Kerala High Court
Internationlal Trade Links vs E.C.G.C on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
WP(C) NO. 18623 OF 2003
PETITIONER:
M/S.INTERNATIONAL TRADE LINKS
XXXIX/4572, PANAMPILLY NAGAR, HIG-19, KOCHI-36,
REPRESENTED BY ITS PROPRIETOR, MR. MAK AZAD.
BY ADVS.
RAJU JOSEPH (SR.)
C.JOSEPH ANTONY
RESPONDENTS:
1 THE EXPORT CREDIT GUARANTEE CORPORATION OF INDIA,
BRANCH OFFICE, HDFC HOUSE, RAVIPURAM JUNCTION,
ERNAKULAM.
2 THE FEDERAL BANK LTD.
OVERSEAS BRANCH, SHANMUGHAM ROAD, ERNKULAM, KOCHI-31,
REPRESENTED BY ITS BRANCH MANAGER.
BY ADVS.
SRI.V.M.KURIAN
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
SRI.THOMAS MATHEW NELLIMOOTTIL
SRI.K.T.THOMAS - R1
SRI.A.ANTONY - R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.10.2021, ALONG WITH WP(C).18671/2003, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C)NO.18623 & 18671 of 2003
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
WP(C) NO. 18671 OF 2003
PETITIONER:
M/S.INTERNATIONAL MERCHANDISE
TRADES & EXPORTS(P) LTD.
XXXIX/4572,
PANAMPILLY NAGAR,
AVENUE ROAD, HIG-19, KOCHI-36,
REPRESENTED BY ITS MANAGING PARTNER MR. MAK AZAD.
BY ADVS.
RAJU JOSEPH (SR.)(R-191)-20152
C.JOSEPH ANTONY
RESPONDENTS:
1 THE EXPORT CREDIT GUARANTEE CORPORATION OF INDIA
BRANCH OFFICE, HDFC HOUSE, RAVIPURAM JUNCTION,
ERNAKULAM.
2 THE FEDERAL BANK LTD.
OVERSEAS BRANCH, SHANMUGHAM ROAD, ERNAKULAM, KOCHI-
31, REPRESENTED BY ITS BRANCH MANAGER.
BY ADVS.
SRI.A.ANTONY
SRI.V.M.KURIAN
SMT.LEELAMMA ANTONY
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
SRI.A.V.THOMAS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.10.2021, ALONG WITH WP(C).18623/2003, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
WP(C)NO.18623 & 18671 of 2003
3
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)Nos.18623 and 18671 of 2003
--------------------------------
Dated this the 06th day of October 2021
JUDGMENT
The issue raised in both these writ petitions are
one and the same and therefore I am disposing these
writ petitions by a common judgment.
2. The petitioners are exporters and they had
taken an insurance policy from the 1st respondent,
Export Credit Guarantee Corporation of India Ltd.
The policy is styled as Shipments(Comprehensive
Risks)policy. The policy covers the risks such as
commercial risk and political risk. The petitioners
engaged in steamer agency, M/s. Seatar Shipping and
Trading Co.(P) Ltd., Madras for exporting the goods
to Singapore. It was the said steamer agent who took
the delivery of the cargo covered by the Foreign
Documentary Bills Purchase(FDBP) from the
petitioners. It is based on the credit facilities,
WP(C)NO.18623 & 18671 of 2003
the petitioners cleared the bills and supplied the
goods to the importer in the country of Singapore.
The petitioners case is that, shipper fraudulently
effected delivery of the goods from Singapore port to
third parties without obtaining the original Bill of
Lading or referring the matter to Federal Bank, the
holder of title of the goods. The petitioners raised
a criminal complaint before the jurisdictional
magistrate, Chennai. Thereafter the petitioners in
these writ petitions submitted Ext.P8 series claim
petition before the 1st respondent. The claim
petitions were rejected by the 1st respondent as per
Ext.P9 series proceedings. Aggrieved by Ext.P9
series, Ext.P10 was submitted by the petitioners
before the 1st respondent giving an explanation for
the grounds of rejection mentioned in Ext.P9.
