GHANSHYAMDAS AGARWAL Vs. BANK OF INDIA

JUDGEMENT

(1.) The hearing stems from an application filed by the plaintiff praying for judgment on admission against defendant No. 2 American Express Banking Ltd. and defendant No. 3 National Bank Ltd. inter alia on the grounds that in this suit being C. S. 678/99 for a decree for Rs. 1.53 crores against the defendants together with interest and other reliefs, defendant No. 3 had opened an irrevocable Letter of Credit dated 20.04.99 which was amended on 06.05.99, in favour of the plaintiff in respect of certain goods to be sold by the plaintiff to defendant No. 4 (since deleted). The goods forming the subject-matter of sale were sent by the plaintiff from India to Bangladesh and the documents in respect of the consignment were sent by the plaintiff's banker defendant No. 1 Bank of India to defendant No. 3. In gross breach of its obligations under the said Letter of Credit, defendant No. 3 refused to make payment in respect thereof on the purported ground that certain discrepancies exist in the documents concerning the consignment of the goods. In the written statement filed by defendant No. 3 it has been contended that defendant No. 4 had instructed defendant No. 3 to stop payment of the said Letter of Credit, that defendant No. 3 had already written to defendant No. 1 that it was ready to return all the documents sent to it by defendant No. 1 and that ultimately by a covering letter dated 10.10.99 it returned the documents to defendant No. 1 in complete discharge of all responsibilities/ liabilities in respect of the documents. Defendant No. 3 in breach of its duties as a banker made over the documents concerning the said consignment to defendant No. 4 and has in the process permitted defendant No. 4 to take delivery of the entire consignment. Defendant No. 4 filed Title Suit No. 163/2000 in the Court of learned Subordinate Judge, 5th Court at Dhaka against the present plaintiff and defendant Nos. 1 to 3 for declaration and injunction wherein defendant No. 3 in paragraphs 13, 17 and 18 of its written statement made admissions that defendant No. 3 stopped payment of the Letter of Credit on the basis of request from defendant No. 4, that the documents in question were made over by defendant No. 3 to defendant No. 4 on the basis of which defendant No. 4 obtained release of the consigned goods and that defendant No. 3 is under obligation to reimburse the payment to the supplier's corresponding Bank i.e. defendant No. 2. There was no discrepancy in the documents, as on the basis of such documents the importer obtained release of the goods. The plaintiff's claim is confined only against defendant No. 3 and its Associate Bank defendant No. 2.

(2.) Mr. Saha, learned Counsel for the plaintiff, on referring to paragraphs 13, 17 and 18 of the written statement filed by defendant No. 3. in Title Suit No. 163/2000 instituted by defendant No. 4 in the Court of learned Subordinate Judge, 5th Court at Dhaka contended that on the face of specific averments made in the said paragraphs that defendant No. 3 stopped payment of the Letter of Credit on the basis of request from defendant No. 4, that the documents in question were made over by defendant No. 3 to defendant No. 4 on the basis of which defendant No. 4 obtained release of the consigned goods and the said defendant No. 3 is under obligation to reimburse the payments to the supplier's corresponding Bank i.e. defendant No. 2, judgment on admission may be passed by this Court. Mr. Saha, on referring the English cases of Ellis vs. Alien reported in (1914) Chancery Divn. 904 and Ffrench vs. Sproston reported in (1894) Chancery Divn. 499, Shikharchand vs. Bari Bai reported in AIR 1974 MP 75 and Uttam Singh Duggal & Co. Ltd. vs. U.B.I, reported in AIR 2000 SC 2740 (para 13) canvassed that the expression "or otherwise" as occurring in Rule 6 of Order 12 read with the words "orally or in writing" is wide enough to embrace any form of admission. Relying upon the cases of B. K. Narayan Pillai vs. P. Pillai reported in 2000 (1) SCC 712 at 717 and Heeralal vs. Kalyan Mal reported in 1998 (1) SCC 278 (para 9) Mr. Saha contended that though the said suit being T. S. No. 163/2000 pending in the Court of learned Subordinate Judge at Dhaka has since been withdrawn on 26.07.2003, it does not at all affect the said admission since once an admission is made, it will remain as an admission for all time to come.

(3.) Mr. Sen, learned Counsel for defendant No. 2 submitted that as there is no admission on behalf of his client in its pleadings, the question of passing judgment on admission against it does not arise.