Case: EXPORT CREDIT GUARANTEE CORPN.OF INDIA LTD. AND ANOTHER Vs. M.S. CREATIONS AND ANOTHER

4. On 27 July 2000, the respondent obtained a Shipments (Comprehensive Risk) Policywhich was valid upto 31 July 2002. On 31 July 2000, the ECGC forwarded the policy to the first respondent with a cover note highlighting important terms and conditions of the policy. Apart from the Shipments Policy which was issued to the first respondent, the appellant also issues another policy, amongst others, called the Whole Turn Over Post Shipment Export Credit Guaranteeto various banks which make advances to exporters. The policy is designed to protect banks against the risks towards the exposure undertaken by them5. On 6 October 2001, the first respondent obtained a purchase order for handloom goods from a buyer situated in the Ivory Coast by the name of Society Ivoirienne De Commerce ET DE Representationworth about Rs 64 lakhs6. In pursuance of the purchase order, the first respondent entered into a sales contract with SICOREP on 18 October 2001. In pursuance of the Shipments Policy, the first respondent applied for the approval of ECGC for covering the shipments to SICOREP under the above purchase order. ECGC granted a specific approval on 7 November 2001 to the extent of Rs 64.86 lakhs, subject to the term of payment being 90 days7. The first respondent made its first shipment to SICOREP on 16 November 2001, in pursuance of which it filed a declaration under Clause 8(a) of the policy to ECGC on 19 December 2001. On 21 November 2001, SICOREP issued a second contract to the first respondent. On 7 January 2002, the first respondent made its second shipment to SICOREP, which was also declared to ECGC on 18 January 20028 Under the sales contract, SICOREPs bank, as originally notified, was Credit Lyonnais Agency 965Agence International Boulevaard Des Italiens, 75 Paris Zeme France. On 18 January 2002, SICOREP sought a change in the name of the bank to Banqyue De L Habitat De Cote DIvoire , Seige Social 22, Avenue Joseph Anoma 01 BP 2325 Abidjan 01 Ivory Coast. In view of the request by SICOREP, the first respondent by its letter dated 21 January 2002 sought the permission of ECGC for a change in the name of the bank and in terms of the payment9. BHCI, the newly notified bank in the Ivory Coast, is alleged to have released the documents without receiving any acceptance from the consignee. Since no payment was forthcoming, the first respondent was unable to make payment to its own banker, Punjab National Bank 10 . Consequently, PNB, the second respondent to these proceedings, made an application for provisional payment of its claim under its own WTPSG Policy on 12 February 2002. On 14 March 2002, the appellant made a payment of Rs. 6 lakhs to PNB, as and by way of a provisional payment.10. On 16 March 2002, ECGC sought further information from the first respondent in regard to its overdue payment from SICOREP. Subsequently, on 28 May 2002, the first respondent submitted two claims in the aggregate value of Rs. 22.87 lakhs to ECGC against the overdue amounts from two shipments. Thereafter, on 25 June 2002, ECGC called upon the first respondent to submit necessary documents together with its claim forms11. In order to produce the necessary documents, the first respondent invoked the intervention of the Indian Embassy in the Ivory Coast in July 2002. However, on 2 July 2002, the first respondent expressed its inability to ECGC to produce the documents which were sought by them. The Indian Embassy, which had attempted to intervene on behalf of the first respondent, informed the latter on 19 August 2002 that according to BHCI it did not have SICOREP as a client at all. The Indian Embassy also opined that the possibility of the documents being forged could not be excluded. By its letter dated 3 October 2002, ECGC informed the first respondent that it was not accepting its claim in view of its failure to produce the requisite documents12. It appears that PNB also addressed a communication to BHCI to inform it about the shipments and the documents. BHCI, by a facsimile message on 22 November 2002, informed PNB that the original documents had been made over to a person by the name M. Reda Ali. BHCI indicated that it had refused to accept the documents for payment for the shipments since it did not conduct such transactions, being a bank in the housing sector13. The first respondent, being aggrieved by the rejection of its claim, instituted a consumer complaint before the State Commission. The complaint was allowed on 23 April 200814. ECGC contested the matter before the National Commission in appeal which has resulted in the confirmation of the order of the State Commission allowing the complaint.

Reasoning: 23. It was in this background that ECGC rejected the claim of the first respondent on 3 October 2002. The facsimile message dated 22 November 2002 of BHCI to PNB indicates that the original documents of the two shipments had been handed over to M Reda Ali. The communication, however, indicates that the bank could not accept the shipment for payment and that it had not either made any transaction with or effected any payment to PNB24. ECGC took up the matter with PNB which in turn corresponded with BHCI. The correspondence was evidently fruitless since there was nothing to indicate that the documents had been duly accepted in terms of the conditions governing the sales contract25. Now, it is in this background that ECGC had sought to raise the exclusion contained in the insurance policy. In terms of the proviso (b) extracted above, the insurer was not to be held liable for any loss from any act or default on the part of the collecting bank. Evidently, the collecting bank, as its communication dated 22 November 2002 indicates, handed over the original documents, but then sought to justify its action by contending that the bank was in the housing sector and could not accept the shipment for payment. If this was the position, there was no reason or justification on the part of the collecting bank to hand over the original documents to a person representing SICOREP without acceptance. There was, therefore, clearly a default on the part of the collecting bank26. The State Commission and the National Commission held against ECGC inter alia on the ground that by honoring its commitment to PNB under WTPSG Policy, ECGC had in turn admitted its liability to the first respondent. There is a fallacy in this hypothesis. The guarantee which ECGC furnished to PNB, similar to those it furnishes to other bankers, was to secure their exposure against the risks involved in the advances which the bank had made in respect of export contracts to its constituent. This guarantee which ECGC issued to PNB would not conclude the issue as to whether the claim made by the first respondent under a distinct insurance policy was sustainable. Consequently, the basis on which the State Commission and National Commission held against the appellant is erroneous27. During the course of the hearing of these proceedings, the Court has been apprised of the fact that the order which was passed by the State Commission was duly executed and in compliance, the amount due and payable has been paid over by ECGC to the first respondent. There is no allegation that the first respondent was in any way connected with or colluded with SICOREP. From the record, it appears that the first respondent was itself a victim of SICOREP having retired the documents without making payment for the export consignments. No submission has been urged on behalf of ECGC to indicate the complicity of the first respondent.