Thereafter, Ext.P11 is issued by the 1st respondent
which is produced in these two writ petitions, in
which it is stated that the 1st respondent is not
inclined to reconsider the matter. Aggrieved by the
same these writ petitions are filed.
WP(C)NO.18623 & 18671 of 2003
3. Heard the learned Senior counsel Adv.Sri Raju
Joseph as instructed by Adv.Sri.Joseph Antony,
Adv.Sri.K.T.Thomas appearing for the 1st respondent
and Adv.Sri.A.Antony appearing for the 2nd respondent.
4. The learned Senior counsel who argued the
case submitted that, after Ext.P9, the petitioners
submitted Ext.P10 explanations in which the grounds
for rejection mentioned in Ext.P9 is specifically
disputed and an explanation is given. Thereafter the
1st respondent passed Ext.P11 without adverting to the
contentions raised in Ext.P10. The learned Senior
counsel submitted that Ext.P11 is not a speaking
order. The submission of the petitioners in Ext.P10
is not considered by the 1st respondent and no
opportunity of hearing was given to the petitioners.
The learned Senior counsel also takes me through the
grounds mentioned in Ext.P9 and submitted that those
grounds are unsustainable in the light of the
pleadings in these writ petitions. This is the sum
and substance of the argument of the learned senior
counsel.
WP(C)NO.18623 & 18671 of 2003
5. The learned Standing counsel who appeared for
the 1st respondent submitted that there is nothing to
interfere with the finding in Ext.P9. The learned
Standing Counsel takes me through the relevant
clauses in Ext.P1 policy and submitted that, what is
stated in Ext.P9 is perfectly justified. The learned
Standing counsel also relied on the judgment of the
Apex Court in BHS Industries Vs. Export Credit
Guarantee Corporation of India Limited and another
- 2015(9)SCC 414. The learned Standing counsel
takes me through paragraph Nos. 32 to 35 of the above
judgment.
6. The learned Senior counsel for the
petitioners submitted that the dictum laid down by
the Apex Court is not applicable in the facts and
circumstances of the case.
7. I considered the contentions of the
petitioners and the respondents. According to me,
the matter need not be considered on merit. Ext.P9
in both these cases are the proceedings by which the
claim of the petitioners were rejected by the 1 st
WP(C)NO.18623 & 18671 of 2003
respondent. Ext.P10 is the explanation given by the
petitioners in both these cases before the 1st
respondent giving certain explanations to the
findings in Ext.P9. Thereafter, Ext.P11 which is
produced in both these writ petitions are the answers
given by the 1st respondent. It will be better to
extract Ext.P11 produced in both these cases. The
contents of Ext.P11 produced in W.P.(C)No.18623/2003
is extracted hereunder:
"CHN/CL/CD0200010/2002
DT 28-8-2002
M/s.International Trade Links,
xxxix/4572.Panampilly Nagar,
HIG-19, Avenue Road,
Kochi - 36
Dear Sirs,
Re: Claim under Policy No.62392
Buyers: 1.M/s.Verdue Enterprises, Singapore
---------------------------------------------
Please refer to your letters dated 9.8.2002 on the above
subject.
We have once again scrutinised the cases and regret to inform
you that we are unable to consider your claims favourably due to the
lapses mentioned in our letters dated 5.7.2002 and 8.7.2002.
