Delhi High Court M/S Omce Jordan vs Sudarshan Overseas Ltd & Ors on 31 May, 2012 * + CS(OS) 1719/2009, and Crl. M.A. No.11661/2009 % Judgment dated 31.05.2012 M/S OMCE JORDAN ..... Plaintiff Through : Mr.Dhruv Mehta, Sr. Adv. with Ms.Amrita Sanghi, Mr.Ram Krishan and Mr.Sbhishek Kr. Singh, Advs. versus SUDARSHAN OVERSEAS LTD & ORS ..... Defendants Through : Mr.Y.P. Narula, Sr. Adv. with Mr.Amit Punj and Mr.Anirudha, Adv. for defendant no.1. Mr.Anil Sapra, Sr. Adv. with Mr.Saif Mohd, Adv. for defendant no.2. Mr.Rishi Kapoor, Advocate for the defendant no.3. HON'BLE MR. JUSTICE G.S.SISTANI G.S.SISTANI, J. (ORAL) I.A. Nos.15834 (by defendant no.1), 15837(by defendant no.2) & 15841/2009 (by defendant no.3) for leave to defend. 1. Plaintiff has filed the present suit under the Provisions of Order 37 of the Code of Civil Procedure for recovery of US $ 1482019.01 equivalent to INR 7,14,99,562/. Three applications [I.A. Nos.15834/2009, IA.No.15837/2009 & IA.No.15841/2009] for leave to defend have been filed by each of the defendants i.e. defendants No.1, 2 and 3. Defendant no.1 is the company which placed the order, defendant no.2 is the Director of defendant no.1 and defendant no.3 is the collecting bank of CS(OS)No.17192009 Page 1 of 37 defendant no.1 2. The facts of the case necessary to be noticed for disposal of these applications are that the plaintiff as per the plaint, is a Jordanian company registered with the Ministry of Industry and Trade, Companies Control Department. The plaintiff manufactures conical tapered drums, which are suitable to contain foodstuff products in aseptic bags. The plaintiff claims to have worldwide reputation. On 22.02.2008 defendant no.1, company placed a demand with the plaintiff company for export of 35 FCL i.e. 47,889 conical drums for the forthcoming mango season. The defendant no.1 also sent to the plaintiff the intended requirements of the shipment. The defendant nos.1 and 2 also asked the plaintiff company to supply the first shipment of 10 FCL in the month of March, 2008, second shipment in the month of April 2008 and the third and the last shipment in the month of May, 2008. The plaintiff company sent its confirmation and also issued a performa invoice No.14A/2008 dated 23.02.2008 for 29 FCL i.e. 48.024 conical drums. As per the performa invoice No.14A/2008 dated 23.02.2008, the plaintiff company agreed to supply "48024 Conical Tapered Drums of Type Ra 8z, Capacity 225 ltrs, Thickness 0.8 mm for the Body And 0.6 mm For Bottom And Cover, 30 Drain Holes At One End, Inside Painted With Epoxy Phenolic Lacquer Fda Approved Suitable To Contain Foodstuff Products In Aseptic Bags Outside Painted In One Plain Color, One Body Bead, Fitted With Metal Cover And Metal Ring". The payment terms offered and accepted between the parties as per the Performa Invoice No.14A/2008 dated 23.02.2008: "10% in advance and 90% in 180 days against document to the Plaintiff Bank". CS(OS)No.17192009 Page 2 of 37 3. It is also the case of the plaintiff that initially they agreed to supply the aforesaid conical tapered drums on payment through letters of credit, however, defendant no.1 showed unwillingness to open the letters of credit on the pretext that such a big quantity would additionally burden defendant no.1 financially. Defendant no.1 requested for amendment in the terms of payment i.e. 10% advance transfer and remaining 90% as cash against document. The cost of per unit was also enhanced from US$ 15.45 to 20.45, as the defendant company had demanded some additional printing of name and logo of their company on the drums. The plaintiff dispatched the first shipment vide bill of lading No.HLCUAMM080400043 dated 10.04.2008 as per performa invoice containing 16,560 conical tapered drums. The said drums were shipped in 10 containers and each container loaded with 1656 conical tapered drums. The plaintiff company also issued bill of exchange dated 29.03.2008 in respec