{"id":144514,"date":"2008-10-17T00:00:00","date_gmt":"2008-10-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-rahee-industries-ltd-vs-export-credit-guarantee-on-17-october-2008"},"modified":"2016-11-30T04:37:49","modified_gmt":"2016-11-29T23:07:49","slug":"ms-rahee-industries-ltd-vs-export-credit-guarantee-on-17-october-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-rahee-industries-ltd-vs-export-credit-guarantee-on-17-october-2008","title":{"rendered":"M\/S. Rahee Industries Ltd vs Export Credit Guarantee … on 17 October, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Rahee Industries Ltd vs Export Credit Guarantee … on 17 October, 2008<\/div>\n
Bench: S.H. Kapadia, B. Sudershan Reddy<\/div>\n
                                                                                     1\n\n                         IN THE SUPREME COURT OF INDIA\n                          CIVIL APPELLATE JURISDICTION\n                   CIVIL APPEAL No.   6145     OF 2008\n              (arising out of S.L.P. (C) No. 17369 of 2007)\n\nM\/s. Rahee Industries Ltd.                                   ... Appellant(s)\n\n                           versus\n\nExport Credit Guarantee\nCorpn. of India Ltd. and Anr.                            ... Respondent(s)\n\n\n\n                                   J U D G M E N T\n<\/pre>\n
S. H. KAPADIA, J.\n<\/p>\n<\/p>\n
       Leave granted.\n<\/p>\n<\/p>\n
2.     This civil appeal by grant of special leave petition is<\/p>\n
filed against judgment and order dated 17.8.07 passed by the<\/p>\n
Division Bench of the Calcutta High Court in APD No.302\/2003 in<\/p>\n
Suit      No.340    of   1992    whereby    the   Division    Bench   allowed     the<\/p>\n
appeal preferred by respondent no.1 Corporation (insurer) and<\/p>\n
set aside the judgment and decree dated 4.4.03 passed by the<\/p>\n
learned Single judge of the High Court in Suit No.340 of 1992.<\/p>\n
3.     The short question which arises for determination in this<\/p>\n
civil appeal and which revolves around interpretation of clause<\/p>\n
16   of    the     Specific     Shipments   (Political   Risks)       Policy    dated<\/p>\n
27.1.87 is: where the loss, for which the Exporter (insured)
\n                                                                                2<\/span><\/p>\n
has been indemnified by the insurer, is quantified and a fixed<\/p>\n
sum   is    set    out    in     the    insurer’s       policy,     being     the    total<\/p>\n
liability of the insurance company to the insured, would the<\/p>\n
insurer be entitled to receive anything more than what has been<\/p>\n
paid by it to the insured or would it (insurer) be also entitled<\/p>\n
to share the increased recovery that the insured may, at the<\/p>\n
future     date,   make     from       the   original    contract,       to    which     the<\/p>\n
insurer is not a party?\n<\/p>\n
\nFACTS<\/p>\n
4.    On   8.10.85       M\/s.    Ramchander        Heeralal    (predecessor         of   the<\/p>\n
present appellant) entered into an agreement with the Egyptian<\/p>\n
National Railways (foreign buyer) for supply of 20 lakhs clips<\/p>\n
bolts for a total value of US$.6,15,200, FOB Calcutta.                               Under<\/p>\n
the said contract 20% of the total value of the contract was<\/p>\n
payable as advance against presentation of a letter of guarantee<\/p>\n
covering the same amount and 80% of the total contract value had<\/p>\n
to be financed for 3 years, to be paid in six equal semi-annual<\/p>\n
consecutive       instalments      with      fixed    interest      at   9%    p.a.,     the<\/p>\n
first instalment to be paid after six months from the date of<\/p>\n
each shipment.           Initially the Exporter got 20% of the invoice<\/p>\n
value as advance.           The goods were exported on credit for the<\/p>\n
balance price of 80% which was covered to the extent of 90% by<\/p>\n
Specific Shipments Policy No.14499\/1987 (`Policy’, for short).<\/p>\n
The   consignee      duly       received     the     goods    and   paid      the   entire
\n                                                                                  3<\/span><\/p>\n
consideration price by depositing the same with its banker(s) at<\/p>\n
Egypt who was supposed to transfer the same to respondent no.2-<\/p>\n
HSBC Bank in India.           However, because of embargo imposed by the<\/p>\n
Egyptian Government the banker(s) of the consignee could not<\/p>\n
