Indian Acrylics Ltd. vs Sh. Subhash Chanana
2005 Latest Caselaw 1317 Del

JUDGMENT

B.N. Chaturvedi, J.

1. Instant suit is for recovery of Rs. 23,40,000/- with costs and pendente lite and future interest.

2. The plaintiff, M/s. Indian Acrylics Limited, is a joint sector company set up in collaboration with M/s. Cupont of USA and Punjab State Industrial Development Corporation at Harikrishanpura, Sangrur. It is engaged in the business of manufacturing acrylic-fiber used in knitwears, blankets and upholstery etc. as wool substitute. Majority of raw materials used by it are not available in India and had to be imported.

3. The plaintiff purchased a General Currency Area (GCA) Exim Scrip No. A0223086 dated 2.1.1992 of the face value of Rs. 93,50,000/- on 27th of January, 1992 from Shri Subhash Chanana, defendant, who runs a sole proprietorship firm in the name of M/s. Sainath Traders with its office at 40/8 Gandhi Gali, Katra Ishwar Bhawan, Khari Baoli, Delhi and also at 9-A, Oscar Apartments, 17th Road, Khar, Bombay.

4. It is stated that Exim Scrip was issued to exporters/trading houses against their foreign exchange earnings to enable them to import goods out of their foreign exchange earnings as per their requirements. These were of two kinds. One was the Exim Scrip for Rupee Payment Area(RPA) countries, and the other was Exim Scrip for General Currency Area(GCA) countries. The RPA Exim Scrip was valid for those countries where export was in rupee and, therefore, the Exim Scrip was also issued for import from RPA countries. The GCA Exim Scrip was valid for imports from anywhere in the world. The RPA Exim Scrip was primarily valid for Russia and former East European countries. Both Exim Scrips were freely transferable on payment of premium. But the GCA Exi Scrip carried a premium of twice the amount in comparison to the RPA Exim Scrip.

5. The plaintiff-company purchased a GCA Exim Scrip from the defendant at 20% premium prevailing at that time for a GCA Exim Scrip and paid a sum of Rs. 18,70,000/- on that account by demand draft Nos. 092271, 092272, 092273 dated 30.1.1992, drawn on Punjab National Bank, payable at New Delhi. Though the plaintiff-company purchased the said Exim Scrip for import from GCA countries, it remained unutilised for about a year due to devaluation of rupee and in view of imports coming to a halt.

6. In 1993, the Government of India announced a new policy, by virtue of which, majority of the imports were placed under Open General license(OGL) and the unutilised Exim Scrips valid for import from GCA countries were asked to be re-submitted to the is suing office by 31st of July, 1993 for reimbursement of premium paid to purchase the Scrips. The plaintiff-company, accordingly, lodged their Scrips on 9th of June, 1993 before the Joint Director General of Foreign Trade, 4, Esplanade East, Calcutta along with the claim of premium payable against this Exim Scrip. On failing to receive the claimed amount, the plaintiff-company deputed one of its representatives to visit Calcutta to check up the reasons for the delay. The representative on visiting the office of Joint Director General of Foreign Trade, Calcutta, was verbally informed that the Exim Scrip lodged by the plaintiff-company was not genuine and rather a fake one. He was also informed that the office of Joint Director General of Foreign Trade, Calcutta, had not issued that Scrip as GCA.

7. From the transfer letter, and other documents furnished by the defendant, it appeared that the Exim Scrip in question was issued in favor of M/s. Murlidhar Rattanlal on 2nd of June, 1992 as GCA by the Office of Joint Controller of Import and Export, Calcutta, who had, in turn, sold the same to M/s. Amar Trading Company, 1172/73, Gali Talian, Tilak Bazar, Delhi on 4th of January, 1992, and the same had, further, been sold by M/s Amar Trading Company to M/s. Sainath Traders, defendant.

8. Shri Anil Gupta, DGM(Accounts) of the plaintiff-company on 25th of January, 1993, got in-touch with the original recipient, M/s. Murlidhar Rattan Lal, who informed him that they had never been issued Exim Scrip in question as GCA and that the same was not sold by them to any other party as GCA. They also informed that the said Scrip was issued to them as RPA Scrip, which was sold by them to Maritime Agencies in Calcutta, and that they had never sold the Scrip to Amar Trading Company and the transfer better furnished by Sainath Traders to the plaintiff showing the sale of Scrip to M/s. Amar Trading company was a fake one. The plaintiff's representative was also informed that the transfer letter attested by Murlidhars' bankers, Punjab National Bank, annexed with the Exim Scrip, was also a forged document. It was further confirmed that the transfer letter purported to have been signed by Mr. Sanjay Kajaria, their authorised representative, for selling the Scrip to M/s. Amar Trading Company was actually not signed by him and that his signatures were forged ones. Their bankers, M/s. Punjab National Bank, CR Avenue Branch, Calcutta, who were shown to have verified the signatures on the transfer letter also confirmed vide their letter dated 25.11.1993 that either the signatures nor the rubber stamp affixed on transfer letter belonged to them and that the document was a forged one.

