Delhi District Court
M/S Pahwa International vs M/S Icici Bank Ltd on 14 August, 2025
IN THE COURT OF SH.RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-08
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others)
CNR No. DLSE01-007119-2018
M/s Pahwa International
F-29, Okhla Industrial Area,
Phase-I, New Delhi-110 020.
........Plaintiff
Through:- Mr. Arun Khosla and
Mr. Manjit Kapil, advocates
Versus
1. M/s ICICI Bank Ltd.
Division 9A, Phelps Building,
Connaught Place, New Delhi-110 001.
......Defendant No.1
Through:- Mr. Ajay Monga
and Mr. Anmol Mehta, advocates
2. M/s Muenchner Bang EG,
Foreign Department,
Richard Strauss, 82,
D-81679, Munich, Germany.
......Defendant No.2
Through:- Ms. Diksha L.Kakar and
Mr. Rashneet Singh, advocates
3. M/s Wasan Overseas Pvt. Ltd.
5, Aradhana Enclave,
Sector-13, Ring Road,
New Delhi-110 066.
......Defendant No.3
Through:- Ms. Mansi Sood and
Raj Kumar Ms. Rishbha Arora, advocates
Tripathi
4. M/s Como Leather Fashion GMBH,
Digitally signed by
Raj Kumar Tripathi
Salzatabe 8, 85622, Feldkirchen, Germany.
Date: 2025.08.14 ......Defendant No.4
12:24:16 +0530
(Ex parte)
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 1 of 47
Date of filing : 28.08.2018
Final arguments heard on : 09.07.2025, 14.07.2025,
17.07.2025, 19.07.2025,
21.07.2025 & 22.07.2025
Date of Judgment : 14.08.2025
JUDGMENT:
1.1 Plaintiff M/s Pahwa International filed the present suit against defendants on 28.08.2018 claiming a sum of US$ 39,507/- and Rs.97,96,180/- along with pendente lite and future interest and cost of the proceedings.
Factual matrix of plaintiff's case 2.1 Plaintiff is engaged in manufacturing, export and import of leather garments. Defendant no.3 M/s Wasan Overseas Pvt. Ltd., a buying house is engaged in procuring orders for leather fashion garments and placing them with fabricators/ exporters on behalf of foreign buyer. Defendant no.4 M/s Como Leather Fashion GMBH is a foreign buyer. Defendant no.2 M/s Muenchner Bang EG is the banker of the defendant no.4. 2.2 Case of the plaintiff is that defendant no.4 had placed an order upon defendant no.3 for leather garments. Defendant no.2 issued a Letter of Credit vide reference no.15.0506 dated 26.05.2015 in the sum of USD 5,05,058.50 in favour of defendant no.3 with the facility of nomination of a second beneficiary for Raj Kumar payment of leather garments. On the basis of said purchase order Tripathi and Letter of Credit, defendant no.3 placed an order upon plaintiff Digitally signed by Raj Kumar Tripathi for leather garments in the sum of US$ 5,05,058.50 while Date: 2025.08.14 12:24:23 +0530 directing its bankers, defendant no.1 to transfer the said CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 2 of 47 irrevocable Letter of Credit in favour of plaintiff. 2.3 Defendant no.1, vide letter dated 10.06.2015, transferred the said Letter of Credit dated 26.05.2015 issued by defendant no.2 in favour of plaintiff as the second beneficiary in accordance with terms of 'UNIFORM CUSTOMS AND PRACTICES OF DOCUMENTARY CREDITS (LATEST VERSION) [UCP]'. The plaintiff delivered the first consignment of leather garments and forwarded documents, through its banker M/s Punjab and Sind Bank, Bhandari House, Nehru Place, New Delhi-110 019, vide Reference No. 30/190079/15 dated 30.07.2015 relating to Invoice No. 054/15-16 dated 24.07.2015 in the sum of US$ 1,38,069. Plaintiff delivered second consignment and forwarded documents, vide Reference No. 30/195140/15 dated 20.08.2015 relating to Invoice No. 074/15-16 dated 10.08.2015 in the sum of US$ 1,45,728/-.