transfer the moneys to HSBC Bank.                     Since the Exporter did not<\/p>\n
get    the   balance     price      within     time    from    its       consignee     they<\/p>\n
applied        to     the      Export        Credit      Guarantee          Corporation<\/p>\n
(“Corporation”, for short) under the said Policy to pay for the<\/p>\n
risk (cause) covered being 90% of the balance price which was<\/p>\n
duly paid by the Corporation.                 Subsequently, after the embargo<\/p>\n
came to be lifted, the Egyptian Bank transferred the money to<\/p>\n
HSBC   in    India.         Disputes    then    started       as    to    who    would   be<\/p>\n
entitled to the said sum and to what extent.                             Disputes arose<\/p>\n
because of fluctuation in the exchange value.                            The price was<\/p>\n
received in US Dollar by HSBC.               By the time it reached India the<\/p>\n
same got appreciated.            The exchange rate of US Dollar resulted<\/p>\n
in increased recovery.           The Exporter filed the suit.                   During the<\/p>\n
pendency of the suit HSBC disbursed whatever sum recovered after<\/p>\n
converting the same in Indian Rupee to the concerned parties in<\/p>\n
the    ratio    of    90:10    between    Corporation         and    Exporter.           The<\/p>\n
Exporter     contended       that   the   Corporation         should      pay    the   full<\/p>\n
increased recovery to it whereas Corporation contended that the<\/p>\n
same should be apportioned in the ratio of 90:10 in terms of<\/p>\n
Clause 16 of the said policy.                The learned Single Judge decreed<\/p>\n
the suit in favour of the Exporter against which the Corporation
\n                                                                            4<\/span><\/p>\n
went in appeal by filing APD No.302 of 2003.                      By the impugned<\/p>\n
judgment    dated       17.8.07,   the        Division    Bench   held     that   the<\/p>\n
Corporation       was   entitled   to         90%   of   the   increased    recovery<\/p>\n
against which this civil appeal is filed by the Exporter.<\/p>\n
ISSUE<\/p>\n
5.   The short question which arises for determination in this<\/p>\n
civil appeal is : whether the insurer (Corporation) was entitled<\/p>\n
to 90% of the increased recovery as claimed under the said 1987<\/p>\n
Policy?\n<\/p>\n
\nRelevant clauses of the Policy<\/p>\n
6.   To answer the above question we quote hereinbelow relevant<\/p>\n
clauses of the Policy dated 27.1.87 which are as follows:<\/p>\n
        \"Form No.91A                                Export Credit & Guarantee\n        Specific Shipments                                         Corpn.Ltd.\n        (Political Risks) Policy\n\n            ...           ...           ...\n\n<\/pre>\n
          AND WHEREAS the Exporter has made a proposal
\n     dated the 23rd day of December, 1985 (hereinafter
\n     called the “proposal’) requesting the Corporation to
\n     insure the Exporter against a percentage of loss which
\n     he may sustain by reason of certain risks involved in
\n     the shipment of goods to Egypt under the said contract.<\/p>\n
          NOW, THEREFORE, in consideration of the premium
\n     of Rs.81,891\/- (Rupees eighty one thousand eight
\n     hundred ninety one only) paid by the Exporter to the
\n     Corporation (receipt of which is hereby acknowledge),
\n     the   corporation  herby   insures  the  Exporter  in
\n     accordance   with  the   terms  and  subject  to  the
\n     conditions hereto against a percentage of the amount
\n     of any loss as hereinafter defined which may be
\n     sustained by the Exporter in respect of shipment of
\n     goods from India made under the above contract due to
\n                                                           5<\/span><\/p>\n
the following   causes     (hereinafter   called   the   `Risks
\ninsured’).\n<\/p>\n<\/p>\n
7.   Percentage of loss payable: The percentage of the
\namount of any loss which the Corporation hereby agrees
\nto pay shall be 90.\n<\/p>\n
8.    Amount of loss : The amount of loss shall be<\/p>\n
(B)   in all other cases<\/p>\n
(a) in regards goods delivered to and accepted by the
\nbuyer, be the gross invoice value of those goods less<\/p>\n
(i) the amount which on the date at which the loss is
\nascertained the buyer would have been entitled to take
\ninto account by way of payment, credit, set off or
\ncounter claim or which the exporter is entitled to
\nappropriate in whole or in part payment of the price
\nof the goods; and<\/p>\n
(ii) any expenses saved by the non-payment of agent’s
\ncommission or otherwise; and<\/p>\n
(b) as regards goods not delivered to the buyer, the
\ngross invoice value thereof, less<\/p>\n
(i) any expenses saved by the non-fulfilment of the
\ncontract for the sale of those goods.\n<\/p>\n
(ii) any sums which, at the date at which the loss is
\nascertained, the Exporter has recovered from any
\nsources including realization of any security, resale
\nof any goods or materials and any sums of credits in
\nhis possession which the Exporter is entitled to
\nappropriate as or towards payment of the purchase
\nprice, or any part thereof provided that the sums so
\nrecovered or realized by any security or resale of any
\ngoods or materials shall be the sum less all expenses
\nof recovery, realization or resale, the godown charges
\nand brokerages and commissions if any.\n<\/p>\n
9.   Time for Ascertainment of loss:    Subject to the
\nsubmission by the Exporter of a claim supported by
\nevidence which in the opinion of the Corporation, is
\nsufficient and by a verification of the cause of loss,
\nthe Corporation will pay to the Exporter at Bombay the
\namount of loss hereby insured immediately after the
\n                                                          6<\/span><\/p>\n
loss has been   ascertained   and   such   loss   shall       be
\nascertained.\n<\/p>\n
(a) where the loss is due to the prevention of or
\ndelay in the transfer of payments from the buyer’s
\ncountry to India in circumstances outside the control
\nof both the Exporter and for the buyer, four months
\nafter the due date of payment by the buyer provided an
\nirrevocable deposit is made by the buyer within 30
\ndays from the due date:\n<\/p>\n
10. Payment of loss:       The Exporter shall, as a
\ncondition precedent to the payment of the amount of a
\npercentage of any loss as herein defined procure and
\ndeliver to the corporation a writing from the Bank
\nwhich holds the Documents pertaining to the shipment
\nconcerned acknowledging and agreeing (i) that the bank
\nholds the same in trust for the corporation (ii) that
\nthe Bank shall, upon demand by the corporation,
\ndeliver them upto the Corporation and (iii) that if
\nthe Bank shall receive any payments against such
\ndocuments  the   Bank  shall   make  payments  thereof
\naccording to the directions of the Corporation in
\nwriting.\n<\/p>\n
11. Rate of Exchange: All payments under this policy
\nshall be made in Indian Rupee at the Head Office of
\nthe Corporation and for the purpose of payment of
\npremiums and losses, the gross invoice value of
\nshipments invoiced in a foreign currency shall be
\nconverted into Indian Rupees at the Bank buying rate
\nof exchange at Bombay on the date of the relative
\nshipment.\n<\/p>\n
     PROVIDED THAT, if devaluation of the currency in
\nwhich the buyer has to pay takes place before the
\nclaim is paid, the amount claimed in Indian currency
\nshall be based on the devalued rate.\n<\/p>\n
13. The total liability of the Corporation under this
\npolicy shall be limited to Rs.64,08,846\/-<\/p>\n
                      RECOVERIES<\/p>\n
14. Action after payment of claim : Upon payment by
\nthe Corporation of the amount due hereunder to the
\nExporter, the Exporter shall:\n<\/p>\n
(a) take all steps which may be necessary or
\nexpedient or which the Corporation may at any time
\n                                                               7<\/span><\/p>\n
     require to effect recoveries whether from the buyer or
\n     any other source from whom such recoveries may be made.<\/p>\n
     (b) upon    request  assign  and  transfer  to   the
\n     Corporation his rights under the contract in respect
\n     of which such payment has been made including his
\n     right to receive any monies payable under such
\n     contract or his right to damages from any breach
\n     thereof;\n<\/p>\n
     (c) upon request deliver up to the Corporation any
\n     goods in respect of which such payment has been made
\n     and any documents relating thereto and assign and
\n     transfer to the Corporation his right and interest in
\n     any such goods and documents;\n<\/p>\n
     (d) upon request assign, deliver up or otherwise
\n     transfer    to   the    Corporation any    negotiable
\n     instruments, guarantees or other securities relating
\n     to such goods or contracts.\n<\/p>\n
     16. Recoveries:    Any sums recovered by the Exporter
\n     or the Corporation in respect of loss to which this
\n     policy applies after the date on which the loss is
\n     ascertained from the buyer or any other source shall
\n     be divided between the Corporation and the Exporter in
\n     the proportion of 90 and 10.\n<\/p>\n
          The exporter shall pay all sums so recovered to
\n     the Corporation forthwith upon their being received by
\n     him or any person on his behalf, the Exporter hereby
\n     acknowledging and declaring that until such payment is
\n     made to the Corporation he receives and holds such
\n     sums in trust for the Corporation.”\n<\/p>\n<\/p>\n
7.   Apart   from   the   relevant   clauses,   a   Schedule       giving<\/p>\n
particulars of shipment covered was also annexed to the said<\/p>\n
Policy which reads as under:\n<\/p>\n<\/p>\n
     “THE EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.\n<\/p><\/blockquote>\n
                             BOMBAY
\n                                                                           8<\/span><\/p>\n
     To<\/p>\n
     Schedule attached to the Specific shipments\/Political
\n     Risks) Policy No.14499\/87 issued to M\/s. Ramchander
\n     Heeralall,   138,  Biplabi Rash  Behari   Basu  Road,
\n     Calcutta – 700 001<\/p>\n
                       PARTICULARS OF SHIPMENT COVERED<\/p>\n<\/blockquote>\n
        1. Name and address of the Buyer
\n                                       Egyptian           national
\n                                       Railways,    Over   Shoubra
\n                                       Subway,   Shoubra,   Cairo,
\n                                       Egypt\n<\/p><\/blockquote>\n
        2. Description of the contract Supply of clip bolts to
\n                                       Egypt\n<\/p><\/blockquote>\n
        3. Date of contract            8.10.1985\n<\/p><\/blockquote>\n
        4. Gross invoice value         Rs.76,90,000\/-\n<\/p><\/blockquote>\n
        5. Amount covered              Rs.71,20,940\/-\n        6. Shipment period             Upto July, 1987\n                                       Extended upto 31.10.1987\n        7. Terms of payment            20% advance payment\n                                       80% Deferred payment in 6\n                                       half yearly instalments\n        8. Security                    Guarantee   from   National\n                                       Bank of Egypt\n        9. Maximum liability           Rs.64,08,846\/-\n        10. Premium                    Rs.81,891\/-\n\n\n\n     Dated this 27th day of January, 1987\n\n                                                               Sd\/-\n                                For Chairman cum Managing Director\"\n\nCONTENTIONS\n\n\n8.   According     to    Shri    G.E.     Vahanvati,    Solicitor     General      of\n\n<\/pre>\n
India, appearing on behalf of the Corporation, the words “in<\/p>\n
respect     of   loss”    mentioned       in   Clause   16    are    descriptive.\n<\/p><\/blockquote>\n
According to learned counsel the said expression “in respect of<\/p>\n
loss”     identifies     the    amounts    recoverable       under   the       Policy.<\/p>\n
According to learned counsel, Clause 14 refers to Exporter’s
\n                                                                            9<\/span><\/p>\n
taking steps to effect recoveries from the buyer whereas Clause<\/p>\n
14(b) talks about the Corporation taking steps as assignee to<\/p>\n
recover moneys payable under the contract.                 According to learned<\/p>\n
counsel,    in   this   case     Clauses   14(a)     and   14(b)    do    not    apply<\/p>\n
because in this case Clause 16 alone applies.                       According to<\/p>\n
learned counsel,        Clause    16   refers   to   recoveries      made       by   the<\/p>\n
Exporter    or   the    Corporation.       According       to   learned     counsel,<\/p>\n
Clause 14 refers to steps to be taken by the Corporation or the<\/p>\n
Exporter for enforcement of rights under the contract against<\/p>\n
the foreign buyer whereas Clause 16 comes in only in cases where<\/p>\n
the sum stands recovered.           In other words, according to learned<\/p>\n
counsel, once a recovery is made Clause 16 comes into play.<\/p>\n
That clause provides for a formula of apportionment\/ratio of<\/p>\n
