M M KNITWEARS PVT LTD Vs. IRAN AIR

JUDGEMENT

(1.) The present suit is for recovery of a sum of Rs.35,07,527/- with costs and future interest @ 18% per annum from the date of filing of this suit till the realisation of the amount of decree in favour of the plaintiff and against the defendants. Originally, there were two defendants. However, the suit insofar as the claim against the defendant No.1 is concerned, was, in fact, time barred as recorded in the order dated 01.02.2005 in view of the special period of limitation prescribed under the Carriage by Air Act, 1972. Insofar as the defendant No.2 is concerned, the suit has proceeded ex parte against it. The plaintiff has led ex parte evidence in the form of filing an affidavit as well as documents exhibited as (Exhibits-PW-1/1 to PW-1/15.

(2.) In a nutshell, the case is that the plaintiff, which is a private limited company and carries on the business of, inter alia, exporting garments, had received a purchase order from the defendant No.2 for supply of garments having a value of US$ 55,296.00 equivalent to Indian Rs.23,94,317/- at the then prevailing exchange rate. The order was placed on 20.05.1999 for the said consignment of woolen sweaters amounting to 8640 pieces @ US$ 6.40 per piece. The goods were consigned to the defendant No.2 through the carrier (defendant No.1). It is the case of the plaintiff that the goods were handed over to the defendant No.2 by the defendant No.1 without original airway bill and without payment to the bank in France, as a result of which the defendant No.1 has taken delivery of the entire consignment having a value of US$ 55,296.00 without paying for the same. The plaintiff has, therefore, filed this suit suing for the price of the goods and for an amount of Rs.11,13,210/- by way of interest thereon @ 18% from the date of delivery till April, 2002 when this suit came to be filed.

(3.) The plaintiff has stated in the affidavit that the purchase order (Exhibit-PW-1/3) gives the full description of the items which the plaintiff has consigned to the defendant No.2. A copy of the letter of credit has been filed as Exhibit-PW-1/4. However, this letter of credit which was opened by the defendant through the bank, Credit Agricole Du Nord, France, did not fructify in a payment being received by the plaintiff through its bank, Central Bank of India, International Division, New Delhi. It is further stated in the affidavit that before the consignment was sent, the entire goods were inspected by SGS India Ltd, an International Inspection Agency, which passed the woolen sweaters for shipment. A copy of the inspection report has been filed as Exhibit-PW-1/18. Besides this, inspection of the woolen sweaters was also made by Mr Alok Mangal, an agent of defendant No.2 in India who issued a certificate dated 14.10.1999, a copy whereof is exhibited as Exhibit-PW-1/9. On 18.10.1999, the consignment was delivered to the defendant No.2 as per the delivery certificate issued by the defendant No.1 (Exhibit-PW-1/10). Unfortunately, the defendant No.1 delivered the consignment to the defendant No.2 without obtaining original airway bill and other documents endorsed by the Bank in France. This led to the delivery of goods without the plaintiff having received the price for the same. The original airway bill and documents were returned by the consignee bank. Although on 24.12.1999, the consignee bank had informed the Central Bank of India that the defendant No.2 was ready and willing to make payment of only US$ 34,451.60 against the actual bill amount of US$ 55,296.00, even that amount had not been paid. The plaintiff has stated that it has suffered a loss of the entire price of the goods being US$55,296.00 and that it is also entitled to interest @ 18% thereon till the date of the suit amounting to Rs.11,13,210/- and, accordingly, the suit has been filed for recovery of Rs.35,07,527/-.