9911796707
TMI Blog2014 (9) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... s claim. The impugned judgment and order is set aside. The appeal is allowed. The petition is admitted and shall be advertised in Free Press Journal, Maharashtra Times and Maharashtra Government Gazette. The petitioner to deposit an amount of 10,000/- with the Prothonotary and Senior Master of this Court by 15th November, 2014. X X X X Extracts X X X X X X X X Extracts X X X X ..... have been clearer, the inaccuracy if any, is not fatal to the petition. In any event, the alleged inaccurate pleading is only with respect to the agreement. The appellant's case in the petition is, however, based not only on the agreement but also on the corporate guarantees, the cheques which were dishonoured and the unequivocal admissions contained in the correspondence. The petition therefore, is liable to be admitted. 5. The respondent carries on business, inter-alia, of importing and exporting jewellery. The appellant, a Government of India undertaking, was nominated for the import and export of various goods under the Foreign Trade Policy. The parties, accordingly, entered into an agreement dated 25th July, 2006, wherein the respondent is referred to as the SHIPPER, the appellant is referred to as the EXPORTER and the prospective buyers are referred to as FOREIGN BUYER. The first recital itself states that the appellant agreed to cooperate with the respondent for the promotion of the export of gold jewellery in the name of the appellant and that the respondent desired availing the advantage of the appellant's international image for facilitating large volume of busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t export proceeds realized from the Foreign Buyer only after the necessary deduction of the funds released on discounting, Trade Margin, Bank Charges and Interest incurred by the EXPORTER or any other amount due / outstanding and payable by the SHIPPER. iv) The Exporter shall be entitled to the interest on the post-shipment credit, imposed, from the date of release of funds till the realization on the due dates as enunciated under the export order. The interest on the post shipment credit shall be payable at such rates as the EXPORTER may fix from time to time. The exporter shall be further entitled to charge penal interest on the SHIPPER, with regard to the funds released @ 3% p.a. over & above normal rate of interest on the incidence of a delay caused by the FOREIGN BUYER with respect of the non realization of the export bills on the due dates as per the export order. The said penal interest imposed shall become outstanding and payable on demand subsequent to a normal grace period of seven days. v) In the event of a default or / failure caused by the FOREIGN BUYER with respect to the payment of the Export bills, the EXPORTER shall have recourse for recovery of the post shipme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent is responsible and liable to the appellant for the same. 7(A) Under clause 10(b), the appellant was liable to release the amounts after negotiation of the export bills and drawal of the post shipment credit upto 90% from the negotiating bank. The appellant received the credit from its bank. The appellant accordingly paid the amounts to the respondent to the extent specified in clause 10 i.e. about ₹ 350 crores. The respondent admittedly received the amounts due under clause 10 from the appellant. Mr. Doctor, the learned counsel appearing on behalf of the respondent did not dispute the fact that the respondent had received the entire amount specified in clause 10. (B) Pursuant to clause 13, the respondent furnished a Corporate Guarantee also dated 25th July, 2006 . The respondent agreed thereby to pay forthwith on-demand to the appellant, without any demur and default, all claims arising out of incidence of export material within 15 days from the date of the demand to the extent of ₹ 100 crores. The respondent agreed thereby to pay forthwith on-demand to the appellant, such amounts as determined by the appellant. Another Corporate Guarantee dated 6th June, 2008 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, 2009. Repeated assurances were made to clear the appellant's dues. 10. We are unable to understand how these letters do not constitute clear admissions of liability. It is impossible to read the contents of the letters as anything but clear and unequivocal admissions of liability. 11. Neither the matter nor the admissions end there. Under cover of a letter dated 31st March, 2009, the respondent forwarded a cheque in the sum of ₹ 25 crores. This letter was, however, followed by a series of letters in the course of which the respondent requested the appellant not to deposit the cheque till the dates specified therein. These dates were extended from time to time. Ultimately, the respondent issued a fresh cheque in lieu of the said cheque assuring the appellant that the fresh cheque would be honoured without fail. The cheque was however not honoured. By a letter dated 29th April, 2009, the respondent made part-payment of ₹ 1 crore and assured the appellant that the balance amount would be paid in the following week by another pay-order. The respondent requested the appellant to return the previous cheque of ₹ 25 crores upon receipt of a further ₹ 25 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely not fatal in the present case. 15. It is common ground that, in fact, what happened is that the appellant discounted the bills with its bank i.e. Exim Bank and the appellant directly paid the amount of about ₹ 350 crores to the respondent. The allegedly inaccurate pleading to this limited extent is, however, not fatal for two reasons. Firstly, even the respondent does not contend that it is Exim Bank that advanced the amounts to it. The respondent, in fact, admits that the appellant directly paid the amounts to it under and in terms of the agreement. We need go no further than to refer to paragraph 4(v) of the respondent's affidavit-in-reply which reads as under : "4. ... ... ... ... ... ... (v) With respect to paragraph 8, I deny that the Respondent availed of post shipment finance from the Petitioner's banker. I say that after exporting jewellery to the foreign buyers the Respondent hand over all the original documents relating to an export order to the Petitioner. Thereafter the Petitioner obtained unconditional bills of exchange from the foreign buyers which it discounted with its bankers. The Respondent was not concerned with the post shipment financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, however, is that the respondent also does not contend that it is Exim bank that paid the amounts to it and further admits that it is the appellant that paid the amount to it directly. 17. In fact, the learned Judge himself noted in paragraph 5 that the respondent had in its affidavit-in-reply admitted that the respondent handed over the documents to the appellant; that the appellant obtained unconditional bills of exchange from the foreign buyer and then discounted the same with Exim bank and that the appellant paid 83.5% i.e. about ₹ 350 crores of the invoice value to the respondent. This was sufficient to uphold the appellant's claim. However, the learned Judge did not do so on the ground that the entire petition is for the recovery of outstanding bills of Exim bank which was a matter between the appellant and Exim bank alone. We are unable to agree. The petition does not even purport to be for the recovery of outstanding bills of Exim bank. The entire order is based only on the ground that the pleading is defective. 18. Mr. Doctor submits that whatever the facts may be, the pleading being inaccurate, the appellant must suffer the consequences. The pleading, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 cheques,by making the payment of Rs. Three crores, by submitting the said corporate Guarantees dated 27.06.2006 and 06.06.2008, and in its various letters the Respondent Company has admitted its liability of the payment of the various said outstanding dues of the said foreign buyers as per the Terms of the Said Agreement dt. 25.07.2006." 23. Nor are we able to agree with the learned Judge that the letters addressed by the appellant do not contain unequivocal admission of indebtedness. We have already dealt with the admissions in detail. 24. The dispute raised in the affidavit-in-reply to the effect that the respondent was not responsible for all the recoveries from the foreign buyers is clearly an after-thought. It was never raised in the course of the correspondence. The learned Judge has merely referred to the respondent's contention that the post dated cheques ought not to have been presented for recovery of part-payment of ₹ 3 crores. No reasons have been furnished as to why the learned Judge found that this defence cannot be dismissed out of hand. Considering the facts that we have referred to there is no defence even to these cheques. 25. In the result, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
