it at the devalued currency rate. In other words, the Bank does not seek the recovery of the aggregate of the three Bills, or the total amount paid out to the two suppliers. Instead, it debited the account of the Motor Association in respect of the sums paid to the two suppliers but at the devalued rates prevailing when the documents were retrieved in July,1966.The Motor Association,accordingly, filed the two Suits for the recovery of the difference between the devalued rate and the rate obtaining in March and April, 1966 when the Bankactually made payments to theforeign suppliers against the LC and had presented its afore-detailed two Bills to their constituents namely the Motor Association.

5.The main contention before us, as was also before the learned Single Judge, revolves around the interpretation of Clause 5 of the Agreement. The contention of the Bank is that it had theoptionto claim payment on any of the occasions mentionedin Clause 5. It is further argued that the issuance of the Bills are wholly irrelevant since they were specifically declared to be good for payment for that day only. The Bank's submission is also that the relevant date for purposes ofconversion to Indian Rupees for payments madeearlier in foreign currency would be the dateon which the goods were retired. It is contended that the Bankcorrectly recovered payment by debiting the account of the Motor Association on the date of theretirement of the consignment.

6. Clause 5 of the Agreement (Ex.P-5) reads in the following manner:

"That it is at your sole option to claim payment of any billdrawn pursuant hereto either at the rate of exchange ruling on the date of its negotiation abroad, or the date of its payment by you to a local Bank or the date of presentation to me/us, or due date or the date of its payment by me/us or in the event of any legal proceedings being taken in respect of such bill, at the rate ruling at the date of the decree in such proceedings; and I am/we arebound to make payment of the said bill at which-ever of the above rates you may name."

7. The Plaintiff had strenuously assailed this clause on the grounds of uncertainty within the meaning of Section 29 of the Contract Act and more particularly on illustration (e) and (f) thereto.In the analysis of the learned Single Judge, Clause 5 reserves to the Bank the sole option to claim payment on the happening of any of the five events mentioned therein. In his view, had the aforesaid Clause contained the phrase "whichever of the rates was the highest", the Clause could be held to be void on the grounds of uncertainty. His finding was that the Clause was confined only tothe five alternative dates specified in it and hence was legally unassailableand it did not give unbridled optionsto the Bank. He, accordingly, held against the Plaintiff on the first issue which was in respect of the validity of the said Clause. The learned single Judge also disagreed with thePlaintiff's contentionthat this Clause was repugnant to public policy.

8.An attempt has been made by Mr. Bakshi Bikram Singh, Learned Counsel for the Motor Association in these appeals, to challenge this finding of the learned Single Judge. We are prima facie of the view thatsince the Motor Association had failed to file a cross-Objections, they should not be heard on this issue. Mr. Bakshi Bikram Singh, however, contended thatRule 22 of Order XLI permits him to challenge any of the findings since aparty is precluded from assailing aportion only of the judgment, whichis otherwise in favor of that party.We areunableto agree with this interpretation of law since the Civil Procedure Code inthis Rule itself permits the Respondent to file a Cross Objections within thirty days of the date of service of the appeal. If Mr. Bakshi Bikram Singh's argument is to be accepted, the Explanation to theSection would be render otiose. However, this question is not pivotal for the disposal of the Appeal and, therefore, we do not intend to give a definitive ruling on this question.

9. Evidence was recorded in the first suit and was to be read for both the actions.The Bank's witness had deposed, inter alia, that although they had sent an intimation to the Motor Association regarding the receipt of the shipping documents and hadasked for payment, the latter did not retire the document, and finally did so on 26.7.1966.On 6.6.1966 the Inspectors of the Reserve Bank of India came to the Bank and initialled on the last entry in the accounts of the various parties.(This statement has been heavily relied uponby learned counsel for the Petitioner but we are unable to appreciate itsrelevance. It does not tantamount to a direction from the ReserveBank that monies must be recovered from the Bank's constituents at the post-devaluation rates). The witness had further deposed that Bills were issued and were valid for that day only. In cross-examination this witness admitted that on the basis of this intimation the Plaintiff/Motor Association was required to make payment immediately failing which interest would become chargeable at eight and a half per cent if the documents were not retired within one week of the Bill. If the Plaintiff did not retire the Bill within a week the Plaintiff would become liable to pay overdue commission also. Significantly, the witnessfurther admitted that the sending of the intimation was considered by the Bank as presentation of the Bill for retirement. Even more importantly, the witness stated that according to the agreement between theBank and its correspondents in the foreign countries, the latter were entitled todebit the former's accounts at the time of the negotiationsof their own Bills, irrespective of the fact whether the payment had been made by the Plaintiff. He further made a self-serving statement to the effect that even if the Bankmade payment to the foreign corresponding banks prior to devaluation, the Bank was entitled to claim amounts on the revised valuation at the post-devaluation rates. Thesecondwitness (DW-2), the Agent of the Bank, made the following statement in cross-examination

-"On sending of the intimation regarding payments if the party does not make payment and retiresthe bills immediately it has to pay interest at eight and a half per cent. If the bill is in foreign currency payment has to be made at the rate prevalent on the dateof retirement of the bill. On the bill shown to me from the court record we had converted the amount payable for the bill into Indian rupee.On the intimation sentto the plaintiff it was not indicated that the rateof exchange applicable would be the rate prevalent on the date of retirement.

Question: Kindly see Clause V of agreement Exhibit P.5.(in Suit No.295 of 1969) and state if this clause is meant to protect the bank from suffering any damage if the payment is made by the bank of the bills drawn underthe letter of credit to its correspondent after the devaluation taking place between the dateof negotiations by the foreign correspondent and payment by the Bank constituent?

