Delhi High Court
M/S Sawhney Brothers vs Hongkong And Shanghai Banking ... on 6 January, 2017
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 402/2016
Judgment pronounced on : January 06, 2017
M/S SAWHNEY BROTHERS ....Appellant
Through : Mr. T. S. Sawhney, Appellant in
person
Versus
HONGKONG & SHANGHAI BANKING CORPN. ....Respondents
Through : None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
SANGITA DHINGRA SEHGAL, J
1. The present appeal has been filed against the order dated
06.05.2016 passed by the learned Single Judge of this court whereby the
second review petition No. 191/2016 filed by the present appellant was
dismissed.
2. The Appellant contended that learned Single Judge has failed to
take note of the observations made by the High Court of Cuttack in the
case titled as Ramkrushna Dasmahopatra @ Tikipua vs. Indian Tea
Provisons Ltd. 2013(II) ILR-CUT-I, dated 12.12.2012 and dismissed his
application in limine.
3. We have heard the appellant in person and have pursued the
material available on record.
4. Petitioner filed a writ petition bearing No. 3569/2012 with a prayer
for directing the respondent Bank to refund the claim of the petitioner
along with interest on the ground that it is a case of maritime fraud
committed upon the appellant by the respondent bank in connivance with
the actual importer. The appellant had opened a letter of credit for
US$ 486,000 with Uniform Custom and Practice from documentary
credits (the UCP) conditions which were thereafter, not complied with by
the respondent Bank. The respondent Bank released the USD 486,000
without complying with the condition of the amended letter of credit and
without demanding inspection certificates from the beneficiary of the
letter of credit in violation of Article 7 of the UCP. Furthermore, the
Letter of Credit was received by respondent Bank in the morning of
30.08.1979 and the said amount was released on the very same day only
because of involvement of the bank employees. The said writ petition was
disposed of on 01.06.2012 by the learned Single Judge holding as under-
"The petitioner has preferred this writ petition to
seek a writ of mandamus to direct the respondent
bank, i.e., the Hongkong and Shanghai Banking
Corporation to disburse the petitioner?s claim of
US$7,86,540.00 with 18% interest with quarterly
rests. The petitioner has preferred the suit against
the respondent bank. On the basis of cross-
examination conducted in the said proceedings of
the bank's witness, the present petition has been
preferred to claim that the earlier defence of the
bank that they had received the amendment in the
Letter of Credit after its payment has been falsified.
According to the petitioner, the amendment of the
Letter of Credit furnished at the petitioner's instance
had reached the respondent bank even prior to
disbursing the payment there under to the
beneficiary.
The petitioner already having preferred the civil
suit, which is still pending cannot prefer the present
writ petition. The effect of the said so-called receipt
of the communication regarding amendment of
the L.C. prior to the making of payment under the
L.C., will have to be decided by the civil Court. The
petitioner cannot invoke the civil remedy, and
thereafter give up the same to prefer a writ petition
and that too, on the basis of proceedings which
have taken place in the Civil Court. Moreover, it
remains doubtful whether the petitioner's
present petition is maintainable against the
respondent bank, since it is a private bank. I am,
therefore, not inclined to entertain the present
petition. However, it shall be open to the petitioner
to approach the Civil Court on the basis of the so-
called admission under Rule XII CPC."
5. Against the order dated 01.06.2012 passed in W.P.(C)
No. 3569/2012 petitioner preferred an appeal by filing LPA No. 725/2012
which was disposed of as withdrawn on 03.03.2014. The order dated
03.03.2014 is recapitulated as under-
"After some hearing Mr. T.S. Sawhney, appellant in
person sought liberty to withdraw the appeal
stating that his arguments on the question of
amendment to the L.C. - which according to him is
in issue before the learned Single Judge in the
pending suit and the alleged fraud played upon him
would be urged before the learned Single Judge.
The appellant is at liberty to urge such questions of
facts and law as are permissible in accordance with
law having regard to the issues framed in the
pending suit and pursue all remedies.
All rights and contentions of all parties are
reserved.
The appeal is accordingly disposed of as
withdrawn."
6. Thereafter, the petitioner filed a review petition bearing No.
191/2016 against the order dated 01.06.2016 passed in W.P. (C)
No. 3569/2012 after a delay of around two years, which was dismissed
vide order dated 06.05.2016, impugned before us.
7. In our view, the challenge made by the appellant in the second
review petition has already attained finality vide order dated 03.03.2014
passed in LPA 725/12 and now he cannot raise the same ground again in
view of the principle of res judicata.
8. The contention of the appellant that the judgment passed by the
High Court of Cuttack in the case titled as Ramkrushna Dasmahopatra
@ Tikipua vs. Indian Tea Provisons Ltd. 2013(II) ILR-CUT-I, dated
12.12.2012 has not been considered is concerned, we are of the view that
the said judgment does not come to the rescue of the appellant, as we
have already held above that second review petition is not maintainable in
view of the fact that the issue raised in LPA 725/2016 has attained
finality in terms of order dated 03.03.2017.
9. Accordingly, the present appeal is dismissed.
SANGITA DHINGRA SEHGAL, J
CHIEF JUSTICE
JANUARY 06, 2017
