- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. APPEAL NO.590 OF 2003 IN SUIT NO.646 OF 1993 ... Central Bank of India ...Appellant v/s. Saraf Chemicals Pvt.Ltd. and ors. ...Respondents ... Ms.V.Srivastava i/b Consulta Juris for the Appellant. Mr.F.Devitre with Mr.J.P.Sen i/b Fedral & Rashmikant for Respondent No.1. Mr.M.P.S.Rao i/b Udwadia & Udeshi for Respondent No.2. ... - 2 - CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 13th March, 2009 P.C.: (PER D.K.DESHMUKH, J.) 1. By this Appeal the original Defendant challenges the judgment and decree dated 8-7-2002, 26-7-2002 and 1-11-2002 passed by the learned single Judge of this Court in Suit No.646 of 1993. That suit was filed by Saraf Chemicals Pvt. Ltd., the present Respondent No.1, claiming a money decree against the Appellants. The learned single Judge by the judgment and decree impugned in the appeal has decreed the suit in favour of the Plaintiffs and against the Appellant-defendant. To the suit the Plaintiff-Saraf Chemicals Pvt.Ltd. had joined only the present Appellant as the Defendant. The present Appellant had taken out third party notice against the Respondents Nos. 2 & 3. That third party notice has been discharged by the order impugned in the appeal. - 3 - 2. The facts which are material and relevant for deciding this appeal are, the Plaintiff which is a private limited company is engaged in the business of manufacture and export of latex gloves and carry on its business through one of its division viz. M/s.Sarex Overseas. The present Appellant, which was the Defendant in the suit carries on business as bankers and is a nationalised bank. According to averments in the plaint, the Plaintiff had entered into an agreement with M/s.PIE Import & Export USA (herein after referred to as "the said M/s.PIE" for the sake of brevity) for supply of 42,00,000 latex gloves of the aggregate value of US $ 1,28,100. M/s.PIE placed an order pursuant to the order dated 21-1-1992 for sale and supply of abovementioned quantity of goods on the Plaintiff. In respect of this transaction, the said M/s.PIE agreed to make payment for the said goods by an irrevocable letter of credit to be issued in favour of the Plaintiff by an American Bank, which letter of credit would provide for payment to be made on FDA approval or 60 days from the Bill of Lading date if there was no response from FDA. According to agreement, the said M/s.PIE arranged to open an irrevocable Letter of Credit dated 30-1-1992, which was issued by the Chase - 4 - Manhattan Bank, New York-Respondent No.3 in favour of the Plaintiff as beneficiary for the said amount of US $ 1,28,100, which was advised through the Defendant. As per the terms of the letter of credit, drafts were to be drawn ‘at sight’ and payment would be made to the negotiating bank by Chase Manhattan Bank, New York-Respondent No.2 on the latter receiving an authenticated cable advice that the negotiating bank had negotiated the said sight drafts in compliance with the terms of the letter of credit. According to the Plaintiff, the goods were shipped by them on 27-3-1992 through M/s.Sea Land Service Incorporated, who issued their Bill of Lading dated 27-3-1992. The Plaintiff drew sight drafts dated 26-3-1992 for the said sum of US $ 1,28,100 as required under the letter of credit. The Appellant/Defendant negotiated the documents under the said letter of credit and made payment to the Plaintiff of the sum of Rs.31,08,915/- being the amount equivalent to 85% of the Rupee equivalent of the letter of credit amount, which payment was made on or about 9-4-1992. According to the Plaintiff, the payment of the aforesaid amount of 85% was made by the Appellant by crediting the said amount to the Plaintiff’s account namely "S/L A/C Marginal Deposits - 5 - against Foreign Bills Purchased- A/c. Sarex Overseas" with the Defendant at their Bombay, Main Branch. According to the Plaintiff, at the request of the Plaintiff, the Defendant used and kept with themselves as margin money in respect of an Inland letter of credit opened by the Defendant, at the instance of the Plaintiff, in favour of M/s.Shangrila Latex Industries Pvt.Ltd. for the sum of Rs.30,24,000/-. According to the Plaintiff, it appears that the Respondent No.3 did not make payment to the Defendant-Appellant. Therefore, the Defendant made an application dated 28-8-1992 to the RBI seeking permission of RBI to file suit against the Respondent No.3 to recover their claim under the letter of credit stating " that the documents had been negotiated by the Defendant/Appellant on 9-4-1992 and that the Respondent No.3 had rejected bonafide documents negotiated strictly under the Letter of their Credit". According to the Plaintiff, the Respondent No.3 on behalf of the Appellant filed proceedings to intervene in legal proceedings pending in the Court of the United States District Court, for the District of New Jersey and in the said application they have stated that the Appellant had negotiated the documents on 9-4-1992 and therefore - 6 - the Defendant had security interest in the goods covered by the Letter of Credit. The Plaintiff stated that Inland Letter of Credit in favour of M/s. Shangrila expired and therefore the Plaintiff sought return of margin money which was kept in relation to that Inland Letter of Credit. But the Defendant refused to release the amount and hence the Plaintiff has filed the suit for release of that amount and also for recovery of the balance 15% amount. 