2.4 Plaintiff delivered third and last consignment and forwarded documents, through its banker vide Reference No. 30/195155/15 dated 01.09.2015 relating to Invoice No. 090/15-16 dated 20.08.2015 in the sum of US$ 1,97,581.50. Defendant no. 1 credited a sum of US$ 99,949 to plaintiff against Reference No. 30/190079/15 relating to invoice amount of US$ 1,38,069. Likewise, defendant no.1 also credited sum of US$ 86,161.70 to plaintiff against Reference No. 30/195140/15 relating to invoice amount of US$ 1,45,728.
2.5 Plaintiff's further case is that its banker addressed Raj Kumar Swift Message dated 27.11.2015 to defendant no.1, whereby it Tripathi objected to transfer of an amount of US$ 99,941.58 against Digitally signed by Raj Kumar Tripathi invoice amount of US$ 1,38,069. The plaintiff's banker addressed Date: 2025.08.14 12:24:31 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 3 of 47 another Swift Message dated 27.11.2015 to the defendant no.1, whereby it asked for payment of an amount of US$ 1,97,581/- against Invoice No. 090/15-16 dated 20.08.2015. The plaintiff's banker addressed another Swift Message dated 05.12.2015 to defendant no.1, whereby it objected to transfer of an amount of US$ 99,941.58 against invoice amount of US$ 1,38,069. The plaintiff's banker addressed Swift Message dated 05.12.2015 to defendant no.1, whereby it objected to transfer of an amount of US$ 86,161.70 against invoice amount of US$ 1,45,728. Plaintiff's banker also addressed Swift Message dated 05.12.2015 to defendant no.1 to transfer an amount of US$ 1,97,581.50 against Reference No. 30/195155/15.
2.6 As per plaintiff, defendant no.1 had not responded to the said Swift Messages of its banker. However, defendant no.3 forwarded Swift Message dated 07.12.2015 purportedly as having been sent by the defendant no.1 regarding payment of US$ 99,941.58 against Reference nos.30/190079-195140/15. It is alleged that the said Swift Message is a forged and fabricated document. On 20.01.2016, plaintiff's banker addressed a letter to defendant no.1 that effecting partial payments indicated that discrepancies were accepted and full payment is due according to the terms and conditions of Letter of Credit. It also stated that partial payment can only be effected with agreement of the presenter i.e. negotiating bank. It also asked to pay balance US$ 2,95,275.80 along with interest @ 16.5% per annum plus US$ Raj Kumar 500 against Swift Charges.
Tripathi Digitally signed 2.7 On 10.02.2016, defendant no.3 addressed another e-
by Raj Kumar Tripathi Date: 2025.08.14mail to plaintiff purportedly Swift Message from defendant no.1 12:24:38 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 4 of 47 regarding payment of US$ 75,000 against Reference No. 30/195155/15. On 12.02.2016, defendant no.3 addressed another e-mail to the plaintiff purportedly a Swift Message from defendant no.1 regarding payment of US$ 75,000 against Reference No. 30/190079/15 and 30/195140/15. The plaintiff's banker addressed Swift Message dated 17.03.2016 regarding non- receipt of any payment against Reference No. 30/195155/15 dated 03.09.2015 and balance payment against Reference No.
