D V H INDUSTRIES Vs. HARTLEY KNITS

JUDGEMENT

(1.) M/s.Hartley Knits, a partnership firm, through its partner Uma Goel filed a suit, styling the same as one for permanent injunction, but actually prayed for a decree in sum of US$1,27,085.50 together with interest @20% per annum against the defendants: (i) M/s.A.C.S.Logistics (defendnant No.1), (ii) M/s.D.V.H.Industries (defendant No.2) and (iii) M/s.Cornett Group Inc (defendant No.3).

(2.) The most inartistically drafted plaint; the crudeness whereof is evidenced by the fact that the suit was captioned as one for mandatory injunction but actually a money decree was prayed for, pleaded that the second defendant was an agent through whom the third defendant placed purchase orders with the plaintiff for manufacture and supply of garments. It was pleaded that the buyer s bank opened two irrevocable letters of credit with the plaintiff s bank for a value of US$76,923.00 and US$50,400.00. That the goods were to be transported through the nominated carrier A.C.S.Logistics i.e. defendant No.1. Alleging that goods worth US$1,27,085.50 were exported and were delivered to defendant No.3 as per agency agreement entered into between the plaintiff and defendant No.2, it was alleged that after deducting 5% commission said defendant was responsible to ensure receipt of the balance payment. Pleading that when the documents were presented for payment to the bank, no money was received and in the meanwhile defendant No.1 colluded with defendants No.2 and 3 in handing over goods to defendant No.3 which never remitted any amount and hence the claim for a decree in sum of US$1,27,085.50.

(3.) The inartistic pleading and the crudeness therein is evidenced from the fact that in paragraph 2 of the plaint, the pleadings would evidence that according to the plaintiff defendant No.2 was acting as the agent of defendant No.3. But, evidenced by the pleadings in paragraph 5 it would be apparent that the plaintiff states that defendant No.2 was its agent. It is unfortunate that the lawyer could not draft a proper plaint and as would be evidenced from the facts which we would be noticing, with reference to the evidence led, it is a case where defendant No.2 was the common agent of the plaintiff as also of defendant No.3. Evidence led has revealed that by the time the goods were sent from India, the letters of credits had expired and the question therefore of raising any bill upon the issuing bank to honour the letters of credit does not arise and it is a case where the documents were directly dispatched and delivered to defendant No.3. It is unfortunate that in spite thereof, it has been pleaded in the plaint as if the documents were to be got retired through the bank.