CASE NO.: Appeal (civil) 5626 of 2000 PETITIONER: FEDERAL BANK LTD. RESPONDENT: V.M JOG ENGINEERING LTD. AND ORS. DATE OF JUDGMENT: 29/09/2000 BENCH: M. JAGANNADHA RAO & U.C. BANERJEE JUDGMENT:
JUDGMENT
2000 Supp(3) SCR 542
The Judgment of the Court was delivered by M. JAGANNADHA RAO, J. Leave
granted.
The appellant Federal Bank at Bombay was the 3rd defendant in the suit and
has a branch at Pune. It has preferred this appeal against the order of the
High Court dated 8.10.99 summarily dismissing the appellant’s appeal AFO
No. 818 of 1999. The appeal was preferred against the order of the trial
Court dated 29,4.99 whereby the trial Court had confirmed an ex-pane
interim injunction dated 20,5,98 granted by it earlier, rejecting the
appellant’s application to vacate the same. The matter relates to a Letter
of Credit issued by the 2nd defendant, Bank of Maharashtra, Pune (3rd
respondent) at the instance of the plaintiff-buyers ( 1st respondent), M/s.
V.M. Jog Engineering Co., Pune. The sellers are M/s. Jaswant Steel, Nagpur
(1st defendant) (1st respondent). The appellant Federal bank was the
negotiating Bank (3rd defendant) while the 3rd respondent, Bank of
Maharashtra was the Issuing Bank.
The main point arising in the case can be stated briefly as follows :
The appellant, the Negotiating Bank received documents from the sellers
which included five delivery challans purportedly signed by the buyers’
officers acknowledging receipt Of goods. The seller sent a Bill of Exchange
for encashment against the Letter of Credit for 2 crores, taken out by the
buyers. The appellant sent the Bill of Exchange, with endorsement of the
buyers and the Letter of Credit and the connected documents including the
‘delivery challan’ – as received from me seller – to the Issuing Bank and
got the genuineness of the documents confirmed. The Negotiating bank then
released Rs. 1 ,9439,252 in favour of the sellers on 25.3.98, after
deducting its commission. But the buyers have obtained a temporary
injunction against the issuing Bank from honouring the Letter of Credit.
This has resulted in the appellant Negotiating Bank not being able to
obtain reimbursement from the Issuing Bank. The trial Court and the High
Court, after noting that the Negotiation Bank had released to the seller
the above sum upon due certification of the seller’s documents by the
Issuing Bank – have thus precluded the Negotiating Bank from getting
reimbursement from the Issuing Bank, One other peculiar feature of the case
is mat while the appellant-, Negotiating Bank was impleaded as the 3rd
defendant in the suit, specific relief was not sought against it either in
the suit or in the interlocutory application. In fact, it was stated by the
plaintiff-purchaser that the Negotiating Bank need not be heard in the
interlocutory application and that the said Bank had no locas standi Both
the courts below thought it fit to accept this contention and grant
injunction under Order 39 Rule 1 Code of Civil Procedure restraining the
Issuing Bank from paying any amount to anybody under the Letter of Credit,
pending suit. In the plaint or in the interlocutory application, the
plaintiff has not alleged ‘fraud’ Or forgery against me Negotiating Bank
nor even knowledge of the fraud/forgery which is alleged against me sellers
in respect of the delivery challans.
Aggrieved by the order of temporary injunction passed under Order 39 Rule 1
CPC, the Negotiating Bank has come up in appeal.
As the case involves issues relating to Banking Practice and interpretation
of the Uniform Customs and Practice of Documentary Credits (1983)
(hereinafter called the UCP) issued by the International Chamber of
Commerce, – relied upon by the Negotiating Bank in detail – we propose to
deal with the articles in UCP (1983 revision) and their relevance.
The following are the facts :
The plaintiff-(buyers) at Pune entered into a contract in February 1998
with the sellers at Nagpur for purchase of 1450 M.T. of reinforcement
steel-bars and structural-steel, conforming to IS:1786. These were needed
for the buyer’s works at two projects, one at Palm Beach, Andheri and
another for a fly-over project at Bombay. Two purchase orders (Nos, 104,
105) for supply of 1450 MT were placed upon the sellers by the buyers on
7,2.98 for each of these projects. time for supply of material was
31.3.98. The buyer availed of a Letter of Credit dated 19.2.98 from the
Issuing Bank to the tune Of Rs. 2 crores with negotiation initially to be
restricted to the State Bank of India, Wardha. The expiration date was
31.3.98 but was extended upto 30.4.98.
The Letter of Credit issued by the Issuing Bank on 19.2,98 listed out the
various “documents” which had to be produced by the sellers for payment
under the Letter of Credit opened by the buyer with the Issuing Bank: These
were described as follows :
(1) “The Beneficiary drafts drawn on the applicant without recourse to the
drawer and marked under bank of Maharashtra, Tilak Road, Pune branch/in
land L/C No. 1/98 dated 19,2.98 for 100% of the Invoice value at 90 days
Usance from the date of receipt of material at Andheri and Palm Beach, Marg
Bridge, Near Nenl Navi Murtbai sites.
(2) Invoices signed by the beneficiary or his constituted agent in copies
of gross value of the goods certifying goods are as per order/ indent and
evidencing despatch of the undernoted goods,
(3) Receipt dated not later than 31.3.98 marked freight prepaid.
(4)……………………..
(5)……-………….,…….
(6) Copies of Octroi receipts for the amount claimed in invoice. “(7) Copy
of Weigh Slip for empty and Loaded transport Vehicle. :.(8) Photocopy of
Manufacturer’s test certificate.
(9) Copy of Delivery Challans-cum-invoices issued by Jaswant Steel Rolling
Mills Pvt Ltd, duly signed by Project Authorities with an endorsement as
the material received in good condition and indicating the date of receipt
of material at sites.”
Thereafter, it is stated in the L/C in clause 10 “Last date of Negotiation
of documents 20.4.1998 but not later than 20 days from despatches-(This
clause was later deleted on 19.3.98 when the appellant was nominated as
Negotiating Bank in place of the State Bank of India). The Special
Instructions in the L/C for the Negotiating Bank were as follows :
Special instructions for the negotiating Bank.
1. Negotiations under this credit are restricted to State Bank of India
Hinganghat, Distt. Wardha (M.S.),
2. Negotiations should be marked separately tin the back of the documentary
credit N.A.
3. To reimburse themselves, the negotiating bank will send us the full set
of original documents by Registered Post alongwith a certificate of
compliance of the terms and conditions of the credit and request for demand
drafts/pay order.
4………………………….
5, …………………………
6. Total drawings under this credit should not exceed Rs. 2,00,00,000
(Rupees two crores only)
It was lastly stated in the L/C as follows :
“This credit carries oar confirmation and we hereby engage with the drawers
endorsers and/or bonafide holders of draft(s) drawn under and negotiated in
confirmity with the terms and conditions of this credit will be duty
honoured on presentation of documents or at maturity.