Answer: No. There is no question of remitting money from India to the foreign country. By opening a letter of credit we authorise the foreign correspondent to take the amount due under its bill on the dateof negotiations.

My answer would be the same in respectof agreements and letters of credit as well as regarding the bills in both the suits.

Re-examination: Nil."

10. There can be no manner of doubt that had the Indian Rupee been revalued upwards in June 1966, the Bankwould not have adhered to the stand that it has adopted in these proceedings. It is equally beyond speculation that in this event it would have been the Motor Association which would have contended that the relevant date for conversionof the foreign payment/remittance into Indian Rupee should be the date on which it had retired the documents, i.e.July, 1966. Neither of these situations, however, affect our decision. It did not effect the decision of the learned Single Judge. It is, however, relevant tounderscore and emphasise that the Bank has not been put to any loss as a result of the devaluation of the Rupee in 1966.It had paid out well before it, at pre devaluation rates. Mr.Vohra, learned counsel appearing for the Bank has belaboured the point that in retiring the documents post-devaluation, in July 1966, the Motor Association has sold the ball-bearings at higher prices becauseof the differential in the exchange rates. Even if this is to be accepted it is irrelevant for a determinationof the present disputes. This argument militates against the Bank since it applies equally to it; the Bank cannot unjustly enrich itself. At best it may have justified the eventual buyers of the Motor Association to resistthe increase/escalated price of the ball-bearings demanded by the latter.

11. In our considered opinion the decision is dependant entirely on thedate on which the Bank exercised any of the five options available to it under Clause 5 (already reproduced by us above). The Bank could have kept its demand open had it not issued the three Billsin March/April,1966. It couldvery well haveadopted the position, had it not sent its Bills, and computed its claim the rate prevailing on the date on which the Motor Associationhad retired the documents. Speculation on fluctuations in international currency rates is a specialised activity of all Banks in goodstanding. Equally, it was prudent for the Bank to immediately claim reimbursement for the payment made by it to its corresponding bankers, immediately on these payments having been made.Had no devaluation of the Indian Rupee taken place, the present disputes would not havearisen at all.As has been admitted by the Bank's witnesses, the conversion into Indian Rupee was carried out on the date of the Bill. The Bank had,therefore, exercised its option on the issuance of the Bills. This is all the more evident since the Bank had cautioned the Motor Association that it would charge interest at the rateof eight and a half per cent (8.1/2%) as wellas extra commission. This claim would be unsustainable if the debt had not been quantified and foreclosed on the dateof the Bills. The Bank could not have claimed these amounts even though they would fall due on a later date. Although it is a matter of conjecture, it appears thatthe Bill was not immediately squared up possibly because adequate sums were not available to the credit of the Motor Association in their accountmaintained withthe Bank. The cause of action for recovery however, unequivocally hadarisenon each of the respective dates of the three Bills. Having exercised one of the five alternatives available to it in terms of Clause 5, the Bank had foreclosed its options. Clause 5 doesnot countenance the substitution of one optionby another. Had it done so, it is quite likely that the learned Single Judge would have held the Clause tobe unconscionable, and/or uncertain, and/or against public policy. The argument that all the Bills were valid for that date only, does not lead to the conclusion of their not being a firm and unequivocal exercise of its option by the Bank.All that has been clarified by the Bank is that the amounts indicated in the Bill are binding on it for that date only. Thereafter, the Bank wouldbe entitled to claim not only interest at the rate of eight and a half per cent but also additional commission. The claim for interest at the rate of eight and a half per centcompletely annihilates the Bank's contention that there was no exercise of option. Unless an amountis due and payable on a particular date there can beno justification for levying interest charges thereon. Eachof the Bills represents firm demand. It has been speciously contended that the Bank is a Public Sector Bank and it has no intention to make unnecessary profit. However, this is exactly how we see the action of the Bank. Had it made payments at the post-devaluation rates to both the foreign suppliers, perhaps in equity it may have some case. Reliance has been placed on the following definition of the wordMemorandum - "An informal record, note or instrument embodying something thatthe parties desire to fix in memory by the aidof written evidence, or that is to serve as the basis of a future formal contract or deed. A brief Written Statement outliningthe terms ofan agreementor transaction. Informal interoffice communication."We cannot appreciate Mr. Vohra's reliance on the last three words of the definition and his glossing over the penultimate sentence of the definition. The fact that eachof the Bills is styled as a Memo on its top, does not advance the argument of the Bank at all.

12. Counsel for the parties havereliedon Cummings Vs. London Bullion Co. Ltd., (1952) 1 All England Reports 383, Hawkins Vs. Hawkins and Another,(1972) 3 All England Reports 386, United Railways of the Havana and Regla Warehouses Ltd., (1960) 1 All England Reports 332 and Keshavlal Lallubhai Patel and Others vs. Lalbhai Trikumlal Mills Ltd.,(1959) SCR 213 and Madeleine Vionnet Et Cie Vs.Wills,(1939) 4 All England Reports 136. All these decisions have assisted us in coming to our above decision

13. For these manifold reasons, we are of the considered view that the impugned judgment of the learned Single Judge is correct. The Appeals are wholly without merit and are dismissed with costs.Since the appellant had needlessly exhausted a considerable amount of public/Court time, we are also of the view that the appellant should pay special costs, quantifiedat Rs.3000/-, within four weeks from today, in favorof "Delhi Legal Services Authority", Patiala House, New Delhi.