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TMI Blog2010 (3) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... t oriented jewellery manufacturers who draw gold from the nominated agency were required to export the manufactured jewellery articles within 120 day from the date of the said drawl of the gold. 2. Plaintiff delivered 3 kgs. of gold to the defendant on 3.6.1994 under contract no.L-963. This gold was duty free. Defendant was required to export the gold jewellery within 120 days i.e. by 27.10.1994. He failed to do so. He thus became liable to pay customs duty and penalty. 3. Vide notice dated 29.12.1994 the office of the Collector of Customs raised a demand on the plaintiff for his failure to export the gold jewellery within the stipulated time. 4. On 12.2.1999 the Collector of Customs invoked the bank guarantee which the plaintiff had fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reason, defendant could not honour his commitment and the circumstances being beyond his control he could not export the gold jewellery by 27.10.1994. 6. Defendant made a request to the Director General of Foreign Trade (hereinafter referred to as the DGFT) 27.10.1994 for extension of time. Extension of time was granted on 16.1.1994 by which time the peak period i.e. Christmas period was already over. Plaintiff invoked both the bank guarantees of the defendant in November, 1994 i.e.a total sum. of Rs.14,70,000/-. Defendant is not liable to pay any amount. 7. Replication was filed reiterating the averments made in the plaint and denying the submissions and the defence as set up by the defendant. 8. On the 18.7.2005, on the pleadings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efendant has its office at Green Park Extension, New Delhi. 12. Issue no.1 is decided in favour of the plaintiff and against the defendant. ISSUE NO. 2: 13. The present suit is a suit for recovery of Rs.25,04,325/- comprising of the customs duty of Rs.10,81,401/- and the penalty amount of Rs.1,02,042/-. The custom duty and the penalty amount had been paid by the plaintiff to the Collector of Customs on 19.2.1999 when the customs department had invoked the bank guarantee furnished by the plaintiff. Under Article 23 of the Limitation Act 1963 for an amount paid by the plaintiff on behalf of the defendant limitation is a period of three years which has to be computed from the date when the said money is paid. Suit filed on 25.5.1999 is wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 day. Admittedly, the gold jewellery could not be exported by the defendant. His reason for not adhering to this schedule was because of an epidemic of plague and the havoc which had created in commercial trade Under the loan agreement dated 30.6.1994 Ex.PW-1/4 bank guarantee had to be furnished by the plaintiff which he had done in terms of two bank guarantees of Rs.12 lacs and Rs.2,70,000/- as a security for the price of the gold. These bank guarantees stood invoked by the plaintiff in November, 1994 as the defendant had failed to adhere to his commitment. 20. Present suit is not a suit for recovery of the price of gold. The said claim is based upon customs duty and the penalty which has been imposed by the Collector of Customs on the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antees totaling Rs.14,70,000/- has been invoked by the plaintiff. He has deposed that he is not liable to pay the said amounts which are recoverable from the plaintiff alone as his bank guarantees have been invoked. 23. In his cross-examination, DW-1 has admitted that he has read clauses 3, 4, and 5 of the application Ex.PW-1/4. Perusal of these clauses show that there is a clear stipulation that if the defendant fails to comply with any of the conditions as stipulated in the EXIM Policy he shall be subjected to the penalties as stipulated therein. 24. Sum total of the evidence put before this Court has amply established that the plaintiff was bound by all the clauses contained in Ex.PW-1/4. This is an admitted document. Defendant was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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