M/S Sigma Exports vs State Bank Of Patiala
2018 Latest Caselaw 6404 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 365/2006

%                                              23rd October, 2018

M/S SIGMA EXPORTS
                                                         ..... Appellant
                          Through:       Mr. Sandeep Garg, Advocate
                                         (M. No.9811362403).
                          versus

STATE BANK OF PATIALA
                                                       ..... Respondent

                          Through:       Mr. Garva Dhyani, Advocate
                                         (M. No.9910137827).

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the Trial Court dated 15.02.2006 by which

the trial court has dismissed the suit for recovery of Rs. 4,33,061/-

filed by the appellant/plaintiff against the respondent/defendant/State

Bank of Patiala. The claim of the plaintiff was that the

respondent/defendant-bank, after more than three and half years of

giving a credit for an amount of Rs. 2,74,820/- on 27.05.1996, vide

letter dated 28.08.1999, claimed that the credit advice was given by

mistake. The credit/payment of Rs. 2,74,820/- equivalent to US$

7885.50 (at Rs.35/- per dollar) was the payment to be received by the

appellant/plaintiff as seller from the buyer M/s Jean Poppe, Belgium.

2. The facts of the case are that the appellant/plaintiff filed

the subject suit pleading that it is the manufacturer and exporter of

cotton home furnishing. The appellant/plaintiff maintained its current

account with the respondent/defendant-bank. In July, 1995, the

appellant/plaintiff shipped its consignment to Belgium for the buyer

M/s Jean Poppe, Belgium as per Invoice dated 18.06.1995. The

documents with respect to the shipment of goods were sent by the

appellant/plaintiff for collection of payment through the

respondent/defendant-bank. The appellant/plaintiff states that it

received a credit advice from the respondent/defendant-bank on

27.05.1996 with respect to the amount of Rs. 2,74,820/-, however, the

respondent/defendant-bank after about three and half years on

28.08.1999 claimed that by mistake the credit was made in the account

of the appellant/plaintiff because in fact no amount was received by

the respondent/defendant-bank from the foreign buyer through its

bank with respect to the subject shipment under Invoice dated

18.06.1995. Reference is made in the plaint, thereafter, to various

correspondence between the parties of the year 1999 and ultimately of

the appellant/plaintiff sent Legal Notice dated 25.04.2001 and

thereafter the subject suit was filed claiming the principal amount of

Rs. 2,74,820/- along-with the balance amount towards interest totaling

to Rs. 4,33,061/-.

3. The respondent/defendant-bank contested the suit and

pleaded that by a mistake, credit was given in the account of the

appellant/defendant, in view of the foreign department of the

respondent/defendant-bank sending the payment advice dated

23.10.1996, which was actually under a mistake of fact, because infact

no payment has been received by the respondent/defendant-bank..

This mistake was discovered while reconciling the bank's account in

August, 1999. Accordingly, the respondent/defendant-bank marked a

lien on the funds of the appellant/plaintiff lying with the

respondent/defendant-bank for the amount of Rs. 3,45,019/- on

account of the wrong credit given of Rs. 2,74,820/- to the

appellant/plaintiff on 27.05.1996. The respondent/defendant-bank

also pleaded that the original documents were already sent back to the

appellant/plaintiff by courier on 17.08.1996. Therefore, the Suit was

prayed to be dismissed.

4. After pleadings were complete, the trial court framed the

following issues:-

"1. Whether the suit has been filed by duly authorized person and hence, not liable to be dismissed? OPP

2. Whether the export bill of the plaintiff was inadvertently paid under mistake and it was credited to the plaintiff's account? OPD

3. Whether the plaintiff is entitled for the relief claimed? OPP

4. Relief."

5. The crucial issue to be decided is issue no.2 as to whether

the appellant/plaintiff is entitled to the recovery of the amount claimed

in the suit on account of the respondent/defendant-bank only

informing the appellant/plaintiff after three and half years of the credit

made on 27.05.1996 i.e. in terms of the Letter of the

respondent/defendant-bank dated 28.08.1999. The trial court has

decided this issue against the appellant/plaintiff by observing that the

witness of the respondent/defendant-bank DW-2, Sh. Naval Kishore,

proved and exhibited the courier receipt of the courier Speed Way

Courier as Ex.DW1/1 by which the original documents of shipment

were returned by respondent/defendant-bank to the appellant/plaintiff.

