Asian Global Ltd. vs Business Soul???S Associates ...
2011 Latest Caselaw 5285 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 01.11.2011

+ CS(OS) No. 1045/2005

ASIAN GLOBAL LTD.                      ..... Plaintiff
              Through: Mr. Abhijat & Ms. Liza Baruah,
              Advs.
                     versus

BUSINESS SOUL'S ASSOCIATES LTD. & ANR. .....
                                      Defendants
              Through: None
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported
   in Digest?

V.K. JAIN, J. (ORAL)

1. This is a suit for declaration, permanent injunction

and mandatory injunction.

The plaintiff entered a contract with defendant

no.1 to import of 1000 MT(-/+10%) Heavy Melting Scrap at

the rate of $ 270 per MT for a total sale consideration of

US$ 2,70,000/-. The goods were to be exported to India

from any African or European port at the option of the

exporter. The payment was to be made to defendant no.1

by means of an irrevocable DLC (Documentary Letter of

Credit) to be issued by Prime Word Bank and acceptable to

the banker of defendant no.1. The amount was payable

100% at sight against presentation of shipping documents

at plaintiff's bank counter. The plaintiff accordingly got a

letter of credit issued by defendant no.2 - Standard

Chartered Bank, which was transferred to defendant no.1. A

Bill of Lading dated 20.5.2005 was then sent by defendant

no.1 to the plaintiff giving details of 12 containers and

indicating shipment of the scrap on 20.5.2005.

2. When the plaintiff tried to track the containers

mentioned in the Bill of Lading on the website of the

shipping company, namely, M/s MSC Shipping Agency, it

transpired that the containers referred in the Bill of Lading

did not belong to that shipping company and, in fact, there

were 14 containers as against the 12 containers shown in

the Bill of Lading as provided to the plaintiff by the

defendant no.1, those containers were meant for some other

party and the goods in those containers were to be delivered

at Ludhiana, though the goods to the plaintiff company were

to be delivered at Nhava Sheva Port, Mumbai, from where

they were to be transported to ICD TKD, New Delhi.

3. The case of the plaintiff is that the Letter of Credit

has been obtained from it by the defendant no.1 by playing

fraud and supplying forged documents and, in fact, no

goods were actually exported by defendant no.1 to India for

being delivered to be plaintiff company. The plaintiff has

accordingly sought a declaration that the Bill of Lading

dated 20.5.2005 as also the commercial invoice, packing

list, pre-shipment certificate and certificate of origin

provided to it by the defendant no.1 are forged documents.

The plaintiff has also sought an injunction directing the

defendant no.2 to return the documents received by it from

defendant no.1 for collection of USD 54779.40 on account of

the plaintiff and not to debit the account of the plaintiff to

the extent of the aforesaid amount, for the benefit of

defendant no.1.

4. Vide interim order dated 02.8.2005, this Court

directed the defendant no.2 not to release the amount of

USD 54779.40 to defendant no.1 on the strength of Bill of

Lading which the defendant no.1 had provided to the

plaintiff company. The interim order was made absolute on

26.4.2007. Defendant No.1 was proceeded ex parte on 26th

April, 2007. The defendant no.2 has not filed any written

statement contesting the suit.

5. Ex.PW1/B is the sale contract between the plaintiff

and defendant no.1. Vide this contract, the defendant no.1

agreed to export 1000 MT Heavy Melting Scrap to the

plaintiff company for an aggregate amount of US$

2,70,000/- and the delivery was to be made within 40 days

from the date of workable L/C in the bank of defendant

no.1.

6. Ex.PW1/D is the shipping bill which the defendant

no.1 supplied to the plaintiff company. As per the Bill of

Lading 'Ex.PW1/D', the consignment was shipped to the

plaintiff company in 12 containers, numbers of which have

been given in the document. The goods purported to have

been shipped on board, Vessel MSC Gabriella voyage no.095

and the port of discharge was shown as Nhava Sheva Sea

Port, India. The place of delivery was indicated as ICD TKD,

New Delhi. The Bill of Lading purports to be issued by

Ocean & Sea Ltd. for Meek Container Lines.

7. A perusal of Ex.PW1/F, which is the tracking

report on the website of MSC Shipping Agency would show

that container nos.MSCU2400208, MSCU2344906,

MSCU1016184, GSTU2823934, MSCU1608183,

ITLU6830371, TPHU6584782, MSCU2838961,

MSCU1147440 pertained to the Bill of Lading

No.MSCUMP003090 (9 containers) and containers No.