Except as otherwise expressly stated, this credit is subject to Uniform
Customs and Practice-for documentary credits (1983 Revision), international
Chamber of Commerce, Publication No, 409.
Yours faithfully, for Bank of Maharashtra Copy to : (1) State Bank of
India,” Hinganghat Branch Distt Wardha (M.S.) (2) V.M, Jog Engineering Ltd.
Pune
Thus, the L/C confirms the rights of bonafide holders of the drafts that
may be issued by the drawers-sellers and to honour -on presentation of
documents or at maturity. It is also clear that the L/C is subject to UCP
(1983 Revision).
For me purposes of the main point arising in the case, it is important to
note clause 9 of the Letter of Credit That clause requires that one of the
document to be produced by the seller for payment should be the “copies of
the delivery Challans-cum-invoices” issued by Jaswant Steel Rotting Mills
Pvt. Ltd. (Plaintiff-buyer) duly signed by Project Authorities, with an
endorsement that the material was recovered in good condition and
indicating the date of receipt of material at sites.
On 19,3,98, the appellant became the Negotiating Bank in the place of State
Bank of India. The Issuing bank informed the seller that the Negotiating
Bank would be the Federal Bank (appellant) and not the State Bank of India,
Further, it was stated that clause 10 of the Letter of Credit (referred to
above) stood deleted.
On the same day, 19.3,98 seller sent a Bill of Exchange (called technically
as a Draft) to its dealer at Visakhapatnam against the Letter of Credit No.
1/98 dated 19.2.98 stating as fellows :.
“At 90 (ninety) days from the date of invoice pay to M/s The Federal Bank
Ltd., Bombay Samachar Marg; Fort, Mumbai of order a sum of Rs, 2,00,000.00
(Two crores only) towards value of material given as below :
DD/Inv. No, Date Amount 104 19,2.98 Rs, 1,00,00,000 105 19,29.8 Rs. 1,00,00,000 Sd For Jas want Steel Roi I ing Ltd.
This was addressed to the seller’s agent at Vijag Steel Plant. Copies were
sent to purchaser (Plantiff). This Bill of Exchange contains endorsements
purported signed by the Vice-President of the buyers as follows :
“accepted for payment on maturity”
Sd
Vice-President (Accounts) for V.M. Jog Engineering Co: (Buyer)
and
“We confirm having received the despatch documents”,
Sd
Vice-President (Accounts) for V.M. Jog Engineering Co. (Buyer)
It will be noticed that ninety days from 19.2.98 would be 26.5,1999. That
would be the date on which the Negotiating Bank could claim from the
Issuing Bank, the monies if any, it might have paid to the seller.
But if is the contention of the buyer-plaintiff that the first despatch of
the goods was on 28.3.98 and that payment would be due to the Negotiating
Sank only on 26.6.98, The appellant Bank on the other hand contended mat
Once the Vice President of the buyer company confirmed the despatch
document dated 19.2.98, ninety days would expire by 20.5.98 and the
appellant Bank, in case it paid to the sellers under the Bill of Exchange
issued by the sellers, me appellant should be repaid on 20.5.98 and not on
26.6,98,
On 20.3.98, the sellers wrote to the appellant Bank (through their dealers
at Visakhapatnam, Shriram Investment Services Ltd.) to discount the Bill of
Exchange for Rs. 2 crores and pay the proceeds. The till along with other
“documents” so sent by or on behalf of th6 sellers were received by the
appellant Bank. The above letter of the sellers to the appellant Bank reads
as follows:
“Please find enclosed herewith the documents drawn under Bank of
Maharashtra, Pune L/C No, 1/98 dated 19.2,98.
Drawer Jaswant Steel Rolling Mills Pvt. Ltd. Nagpur (sellers) Dmawee V.M. Jog Engineering Ltd., Pune (buyers) Amount Rs. 2,00,00,000 (Rupees two crores only) Usance 90 days Due date .......
Kindly discount the same @ 15.25% p.a. and issue the cheque in favour of
the Federal Bank Ltd.- A/c. Jaswant Steel Rolling Mill Pvt. Ltd. payable at
Mumbai.”
In other words, the sellers demanded payment on the Bill of Exchange
against the L/C by producing these documents before the Negotiating Bank.
The Negotiating Bank Was to pay the amount minus its commission. I could
draw the released amount from the Issuing Bank on the 90 day from 19.2.98
the date of despatch document i.e. 20.5,98.
The appellant-Negotiating Bank men took the extra precaution of sending to
the Issuing Bank – the L/C and the “documents” sent by the sellers for
confirmation. This is stated to be part of the Banking practice.
The letter dated 20,3.98 by the appellant (Negotiating Bank) to the Issuing
Bank stated that they were enclosing the original Letter of Credit for 2
crores, Usance 90 days, due date 20.5.98 (they were counting 90 days from
19.2.98) and that they were enclosing the “documents” sent to them by
sellers along with L/C:
"Draft dt, 19.3,98 Invoice dated 19.2,98 (5 sheets) L/R-Delivery Challan dt. 19.2.98 (5 sheets)
L/C: Above L/C in original is enclosed. Please return the same with the
signatures duly verified and certified,”
It was also said in the said letter by the Negotiating Bank that they ‘have
negotiated the documents today’ and they ‘confirm having noted the drawings
on the original LC,’ The letter of the Negotiating Bank further states :
Instructions’.
1. Acknowledge receipt quoting your and our reference number.
2. Confirm due date of payment.
3, Verify and certify the signatures on the LC and confirm that the
signatories on the LC have the required authority to issue the same.
4, Confirm that the documents are in order and payment will be made on due
date.
Reimbursement:
(i) Remit Bill amount on due date itself by your Pay Order drawn in our
favour.
(ii) Remit Bill amount by Telephonic/Telegraphictransfer (TT) through your
branch at Bombay with instructions to reimburse to US on due date itself.”
We have already stated that the Bi11 of Exchange (or draft) was also sent
by the sellers to the Negotiating Bank, through their dealer. This Bill was
one of the documents thus received by the Negotiating Bank. It contained
the two endorsements purported to have been made by or behalf of the buyers
(to which we have already made reference) and purporting to be signed by
the Vice-President (Accounts) of the buyers. These endorsements read as
follows
“Accepted for the payment on maturity.
Sd\-
Vice-President (Accounts) for V.M.- Jog Engineering Ltd, (buyers)
We confirm having received the despatch documents.