division of any sum being recovered between the Corporation and<\/p>\n
the Exporter in the ratio of 90:10.\n<\/p>\n<\/p>\n
9.   Shri Uday U. Lalit, learned senior counsel, appearing on<\/p>\n
behalf of the Exporter, on the other hand, contended that every<\/p>\n
word in Clause 16 must be given its due weightage.                   According to<\/p>\n
learned counsel, Clause 16 specifically stands confined to sums<\/p>\n
recovered “in respect of loss to which the Policy applies” and<\/p>\n
consequently it cannot be said that the said words “in respect<\/p>\n
of   loss   to   which     the    Policy    applies”       should    be     read     as<\/p>\n
descriptive.      According to learned counsel, the words “any sums<\/p>\n
recovered” in Clause 16 should be read in juxtaposition with the
\n                                                                         10<\/span><\/p>\n
words “any sums recovered in respect of a loss to which the<\/p>\n
Policy applies” and if so read the word “loss” in Clause 16<\/p>\n
would stand restricted to the words “any sums recovered”.                           In<\/p>\n
support      of   his   above   contention     learned    counsel    placed      his<\/p>\n
reliance on the judgment of the House of Lords in the case of L.<\/p>\n
Lucas Ltd. (supra).\n<\/p>\n
Rules of Interpretation as applicable to Policy of Insurance<\/p>\n
10.    In    this   case    the     entire     controversy    revolves        around<\/p>\n
interpretation of Clause 16 of the Policy.                 It is well-settled<\/p>\n
rule of construction that words in a contract (Policy herein)<\/p>\n
are to be understood in their ordinary meaning.                  However, this<\/p>\n
ordinary meaning will not prevail in two cases, namely, where a<\/p>\n
word   has    technical    or     legal   meaning   and   secondly    where      the<\/p>\n
context      requires   otherwise.        It   is   not   disputed   that      in    a<\/p>\n
contract of insurance, parties may introduce express terms which<\/p>\n
are at variance from or in conflict with the ordinary principles<\/p>\n
of subrogation.         Hence, the correct approach is to consider the<\/p>\n
policy of insurance by reference to its terms.                      If, however,<\/p>\n
there is some doubt or ambiguity in the construction of the<\/p>\n
policy only then it would be correct to invoke the principles of<\/p>\n
subrogation as a guide or a controlling authority.                    Therefore,<\/p>\n
at the outset, what we propose to do is to consider whether the
\n                                                                           11<\/span><\/p>\n
Policy, in this case on its own express terms, provides for the<\/p>\n
allocation      of    the        moneys     between     the   Exporter     and   the<\/p>\n
Corporation.\n<\/p>\n<\/p>\n
11.   One more principle is required to be kept in mind in a<\/p>\n
matter of this type in which we are concerned with the value of<\/p>\n
Rupee in terms of US Dollar.               If a debt in a foreign currency is<\/p>\n
sued for, the judgment must be in terms of Rupee and the rate of<\/p>\n
exchange     (subject       to    express     contractual     provisions    to   the<\/p>\n
contrary) will be the rate of exchange between Rupee and the<\/p>\n
foreign currency prevailing at the date when the debt becomes<\/p>\n
payable [See: Forasol v. Oil and Natural Gas Commission<\/a> – 1984<\/p>\n
(Supp.) SCC 263] i.e. immediately on the US Dollar having been<\/p>\n
received in India.\n<\/p>\n
INTERPRETATION OF CLAUSE 16<\/p>\n
12.   Keeping    in     mind      the     above   two   principles   we    are   now<\/p>\n
required to interpret Clause 16 of the said Policy.<\/p>\n
13.   As stated above, Clause 16 of the Policy begins with a head<\/p>\n
note titled “Recoveries”.               Three words\/expressions are required<\/p>\n
to be interpreted, namely, “any sums recovered”, “loss” and the<\/p>\n
expression “amount of loss” which finds place in Clause 9 of the<\/p>\n
Policy.    On reading the Policy in its entirety, we find that
\n                                                                                      12<\/span><\/p>\n
there is a dichotomy in it.                      The subject-Policy in this civil<\/p>\n
appeal is       a    contract.         By   nature    it        is    an    indemnity.       The<\/p>\n
contract is in two major parts.                    The first part which commences<\/p>\n