-30/190079/15 and Reference No. 30/195140/15. 2.8 According to plaintiff, its banker forwarded Swift Messages dated 07.12.2015, 10.02.2016 and 12.02.2016 to defendant no.1. Plaintiff submitted letter dated 21.03.2016 along with delivery sheet dated 07.09.2015 regarding contention of defendant no.1 pertaining to non-receipt of documents covered vide Reference No. 30/195155/15. The plaintiff stated that M/s Lufthansa Cargo Airway Bill No. 020-4374 1854 dated 20.08.2015 with confirmation by M/s Alfa Trans so that goods covered by Reference No.30/195155/15 delivered to the defendant no.4. In response to the letter dated 17.03.2016 sent by the plaintiff's banker, the defendant no.1 addressed Swift Message dated 23.03.2016 that against the aforesaid three consignments, it had made payment of US$ 99,941.58/- only against Reference No. 30/190079/15, and a sum of US$ 86,161.70 against Reference No. 30/195140/15 and no payment against Reference No. 30/195155/15. Defendant no.1 addressed Raj Kumar Swift Message dated 07.04.2016 stating therein that it had not Tripathi made payment as conveyed vide Swift Messages dated Digitally signed by Raj Kumar Tripathi 07.12.2015, 10.02.2016 and 12.02.2016. Plaintiff's banker Date: 2025.08.14 12:24:45 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 5 of 47 addressed Swift Message dated 19.04.2016 to defendant no.1 in reference to Swift Message dated 07.04.2016 of defendant no.1 that Swift Messages dated 07.12.2015, 10.02.2016 and 12.02.2016 were forged and fabricated, and expressed surprise as to inaction of defendant no.1 regarding forgery of the said messages, and asked it to make payment.
2.9 According to plaintiff, defendant no.1 addressed letter dated 02.05.2016 to its banker that defendant no.3 has confirmed that it has not shared the said Swift Messages with the plaintiff and denied obligation to make any payment relating to the documents tendered by the plaintiff's banker. 2.10 In response thereto, plaintiff's banker sent letter dated 16.05.2016 highlighting fallacy in the stand of defendant no.1 regarding part payments made against 2 of 3 consignments and non-payment of 3rd consignment. Plaintiff sent notice dated 20.05.2016 to defendants asking them to make payment of US$ 2,95,275.22 together with interest @ 16.5% per annum. Defendant no.1 did not respond to the said notice in writing but made transfer of sum of US$ 77,197.19 on 13.07.2016. Defendants no.3 and 4 admitted that they had received the goods sent by the said 3 consignments and expressed willingness to settle the matter. However, they refused to honour their commitment.
2.11 It is submitted that defendants no.1 and 2 are under obligation under 'UCP' to make payment of the invoices raised by Raj Kumar the plaintiff. Plaintiff filed a consumer complaint with National Tripathi Digitally signed Consumer Dispute Redressal Commission (NCDRC). However, by Raj Kumar Tripathi Date: 2025.08.14 12:24:52 +0530 the same was withdrawn on 03.05.2017 to file a fresh civil suit.
CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 6 of 472.12 Plaintiff avers that on 01.11.2017, defendant no.3 offered to pay the amount in installments. First installment of Rs.40,00,000/- was paid on 01.11.2017, second installment of Rs.9,00,000/- was paid on 23.01.2018, third installment of Rs.40,00,000/- was paid on 05.03.2018, fourth installment of Rs.9,00,000/- was paid on 23.03.2018, fifth installment of Rs.2,00,000/- was paid on 26.03.2018 and sixth installment of Rs.25,00,000/- in installments. As such, defendant no.3 made payment of Rs. 1,25,00,000/-. Thereafter, the said defendant refused to make further payment. Plaintiff claims to have suffered loss of Rs.19,28,758/- on account of duty drawbacks, loss of Rs.6,09,081.49 on account of incentive under MEIS scheme of Government of India and Rs.10,40,770/- on account of loss of benefit of bank subvention. Hence, the present suit.