.Sd\-
Vice-President (Accounts) for V,M. Jog Engineering Ltd.” (buyers)
As far as proof of delivery of the despatched goods is concerned, the
position was as follows. Among the documents accompanying the L/C were the
five invoices dated 19.2,98 (5 sheets) and the five delivery challans dated
19.2.98 (5 sheets). The five delivery challaos contained the signature of
one Mr, P. Waghmode who purported to sign on behalf of the buyers and two
of the five delivery challans purportedly contained the counter-signature
of the Vice-President (Accounts) of the buyer dated 21,2,98 and 28.2,98
respectively. The office stamp of the buyer’s company was found on all the
five delivery challan. The endorsement of Mr. Waghmode on the delivery
challans also stated that goods were received in good condition.
the Issuing Bank, after receiving the documents, wrote back to me
Negotiating Bank in its crucial letter on 23.3.98 as follows :
“Re: Our inland L/C No. 1/98 dated 192,98
For Rs. 2,00,00,000 fvg. Jaswant Steel Rolling Pvt. Ltd.
We have received the above said L/C in original along with your covering
letter. We have confirmed the due date on 20.5,98 and the documents are in
order and payment of the above mentioned L/C 1/98 will be made on 20.5.98.
We have verified and certified the signatures on the L/C and confirm that
the signatories to the L/C have the required authority to issue the same.
We returned herewith the above mentioned L/C 1/98.”
In other words, the Issuing Bank certified the signatures and assured the
Negotiating Bank, that it would reimburse the Negotiating Bank on the due
date, 20.5.98. Obviously, the Issuing Bank proceeded on the basis that the
delivery was on 19:2.98 as stated in the document (and not on 28,3.98, as
contended by the buyers in the plaint),
On the basis of the above letter dated 23,3-98 sent by the Issuing Bank to
the Negotiating Bank, the latter discounted the Bill of Exchange drawn from
the seller and paid Rs 1,94,39,252 under the L/C on 25,3.98 to the sellers.
On 24.3,98 the Negotiating Bank wrote to the Issuing Bank that the latter
had returned the L/C, along with confirmation and also the documents. It
said that the Negotiating Bank shall be delivering the documents again to
the Issuing Bank on due date and that “the same is returned herewith which
you may kindly acknowledge”. ‘Encl : as above’. (A contention was raised by
the Issuing Bank in its affidavits in the trial Court that by this letter,
the Negotiating Bank was agreeing to send some other documents and they
were hot sent later at the time of seeking reimbursement on 20.5.98).
The Negotiating Bank, haying parted with Rs. 1,94,39,252 upon confirmation
of the genuineness of the documents by the Issuing Bank, was waiting to
claim reimbursement by the Issuing Bank on me ‘due dateV2G.5,98.
But then, there was a sudden surprise. It received a letter from the
Issuing Bank on I9;5.1:998 that the Issuing Bank had found on “scrutiny in
May 1998”, that the Negotiating Bank had not submitted (1) “Delivery
challan-cum-invoices issued by sellers duly signed by project authorities
with an endorsement that the material is received in good condition and
indicating that the date of receipt of material at sites as per clause No.
10 of our L/C (2) All relevant motor transport receipts as per clause No; 3
of our LC. They stated that after receipt of the above documents as per
terms of L/C, they would be able to consider further.” This has obvious
referred to clause 9 of the L/C extracted above.
On 20.5.98, there was a further letter by the Issuing Bank to the
Negotiating Bank that (1) As per special instructions for the Negotiating
Bank, “clause No. 3 of our L/C, full set of original documents along with a
certificate of compliance of the terms and conditions of credit is not
received by us”. “Original L/C, duly discharged has not been received by
us. You are requested to send the above documents”. According to the
appellant, by the letter the issuing Bank was going back on its earlier
certification and assurance to reimburse the appellant as per its letter
dated 233:98 addressed to the Negotiating Bank.
Meanwhile, the Issuing Bank had alerted the buyers on 15.5.98 that the
Negotiating Bank had produced certain documents purportedly dated 19.2.98
containing an endorsement that the material was received in good condition
as per order. The buyers stated in their plaint that it was only then that
they learnt that the “sellers” had committed ‘forgery’ by showing that one
‘Mr. P, Waghmode’ had made the said fraudulent endorsements on the demand
vouchers on behalf of the buyers. They contended that there was nobody by
the name Mr. P. Waghmode in their service much Jess with necessary
authorisation, to act or receive the goods on behalf of the buyers. They
stated that on 17.5.98, Mr. Bhapkar, Project Manager of the buyers visited
the factory of me sellers and found that only 654 MT of steel was shown in
the sellers’ accounts as having been supplied and not die full quantity. A
further contention was that, in fact, only 523 MT was supplied and not 654
MT; On 18.5.98, the buyers informed the Issuing Bank tot forgeries had been
committed by “some persons” in the documents presented to the Issuing Bank.
,
The buyer was conscious that on 20.5.98, the Negotiating Bank would press
for payment from the issuing Bank. The buyer then filed the suit against
the sellers (1st defendant), the Issuing Bank (2nd defendant) and the
Negotiating Bank (3rd defendant) for permanent injunction. No specific
relief was claimed against the Negotiating Bank but it was prayed that the
Issuing Bank should not release any amount under the L/C. In the entire
body of the plaint there is no allegation imputing any fraud to the
Negotiating Bank, much less even knowledge of fraud. Allegation of fraud
and forgery were made only against the sellers, in the interlocutory
application, though injunction was prayed against the Issuing Bank, the
Negotiating Bank was not brought into the array. Injunction was obtained on
20.5.98 by the buyers against the Issuing Bank not to honour the L/C. The
said Bank then wrote on 20:5,98 to the Negotiating Bank that In view of the
Court’s order, they would not be able to release any amount in favour of
the Negotiating Bank, after the due date ie. 20.5.98.
It was only then that the Negotiating Bank came to know that though it had
been impleaded is the suit as the 3rd defendant, it had not been impleaded
in the application for injunction. It moved the Court for vacation of the
order stating that they had sent the L/C and documents including the
delivery challans dated 19.2.78 to the Issuing Bank for due checking and
that the Issuing Bank in their crucial letter dated 23.3.98 had certified
the genuineness of the endorsements on. the L/C and the signatures on the
documents, Further, the Bill of Exchange drawn by the sellers against the
‘L/C contained the signature of the Vice-president of the buyers (we have
already extracted the endorsement) and the delivery, challans were signed
by Mr. P. Waghmode, with the endorsement “received material in good
condition” and two of these endorsements were counter signed by Vice
President of the buyer with his stamp and that once the Issuing Bank had
certified the above documents presented by the sellers to the Negotiating
Bank, the Negotiating Bank could not but pay the sellers and they had paid
Rs. 1,94,39,252 to the sellers on 25.3.98. The Negotiating Bank pointed out
that no allegations of fraud or forgery were made against it nor even
knowledge thereof attributed to it.