3. The Defendant, on being served, appeared and filed their written statement. In the written statement, there were several defences raised by the Defendant, but the principal defence raised by the Defendant was that the Plaintiff does not have any cause of action against the Defendant as the Defendant has not received any amount either from the Plaintiff’s foreign bearers namely M/s.PIE or their bank namely the Respondent No.3. According to the Defendant, the Letter of Credit is conditional one and since the conditions have not been fulfilled, the Plaintiffs are not entitled to any amount as nothing is due and payable to the Plaintiff. According to the Defendant, so far as Letter of Credit is concerned, the Defendant merely forwarded the said - 7 - Letter of Credit and were only an advised bank without there being any obligation on their part to make the payment. It is the case of the Defendant that it accepted the documents on collection basis. The Appellant also took out the third party notice against the Respondents Nos. 2 & 3. Initially in the suit there were 12 issues framed, but by order dated 1st July, 1998 the issues were recast. The recast issues are as under:- I S S U E S (i) Whether the suit is misconceived, not maintainable and the plaintiff has no cause of action as alleged in paragraph 1; of the written statement? (ii) Whether the suit is bad for nonjoinder of necessary parties? (iii) Whether the defendants dealt with the document under the L/C on the basis of the agreement alleged in para 8(v) of the W.S.? (iv) Whether the defendants negotiated the - 8 - drafts and other documents drawn under the said L/C issued by Chase Manhattan bank, Newyord and become owners of the said documents? (v) Whether the documents were sent on an express understanding that no payment could be made to the plaintiffs unless the defendant received the same from the corresponding bank? (vi) Whether the entry of the amount of Rs.31,08,912/- in defendants sundry ledger A/c was only a notional entry? (vii) Whether the said credit entry was made as per any agreement only with a view to assist the plaintiffs? (viii) Whether the said defendant should be ordered and decreed to pay and release to the plaintiffs the amount claimed in prayer (a) of the plaint? (ix) Whether the said defendant should be - 9 - ordered and decreed to pay and release to the plaintiffs the amounts claimed in prayer (b) of the plaint? (x) What order and decree? 4. It appears that oral and documentary evidence was led on behalf of the Plaintiff and the Defendant. The learned single Judge considering the entire evidence in detail and by her exhaustive judgment held that the defence of the Defendant that the documents were accepted on collection basis and that the Letter of Credit was not negotiated by the Defendant-Bank cannot be accepted. The learned Judge held that the Letter of Credit was negotiated by the Defendant-Bank and 85% payment was actually made to the Plaintiff and therefore the Plaintiff is entitled to a money decree against the Defendant. 5. We have heard the learned counsel appearing for the Appellant and the learned Counsel appearing for the Respondents. With their help, we have gone through the entire record. We find from the judgment of the learned single Judge, which is impugned in this Appeal that the learned single Judge has - 10 - discussed all the rival pleadings of the parties, the entire documents and the oral evidence in detail for recording her findings. At the hearing of this appeal, the learned Counsel appearing for the Appellant could not point out to us that any piece of relevant and material evidence has not been considered by the learned single Judge for recording her findings. The learned Counsel for the Appellant mainly tried to assail the finding recorded by the learned single Judge that the Letter of Credit was negotiated by the Appellant-bank on collection basis. However, in our opinion, two documents which are on record are enough to uphold the finding recorded by the learned single Judge that the Letter of Credit was negotiated by the Appellant-bank and that the documents were not accepted on collection basis only; One is the letter written by the Defendant-bank to RBI seeking its permission to file a suit against the third Respondent. In that letter the Appellant/Bank has clearly accepted that the Letter of Credit was negotiated by the Appellant-Bank and that the Respondent No.3 has wrongly declined to make payment to it. If the Appellant had not negotiated the Letter of Credit and made payment to the Plaintiff, there was no question of the Defendant moving the RBI - 11 - for its permission to file a suit against the Respondent No.3 for recovery of the amount. Unless the amount is paid by the Appellant to the Plaintiff, there was no question of the Appellant being entitled to recover the amount from the Respondent No.3. The only defence raised in relation to that letter was that the letter was written because the Plaintiff had promised to pay for the cost of litigation that would be lodged by the Appellant against the Respondent No.3. In our opinion, in other words, this means that the Appellant which is a nationalised bank was prepared to take a false stand in the court of law in litigation that it proposed to lodge against the Respondent No.3, only because the Plaintiff had promised to fund that litigation. In our opinion, this explanation is incapable of being accepted. The second document, which according to us belies all the defences raised by the Appellant is the application filed by the Respondent No.3 in American Court on behalf of the Appellant. In that application, a clear statement was made that the Letter of Credit has been negotiated by the Appellant and therefore the underlying goods were the security of the Appellant. We do not find any explanation given on behalf of the Defendant for making such statement in - 12 - the application filed before the American Court, if it is the case of the Appellant that the Letter of Credit was not negotiated by it. In our opinion, considering the exhaustive judgment delivered by the learned single Judge, wherein every point has been considered in detail and in view of what we have found there is no room to interfere with the judgment and decree impugned in the Appeal. So far as discharge of the third party notices taken out by the Appellant against the Respondents Nos. 2 & 3 are concerned, no steps were taken by the Appellant to prosecute those notices. In fact, the Appellant opposed the third party when it wanted to cross-examine the witnesses of the Plaintiff. In our opinion, therefore, in these circumstances, the learned single Judge was perfectly justified in discharging the third party notices. 6. We find no substance in the Appeal. Appeal, therefore, fails and is dismissed. No order as to costs. 7. At the request of the learned Counsel appearing for the Respondent No.1, it is directed that the bank guarantee furnished by the Respondent No.1 pursuant - 13 - to the interim order passed in the Appeal may be discharged after expiry of a period of four weeks from today. (D.K.DESHMUKH, J.) (A.A.SAYED, J.)