Thanking you,
Yours faithfully,
(M.JOHN)
MANAGER"
8. Similarly the contents of Ext.P11 produced
WP(C)NO.18623 & 18671 of 2003
in W.P.(C)No.18671/2003 is extracted hereunder:
"CHN/CL/CD020005-9/2002
DT 28-8-2002
M/s.International Merchandise-
Traders and Exports P Ltd.,
xxxix/4572.Panampilly Nagar,
HIG-19, Avenue Road,
Kochi - 36
Dear Sirs,
Re:Claim under Policy No.62392
Buyers: 1.M/s.Verdue Enterprises, Singapore
2.M/s.Tubemal Exports Pte Ltd, Singapore
3.M/s.Ontraco Pte Ltd, Singapore
4.M/s.Cooltex Trading LLC, UAE
5. M/s.Alsa Food Industries, Singapore
--------------------------------------
Please refer to your letters dated 9.8.2002 on the above
subject.
We have once again scrutinised the cases and regret to inform
you that we are unable to consider your claims favourably due to the
lapses mentioned in our letters dated 5.7.2002 and 8.7.2002.
Thanking you,
Yours faithfully,
(M.JOHN)
MANAGER"
9. A reading of Ext.P11 produced in these two
writ petitions will show that the 1st respondent
decided to reconsider the matter and thereafter
rejected the claim again. The learned Standing
counsel for the 1st respondent submitted that there is
no provision for filing such a representation and
such representation need not be entertained. But a
WP(C)NO.18623 & 18671 of 2003
reading of Ext.P11 produced in these two writ
petitions will show that they entertained Ext.P10
representation and thereafter said that it need not
be reconsidered. In Ext.P10 definite answers are
given by the petitioners before the 1st respondent
giving their explanation. Admittedly, an opportunity
of hearing is not given to the petitioners. In such
circumstances, according to me, the 1st respondent
ought to have considered the contentions raised in
Ext.P10 and take a decision after giving an
opportunity of hearing to the petitioners. I make it
clear that I have not considered the matter on merit.
The 1st respondent can pass appropriate orders in
accordance to law, after giving an opportunity of
hearing to the petitioners. I set aside Ext.P11 only
for the limited purpose that it is not a speaking
order and it is an order passed without giving an
opportunity of hearing to the petitioners.
Therefore, these writ petitions are allowed in
the following manner:
i) Ext.P11 orders produced in WP(C)Nos.18623
WP(C)NO.18623 & 18671 of 2003
and 18671 of 2003 are set aside.
ii) The 1st respondent is directed to
reconsider Ext.P10 representation submitted by the
petitioners in these two writ petitions and pass
appropriate orders in it in accordance to law, after
giving an opportunity of hearing to the petitioners.
iii) The above exercise should be completed by
the 1st respondent, as expeditiously as possible, at
any rate, within three months from the date of
receipt of a copy of this judgment.
iv) The petitioners are free to submit
additional representation, if any, before the 1st
respondent within two weeks from the date of receipt
of a copy of this judgment.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
WP(C)NO.18623 & 18671 of 2003
APPENDIX OF WP(C) 18671/2003
PETITIONER EXHIBITS
EXHIBIT P1 COPY OF THE INSURANCE POLICY DT. 10-4-
2001 ISSUED BY 1ST RESPONDENT.
EXHIBIT P2 COPY OF COMMUNICATION DT. 7-11-01 ISSUED
BY 1ST RESPONDENT.
EXHIBITP3(A) COPY OF COMMUNICATION DT. 19-4-2001
ISSUED BY 1ST RESPONDENT.
EXHIBITP3(B) -DO- DT. 15-6-2001 -DO-
EXHIBITP3(C) -DO- DT. 26-6-2001 -DO-
EXHIBITP3(D) -DO- DT. 5-7-2001 -DO-
EXHIBITP3(E) -DO- DT. 19-10-2001 -D0-
EXHIBITP3(F) -DO- DT. 23-10-2001 -DO-
EXHIBITP3(G) -DO- DT. 15-11-2001 -DO-
EXHIBITP4 COPY OF LAWYER NOTICE DT. 30-4-2002
ISSUED BY 2ND RESPONDENT.
