BHUPENDRA JAMNADAS LODHIYA Vs. GOPAL INTERNATIONAL

JUDGEMENT

(1.) This "appeal against order" is filed against the order dated 19-4-2005 passed by forth Ad hoc Additional district Judge, Chandrapur, in Special Civil suit 1/2003 instituted by appellant whereby the trial court has refused to grant temporary injunction to restrain present respondent Nos. 1 and 2 (original defendants No. 1 and 2) from receiving amount of Rs. 42,23,800/- only (i. e. Forty-Two Lakhs Twenty-Three Thousand eight Hundred) from respondent No. 3/defendant No. 3 Central Bank of India, chandrapur and to restrain said respondent no. 3 from making any payment to respondents no. 1 and 2 til disposal of suit towords disputed letter of Credit issued by respondent No 3.

(2.) I have heard Advocate V R. Thakur for appellant, Advocate Lalji James, for respondents No. l, 2, 5 and 6, Advocate samel for Respondents No. 3 and 4, and advocate Anil Kumar for respondent No. 7. Before proceeding to mention the facts in detail, it will be appropriate to narrate the points briefly urged by Advocate Thakur to challenge the impugned order as that will facilitate appreciation of facts also.

(3.) Advocate Thakur has raised following points :-a. the appellant never received the goods for which the letter of credit was to be issued. b. there is no letter of credit issued by respondent No. 3 Central Bank of India. c. the document acted upon as letter of credit is not a legal and valid document issued as per contract. d. the letter of credit was to be/is "not negotiable. e. the respondent No. 7 i. e. State Bank of hyderabad did not even cursorily verify the accompanying documents as per requirement of letter of credit and acted with gross negligence in negotiating/discounting it. f. documents authorising respondent no. 3 Central Bank to retire documents were procured under coercion from appellant. g. E-mails immediately forwarded byappellant, giving rise to these questions can be stated thus. The appellant, as sole proprietor, is doing import export business under the style "noble exports" Chandrapur. He received order to supply 400 metric tons of fresh garlic from alakh Import Export Enterprises, respondent no. 6 herein, from Johannesburg, South Africa. The garlic was to be shipped from Navasheva port, Mumbai. The contract is dated 8-4-2002. In view thereof appellant entered into further contract with present respondent No. 1 Gopal international of New Delhi on 10-6-2002 and under it respondent No. l irrevocably committed to sell and supply 200 metric tons of tresh garlic to appellant within 60 days. The price agreed was Rs. 21,119/- only per metric ton FOB Mumbai. According to appellant, the price included pre-paid freight up to the destination i. e. Navasheva Port, Mumbai. This garlic was to be packed in corrugated boxes as mentioned in the contract. The contract also prescribed details of bankers and United Bank of India, Overseas Branch, Asatali Road, New delhi was agreed to be the bank of respondent no. 1 while Central Bank of India, Kamptee road, Nagpur was agreed to be the bank of appellant. The payment was to be made by appellant by opening irrevocable letter of credit in favour of respondent No. 1 by a local Bank by 100% value payable on 180 days by sight. The 8 documents required to accompany the letter of credit for payment were expressly stipulated. Accordingly, appellant applied to respondent No. 3 Central Bank at Chandrapur for issuance of letter of credit The respondent no 3 requested Central Bank f India, Janpath. New Delhi to open letter of credit as per instructions contained in its request letter. The copy of this request letter was received by appellant without Annexure-I accompanying it. The said Annexure has been later on produced in Civil Suit. Respondent No 3 also issued a document dated 5-7-2002 supposed to be the letter of credit in favour of respondent no 1 and said document is not in usual format normally used by bank. Earlier, respondent no. 3 sanctioned a packing limit to the appellant vide sanction letter dated 15-5-2002 according to which the goods were required to be pledged with the bank. The appellant did not have knowledge of the source from where respondent No. 1 was to procure garlic. The annexure-I as mentioned above sent with request letter dated 5-7-2002 had a note which mentioned "document dated prior to opening of inland L/c is acceptable". The appellant contends that this note has been misused by respondent No. 1 to forge delivery challans to create impression that appellant has received the garlic. The said delivery challans were vague in material particulars. Using them, respondent No. 1 negotiated letter of credit with respondent No. 7 State Bank of Hyderabad and appellant was required to retire documents given in sealed cover by respondent No. 3 central Bank of India. Under pressure and force from respondent No. 3 proprietor of appellant put his signature by applying rubber stamp of Noble Exporters thereon. The other documents like transport receipts were not accompanying the forged invoices and delivery challans. Appellant states that alleged delivery of 200 metric tons of fresh garlic was given to him as per respondent No. 1 between 29-6-2002 and 3-7-2002 which is much pnor to the date of letter of credit. Respondent No. 7 State Bank of Hyderabad discounted the letter of credit and made payment to respondent No. l. Thereafter respondent No. 7 demanded reimbursement from respondent No. 3 Central bank of India Appellant contends that he issued letters and e-mails to respondent Nos. 1 and 2 on 12-7-2002,15-7-2002,19-7-2002,20-7-2002, 29-7-2002, 18-8-2002 and 24-8-2002 making grievance that he did not receive the garlic. However there was no reply from said respondents Appellant further contends that respondent No. 3 Central Bank also obtained under pressure two letters from him on 29-10-2002. He has stated that on 20-12-2002 he sent telegram to respondent No. 1 and thereafter he also lodged police complaint on 30-12-2002 thereafter he filed Special Civil Suit 1/2003 alongwith application for temporary injunction. It was opposed by respondents. In support of his contentions, appellant filed affidavit of Bhojraj Kamble dated 29-11-2003 and affidavit of Dhananjay Potdukhe, computer engineer dated 16-7-2003 and also is affidavit of Vithal Asodkar. The learned trial court by its order dated 1-2-2003 directed respondent No. 3 to maintain status quo until further orders and ultimately by order dated 19-4-2005, it rejected the application for temporary injunction. It is this order which is challenged in present appeal. "