from Clause 1 to Clause 13 contemplates an indemnity against a<\/p>\n
percentage of a loss whereas the second part of the contract<\/p>\n
commencing      from       Clause    14     to    Clause    16        contains    provisions<\/p>\n
enabling recoupment of that loss.\n<\/p>\n<\/p>\n
14.    In   this     case    the     invoice       value    as        on   8.10.85     was   US$<\/p>\n
6,15,200\/-.          Out of which 20% was paid by the Egyptian buyer<\/p>\n
upfront.       Therefore, amount due from the Egyptian buyer was US$<\/p>\n
5,59,696.14         (80%    of   US$    6,15,200).           The       equivalent      of    US$<\/p>\n
5,59,696.14         was    Rs.71,20,940\/-         which     got       increased       within   5<\/p>\n
years to Rs.1,57,82,876\/-.                  This was on account of the fall in<\/p>\n
the external value of the Indian Rupee as against US Dollar.<\/p>\n
15.    The question before us is : whether Clause 16 of the Policy<\/p>\n
entitles the Corporation to retain 90% of the Recoveries.<\/p>\n
16.    On a bare reading of Clause 16 on its own terms, we find<\/p>\n
that    the     said       clause      falls      under     a        separate    chapter       of<\/p>\n
“Recoveries”.          That chapter deals with recoupment of the loss.<\/p>\n
Clause 16 unequivocally states that any sums recovered from the<\/p>\n
buyer after the date on which the loss is ascertained shall be<\/p>\n
divided       between      the      Corporation       and       the        Exporter    in    the
\n                                                                                         13<\/span><\/p>\n
proportion        of        90:10.       As        stated     above,          the     outstanding<\/p>\n
receivable       was        US$    5,59,696.14       equivalent          to    Rs.71,20,940\/-.<\/p>\n
However, on account of belated payment and fall in the value of<\/p>\n
Rupee     against       US    Dollar    the        value    of     US$    5,59,696.14         stood<\/p>\n
increased to Rs.1,57,82,876\/- resulting in increased recovery.<\/p>\n
Clause 16, in our view, refers to sums recovered from the buyer.<\/p>\n
That recovery can only be on the date when the foreign currency<\/p>\n
entered India.              The foreign currency entered India only after<\/p>\n
the loss stood ascertained in terms of Clause 9 which refers to<\/p>\n
the “amount of loss”.                Therefore, in our view, the dollars paid<\/p>\n
belatedly would fall within the words “any sums recovered” from<\/p>\n
the buyer after ascertainment of the amount of loss under Clause<\/p>\n
9.   Clause 16, however, refers to the words “any sums recovered<\/p>\n
in respect of loss to which the Policy applies”.                                    According to<\/p>\n
the Exporter, the words “in respect of loss” restrict the first<\/p>\n
three     words        of     Clause    16,        namely,       “any     sums        recovered”.<\/p>\n
According    to        the    Exporter,       if    so     read,    the       words    “any   sums<\/p>\n
recovered” would cover an amount of only Rs.64,08,846\/- and not<\/p>\n
Rs.1,57,82,876\/-.                 We do not find any merit in this argument<\/p>\n
advanced on behalf of the Exporter.                        As stated above, the policy<\/p>\n
is   in    two      distinct         parts.          The     first        part        deals   with<\/p>\n
indemnification against a percentage of loss.                                 In that part we<\/p>\n
have Clause 11 which refers to “rate of exchange”.                                     It states<\/p>\n
that all payments shall be made in Rupee terms at the head<\/p>\n
office of the Corporation and for the purpose of payment of
\n                                                                               14<\/span><\/p>\n
premium and losses the gross invoice value of shipments invoiced<\/p>\n
in   a   foreign     currency       shall   be    converted    into    Rupee     at      the<\/p>\n
bank’s      buying     rate    of     exchange.        However,       such     rule       of<\/p>\n
conversion or exchange rate is not made applicable in case of<\/p>\n
“Recoveries” under Clause 16.                    Clause 16 refers to “any sums<\/p>\n
recovered”      which     covered      dollars       paid     belatedly.            It    is<\/p>\n
important to note that under the Policy there is a difference<\/p>\n