EXHIBITP5 COPY OF COMMUNICATION DT, 28-1-2002 -DO-
EXHIBITP6 COPY OF CRL, COMPLAINT DT 8-10-2002
FILED BY THE PETITIONER.
EXHIBITP7 COPY OF COMMUNICATION DT. 10-10-02
ISSUED BY METROPOLITAN MAGISTRATE.
EXHIBITP8(A) COPY OF CLAIM DT NIL FILED BY THE
PETITIONER.
EXHIBITP8(B) COPY OF CLAIM DT NIL FILED BY THE
PETITIONER.
WP(C)NO.18623 & 18671 of 2003
EXHIBITP8(C) COPY OF CLAIM DT NIL FILED BY THE
PETITIONER.
EXHIBITP8(D) COPY OF CLAIM DT NIL FILED BY THE
PETITIONER.
EXHIBITP8(E) COPY OF CLAIM DT NIL FILED BY THE
PETITIONER.
EXHIBITP9(A) COPY OF COMMUNICATION DT. 5-7-2002 OF
1ST RESPONDENT.
EXHIBITP9(B) COPY OF COMMUNICATION DT. 8-7-2002 OF
1ST RESPONDENT.
EXHIBITP-9(C) COPY OF COMMUNICATION DT. 8-7-2002 OF
1ST RESPONDENT.
EXHIBITP-9(D) COPY OF COMMUNICATION DT. 8-7-2002 OF
1ST RESPONDENT.
EXHIBITP-9(E) COPY OF COMMUNICATION DT. 8-7-2002 OF
1ST RESPONDENT.
EXHIBITP-10(A) COPY OF REPLY DT. 9-8-2002 OF
PETITIONER.
EXHIBITP-10(B) COPY OF REPLY DT. 9-8-2002 OF
PETITIONER.
EXHIBITP-10(C) COPY OF REPLY DT. 9-8-2002 OF
PETITIONER.
EXHIBITP-10(D) COPY OF REPLY DT. 9-8-2002 OF
PETITIONER.
EXHIBITP-10(E) COPY OF REPLY DT. 9-8-2002 OF
PETITIONER.
EXHIBIT -P11 COPY OF COMMUNICATION DT. 28-8-202
ISSUED BY 1ST RESPONDENT.
WP(C)NO.18623 & 18671 of 2003
APPENDIX OF WP(C) 18623/2003
PETITIONER EXHIBITS
EXHIBIT-P1 COPY OF THE INSURANCE POLICY DT. 15-9-2001
ISSUED BY 1ST RESPONDENT.
EXHIBIT-P2 COPY OF COMMUNICATION DT. 7-11-01 ISSUED
BY 1ST RESPONDENT.
EXHIBIT-P3 COPY OF COMMUNICATION DT.5-10-2001 ISSUED
BY 1ST RESPONDENT.
EXHIBIT-P4 COPY OF LAWYER NOTICE DT. 30-4-2002 ISSUED
BY 2ND RESPONDENT.
EXHIBIT-P5 COPY OF COMMUNICATION DT. 28-1-2002 -DO-
EXHIBIT-P6 COPY OF CRL.COMPLAINT DT. 8-10-2002 FILED
BY THE PETITIONER.
EXHIBIT-P7 COPY OF COMMUNICATION DT. 10-10-02 ISSUED
BY METROPOLITAN MAGISTRATE.
EXHIBIT-P8 COPY OF CLAIM DT. NIL FILED BY THE
PETITIONER.
EXHIBIT-P9 COPY OF COMMUNICATION DT. 17-7-2002 OF 1ST
RESPONDENT.
EXHIBIT-P10 COPY OF REPLY DT. 9-8-2002 OF PETITIONER.
EXHIBIT-P11 COPY OF COMMUNICATION DT. 28-8-202 ISSUED
BY 1ST RESPONDENT.
RESPONDENTS EXHIBITS : NIL
//TRUE COPY//
PA TO JUDGE