On these facts, the trial Court refused to vacate the injunction in its
Order dated 29,4.99. This order was confirmed by the High Court; The
Negotiating Bank has come up in appeal by Special leave.
In this appeal, we have heard the submissions of learned counsel for the
appellant Sri S, Ganesh and of the learned Senior counsel for the buyers
Sri V,A. Mohta and of Sri Rajesh Kumar, for the Bank of Maharashtra.
Learned counsel for the appellant :Sri S. Ganesh contended that the
plaintiff-buyers had deliberately not impteaded the appellant in the
injunction application and they obtained injunction in collusion with the
Issuing Bank. They could not have stated in the trial Court that the
Negotiating Bank need hot be heard. Learned counsel pointed out that no
allegation of fraud was made in the plaint nor in the injunction
application against the Negotiating Bank and the allegations were made only
on the sellers for allegedly committing forgery of documents. Learned
counsel pointed out that not even knowledge of fraud or forgery was
attributed to the appellant. The appellant had obtained, by way of caution,
the confirmation from the Issuing Bank as per Banking Practice in regard to
the genuineness of the endorsements on the Bill of Exchange and L/C and on
the documents (including the delivery chailans) produced by the sellers and
that the Issuing Bank had confirmed the genuineness of the same and had, in
fact, promised to reimburse the Negotiating Bank on the due date i.e.
20.5.98 i.e. 90th day after the date of delivery 19.2:98). The Bill of
Exchange was also signed by the Vice President of the buyer and necessary
endorsement was made. Counsel also referred us to Articles Of the Uniform
Customs arid Practice for Documentary Credits (1983 Revision) which stood
incorporated in the Letter Of Credit dated 19.2.98 (and in particular
Article 16(b) and (e) and pointed out that even in cases where Issuing Bank
did not refuse to certify the documents in reasonable time, me Article
states that the Issuing Bank “shall, be precluded from claiming that the
documents are not in accordance with the terms and conditions Of the
credit” Here, on facts, there is an express acceptance of the genuineness
of the documents and this is an afortiori case. The Banks are governed by a
separate contract and were not concerned with disputes as to non-
performance – Or non-delivery of goods- by the seller to the buyer.
On the other hand, the learned counsel for the Issuing Bank, Sri Rajesh
Kumar contended before us (and in their written submissions) that it was
true that on 23.3.98 the Issuing Bank had certified to the Negotiating Bank
that the documents were in order. “But when in May, 1988, the Negotiating
Bank claimed to be reimbursed, the Issuing Bank scrutinised and it was
revealed that the documents were not in order”. It also contended (hat the
primary duty to verify the documents was that of the Negotiating Bank and
that the confirmation obtained from the Issuing Bank of no value.
Sri V.A. Mohta, learned senior counsel for the buyers-plaintiff wanted to
contend that the injunction obtained by the plaintiff had to be maintained.
Learned counsel was confronted with his client’s stand in the trial Court
that the Negotiating Bank had no concern with the injunction. Learned
senior counsel was told in view of the peculiar stand taken by his client
in the trial Court, in case this Court declared that the injunction would
not come in the way of the Negotiating Bank getting reimbursed by the
issuing Bank, his clients could not have any objection to it. Counsel,
however, submitted that, in that event, the Issuing Bank should not debit
the buyer for the amount the said Bank would reimburse to the Negotiating
Bank. Counsel was informed mat that question does not arise in this appeal.
The following points arise for consideration in this appeial :
(1) In the context of the need for Banks to take reasonable care to
scrutinise the documents produced before it for honouring the L/C, what is
the relevance of the UCP Code issued by the International Chamber of
Commerce, which was here expressly incorporated in the L/C?
(2) If it is the case of the plaintiff-buyer that there is ‘fraud’ on the
part of the sellers in relation to the documents and if it is not its case
that the Negotiating Bank was guilty of fraud or had knowledge of fraud by
the seller, could the Negotiating Bank not seek reimbursement from the
Issuing Bank, as a holder in due course of the Bill of Exchange, against
the L/C?
(3) Whether, once the Issuing Bank had certified the documents which were
presented to the Negotiating Bank by the sellers, the Said Bank could turn
round and refuse reimbursement on the ground that on further scrutiny made
by its – long after the Negotiating Bank parted with monies – was not
correct or was mistaken ?
Point 1
This point mainly deals with the UCP Code (1983 Revision) which was
incorporated by reference into the L/C. As the interpretation of the UCP is
commercially of considerable importance, we would like to deal with the
relevance of the UCP Code in Some detail.
This Court had occasion in United Commercial Bank v. Bank of India, 13981]
2 SCC 766 (at 780} to refer to the Uniform Customs and Practices for
Documentary Credits (UCP for short) by which the ‘General provisions and
Definitions arid the Articles following are to apply to all documentary
credit and binding upon all parties thereto unless otherwise expressly
agreed’. The UCP states that it shall be deemed incorporated into each
documentary credit if there are words in the Credit indicating that such
credit was issued subject to Uniform Customs and Practices of Documentary
Credits.
The UCP has been formulated by the international Chamber of Commerce, Prof.
R.M. Goode described it as the ‘most successful harmonising measure in the
history of international commerce’. Prof, E.P. Ellinger stated that the UCP
was the result of necessity and the need for use of banks as; agents in
international trade. The first UCP was drafted in 1929, the next one in
1933, then in 1951, 1962 and 1974 and 1983. The 1983 version (relevant in
the case before us) was used in 170 countries, (It was revised in 1990 and
1993), (The New York version of if revised in 1993). (See Principles of
International Trade Law by Indira Carr, 2nd Ed, 1999).
In the absence of incorporation, the UCP will not apply but it can be taken
into account as part of mercantile customs and practices and most of if is
also treated as part of common law, barring a few differences. If an
express term in the contract contradicts the UCP terms, the contract
prevails, Mustill, J. in Royal Bank of Scotland plc. v. Cassa di Ris
parimio delie Provincie Lombard, (1993) (Financial Times 21 Jan, 1992) said
: i “……it must be recognised that (the UCP) terms do not constitute a
statutory code. As the title marks blear, they constitute a formulation of
customs and practices, which the parties to a letter of Credit can
incorporated into their contracts by reference. If it is found that the
parties have explicitly agreed such a term, then the search need go no
further, since any contrary provision in UCP must yield to the parties’
expressed intention.”
We are here concerned with the I Uniform Commercial Practice of Documentary
Credits (1983) (which is referred to in the L/C).
It states in Article 3: “credits, by their nature are separate transactions
from the sales or other contracts (&) on which they may be based and banks
are in no way concerned with or bound by such contracts), even if any
refuse whatsoever to such contracts(s) is included in the credit. Article 4
states mat: ‘in credit operations, all parties concerned deal in documents,
and not in goods, services and/or other performances to which the documents
may relate”. This is also declared by this Court in several cases.
