JUDGMENT
C.K. Mahajan, J.
1. This is a suit filed by the plaintiff for
recovery of US $ 42,371.15.
2. Briefly the facts are that on 18.1.1996, an
order was placed on the plaintiff by one M/s. Inaa
Trading & Company, Dhaka, Bangladesh in the name of
defendant No. 2 for exporting to Bangladesh the goods
described as “Cotton combed Yarn on Autocone”.A
letter of credit for Us $ 40,680/- was advised on
24.1.1996 through State Bank of India, Overseas
Branch, New Delhi. As per the terms of the Letter of
Credit, the goods were shipped to defendant No. 2. An
authorised representative of defendant No. 2, M/s.
Sincere Export conducted pre-shipment inspection of
the consignments and confirmed that the merchandise
had been shipped strictly as per
specifications/quality/quantity and others terms as per
the terms of Letter of Credit dated 18.1.1996. Vide
letters dated 12.2.1996 and 13.2.1996, plaintiff
advised the defendant No. 3 that the consignments had
been properly shipped to defendant No. 2 and the same
were delivered to the authorities at Land Customs
Station, Benapole, Bangladesh as per the terms of the
Letter of Credit. Thereafter, the export documents
under the terms of Letter of Credit were sent to
defendant No. 1 for reimbursement on 3.4.1996 by the
bank of plaintiff. Vide letter dated 6.4.1996, the
plaintiff requested defendant No. 2 to accept the
documents and to sent the payment by due date. But
the defendants No. 1 and 2 have failed to make the
payment in spite of repeated requests and reminders.
Even the defendants No. 1 returned the documents without
assigning any reason and declined to make the payment
of the goods exported by the plaintiff. Vide another
letter dated 3.3.1997, the bank of the plaintiff again
requested the defendant No. 1 to remit the payment
together with interest. Vide letter dated 17.3.1997,
defendant No. 1 informed the plaintiff and the bank of
the plaintiff that defendant No. 2 had not accepted the
documents as they were discrepant and had not cleared
the goods from the customs. Vide letter dated
3.6.1997, the forwarding agents M/s. Abdul Haque &
Sons informed the plaintiff that goods worth US $
27,000/- had been burnt into ashes while lying at the
place of stores at Mongal Port Authority at the time
of accidental fire at godown which occurred on
18.3.1996 and the goods worth US $ 13,680/- had been
delivered by them to defendant No. 2 on 9.4.1996.
Thereafter, the defendant No. 1 on 12.9.1997 made the
payment of US $ 13,595/- against the export documents
for the value of US $ 13,680/- thereby making a short
payment of US $ 85/-. Hence the present suit.
3. Summons of the suit were issued to the
defendant and they were served. Since the defendant
No. 1 having been served did not file the written
statement within the stipulated time, the written
statement was ordered to be taken on record subject to
payment of Rs. 500/- as costs. However, later on none
appeared on behalf of the defendants. The defendants
were proceeded ex parte and the plaintiff was allowed
to lead ex parte evidence by way of affidavits.
4. The plaintiff has filed affidavits of Mr.
Rikhab Chand Jain, Chairman and Managing Director of
the plaintiff and of Mr. V.N. Suryanarayanan, Asstt.
General Manager of the Oriental Bank of Commerce to
prove its case.
5. Mr. Rikhab Chand Jain has proved that the
goods were shipped to defendant No. 2 under Invoice
No. GEX/165 dated 6.2.1996 for US $ 27,000/- and goods
worth US $ 13,680/- under Invoice No. GEX/169 dated
12.2.1996. He has proved packing lists and invoices
in respect thereof as Exh. PW-1/2 PW-1/3, PW-1/5 and
PW-1/6 respectively. He has also proved the
certificate Exh. PW-1/8 issued by the authorised
representative of defendant No. 2 on 8.2.1996 to the
effect that the merchandise had been shipped strictly
as per the specifications/quality/quantity and other
terms as stipulated in the Letter of Credit. He has
also proved that vide letter dated 7.3.1996 (Exh.
PW-1/9), the plaintiff requested its bank to negotiable
the documents in respect of shipment made to defendant
No. 2. It has also been proved that vide letter dated
6.4.1996 (Exh. Pw-1/10), the plaintiff informed
defendant No. 2 that the documents pertaining to the
consignment shipped to it against the Letter of Credit
had been forwarded by the bank of the plaintiff t o
defendant No. 1. Vide letter dated 12.12.1996
(Exh. PW-1/11), plaintiff informed the defendant that
till date the bank of the plaintiff had not received
payment of the goods. He has also proved that vide
letter dated 3.3.1997 (Exh. PW-1/12) addressed to
defendant No. 1, the bank of the plaintiff reiterated
its request to remit the payment of the shipments
together with interest. It has also been proved that
defendant No. 1 vide letter dated 17.3.1997 (Exh.PW-1/3)
informed the plaintiff and its bank that
defendant No. 2 had not accepted the documents as they
were discrepant and the shipping documents were thus
returned unpaid. He has also proved that vide letter
dated 24.5.1997 (Exh. PW-1/14), the bank of the
plaintiff asked the Joint Commissioner, Land Customs
Station Benapole, Bangladesh to give information about
delivery of the goods to defendant No. 2. The deponent
has also proved the certificate (Exh. PW-1/15) issued
by Mongal Port Authority to the effect that goods had
been lost. He has also proved two letter dated
18.6.1997 (Exh. PW-1/16 & Exh. PW-1/17). The statement
of account showing the amount due to the plaintiff has
also been proved by the deponent as Exh. PW-1/18. The
deponent has also proved the export overdue statement
maintained by the bank of the plaintiff duly certified
by the Bankers’ Books Evidence Act as Exh. PW-1/19.
6. Mr. V.N. Suryanarayanan, Asstt. General
Manager of the plaintiff’s bank in his affidavit has
proved letter of credit dated 18.1.1996 for US $
46,080/- and the credit advice as Exh. PW/2/1 and
PW-2/2 respectively. He has also proved that
defendant No. 1 made the payment of US $ 13,595/-
against invoice No. GEX/169 12.2.1996 of the plaintiff.
7. From the averments made in the plaint as
well as the affidavit filed by way of ex parte
evidence and in the absence of any evidence in
rebuttal, I have no reason to disbelieve the
contentions of the plaintiff. It is clear that the
goods were shipped by the plaintiff to defendant No. 2.
It is also proved that defendant No. 2 took delivery of
some of the goods while part of the goods were
destroyed in fire. It has also been proved that the
plaintiff received payment of US $ 13,595/- against
invoice No. GEX/169 for Rs. 13,680/- and the remaining
balance of US $ 85/- remained to be paid and the
plaintiff has not received payment of US $ 27,000/-
against Invoice No. GEX/165 dated 6.2.1996. Thus, it
is proved that the plaintiff is entitled to recover US
$ 27,085/-.
8. In the circumstances, a decree for US $
27,085/- is passed in favor of the plaintiff and
against the defendants jointly as well as severally.
The plaintiff shall also be entitled to interest @ 12%
per annum from the date of filing of the suit till the
date of decree. In case the decretal amount is not
paid within three months from today, the plaintiff
shall also be entitled to interest on the decretal
amount @ 12% per annum from the date of decree till
realisation.
9. A decree sheet be prepared accordingly.
The suit stands disposed of.