NATIONAL BANK LTD. Vs. HABIB BANK LTD.

JUDGEMENT

(1.) The First Appeal No. 202 of 1993 and First Appeal No. 204 of 1993 are taken up together for hearing because both the appeals arose from the same transaction although there are two separate judgments. First Appeal No. 202 of 1993 arose out of Money Suit No. 65 of 1989 filed by Habib Bank Ltd., Deira, Dubai Branch, United Arab Emirates, against National Bank Ltd., Head Office, Dilkusha Commercial Area, Dhaka, claiming US$ 3,58,577 equivalent to Taka 1,18,15,112.15 paisa in the First Commercial Court, Dhaka. This suit was transferred to the Second Commercial Court, by order of the District Judge on 10-7-1990 and was re-numbered as Money Suit No. 108 of 1990. This suit was decreed on 24-5-1993. First Appeal No. 204 of 1993 arises out of Title Suit No. 56 of 1987. Filed by one Mr. Salauddin against National Bank Ltd. and others claiming Taka 92,72,400. This suit was decreed on 31-5-1993 against National Bank Ltd., defendant No. 1, defendant Nos. 4, 5 and 6 on contest. The National Bank Ltd. filed both the appeals.

(2.) The facts leading to the filing of the above noted two suits, one by Mr. Md. Salauddin, the plaintiff in Title Suit No. 56 of 1987 and the other one filed by Habib Bank Ltd ('HBL' for short) are that on the request of one Md. Salauddin (the plaintiff in Title Suit No. 56 of 1987) the National Bank Ltd., Khulna Branch, Khulna ('NBL' for short) opened a letter of credit being No. 7-9-86 dated 3rd March, 1986 for US$ 2,79,500 in favour of Navegadora Panocenica SA (the defendant No. 5 in TS No. 56 of 1987), in order to import 6500 metric tons of cement made in Indonesia on the basis of Indent No. 22 of 1985 dated 30-9-1985 issued by Aqua Marine Ltd (the defendant No. 4 in TS No. 56 of 1987) on the basis of C & F to Chalna Port. The Bank of Credit and Commerce International Overseas Ltd., Deira, Dubai Branch, (the defendant No. 2 in TS No. 56 of 1987) was the advising bank on the said letter of credit. The letter of credit contains terms and conditions, inter alia, that the bill of lading of the said goods must be issued not later than 15th March, 1986 and the bill of exchange must be negotiated within 21 days from the date of shipment. The plaintiff of Title Suit No. 56 of 1987 deposited Taka 35,00,000 by way of margin against the said letter of credit on 3-3-1986 in favour of National Bank Ltd., Khulna Branch (defendant No. 1 in both the suits). In due course, 7(seven) bills of lading all dated 13th March, 1986, in respect of shipment of 6200 metric tons of cement, were issued on behalf of the vessel, MV Del Santiago, owned by Shuwa Kamn Kaisha Ltd (the defendant No. 6 in TS No. 56 of 1987) at the port at Padang in Indonesia. On 14th March, 1986, the said ship sailed for Chalna Port with the aforesaid cargo of cement from Padang Port. The seller of the aforesaid 6200 NIT of cement, Navegadora Panocenica SA has its banking transactions with the Habib Bank Ltd., Deira, Dubai Branch, in United Arab Emirates, the plaintiff in Money Suit No. 65 of 1989 in the First Commercial Court, Dhaka. The said seller presented all his shipping documents along with the bill of exchange, for US$ 2,66,600 with the said Habib Bank Ltd, Dubai Branch. Since there was no discrepancy in all those documents the Habib Bank Ltd duly negotiated those document presented by the seller and thereafter, in accordance with the terms and conditions of the letter of credit, sent a telex message on 18th March, 1986, on its New York Branch, for realisation of the full amount of USS 2,66,600 from the account of the National Bank Ltd, Khulna, maintained with American Express International Banking Corporation, New York (AMEX for short). The Habib Bank, Dubai Branch, also informed the NBL, Khulna Branch, by its telex dated 20-3-1986 about their such demand of payment from AMEX, New York. In the meantime, the plaintiff of TS No. 56 of 1987 came to learn from Aqua Marine Ltd on the 20th March, 1986, that the vessel MV Del Santiago carrying the cargo of cement for him in Bangladesh sank on 18th March, 1986 about 30 miles of Mias Island and, as such, he instructed the National Bank Ltd, Khulna, to stop payment on the concerned bill of exchange drawn on behalf of the seller. Accordingly, the NBL, Khulna, immediately revoked their authorisation in favour of AMEX, for payment in favour of the Habib Bank, New York Branch, and they, by their telex dated 28th March, 1986, informed the Habib Bank, NY Branch, about such cancellation of authorisation of payment. The Habib Bank Branch continued to demand their claim on the aforesaid bill of exchange and also forwarded the original set of all shipping documents on 19th May, 1986 in favour of the NBL, Khulna. They also sent the duplicate copies of the documents to them through ordinary air mail. But the defendant National Bank Ltd, by its telex dated 20th August, 1986 rejected their such claim.

(3.) On this dispute, telexes on different dates were exchanged between the National Bank Ltd, Khulna Branch and the Habib Bank Ltd., Dubai Branch, but ultimately, when the National Bank Ltd did not pay the amount of bill of exchange, the Habib Bank Ltd filed a suit being Money Suit No. 65 of 1989 against them on 18th March. 1989 praying, inter alia, for a decree for USS 3,58,577 equivalent to Taka 1, 18,15,112.15 with interest at the rate of 15% per annum till realisation, in the First Commercial Court, Dhaka.