Article 1.0 refers to the duty of the Bank to honour the commitment. It
states; “An irretrievable credit constitutes a definite undertaking of the
Issuing Bank, provided that the stipulated documents are presented and mat
the terms and conditions of the credit are complied with: (i) if the credit
provides for sight payment – to pay, or mat payment will be made (ii) if
the credit provides for deferred payment – to pay or that payment will be
made on the date(s) determinable in accordance with the stipulations of the
creditor (iii) if the credit provides for acceptance – to accept drafts
drawn by the beneficiaries if the credit stipulates that they are to he
drawn on the Issuing Bank, or to be responsible for mat acceptance and
payment at maturity if the credit stipulates that they are to be drawn on
the applicant for the credit or any other drawee stipulated in the credit;
(iv) if the credit provides for negotiation – to pay without recourse to
drawer and/or bona fide, holders, drafts drawn by the beneficiary, at sight
or at a tenor, on the applicant for the credit or on any other drawee
stipulated in the credit other than the Issuing Bank itself, or to provide
for negotiation by another bank and to pay as above, if such negotiation is
not affected (b)……(c)………(d)….,…”. Article 11 (a) stipulates
that ‘All credits must clearly indicate whether they are available by sight
payment, by deferred payment, by acceptance or by negotiation……Clause
(b)
states that: ‘All credits must nominate the bank (nominated bank) which is
authorised to pay (paying bank), or to accept drafts (accepting bank), or
to negotiate (negotiating bank) unless the predit allows negotiation by any
bank (negotiating bank). (e)….Clause (d) of Article 11 is relevant and it
reads ;
“Article ll(d) : By nominating a bank other than; itself or by allowing for
negotiation by any bank or by authorising or requesting a bank to add its
confirmation, the issuing bank authorises such bank to pay, accept or
negotiate, as the case may be, against documents which appear on their face
to be in accordance with the terms and conditions of the credit and
undertakes to reimburse such bank in accordance with the provisions of
these Articles”.
It is, therefore, clear that under Article 11 (d), it is sufficient if the
negotiating bank is satisfied that the documents which appear on their face
to be in accordance with the terms and conditions of the credit. If the
Negotiating Bank then pays, the Issuing Bank is bound to reimburse the
Negotiating Bank,
We have to refer to another important Article, i.e. Article 15, which
concerns the ‘reasonable care’ with which documents have to be examined.
This Article has relevance on the question of’ ‘fraud’. It refers to the
safeguards to be taken by the Bank, It states :
“Article 15 : Bank must examine all documents with reasonable care to
ascertain that they appear on their face to be in accordance With the terms
and conditions of the credit. Documents which appear on their face to be
inconsistent With one another will be considered as riot appearing on their
face to be in accordance with the terms and conditions of the credit”.
Once the Bank takes such reasonable care as above stated, Article 16 states
that the Bank will have to be reimbursed by the party giving such
authority. Clause (b) of Article 16 states that refusal by the Issuing Bank
to pay must be “on the documents alone” as appear on their face to be
inconsistent with the terms and conditions of the credit.
At common law, the position is no different. The principle of reasonable
care has been applied by Lord Dipiock in Gian Singh & Co, Ltd. v. Banqae
deL’ lndochine, (1974) 1 WLR 1234, The Bank has to examine with reasonable
Care to ascertain if they appear on their face to be in accordance with the
terms arid letters Of Credit. In that case, the reference was made to
Article 7 of the UCP (1962). It was observed that the said Article did no
more than restate the duty of the bank at common law. It was further held
that in the ordinary course, visual inspection of the actual documents
presented is all that is called for, (p, 1252). In Basse and Selve v.Bank
of Australia, (1904) 20 TLR431 = 90 L.T. 618, the defendant bank was
instructed to negotiate the drafts of a shipper in Sydney against a
Certificate of Dr. Hehns for 100 tons of Cobalt ore analysis not less than
5% pretoxide. The shipper shipped worthless ore which was described in the
bill of loading as ‘P.M. 2680 bags containing 100 tons of Cobalt ore”. The
sample initially submitted did not refer to the bill of lading goods. But
later, the shipper marked the sample in the same way as the goods were
described in the Bill of lading quantity and obtained a second, certificate
showing [satisfactory tests of “a sample of Cobalt ore marked P.M. 2680
bags representing 100 tons”. The Bank this time accepted the shipper’s
drafts and was held to be entitled to recover from the plaintiffs. The
Certificate on its face was regular and came within the meaning of the
mandate. Bigham, J. said:
“Once they were in touch with the right man, the defendants’ only remaining
duty was to see that the documents which be brought purported on their face
to be documents described In the mandate. It was no part of their duty to
verify the genuineness of the documents”.
All that is therefore necessary is to examine with reasonable if the
documents on their face conformed to the terms and conditions of the L/C.
One other important Article that is important OH the question of
‘reasonable care’ of the Bank in examining the documents is Article 17. It
reads :
“Article 17 : Banks assume no liability or responsibility for the form,
sufficiency, accuracy, genuineness, falsification or legal effect of any
document, or for the general and/or particular conditions stipulated in the
documents or superimposed thereon; nor do they assume any liability or
responsibility for the description, quantity, weight, quality, condition
packing, delivery, value or existence of the goods represented by any
document, or for the good faith or acts and/or omissions, solvency,
performance or standing of the consignor, the carriers, or the insurers of
the goods or any other person whomsoever” .
This shows that the Bank does not if it is not clear from the face of the
documents – owe any liability or responsibility for the falsity of the
documents. (However, we shall presently deal with, question of fraud
separately).
Learned counsel for the appellant Sri Ganesh has contended that if the
Issuing Bank does not certify the documents within reasonable time, if will
be deemed that it had accepted the documents. Counsel relied on clauses (c)
and (e) of Article 16, Clause (c) states :
“Article I6(c) : The Issuing Bank shall have reasonable time in which to
examine the documents and to determine as above whether to take up or to
refuse the documents”,
If the Issuing Bank does not return them within reasonable time, it may be
deemed that it has ratified the genuineness of the documents. These clauses
are based on principles of common law.
In Hansson v, Hamel and Horley Ltd, (1922) 2 AC 36 (HL), Lord Sumner stated
(at p. 46):
“these documents have to be handled by the banks, they have to be taken up
or rejected promptly and without any opportunity for prolonged inquiry”.
