Calcutta High Court
Shree Krishna Timber Co. Pvt. Ltd vs Mga International Pte Ltd. & Ors on 23 April, 2009
Author: Patherya
Bench: Patherya
GA No. 1076 of 2009
CS No. 111 of 2009
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
SHREE KRISHNA TIMBER CO. PVT. LTD.
Versus
MGA INTERNATIONAL PTE LTD. & ORS.
For Petitioner : Mr.Pratap Chatterjee,Sr.Advocate with Mr.Ranjan
Deb,Sr.Advocate, Mr.Tilak Bose,Mr.Debnath Ghosh,
Mr.Pradip Sarawgi,Ms. D. Adhikary
BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 23rd April, 2009.
The Court : In a suit for cancellation of the Letter of
Credit and for declaration that the same is null and void an interim application
has been filed for interim reliefs.
The case of the petitioner is that in C.S.No.13 of 2009
a declaration was sought that the due date of the bill of exchange be extended
and the Letter of Credit be amended accordingly. An interim application was
filed and an order was passed by consent of the parties upon the respondent no.3
therein giving an undertaking to extend the Letter of Credit by 90 days subject to the bankers of the plaintiff therein extending the date of the Letter of Credit. On the basis of the said consent order the suit was to stand withdrawn upon expiry of the 90 days extended period. Before the said 90 days has expired it has come to the knowledge of the petitioner that the claim lodged with the Insurance Company has been rejected on the ground that when the bill of lading was issued the vessel M.V.Destiny was detained at Cape Verde since 21st January, 2008 and only released in November, 2008. Therefore, the bill of lading issued on 2nd May, 2008 is contrary to the status of the vessel and the vessel could not have been berthed at the port of loading in George Town, Guyana. Hence a fraud was committed on the petitioner by the Seller in collusion with its bankers and orders be passed as sought. No notice of this application has been served on the respondents as the petitioner apprehends that the same will be prejudicial to the interest of the petitioner.
Having considered the facts of the case and in view of the report of the insurance company wherefrom it appears that the vessel M.V.Destiny on and from 21st January, 2008 to November, 2008 was detained at Cape Verde the question of the said vessel being berthed at the port of loading in George Town, Guyana cannot arise. The said vessel sailed from Cape Verde only in November, 2008. Therefore, prima facie it appears that a fraud has been committed in issuing the bill of lading dated 2nd May, 2008 and the facts of the case entitles the petitioner to an order restraining the respondents from giving any effect to the Letter of Credit and all documents relating thereto in respect of the bill of lading dated 2nd May, 2008. Accordingly the seller is restrained from withdrawing any sums from its bank accounts without leaving a sum of US$ 3,21,401.55 equivalent to the existing rate in rupees on 23rd April, 2009 till 6th May, 2009.
Matter to appear in the list on 4th May, 2009.
The petitioner is directed to communicate this order along with a copy of the application to the respondents.
All parties concerned are to act on a xerox signed copy of this order on the usual undertakings.
(PATHERYA, J.) pa 2