Defence of Defendant No.1 3.1 Defendant no.1 ICICI Bank Ltd., in its written statement, contended that it has no privity of contract with the plaintiff. There was a contract between defendants no.3 and 4, where under, defendant no.3 acted as a 'seller' and defendant no.4 acted as a 'buyer'. Pursuant to the said contract, defendant no.2 issued Letter of Credit dated 26.05.2015 for US$ 8,57,603.57 in favour of defendant no.3 at the instance of defendant no.4, which was transferable. The expiry date of said Letter of Credit was 06.07.2015, which was amended to 05.08.2015. Raj Kumar 3.2 The said Letter of Credit was issued by a German Tripathi Digitally signed by Raj Kumar Bank in Germany and it was required to be advised to defendant Tripathi Date: 2025.08.14 12:24:58 +0530 no.3 and accordingly defendant no.1 was the advising bank. The Letter of Credit was governed by 'UNIFORM CUSTOMS AND CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 7 of 47 PRACTICES OF DOCUMENTARY CREDITS (LATEST VERSION) [UCP 600). Plaintiff was seller of goods to defendant no.3, who had requested the defendant no.1 to transfer the said Letter of Credit in favour of plaintiff vide letter dated 28.05.2015. Defendant no.1 had transferred the said Letter of Credit in favour of plaintiff vide communication dated 10.06.2015. 3.3 Defendant no.1 contends that it will make payment only on receipt of payment from issuing bank/defendant no.2 as it was only an advising bank and not confirming bank. Therefore, it is not liable to honour Letter of Credit. As per defendant, the third set of documents received on 18.04.2016 were photocopies only. Defendant no.3 submitted first set of documents for an amount of US$ 1,50,910/- on 19.08.2015. the second set of documents was submitted for an amount of US$ 1,57,248 on 27.08.2015. Defendant no.3 had lodged the said documents with defendant no.2, which refused the said documents vide Swift Messages dated 28.08.2015 and 01.09.2015 on the ground that documents were presented after expiry of LOC.
3.4 Defendant no.1 claims to have received certain inward remittances in the sum of US$ 99,941.58 against amount of US$ 1,50,910 in relation to first set of documents on 23.11.2015 which amount was transferred to Punjab and Sind Bank on 24.11.2015 being part payment received from the foreign bank. On 17.12.2015, defendant no.1 received further inward Raj Kumar remittance in the sum of US$ 86,161.70 against amount of US$ Tripathi Digitally signed by 1,57,248/- in relation to second set of documents which amount Raj Kumar was paid to Punjab and Sind Bank on 18.12.2015 as part payment Tripathi Date: 2025.08.14 12:25:04 +0530 received from foreign bank. On 17.03.2016, Punjab and Sind CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 8 of 47 Bank sought further confirmation regarding status of payment. Defendant no.1 responded thereto that part payments were effected.
3.5 Defendant no.1 further contended that the third set of documents forwarded by Punjab and Sind Bank, vide covering letter dated 18.04.2016, which was substituted by defendant no.3 for US$ 2,12,969.70 on 29.04.2016 were lodged with defendant no.2 on 02.05.2016. However, defendant no.2 returned the said documents on 11.05.2016 stating that consignee was no longer customer of the issuing bank. On 16.05.2016, Punjab and Sind Bank sought confirmation of defendant no.1 regarding status of the payment. Defendant no.1 vide communication dated 23.05.2016 returned the documents to Punjab and Sind Bank. 3.6 Defendant no.1 claims to have received final settlement dated 28.06.2016 from defendant no.3. Pursuant thereto, an amount of US$ 31,099.60 each was paid to Punjab and Sind Bank by defendant no.1 in relation to first and second set of documents. There was an independent discussion between plaintiff and defendant no.3, whereby defendant no.3 had agreed to make payment to plaintiff and in fact, defendant no.3 made some payments to plaintiff. As defendant no.3 has not made complete payment, plaintiff started communicating with defendant no.1. It is contended that liability is of defendant no.2 being the issuing bank and/or of defendant no.3. Denying its liability towards the plaintiff, defendant no.1 prayed to dismiss Raj the suit with exemplary cost.