Two judgments as to whether the Issuing Bank can consult its customer
appear to be conflicting. In Bankers Trust Co. v. State Bank of India,
(1991) Lloyds Rep, 443, it was held that the Banker’s Trust was barred from
refusing the documents because it had taken unreasonable time to examine
and reject them, some nine days. By that time the State Bank of India had
paid to the Steel Authority of India. There were no doubt, 967 sheets to be
verified. But it was held that the time taken to consult the customer could
not be excluded. A different view was expressed earlier in Co-operative
Central etc- v, Sumitomu Bank Ltd. The Roy an, (1987) 1 Lloyds Rep. 345 (on
appeal, see (1988)2 Lloyds Rep. 250), However, Article 14(c) of the UCP
(1993 Revision) appears to accept the view in the Bankers’ Trust case for
it says that if the Sank “approaches the applicant for waiver of
discrepancy” that shall not extend the seven days time set in Article 13(b)
of the UCP (1993 Revision),
In deciding whether the time taken is reasonable or not, English Courts
used to take into account banking practice. The Bank in England, normally
used to take three days. (Banker’s Trust Ltd v. State Bank of India, (1991)
2 Lloyd. 443).
Clause (d) of Article 16 of the 1983 Revision states that, if the issuing
bank decides to refuse, it must give notice to the bank from which it
received the documents or to the beneficiary, if it directly received from
him. Such notice must state the discrepancies in respect of which the
Issuing Bank refuses the documents and must also state whether it is
holding the documents at the disposal of or is returning them to, the
presentator (remitting bank or the beneficiary, as the case may be). Sub-
clause (e) reads :
“Article I6(e): If the Issuing Blank fails to act in accordance with the
provisions of paragraphs (c) and (d) of this Article and/or fails to hold
the documents at me disposal of, or to return them to, the presentator, the
Issuing Bank shall be prechuded from claiming that the documents are not in
accordance with the terms and conditions of the credit”,
thus; where the Issuing Bank does not respond within reasonable time it
cannot, under the UCP, cannot dispute the documents later.
This sub-clause (e) of Article 16 has been relied upon heavily by the
learned counsel for the appellant to show that where the Issuing Bank
expressly accepts the documents sent by the Negotiating Bank, no other
question can arise.
As to what type of documents; are to be accepted as ‘originals’ Article
22(c) states that unless otherwise stipulated in the credit, banks will
accept as original documents produced or appearing to have been produced:
(i) by reprographic system (ii) by or as the result of, automated or
computerised System (iii) as carbon copies- provided if these type of
documents are marked as ‘originals’, provided they have been, where
necessary, authenticated. Under Article 20(b) of the UCP 1993 Revision,
“unless Otherwise stipulated in the Credit, banks will also accept as ah
original document, a document produced or appearing to have been produced
– (i) by reprographic, automated or computerised systems; (ii) as carbon
copies, provided that it is marked as original and, where necessary,
appears to be signed.
Recently in Karaganda Ltd. y. Midland Bank, (1999) 1 All ER 801 (Commercial
Court) (CA) the Court of Appeal affirmed the judgment of the High Court in
a case involving the meaning of the word ‘original’. There the documents
were produced by word-processor and laser printed oh headed paper without
bearing the word ‘original’. The Midland Bank refused to treat the copy of
the insurance policy as the L/C required ‘original insurance policy Or
certification. The Bank relied an upon Glencore International AG v. Bank of
China, (1996) I Lloyds’ Rep. 135 to say that me absence of the word
‘original’ in any document produced on rd processor was a document
produced by a computerised system within Article 20(b) and was required to
be marked as original. But this case was distinguished by the High Court
(see 1998 Lloyds Rep. Bank 173) (1997 Current Law Year Book 328). It was
held by the learned Judge that a document could be regarded as “marked as
original” if, either it was expressly marked with the word ‘original’, or
if it was a necessary implication Of the terms and markings of the document
that it was original. Here, the document complied with the latter test arid
therefore conformed to the credit. On appeal, the Court of Appeal, as
recently as 1999 accepted this view holding that ‘a document containing –
all the details of the contract and Which was patently not a reprographic
or carbon copy of another document could constitute an original for
purposes of the UCP 1993 Revision’. We are only referring to the view of
the English Court as a mark of interest. That question does not, however,
arise in this case.
As to the source from which the documents emanate. Article 23 states “that-
where documents (other than transport documents, insurance documents and
commercial invoices called for) are called for, the credit should stipulate
by whom such documents are to be issued and their wording or debtor
content, If the credit does not so stipulate, banks will accept such
documents as presented, provided that their debtor content makes it
possible to relate the goods and/or servicing referred to therein to those
referred to in the commercial invoice(s) presented, or to those referred to
in the credit if the credit does not stipulate presentation of a commercial
invoice.”
With regard to expiry date and presentation, Articles 46 to 48 deal With
the principles applicable.
Before parting with Point 1, we may add that the UCP (1983 revision) or
even the 1993 Revision did not refer to fraud as an exception. That is why
Indira Carr says in ‘international Trade Law, 2nd Ed, 1999 at p. 266-267
that the UCP is not comprehensive as it does not address itself to the
effect of fraud or illegality in the documentary credit arrangement. We may
here add that the Uniform Civil Code (USA) in clause (2 of Articles 5-114
specifically refers to forgery and fraud. This US Code was noticed by
Jagannath Shetty, J, in UP Co-operative Federation Ltd v, Singh Consultant
& Engineers Pvt. ltd, [1988] 1 SCC 174 (at p. 48).
Points 2 and 3 :
We have set out the facts in sufficient detail to highlight that the
plaintiff-buyers have no plea that the Negotiating Bank which paid the
monies to the sellers committed any ‘fraud’. The allegations in me plaint
are that the sellers in connivance with some persons presented forged or
false documents to the Negotiating Bank which include delivery-vouchers
parported issued & signed on behalf of the buyers (signed by one Mr.
Waghmode and counter signed toy its Vice President (Accounts), the case of
the buyers was, however, that Mr. Waghmode was not in their service nor
authorised to issue any such vouchers.
In several judgment of this Court, it has been held that Courts ought not
to grant injunction to restrain encashment of Bank guarantees or Letters of
Credit, Two exceptions have been mentioned-(i) fraud and (ii) irretrievable
damage. If the plaintiff is prima facie able to establish that the case
conies within these two exceptions, temporary injunction under Order 39,
Rule 1, CPC can be issued. It has also been held that the contract of the
Bank guarantee or the Letter of Credit is independent of the main contract
between the seller arid the buyer. This is; also clear from Arts. 3 and 4
of the UCP (1983 Revision). In case of an irrevocable Bank guarantee or
Letter of Credit the buyer cannot obtain injunction against the Banker 0n
the ground that there was a breach of the contract by the seller. The Bank
is to honour the demand for encashment if the sellet pima facie complies
with the terms of the Bank Guarantee or Letter of Credit, namely, if the
seller produces the documents enumerated in the Bank Guarantee or Letter of
Credit If the Bank is satisfied on the face of the documents that they are
in conformity with the list of documents mentioned in the Bank Guarantee or
Letter of Credit and there is no discrepancy, it is bound to honour the
demand of the seller for encashment. While doing so it must take reasonable
care. It is not permissible for the Bank to refuse payment on the ground
that the buyer is claiming that there is a breach of contract. Nor can the
Bank try to decide this question of breach at that stage and refuse payment
to the seller. Its obligation under the document having nothing to do with
any dispute as to breach of contract between the seller and the buyer. As
to its knowledge of fraud or forgery, we shall presently deal with it,
Knowledge of fraud :
Decided cases hold that In order to obtain an injunction against the
Issuing Bank, it is necessary to prove that the Bank had knowledge of the
fraud.
