Delhi High Court High Court

M/S B. G. Creations Pvt. Ltd. vs State Bank Of Saurashtra & Anr. on 18 January, 2010

Delhi High Court
M/S B. G. Creations Pvt. Ltd. vs State Bank Of Saurashtra & Anr. on 18 January, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Order reserved on: 12.1.2010
%                        Order delivered on: 18.1.2010

+               I.A.10702/2006 in CS(OS)557/2006

        M/S B.G.CREATIONS PVT.LTD.                      ......Plaintiff
                           Through:           Mr.Sudhir Makkar, Adv.

                        Versus


        STATE BANK OF SAURASHTRA & ANR.     .......Defendants
                          Through: Mr.R.K.Saxena, Adv. for
                                   Defendant no.1.
                                   Mr.Ajay     Monga    and
                                   Mr.Manish Paliwal, Advts.
                                   for the applicant


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?
                                                               Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

I.A.10702/2006 (under Order 1 Rule 10 r/w Section 151 CPC)

1. This application has been filed by the applicant namely the

Citi Bank A.S. Turkey who has prayed for impleadment in the

present suit.

2. Present suit is suit for permanent injunction. The prayer

made in the application is that the defendant no.1 Bank i.e. the

I.A.10702/2006 in CS(OS) 557/2006 Page 1 of 6
State Bank of Saurashtra, now known as the State Bank of India be

restrained from making any payment in pursuance of letter of

credit dated 7.12.2005.

3. Plaintiff was a company engaged in the business of trading

of food-grains. A supply order of chickpeas had been placed upon

defendant no.2 whereby defendant no.2 was required to make this

supply to the plaintiff. In pursuance of this agreement plaintiff

asked its banker defendant no.1 to issue a letter of credit in favour

of the banker of defendant no.2. Accordingly, the aforementioned

letter of credit dated 7.12.2005 was issued by defendant no.1 in

favour of the banker of defendant no.2. Defendant no.2 was

indicated as the beneficiary. On inspection of the consignment the

plaintiff found the goods to be defective. He has accordingly

prayed that this letter of credit issued by defendant no.1 be not

enforced in view of this fraud played by defendant no.2 upon the

plaintiff.

4. The applicant before this court i.e. the Citi Bank A.S. Turkey

was the advisory bank/negotiating bank for this letter of credit. On

affidavit, it is stated that the amount payable on this letter of

credit has already been released by the applicant to the

beneficiary namely to defendant no.2. The applicant had

approached defendant no.1 for release of payment in its favour but

the applicant has been informed that an ad-interim injunction has

been granted in favour of the plaintiff and against defendant no.1
I.A.10702/2006 in CS(OS) 557/2006 Page 2 of 6
not to release this amount on this letter of credit. It is further

stated that a settlement has been proposed between the plaintiff

and the defendants which would be behind the back and against

the interest and to the prejudice of the applicant as it is the

applicant who has to receive this amount on this letter of credit

from defendant no.1. Applicant is the ultimate effected party in

the present proceedings and as such he would be a necessary and

a proper party for adjudication of the dispute between the parties.

Accordingly, impleadment has been prayed for.

5. The application has been opposed. It is submitted that there

is no privity of contract between the applicant bank and the

plaintiff who is neither a proper and nor a necessary party. It is

stated that the applicant has wrongly concealed that on 25.4.2006

the applicant had sent a swift message to defendant no.1 wherein

the applicant had agreed to get the said letter of credit cancelled

and the applicant and the beneficiary had agreed to acquit each

other irrevocably. It is further stated that in fact a settlement had

been arrived at between the plaintiff and defendant no.2 on

20.4.2006. It is stated that the plaintiff had on 25.4.2006

submitted the original documents including the commercial

invoice, packing list, bill of lading with the defendant no.1 bank.

On 18.9.2006, the plaintiff came to understand that vide a swift

message of even date defendant no.1 bank had called the Citi bank

Mumbai to confirm the cancellation of this letter of credit. It is,
I.A.10702/2006 in CS(OS) 557/2006 Page 3 of 6
thus, manifest an understanding had been arrived at between the

parties and defendant no.2 had agreed to settle its disputes with

the plaintiff and in view thereof the Citi bank Turkey would not

claim any amount against the said letter of credit and once this

fact was confirmed by Citi Bank, defendant no.1 would release the

margin money held by it to the plaintiff whereupon the plaintiff

would withdraw the suit. It is stated that the present application

is misconceived and is liable to be dismissed.

6. In the rejoinder filed by the plaintiff it is stated that the

admissions made in the reply clearly show that there is connivance

between the plaintiff and the defendants i.e. defendant no.1 and 2

and if any settlement is arrived at between the parties behind the

back of the applicant it would be to his prejudice. It is stated that

as is evident from the message dated 24.4.2006 sent by the

applicant to defendant no.1 at the instance of defendant no.2, the

applicant bank had agreed not to press for its reimbursement

claim if the original documents are returned which in turn would

signify that the plaintiff had not taken delivery of the goods. It is

stated that till date defendant no.1 has not returned the original

documents to the applicant and therefore the reimbursement claim

of the applicant is valid and subsisting; defendant no.1 is under

obligation to credit the account of the applicant bank. Thereafter

several messages dated 5.5.2006 and 20.9.2006 and 27.9.2006

I.A.10702/2006 in CS(OS) 557/2006 Page 4 of 6
were sent by the applicant to defendant no.1 reiterating that the

reimbursement claim of the applicant bank is valid.

7. On an appreciation of the rival contentions of the parties,

this court is of the view that the applicant is a necessary and

proper party. The role assigned to the applicant is that of a

confirming, advising, and negotiating bank. The applicant bank

has admittedly made payment to defendant no.2 the beneficiary.

Defendant no.2 is ex-parte in these proceedings. As per trade

practice the applicant bank had forwarded the original document

to defendant no.1 which was the issuing bank.

8. A letter of credit is a document issued mostly by a financial

institution, used primarily in trade finance which usually provides

an irrevocable payment undertaking. Such a document is

primarily used in international trade transactions of significant

value, for deals between a supplier in one country and a customer

in another. The parties to a letter of credit are usually a

beneficiary who is to receive the money, the issuing bank of whom

the applicant is a client, and the advising bank of whom the

beneficiary is a client. Almost all letters of credit are irrecovable,

i.e., cannot be amended or cancelled without prior agreement of

the beneficiary, the issuing bank and the confirming bank, if any.

9. In this scenario the presence of the applicant bank in the

present proceedings would be necessary. The test laid down for

testing an application of this nature is that a person is a proper
I.A.10702/2006 in CS(OS) 557/2006 Page 5 of 6
party if his presence before the court is necessary to enable the

court to arrive at an effectual adjudication and settle all the

questions involved in the suit. The object of this provision is also

to avoid needless multiplicity of suits.

10. Application is accordingly allowed. Applicant be impleaded

as defendant no.3. Amended plaint and amended Memo of parties

be filed within two weeks with advance copy to the counsel for the

defendants who may file written statement to the amended plaint

within four weeks.

(INDERMEET KAUR)
JUDGE

JANUARY 18, 2010.

rb

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