FEDERAL CHEMICAL WORKS LIMITED Vs. NUTSCO NIGERIA LIMITED

JUDGEMENT

(1.) Following preliminary issue was framed on 26th July, 1999:- "Whether the suit is instituted within time."

(2.) Suit was filed, interalia, alleging that plaintiff company is engaged in the business of export of medicines. Sh.M.N.Khanchandani on behalf of defendant.No. 1 company approached the plaintiff for purchase of Hyoscine Butyl Bromide Tablets B.P. (10 mg). In regard to this medicine on or about 29th September 1992 the plaintiff sent a proforma incoice bearing No. 5/92-93 of the value of US $ 47250. Vide letter dated 2nd November 1992 the defendant No. 1 accepted said proforma invoice and asked the plaintiff to draw documents through Canara Bank, Longbow House, 14-20, Chiswell Street, London ECIY, 4SR A/C Palm Investment Ltd. in pursuance of this letter the plaintiff despatched consignments of the said medicine through defendant No. 2 vide their Master Airway Bill No. 05693122 comprising of 4 House Airway Bill Nos.071-RTC 184, 185, 186 and 187, all dated 4th January 1993. Said Canara Bank, Longbow House, 14-20, Chiswell Street, London, ECIY 4SR A/C Palm Investment Ltd.,was shown as consignee in all the said Airway bills. The plaintiff also paid freight to defendant No. 2. It is stated that said Airway bills and other documents were sent through Bank of India to said Canara Bank branch in London for collection of the amount of consignments covered by them. In the letter dated 9th February 1993 sent by defendant No. 1 to the plaintiff although it admitted the receipt of consignments in question but it raised some frivolous objections. It is further alleged that on receipt of the letter dated 20th April 1993 from said Canara Bank by Bank of India on 3rd May 1993, it was revealed that defendant No. 1 had refused to honour the documents sent for collection of amount to the former bank. Thereafter on matter being taken up by Bank of India with Reliable Cargo and Travel Pvt. Ltd., agent of defendant No. 2 in Delhi, the later advised the former by a letter dated 28th September 1993 to lodge the claim with defendant No. 2, It is further pleaded that defendant No. 2 by the letter dated 16th September 1993 informed said Reliable Cargo & Travel Pvt. Ltd. that the consignments had been wrongly delivered to defendant No. 1. It is claimed that defendant No. 2 in collusion with defendant No. 1 unauthorisedly delivered the consignments covered by said Airway bill(s) to defendant No. 1 and both of them are, therefore, liable to pay US $ 47250 being the value of consignments in question together with interest @ 24% p.a. It was prayed that a decree for US,$ 47300 equivalet to Rs.15.00 lakhs be passed in favour of the plaintiff and against defendants along with pendente lite and future interest @ 24% p.a.

(3.) Defendant No. 2 contested the suit by filing written statement. It is not disputed that the plaintiff despatched the consignments in question vide Master Airway bill No. 05693122 comprising of 4 House Airway bill Nos.071-RTC 184, 185, 186 and 187, all dated 4th January 1993 and it paid the freight as alleged. However, it is denied that consignee of the said Airway bills was Canara Bank. It is claimed that the plaintiff had modified the names of consignees as (i) Afro Drug (NIGERIA) Ltd. and (ii) Nutsco (NIG) Limited, 11, Cufin Road, P.O.Box 5268 Lagos (NIGERIA) as the bank named as consignee, was in a country different from that of the country of destination. Answering defendant as such delivered the consignments to defendant No. 1. It is denied that consignments were delivered by the answering defendant in collusion with defendant No. 1 as alleged. It is alleged that in the letter dated 6th February 1993 the defendant No. 1 confirmed that it was the consignee instead of the said bank. Answering defendant was never informed about negotiating the documents through Canara Bank, London. Liability to pay the suit amount is denied. Suit is also alleged to be barred by limitation.