Kerr, J. said in R.D, Harbottle (Mercantile) Lid v. National Westminister
Bank Ltd., (1978) Q.B, 146 at 155 at irrevocable Letters of Credit are ‘the
life blood of international commerce”. He said :
“Except possibly in clear cases of fraud of which the banks have notice,
the Courts will leave the merchants to settle their disputes under the
contracts by litigation or arbitration……..Otherwise, trust in
international commerce could be irreparably damaged.”
Denning M,R, .stated In Edward and Owen Engineering Ltd. v. Barclays Sank
International Lid. (1978) Q.B. 159 that ‘the only exception is where there
is a clear fraud of which the bank had notice”: Browne, LJ. said in the
same case : “but it is certainly not enough to alleged fraud, it mast be
established” and in such circumstances, I should say, very clearly
established”, in Bolvinter Oil S.A.v. Chase Manhattan Bank, (1984) 1 All
E.R, 351 at P. 352, it was said ‘where it is proved that the Bank knows
that any demand for payment already made or which may thereafter be made,
will clearly be fraudulent. But the evidence must be.clear both as to the
fact of fraud and as to the bank’s knowledge. It would certainly not be
sufficient that this rests Upon the uncorroborated statement of the
customer,, for irreparable damage can be done to a bank’s credit in the
relatively brief time “before the injunction is vacated”. Thus, not only
must ‘fraud’ be clearly proved but so far as the Bank is concerned, it must
prove that it had knowledge of the fraud. In United Trading Corp. S.A. v.
Allied Ards Bank, (1985) 2 Lloyds Rep, 554, it was stated that there must
be proof of knowledge of fraud on the part of the Bank at any time before
payment. It was also observed that it “would be sufficient if the
corroborated evidence of the plaintiff usually in the form of contemporary
documents and the unexplained failure of a beneficiary to respond to the
attack, lead to the conclusion that the .only realistic inference to draw
was ‘fraud'”. In Guarantee Trust Co, of New York v, Hanney, (1918) 2 K.B.
623 (KB), the Banker accepted the documents without any knowledge of fraud
or falsify and it was held that me defendants could not counter-claim from
the Bank. However, it would be the ‘Banker’s duty to refuse the documents
which oh their face bear signs of having been altered (See Re Salomon and
Nandszus, [l899].92’ L.T. 325. that was a c.i.f. contract. This Court in
ITC Ltd. v. Debts Record Appellate Tribunal, [1998] .2 :SCC 70 (at 79) also
held that knowledge Of the Bank as to the fraud or forgery had to be prima
facie established.
The foundation of English law in this area is the American case of Sztejn
v. j. Heney Schroder Banking Corpn., (1941) 31 NYS 2d, 631, (Extensive
details of this case are available in ‘Documentary Credits’ by Raymond
Jack, 1991 pp. 191-192); This case has been cited in more than one judgment
of this Court and the English Courts but we shall give more facts of that
case and the principle Of ‘holder in due course’ laid down therein which
arises in the case before us, as per the appellant’s pleadings. In that
case, the applicant for a credit (i.e. the buyer) claimed injunction
against the Issuing Bank Schroder Banking Corporation to prevent it paying
on the documents which had been presented. The credit had been advised to
the seller in, India by the Issuing Bank’s correspondent in India, the
Chartered Bank of India, Australia and China, The correspondent had not
confirmed the credit The applicant alleged that what had been shipped was
rubbish rather than the bristles contracted to be supplied. The Chartered
Batik (the Collecting Bank) which received the documents from the seller
for ‘collection’, applied for dismissing the buyer’s claim. (This was a
proceeding similar to Order 7 Rule 11 CPC)for an injunction on the ground
that there was no cause of action. The buyer’s, in their application for
injunction, informed the Issuing Bank about the fraud of the sellers. For
the purpose of hearing tot application of the Collecting Bank, the Court
assumed the facts stated in the application of the buyer as to fraud to be
true. (Otherwise, this was a difficult burden of proof normally). Shientag,
J. held that:
“Where the seller’s fraud has been called to the bank’s attention before
the drafts and documents have been presented for payment the principle of
the independence of the bank’s obligation under the Letter of Credit should
not be extended to protect the unscrupulous seller. It is true that even
though the documents are forged or fraudulent, if the issuing bank has
already paid the draft before receiving notice of the seller’s fraud, it
will be protected if it exercised reasonable diligence before making such
payment.”
The facts, as stated above, were that the sellers had drawn the draft under
the letter of Credit to the order of the Chartered Bank of India, Australia
and China and delivered the draft and the fraudulent documents to the said
Chartered Bank’s branch at Kanpur for ‘collection’ on account of the
sellers. The Chartered Bank could not compel the issuing Bank, Schroder
Banking Corporation, to pay by seeking a dismissal of the buyer’s
application by way of a demurrer. The plaintiff was entitled to injunction
for it had brought the allegation to the knowledge of the Issuing Bank,
before the payment was made. Shientag, J. further observed:
“As one Court has stated: obviously, when the issuer of a letter of Credit
knows that a document, although correct in form, is, in point of fact,
false or illegal, he cannot be called upon to recognise such a document as
complying with the terms of a letter of credit” No hardship will be caused
by permitting the bank to refuse payment where frauds is Claimed, where the
merchandise is not merely inferior in quality but consists of worthless
rubbish, where the draft and the accompany document are in the hands of one
who stands in the same position as the fraudulent seller, where the bank
has been given notice of fraud before being presented with the drafts and
documents for payment, and where the bank itself does not wish to pay
pending an adjudication of the rights and obligations of the other
parties.”
The Court also noticed that, on facts, the Collecting Bank, Chartered Bank
was not a holder in due course but was a mere agent for collection for the
account of the seller who was charged by the buyer with fraud. Therefore
the Chartered Bank’s motion to dismiss the complaint (similar to Order 7
Rule 11 CPC) must be denied. Shientage, J. referred to the principle of
‘holder in due course’ and said as follows:
“If it had appeared from the face of the complaint that the Bank presenting
the draft for payment (i.e. Chartered Bank) was a holder in due course, its
claim against the Bank issuing the letter of credit would not be defeated
even though the primary transaction was tainted by fraud.”
‘This passage lays down the law as to when a person becomes a holder in due
course in the case of a fraud by the sellers. This last paragraph from the
judgment of Shientag, J. is directly applicable to the facts of the case.