CRXU2199760, MSCU2885599, MSCU0114150,

TTNU3003697, GSTU4404325 pertained to the Bill of

Lading No.MSCUMP003082 (5 containers) and they were

destined from Mumbai. The search carried out on

01.5.2005 indicated the port of discharge as Mumbai in

respect of 9 containers. The search carried out on

27.5.2005 showed the port of discharge of all the 14

containers as Mundra and final destination at Ludhiana.

The search carried out on 24.6.2005 showed that the port of

discharge as well as the final destination was Mumbai in

respect of 5 containers for Bill of Lading

No.MSCUMP003082. It would thus be seen that, in fact,

none of the containers mentioned in the Bill of Lading

'Ex.PW1/D' was to discharge the goods at Nhava Sheva Sea

Port, Mumbai.

8.          The      plaintiff    company    sent   an      e-mail      dated

09.6.2005             to         the      Maputo           Exports           at

[email protected], referring to the order placed

by it with defendant no.1 for import of 12 containers of

Heavy Melting Scrap and also referring to Bill of Lading of

Meek Line provided to it by defendant no.1 as also the 9

containers, number of those which were mentioned in the

Bill of Lading 'Ex.PW1/D'. The plaintiff informed the

shipping company that the containers refereed in the letter

were booked for delivery at Ludhiana as against their

requirement for discharge at Nhava Sheva Port and delivery

at ICD TKD, New Delhi. A reply this e-mail was sent by

Maputo on the same date informing the plaintiff that the

mentioned containers were not shipped on board the MSC

Gabriella 95R and the shipper in respect of those containers

were Great Star Limited and a port of delivery was at

Mumbai.

The plaintiff also received an e-mail from Mr.

Saurabh Kapoor of MSC informing it that they were not

aware of involvement of Meek Line and as per the

information provided by the Maputo, the Bill of Lading

issued for the containers mentioned on the Bill of Lading

provided by the plaintiff was divided in two Bills of Lading

bearing nos. MSCUMP003032 & MSCUMP003080. Shipper

of the consignment was Rapid Global Ltd. and the consignee

was United Exports & Indentors Ltd., Singapore. The

plaintiff company also sent a letter dated 11.7.2005 to Meek

Line, giving all the facts and alleging a fraud with it by

providing a fake Bill of Lading dated 20.5.2005. No reply to

this letter was, however, received by the plaintiff from the

Meek Line.

8. It would thus be seen that a fraud was played on

the plaintiff company by the defendant no.1. The containers

mentioned in the Bill of Lading 'Ex.PW1/D' sent by

defendant no.1 provided to the plaintiff company did not

contain Heavy Melting Scrap, which the defendant no.1 had

agreed to sell to the plaintiff company. In the Bill of Lading,

the port of discharge was shown as Nhava Sheva Sea Port,

Mumbai, in respect of all the 12 containers mentioned

therein, whereas, in fact, these containers were to discharge

at ports other than Nhava Sheva Sea Port, Mumbai and, in

any case, the goods sent in those containers were neither

shipped by the defendant no.1 nor were they meant to be

delivered to the plaintiff company.

It is also quite evident that either the Bill of Lading

'Ex.PW1/D' is a forged document or that the company

which issued this Bill of Lading was acting in connivance

with the defendant no.1. Since the defendant no.1 did not

actually ship the Heavy Melting Scrap, which it had

contracted to sell to the plaintiff company and got the letter

of credit 'Ex.PW1/C' opened on the basis of a mis-

representation made to the plaintiff company and played a

fraud on it, the plaintiff company is entitled to an injunction

restraining the defendant no.2 from making any payment to

defendant no.1 under the Letter of Credit which it had

opened on the request of the plaintiff company.

9. For the reasons given hereinabove, the defendant

no.1 is restrained from invoking the Letter of Credit

'Ex.PW1/C', which the plaintiff company had got opened

with the defendant no.2 - Standard Charted Bank. The

defendant no.2 - Standard Charted Bank is directed to

return, to defendant no.1, the documents which it had

received from defendant no.1 for collecting US Dollar

54779.40 on account of the plaintiff company. The

defendant no.2 is also restrained from debiting the amount

of US Dollar 54779.40 to the account of the plaintiff

company. The plaintiff shall also be entitled to the costs of

the suit from defendant no.1.

The suit stands disposed of.

(V.K. JAIN) JUDGE NOVEMBER 01, 2011 KA