between     currency     of    account      and    currency     of    payment.           The<\/p>\n
currency of account is in US Dollar whereas the currency of<\/p>\n
payment of loss and premium is in Indian currency applying the<\/p>\n
conversion formula in Clause 11 of the Policy.                        Such conversion<\/p>\n
rate is not there in Clause 16 which refers to “Recoveries”.<\/p>\n
Therefore, there is a difference between currency of account,<\/p>\n
currency of payment and currency of recovery.                        Clause 16 refers<\/p>\n
only to “any sums recovered”.                    That is how the dichotomy, as<\/p>\n
stated above,         comes    in.     Further,      the    expressions      “any        sums<\/p>\n
recovered” and “in respect of loss to which the Policy applies”<\/p>\n
if   read    together     meant      that   the     sums    recovered    must       be    in<\/p>\n
respect of      loss    which     arises    from     the    subject-matter       of       the<\/p>\n
contract.        If     loss    arises      dehors    such     contract      any         sums<\/p>\n
recovered in that regard would not fall in Clause 16.                               In our<\/p>\n
view, in view of the ordinary use of language used in Clause 16<\/p>\n
the US dollars paid belatedly would certainly fall within the<\/p>\n
expression “any sums recovered in respect of loss to which the<\/p>\n
Policy applies”.\n<\/p>\n
                                                               15<\/span><\/p>\n
17.   One more aspect needs to be mentioned.      Clause 16 provides<\/p>\n
for a formula of apportionment in the ratio of 90:10 between the<\/p>\n
Corporation and the Exporter.     If one reads the Policy in its<\/p>\n
entirety and even if one is to go by contextual interpretation<\/p>\n
of the Policy one finds a reason for this ratio of division<\/p>\n
between the Corporation and the Exporter.      The extent of sharing<\/p>\n
the amount recovered from the buyer has a direct nexus with the<\/p>\n
ratio of loss agreed to be borne between the Corporation and the<\/p>\n
Exporter.   In other words, the ratio of division of Recoveries<\/p>\n
contemplated in Clause 16 has a direct nexus with the ratio of<\/p>\n
division of losses agreed to be shared between the Corporation<\/p>\n
and the Exporter under Clause 7 of the Policy.      This is one more<\/p>\n
reason for saying that “any amount recovered from the buyer in<\/p>\n
respect of loss to which the Policy applies”.       In our view, the<\/p>\n
words “any sums recovered” in Clause 16 would mean all sums<\/p>\n
recovered from the buyer to be divided in the proportion of<\/p>\n
90:10 between the Corporation and the Exporter.<\/p>\n
Judgments of English Courts<\/p>\n
18.   In L. Lucas Ltd. and another v. Export Credits Guarantee<\/p>\n
Department – (1974) 2 All ER 889, an exporter entered into a<\/p>\n
contract of guarantee under which the guarantor indemnified the<\/p>\n
exporter upto 90% of the loss arising out of failed payments for<\/p>\n
export shipments.    The   contract   also   provided   that   any   sums
\n                                                                                   16<\/span><\/p>\n
recovered by the exporter\/guarantor “in respect of a loss to<\/p>\n
which    the       guarantee      applies”       would    be        divided    between     the<\/p>\n
parties in the ratio 90:10.                   A loss occurred.                The guarantor<\/p>\n
indemnified the exporter.                 The exporter later on succeeded in<\/p>\n
recouping the payment but in the mean time almost two years<\/p>\n
elapsed and during those two years changes in the exchange rates<\/p>\n
resulted      in    the    payment       in   terms      of    pound     sterling       became<\/p>\n
significantly        larger       on   conversion.            The    guarantor     contended<\/p>\n
that it was entitled to 90% of the increased recovery while the<\/p>\n
exporter contended that the guarantor was only entitled to what<\/p>\n
it had paid out as indemnified.                   The Court of Appeal recognized<\/p>\n
the contract as one of indemnity and treated it like a policy of<\/p>\n
insurance.         Before the Court of Appeal, the exporter contended<\/p>\n
that if there is recovery in a subrogated claim higher than the<\/p>\n
amount    of       the    loss,    the    excess       goes     to    the     insured    and,<\/p>\n