The bill of the courier was exhibited as Ex.DW1/2 and debit voucher

was exhibited as Ex.DW1/3. Accordingly, the trial court has held that

the appellant/plaintiff was well aware since August, 1996 of the goods

not having been accepted by the foreign buyer, as appellant/plaintiff

had received the original documents in August 1996, and since, the

foreign buyer in fact had not made payment, the appellant/plaintiff

was always aware of the fact that a wrong credit was given in its

account much later on 27.05.1996.

6(i) Learned counsel for the appellant/plaintiff has argued that

the defendant no.2 cannot be said to have proved the courier receipt

Ex.DW1/1 as also the courier bill Ex.DW1/2 inasmuch as no one from

the courier company came to prove these documents.

(ii) This argument of the appellant/plaintiff is misconceived

because Section 47 of the Evidence Act, 1872 is not exhaustive of the

mode and manner of the proof of documents and once the documents

come from proper custody, courts are entitled to take as proved the

documents which come from proper custody. This is held by the

Supreme Court in the judgment in the case of Gulzar Ali & Ors. v.

State of H.P., (1998) 2 SCC 192. The relevant para of this judgment

is para 9 and which holds that Section 47 is not exhaustive of the

manner of proof of documents. This para 9 of the judgment in the

case of Gulzar Ali & Ors. (supra) reads as under:-

"9. It must be remembered that expert evidence regarding handwriting is not the only mode by which genuineness of a document can be established. The requirement in Section 67 of the Evidence Act is only that the handwriting must be proved to be that of the person concerned. In order to prove the identity of the handwriting any mode not forbidden by law can be resorted to. Of course, two modes are indicated by law in Sections 45 and 47 of the Evidence Act. The former permits expert opinion to be regarded as relevant evidence and the latter permits opinion of any person acquainted with such handwriting to be regarded as relevant evidence. Those and some other provisions are subsumed under the title "Opinion of third persons, when relevant". Opinions of third persons, other than those enumerated in the fasciculus of provisions, would have been irrelevant. Among the permitted opinions those mentioned in Sections 45 and 47 are also included. So it cannot be said that identity of handwriting of a document can be established only by resorting to one of those two sections. There can be other modes through which identity of the handwriting can be established. Citing an example, if a letter is seized from the possession of 'A and the letter contains the name of the sender as well as the name of the sender and if such sender happens to be 'A' himself, those circumstances even without resorting to the mode indicated in Sections 45 and 47 of the Evidence Act, would be sufficient to draw an inference that the author or even scribe of that letter is the sender and 'A' is the sendee of it."

7. Also, it is required to be noted that before

commencement of the cross-examination of the DW-2 on 22.04.2004,

no objection was raised to the exhibition of the documents Ex.DW1/1

to Ex.DW1/3 being the courier receipt, bill and the debit voucher and

once no objection is raised to the proof of the documents, before

commencement of cross-examination, then subsequently no objection

can be raised that documents are not validly proved. This is so held

by the Supreme Court in the judgment in the case of R.V.E.

Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple

and Another, (2003) 8 SCC 752. Therefore, this Court holds that it is

not open to the appellant/plaintiff to claim that the documents

Ex.DW1/1 to Ex.DW1/3 do not stand proved.

8(i) Learned counsel for the appellant/plaintiff then argued

that whereas the respondent/defendant-bank claimed that the

documents were returned in terms of Ex.DW1/1 dated 17.08.1996 and

with respect to which, a debit voucher was issued on 18.10.1996,

however, it is argued that the respondent/defendant-bank in its written

statement has claimed that the mistake was discovered in October,

1996 and the original documents were thereafter returned i.e. after

October, 1996 to the appellant/plaintiff i.e. not in August 1996, and it

is argued that it is clearly destructive of the case of the

respondent/defendant-bank that the documents were returned in

August, 1996. It is argued that documents could not have been

returned in August, 1996 once the case of the respondent/defendant-

bank was that they were returned after October, 1996.

(ii) This argument urged on behalf of the appellant/defendant

is nothing except making mountain out of a molehill. Mistake of

mentioning the dates/month of the factum of stating in written

statement of return of the documents after October, 1996, the same

cannot take away the factum of proof of courier receipt as Ex.DW1/1

and the bill of the courier as Ex.DW1/2, and these documents show

that the original title documents of the goods being the invoice, bill of

lading, etc. were sent back in original to the appellant/plaintiff in

terms of Ex.DW1/1 dated 17.08.1996, and with respect to which the

courier company had issued its bill Ex.DW1/2. It is also seen that

Ex.DW1/2 is a bill not with respect to the positive article but with

respect to which over 55 articles which were found to have been sent

by the courier company for the respondent/defendant-bank.