Kumar Tripathi Digitally signed Defence of Defendant no.2 by Raj Kumar Tripathi Date: 2025.08.14 4.1 Defendant no.2, in the written statement, contended 12:25:11 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 9 of 47 that it is neither a necessary nor a proper party. Defendant no.2 claims to have discontinued its international business in the year 2016 and the documents relating to the transaction in question are not available with it. Defendant no.2 is reported to have provided international service to defendant no.4 from 2014 till 2016. 4.2 Defendant no.2 admitted to have issued Letter of Credit vide Reference No.15.0506 in the sum of US$ 5,05,058.50. However, it contends that the applicant in respect of said LC is not the defendant no.4. The applicant for said LC is Como Sport e.K./Inh Erwin Honigstein. The said LC had expired on 05.08.2015. Thus, it had no obligation to make any payment against claim of plaintiff.
4.3 According to defendant no.2, as of 18.12.2015, one Airbus Group Bank GMBH Limited stepped into loan arrangement of the said two entities and discharging the liabilities of the said companies. Defendant no.4 has become insolvent and its liabilities are taken over by Airbus Group Bank GMBH Limited. Denying its liability to make any payment to plaintiff, defendant no.2 submitted that no case for grant of any relief has been made out against it.
Defence of Defendant no.3 5.1 The defendant no.3, in the written statement, contended that present suit has been filed by plaintiff to avoid repayment of personal loan extended by Mrs. Aditi Wasan, one of Raj the directors of the defendant no.3 to Mr. Surinder Singh Pahwa, Kumar Tripathi one of the partners of the plaintiff. It denied that there was any Digitally signed by Raj Kumar privity of contract or legal relationship between plaintiff and Tripathi Date: 2025.08.14 12:25:19 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 10 of 47 defendant no.3. Defendant no.3 claims to have no liability to the plaintiff.
5.2 As per defendant no.3, defendant no.1 failed to release the payments, as per Letter of Credit. The obligation to make payment was upon defendants no. 2 and 4. Defendant no. 4 raised purchase order upon the plaintiff, which raised invoices against defendant no.4. It is contended that plaintiff submitted requisite documents to defendant no.1 on 14.08.2015, 22.08.2015 and 07.09.2015 after expiry of the said LOC on 05.08.2015. 5.3 Defendant no.3 claims to be a buying house which is engaged in introducing buyers to sellers and acting as intermediary for such transactions on behalf of buyer and earns a certain percentage as commission.
5.4 Defendant no.3 claims to have introduced defendant no.2 to plaintiff. Defendant no.4 had placed an order upon the plaintiff vide purchase order dated 09.03.2015. The said purchase order did not make any mention of defendant no.3 as buyer, consignee or agent. Defendant no.4 opened Letter of Credit vide Reference No.15.0506 dated 22.05.2015 in favour of defendant no.3 as the first beneficiary for US$ 9,70,132.15 for several shipments. The last date of shipment was 15.06.2015 with the last date for presentation of documents on 06.07.2015 which was subsequently extended to 05.08.2015. Defendant no.3, at the request of defendant no.4, nominated the plaintiff as second beneficiary and defendant no.1 transferred the said LOC to the Raj extent of US$ 5,05,058.50 in favour of plaintiff. Kumar Tripathi 5.5 Defendant no.3 contends that it was made a Digitally signed by Raj Kumar Tripathi beneficiary of said LOC to receive commission and transfer the Date: 2025.08.14 12:25:26 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 11 of 47 balance as per invoices raised by the seller. Defendant no.4 had complained that the goods were not delivered at time and delay in shipment was causing difficulty as the goods were supplied after expiry of the said LOC. Defendant no.3 being intermediary had taken responsibility of co-ordinating delivery between plaintiff and defendant no.4. Defendant no.4 had also complained about sub-standard quality of the goods which could not pass basic quality checks.