therefore, the guarantor is not entitled to recover out of the<\/p>\n
proceeds more than it had paid out.                      The Court of Appeal ruled<\/p>\n
that    the    correct       approach      was    to     consider       the    contract    by<\/p>\n
reference to its terms and, only if some real doubt or ambiguity<\/p>\n
in its construction was evident only then it would be proper to<\/p>\n
invoke   the       general     principles        of    Subrogation       as    a   guide   or<\/p>\n
controlling authority.             Going by the contract and the words used<\/p>\n
in Clause 17 the Court of Appeal held that the guarantor was<\/p>\n
entitled to 90% of the increased recovery as Clause 17 of that<\/p>\n
contract so provided.              This decision of the Court of Appeal was
\n                                                                      17<\/span><\/p>\n
reversed by House of Lords in the same case.               It may be noted<\/p>\n
that the Court of Appeal’s analysis of the interplay between<\/p>\n
Subrogation Principles and contractual provisions was, however,<\/p>\n
not disturbed by the House of Lords in its judgment in the same<\/p>\n
case.     In that matter the ground for overruling the decision of<\/p>\n
the Court of Appeal by House of Lords was quite different.                  The<\/p>\n
Court was concerned with the contract of guarantee.                 One of the<\/p>\n
arguments advanced was regarding the nature of the contract.<\/p>\n
According to House of Lords, in the contract of guarantee in<\/p>\n
that case there was no provision made entitling the guarantor to<\/p>\n
90% of the increased recovery which was described as fortuitous<\/p>\n
profit.       It was held in that case by House of Lords that the<\/p>\n
subject-policy was a contract of guarantee which never intended<\/p>\n
that    the    guarantor    would   be   entitled   to   90%   of    fortuitous<\/p>\n
profit.       According to House of Lords, if the contract intended<\/p>\n
to give this benefit to the guarantor it would have explicitly<\/p>\n
said so.      According to the said judgment, if the contract would<\/p>\n
have provided for 90% of the fortuitous profits to be given to<\/p>\n
the guarantor then the nature of the contract of guarantee in<\/p>\n
that case would have ceased to be one of indemnity against a<\/p>\n
percentage of loss and in that event it would become a profit<\/p>\n
sharing contract.          This observation has been made by Viscount<\/p>\n
Dilhorne at page 898 of the report.            However, as stated above,<\/p>\n
the analysis, made by the Court of Appeal in the said case, of<\/p>\n
the    interplay   between    subrogation    principles    and      contractual
\n                                                                               18<\/span><\/p>\n
provisions with which we are concerned, has not been disturbed<\/p>\n
by the judgment of House of Lords in the said case of L. Lucas<\/p>\n
Ltd. (supra).   In our present case we are not concerned with the<\/p>\n
contract of guarantee.    In the present case we are concerned<\/p>\n
with the Policy of insurance dated 27.1.87.        By its very nature<\/p>\n
it was a contract of indemnity.    In the present case, the nature<\/p>\n
of the contract is not in issue.   It was in issue in the case of<\/p>\n
L. Lucas Ltd. (supra).   In the circumstances, we do not wish to<\/p>\n
express any opinion on the correctness of the judgment of the<\/p>\n
House of Lords in L. Lucas Ltd. (supra).\n<\/p>\n<\/p>\n
19.   For the aforestated reasons, this civil appeal filed by the<\/p>\n
Exporter stands accordingly dismissed with no order as to costs.<\/p>\n
                                                ……………………………………………J.
\n                                               (S.H. Kapadia)<\/p>\n
                                                ……………………………………………J.
\n                                              (B. Sudershan Reddy)<\/p>\n
New Delhi;\n<\/p>\n
October 17, 2008.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Rahee Industries Ltd vs Export Credit Guarantee … on 17 October, 2008 Bench: S.H. Kapadia, B. Sudershan Reddy 1 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 6145 OF 2008 (arising out of S.L.P. (C) No. 17369 of 2007) M\/s. Rahee Industries Ltd. … Appellant(s) versus […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-144514","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. 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