9. This Court may at this stage deal with and reject an

argument urged on behalf of the appellant/plaintiff that whereas in the

bill Ex. DW 1/2 for all other courier receipt numbers, no weight is

mentioned, but only in this courier receipt weight is mentioned,

because in my opinion this is not such a overwhelming aspect that on

this ground itself otherwise documents which are validly proved,

should be discarded by the Court. The documents which are the

courier receipt and the courier bill are filed in original and having

examined the same, I do not find any illegality or fabrication of these

documents. Also, it is not possible to believe that the State Bank of

Patiala would forge and fabricate documents just for one case and that

too when the amount in question is only Rs. 2,74,820/-. Therefore,

this argument of the appellant/plaintiff is rejected.

10(i) In my opinion, there are two very valid reasons why the

suit filed by the appellant/plaintiff was false to its knowledge. Firstly,

it is seen that admittedly the payment of Invoice dated 18.06.1995

drawn by the appellant/plaintiff upon the foreign buyer at Belgium

was payable within six months of drawing of the invoice, i.e. payment

was to be received by the appellant/plaintiff by 18.12.1995. It is not

disputed that the witness of the appellant/plaintiff who deposed as

PW1, namely Sh. Chakarabaraty Garg, the partner of the

appellant/plaintiff, stated in his cross examination that the period for

payment of the invoice is six months. The six month period from

18.06.1995 expired on 18.12.1995, and therefore, well before

18.12.1995 if the appellant/plaintiff was to receive payment of the

exported goods, but had not received that payment, the

appellant/plaintiff would have entered into

correspondence/communication with the Belgium buyer, however, not

a single document has been filed in around few weeks before or after

18.12.1995 of communication being sent by the appellant/plaintiff to

the foreign buyer to send the payment as the last date of payment was

or has expired on 18.12.1995.

(ii) In fact, the aforesaid aspect is compounded by the fact

that the credit advice in the bank of the appellant/plaintiff is much

later than 18.12.1995 i.e. on 27.05.1996. Even in this period from

18.12.1995 to 27.5.1996, there is no correspondence or

communication of the appellant/plaintiff with the foreign buyer that

why the foreign buyer is not releasing the payment despite having

received the goods. Clearly, therefore the appellant/plaintiff knew all

along that it had wrongly received a credit in its account of Rs.

2,74,820/- with respect to subject Invoice dated 18.06.1995 drawn

upon the foreign buyer in Belgium M/s Jean Poppe.

(iii) Another and second important aspect to be noted is that it

is not the case of the appellant/plaintiff that the goods which are the

subject matter of the Invoice dated 18.06.1995 have been purchased

and received possession of by the foreign buyer. A right of the seller

such as the appellant/plaintiff is only when the foreign buyer has

received the goods and then in such a case, payment of the goods has

to be made by the foreign buyer or at best the bank of the

appellant/plaintiff in case any mistake is made by the

respondent/defendant-bank. It is conceded by PW1 Sh. Chakarabaraty

Garg in his cross examination that in case goods were rejected by the

buyer then it was the appellant/plaintiff who had to take back the

goods and seek its return from the foreign buyer. PW1 in the cross

examination also conceded that ownership of the goods would only

pass to the foreign buyer when the foreign buyer received the goods.

Therefore, in the facts of the present case the title in the goods

continued to vest with the appellant/plaintiff, and in such a situation,

the appellant/plaintiff could not have any remedy for receiving the

price of the goods, much against the respondent/defendant-bank which

was only its agent, and who had by mistake given a credit advice on

27.05.1996 for the amount of Rs.2,74,820/-.

11. In view of the aforesaid discussion, I do not find that the

trial court has committed any error in dismissing the suit for recovery

filed by the appellant/plaintiff inasmuch as the appellant/plaintiff was

trying to take advantage of a wrong credit advice made in its account

and which credit advice the appellant/plaintiff was not entitled to

because respondent/defendant-bank did not receive any payment from

the foreign buyer/foreign buyer's bank with the fact that the title in the

goods sold by the appellant/plaintiff never passed on to the foreign

buyer.

12. Therefore, the appeal is dismissed. The parties shall bear

their own costs.

OCTOBER 23, 2018                            VALMIKI J. MEHTA, J
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