CITI BANK N A Vs. RAKESH KUMAR

JUDGEMENT

(1.) Vide impugned order dated 31.05.2007, IA No.10216/1997 filed by the appellant seeking leave to defend has been dismissed and as a consequence, the suit filed by the respondents under Order XXXVII of the Code of Civil Procedure has been decreed. Needless to state, on the pleadings of the parties, the learned Single Judge has held that no triable issue arises.

(2.) Briefly stated, it was alleged in the plaint that Rakesh Kumar was carrying on business as the sole proprietor of M/s.Dairy Foods (India). Dairy Development Corporation (Nepal) had placed an order on his sole proprietary firm for supply of 415 metric tonnes of skimmed milk powder and in respect of which, at the asking of Dairy Development Corporation (Nepal), Rashtriya Banijaya Bank, Nepal had opened a Letter of Credit on 14.01.1997, beneficiary whereof was the sole proprietary firm of Rakesh Kumar. The Letter of Credit was in sum of Rs. 2,63,11,000/-. He pleaded that as per the terms of the Letter of Credit the goods had to be shipped not later than March 23, 1997 and the bill had to be negotiated not later than March 31, 1997. He further alleged that as per conditions 13.A and 13.B of the Letter of Credit, 80% of the price had to be paid on presentation of the eight shipping documents listed under clause 13.A and the balance 20% payment had to be made upon successful delivery of the goods at the destination i.e. the warehouse of the Dairy Development Corporation (Nepal) at Kathmandu. He alleged that the Letter of Credit envisaged that the same was subject to UCP(ICC-500).

(3.) It was alleged in the plaint that on March 04, 1997 the Letter of Credit was amended by incorporating: