ALDO VOGEL Vs. JIMMY D NANAVUTTY

JUDGEMENT

(1.) One Aldo Vogel, and Mr. Chandru Makhijani, carry on business of importers under the name and style of Aldo Vogel AG, ("Vogel") having its office at Rutistresse 28, 8032, Zurich, Switzerland. Miltons Private Limited, Bombay ("Miltons") are in the business of manufacture and export of readymade garments. Chandru Makhijani, on behalf of Vogel used to purchase goods of substantial value from Miltons, and on one such occasion, according to Miltons, Aldo Vogel and Chandru Makhijani came to India in May 1983 and carried on negotiations for purchase of readymade garments of US $ 65,900/- against opening of an irrevocable Letter of Credit ('L/C'). The L/C was opened on 19th Dec., 1983 and Miltons despatched the first consignment worth US $ 7, 099.50 for which they received payment. As there was delay in effecting shipments, the L/C was amended by extending the shipment date to 15th April 1984 and increasing the value thereof by US $ 43,944.25 plus freight and insurance and Miltons continued to effect shipment of goods and receive payments. At the end of the series of transanctions, Miltons claimed a debit balance of US $ 39,496.68 against the Swiss importers for which Miltons on 2-8-1984 filed Summary Suit No. 1989 of 1984 under O.37, R.132 of the Civil P.C. 1908 on the Original Side of this Court. In the suit Miltons have claimed US $ 39,496/- and interest as the balance of the price of the goods supplied to the Swiss Company. Leave has been granted to Vogel to defend the suit unconditionally.

(2.) On 28th Sept. 1984 one Jimmy D.Nanavutty, Company Secretary of Miltons, Bombay, filed a complaint in the Court of the Chief Metropolitan Magistrate, 9th Court, containing more or less the same allegations which are found in the plaint in Summary Suit No.1989 of 1984. Nanavutty, had, in addition, submitted that the accused entered into a criminal conspiracy to cheat his company (Miltons) and had cheated the company and induced the company to part with the goods. The learned Magistrate has ordered the police to investigate into the matter.

(3.) Mr. Kothare, learned Counsel appearing for the petitioner, urges that the relations between the parties were cordial when the Indian exporter was conforming to the delivery schedule and supplying goods as per the contracts. It was only when the importer - purchaser found that the goods do not conform to the specifications that they informed Miltons about it by their letter dt. 13th Mar, 1984. Vogel pointed out that 30% of the items have been stone-washed when the instructions were that they should be washed with water only; that the garments have oil marks, the buttons have been badly stitched, the quantity was correct but not size-wise and warned Miltons that in case their Europen clients do not accept the goods, they would prefer claim on Miltons. This was followed by another letter dt. 14th Mar. 1984 complaining short delivery as well as non-conformity with the specifications. It appears that Aldo Vogel came over to India with a view to iron out the matters but as it could not be done, Miltons filed Civil Suit as adumberated above.