9. According to enquiries made by plaintiff-company, it was gathered that M/s. Murlidhar Rattan Lal sold the Exim Scrip to M/s. Maritime Agencies in Calcutta as RPA at a premium of less than 10% of the value. M/s. Maritime Agencies sold it to M/s. Sunshine Traders, Bombay as RPA at a premium of about 10% to 11%. M/s. Sunshine Traders, Bombay, in turn, sold it to M/s. Amar Trading Copany at a profit margin of about 0.5% and M/s. Amar Trading Company sold the Scrip to the defendant as RPA at a premium of about 11%. The defendant is alleged to have forged the Exim Scrip to GCA and also the transfer letter of M/s. Murlidhar Rattan Lal showing it as straight sale to M/s. Amar Trading Company. The Exim Scrip was sold to the plaintiff at a premium of 20% after forging the said documents. According to the plaintiff the aforesaid forgery was committed in order to sell the Exim Scrip as GCA at a higher premium of 20% since the RPA scrip commended a premium of 9 to 10% only. The defendant is, thus, alleged to have cheated the plaintiff-Company to the tune of around Rs. 19 lacs. It is claimed that if the Exim Scrip in question would have been a genuine GCA the plaintiff would have got reimbursement of Rs. 19 lacs from the Director-General of Foreign Trade on 1st of July, 1993 and adding interest @ 24% per annum from 1st of July, 1993 to 15th of December, 1994, the amount would work out to Rs. 23,40,000/-.

10. The plaintiff-Company lodged an FIR against the defendant for alleged cheating and forgery and the matter was under investigation at the time of filing of the suit.

11. The defendant put in appearance and contested the suit by filing a written statement. In his written statement, it was stated by the defendant that he had sold the Exim Scrip in question as RPA and not GCA, and that the same was forged as GCA in order to claim a higher amount on account of claim from Director-General of Foreign Trade, Calcutta. After the Issues were settled and the matter was pending for evidence, the defendant stopped appearing and was, thus, proceeded ex parte.

12. The plaintiff, in order to prove its claim, produced its evidence in the form of affidavits.

13. I have heard the learned counsel for the plaintiff.

14. From the written statement filed on behalf of the defendant, it would be noticed that as far as sale of Exim Scrip is concerned, that is not being disputed. The defendant, however, maintained that he had sold the Exim Scrip in question as RPA Scrip only and it was the plaintiff-Company which in order to claim a higher amount from the Office of the Joint Director-General of Foreign Trade, Calcutta, forged the same as GCA Scrip. On the other hand, the plaintiff-company asserts that it was the defendant who had with a view to secure higher return on account of sale of Exim Scrip in question that he forged the transferred documents and the Exim Scrip in question from RPA to GCA Scrip. There is no contest to the affirmations of plaintiff's witnesses in the form of affidavits that the plaintiff-Company had lodged the Exim Scrip in questin as GCA with Joint Director-General of Foreign Trade, Calcutta for reimbursement of premium paid to the defendant for purchase of the same. In terms of statements of witnesses on affidavits no amount on account of claim so lodged has been paid to the plaintiff-Company by the Office of the Joint Director-General of Foreign Trade, Calcutta, as according to them, the same is a fake one. Forging of transfer documents and Exim Scrip from RPA to GCA could either be to claim a higher amount from the office of Joint Director-General of Foreign Trade, Calcutta, as alleged by the defendant in his written statement, or it could have been by the defendant himself with a view to earn a higher amount of premium on sale thereof. The defendant has omitted to produce any evidence in support of his defense as reflected in his written statement. On the contrary, the evidence produced by the plaintiff that the Exim Scrip in question and relevant transfer documents were forged by the defendant for better yield on account of premium, remains unrebutted. The fact that Exim Scrip in question was, in fact, RPA Scrip was not disputed even by the defendant in his written statement. Since there is no evidence of commission of forgery of the aforesaid documents by the plaintiff-Company, it was the defendant alone who could be held to have been benefited on account of alleged forgery as by doing so, the defendant induced the plaintiff-company to shell out to him an amount of Rs. 18,70,000/- for purchase of Exim Scrip which amount it has not been able to claim back by way of reimbursement from the office of the Joint Director-General of Foreign Trade, Calcutta, in view of the Exim Scrip and transfer documents being taken to be forged ones. As the loss incurred by the plaintiff-Company on this account was occasioned on account of aforesaid fraudulent act on the part of the defendant, he is liable to make good the loss so suffered by it together with interest as claimed.

15. In the result, the suit is decreed for Rs. 23,40,000/- with costs ex parte together with pendente lite and future interest @ 10% on the principal sum of Rs. 18,70,000/-.

16. A decree be drawn accordingly.