Applying the said principle, we may state that if the appellant Federal
Bank was merely a collecting bank or agent which had approached the Bank of
Maharashtra (the issuing Bank) and if the Issuing Bank was sought to be
restrained by the buyer before payment was made by the Issuing Bank to the
Collecting Bank, the collecting Bank could not have compelled the Issuing
Bank to release the money for collection if the buyer informed the Issuing
Bank in his plaint that the documents to be presented to it by the
Collecting Bank were forged or fraudulent. But where, on the other hand,
the Negotiating Bank, i.e. the Federal Bank (appellant), has said on the
basis of a clearance given by the Issuing Bank as to genuineness of
documents, and seeks reimbursement, then the Negotiating Bank is in the
position of a holder in due course and can claim that the suit of the buyer
must fail if it sought to restrain the Issuing Bank.from reimbursing the
Negotiating Bank- These principles prima facie flow from Shientag, J’s
judgment which has been followed both in England and by this Court, in
several cases.
Legal relation of a Negotiating Bank vis–vis the Issuing Bank:
The contract between the issuing banker and the paying or negotiating
(intermediary) banker may partake of a dual nature. The relationship is
mainly that of principal and agent, mandator and mandatory. In order that
he may claim reimbursement for any payment he makes under the credit or the
indemnify of an agent, the intermediary banker must obey strictly, the
instructions he receives, for by acting on them, he accepts then and thus
enters into contractual relations with the issuing Bank. The instructions
may take the form of an authority either to pay against documents or drafts
accompanied by document; or to negotiate drafts drawn either on the issuing
banker or on the buyer. The authority may be accompanied by instructions to
the intermediary banker to confirm the credit, that is, to place himself in
binding contractual relationship with the beneficiary. There is ordinarily
no privity between the intermediary banker and the buyer. But the
intermediary banker, though initially the agent of the Issuing Bank, may
also act as principal in relation to him. (Pagets’ Law of Banking, 9th Ed.,
(1982) p. 543, 544).
A.G. Davis in his ‘The Law Relating to Commercial Letters of Credit’ (2nd
Ed.) (1954) (p. 92 et see) deals with the rights of a negotiating Bank.
These rights are partly based on the law relating to negotiable instruments
and partly on the law applicable strictly to letters of credit. So far as
the rights of the negotiating Banker against the seller are concerned, his
position will be that as in the case of a ‘bill of exchange’ as against the
drawer. The author deals with its rights against the seller as a holder in
due course unless the seller drew the bill ‘sans recourse’. He also deals
with the risks of the Negotiation Bank in cases of revocable credits. But
so far as irrevocable credits are concerned, he says that the terms of the
credit have to be looked into. Some terms indeed contain an undertaking by
the Issuing Bank with the seller and purchasers for value of drafts on
credits, to honour those drafts if, of course, the terms of the credit are
complied with. He says :
“But even in the absence of express words, a promise in favour of such
third persons may be implied from the terms of the letter of credit
and surrounding circumstances…………where an intermediary banker
pays against documents other than those for which the credit calls and
tenders them to the issuing banker, he may nevertheless be able to recover
from the issuing banker if the latter delays in deciding whether he will
repudiate or accept.”
Roche, J. in Westminister Bank Ltd. v, Banca Nazionale di Credito, (1928)
32; LL Rep, 306 at 312 said :
“if parties keep documents -which are sent them,.,..in consequence of some
mandate which they themselves have issued, and keep them for an
unreasonable time, that may amount to a ratification of what has been done
as being done within their mandate.”
The issuing Bank as principal may ratify the acts of its agent, the
correspondent bank which is its agent and by doing so, relieve the
correspondent bank of a liability it would otherwise have.
One ruling referred to by the learned counsel Sri S. Ganesh for the
appellant is directly in point In Virgo Steels v. Bank of Rajasthan, AIR
(1998) Bom, 82. In that case the UCO Bank issued a letter of Credit at
request of Virgo Steel in favour of Western Mini-steel Ltd. It provided
that documents under the credit could be negotiated through any Bank. The
drawer drew the Bill of Exchange which was negotiated by the Bank of
Rajasthan, On receipt of the said drafts, the Bank of Rajasthan wrote to
the UGO Bank, sending the documents for its confirmation, The UCO Bank
confirmed the signature of the partner as per their records and said that
they could release payment directly to the Bank of Rajasthan. Subsequently,
the UCO Bank found that Virgo Steels, in connivance with some officials of
the Branch, got the L/Cs opened much in excess of the limit authorised by
UCO Bade The UCO Bank disowned liability to pay the Bank of Rajasthan on
due date, M.B. Shah, J. (as he then was) speaking for the Bench, rejected
the plea of UCO Bank and found it liable to the Bank of Rajasthan. It was
held :
“whether the drawer or the acceptor or some officers of the UCO Bank
committed fraud would hardly be a defence for non- payment of the amount
due to the Bills of Exchange negotiated by the Bank of Rajasthan, a third
party,” and that
“UCO bank has never raised any contention that some officers of Bank of
Rajasthan, which is altogether a third party, was involved in any alleged
fraud or conspiracy.”
The Court relied upon a circular of the Reserve Bank of India dated
1.4.1992. UCO Bank was held bound by its own confirmation of the documents.
We are in respectful agreement with the judgment.
In view of the above reasons, this appeal is to be allowed.
Summarising, we hold that when the plaintiff buyer has no case that the
appellant-Negotiating Bank had any knowledge of fraud, and when it took
precaution in getting clearance for the document from the issuing Bank on
203.98 and such clearance was given on 23.3.98 by me latter, it was not
open to the Issuing Bank to contend that on fresh scrutiny in May, 1998, it
found that the documents were not in conformity with the letters of Credit
or that the buyer had so informed them. Prima facie, the appellant was in
the position of a holder in due course. Points 2 and 3 are decided in
favour of me appellant
For me aforesaid reasons, we allow me appeal and vacate me temporary
injunction granted in favour of the plaintiff against the Bank of
Maharashtra in so far as the said injunction precluded the Bank of
Maharashtra from reimbursing the appellant-Federal Bank: It Is clarified
that me said injunction will not come in the way of the Bank of Maharashtra
from complying with its obligation to reimburse the Federal Bank. The
Appeal is allowed. No costs.
Before parting with the case, we may state that we are now living in ap era
of advanced technology of e-mail and internet. It is possible that in the
near future we must take greater pare and impose less rigorous standards of
proof of fraud for otherwise plaintiffs might find it impossible to make
out a serious liable issue or prima facie case. Indira Carr says that
documentary fraud is on the increase and more so, due to electronic data
transfers. She says there is a case for a fresh reassessment of the narrow
exception of fraud (Principles of International Trade Law, 2nd Ed,, 199 p.
298).