5.6 The defence of defendant no.3 is that the plaintiff was in financial trouble and Mr.Surinder Singh Pahwa, partner of the plaintiff pressurized Mrs.Aditi Wasan, one of the directors of defendant no.3 for payment of the said shipment. Defendant no.3 paid an amount of Rs.1,25,00,000/- from personal account of Ms.Aditi Wasan to Mr. Surinder Singh Pahwa. Mr.Pahwa induced Mrs.Wasan to sign an agreement. Denying its liability to pay any amount to plaintiff, defendant no.3 prayed to dismiss the suit with exemplary and punitive costs.
Defendant no.4 is ex parte 6.1 As per record of the case, as noted in order dated 24.11.2018, defendant no.4 was served through e-mail on 15.11.2018, speed post on 21.11.2018 and courier on 19.11.2018. The said defendant chose not to appear and contest the suit by way of filing written statement despite service. Accordingly, defendant no.4 statutorily forfeited its right to file written Raj Kumar Tripathi statement. As a result thereof, right of defendant no.4 to file Digitally signed by Raj Kumar Tripathi written statement to the suit was directed to be closed vide order Date: 2025.08.14 12:25:32 +0530 dated 27.09.2022.
CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 12 of 476.2 Due to non appearance of defendant no.4 despite service, it was directed to be proceeded ex parte on 27.09.2022.
Replication 7.1 Plaintiff filed replication to the written statement of defendants no.1 and 3, wherein, the averments made in the plaint have been reiterated and the averments and allegations of the written statements have been denied.
Issues 8.1 On the basis of pleadings of the parties, the following issues were framed on 03.09.2024:-
(i) Whether plaintiff is entitled for recovery of a sum of US$ 39,507 as prayed for?OPP.
(ii) Whether plaintiff has suffered any loss, if so, to what extent?OPP.
(iii) Whether defendants are jointly and severally liable to pay the amount as prayed for in the suit?OPP.
(iv) Whether plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
(v) Relief.
Evidence of plaintiff
9.1 In support of its case, plaintiff has examined two
witnesses i.e. its partner Mr. Surinder Singh Pahwa as PW1 and Raj Kumar Mr. Karan Verma, Manager, Punjab & Sind Bank, Nehru Place Tripathi Digitally signed by Branch, New Delhi as PW2.Raj Kumar Tripathi Date: 2025.08.14 12:25:39 +0530
9.2 PW1 Mr. Pahwa filed his evidence by way of CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 13 of 47 affidavit, Ex.PW1/A, wherein he has reiterated the same facts as mentioned in the plaint. Before coming to the testimony of PW1, the documents relied upon by him are put in a tabulated form as under:-
S.No. Details of the Document Exhibit Mark
1. Copy of Registration Certificate of Mark-A (colly.) Partnership Deed
2. Original Letter of Authority dated Ex.PW1/2 01.08.2018
3. Copy of Purchase Order Ex.PW1/3
4. Copy of Letter of Credit Ex.PW1/4
5. Copy of Invoice No.054/15-16 dated Ex.PW1/5 (Colly.) 24.07.2015 along with supporting documents
6. Copy of Invoice No.074/15-16 dated Ex.PW1/6 (colly.)
10.08.2015 along with supporting documents
7. Copy of Invoice No.090/15-16 dated Mark-B 20.08.2015 along with supporting documents
8. Copy of Legal Notice dated 20.05.2016 Ex.PW1/8 (Colly.)
9. Copy of Legal Notice dated 24.10.2016 Ex.PW1/9 Evidence of defendant no.1 10.1 On the other hand, defendant no.1 has examined its Relationship Manager Mr. Tarun Kaushik as D1W1. Mr. Kaushik filed his evidence by way of affidavit, Ex.D1W1/A. He relied upon the following documents:-
S.No. Details of the Document Exhibit Mark
1. Power of Attorney Mark-D1W1/1 Raj 2. Swift Message dated 28.08.2015 of Mark-D1W1/2 Kumar defendant no.2 Tripathi 3. Swift Message dated 01.09.2015 of Mark-D1W1/3 Digitally signed by Raj Kumar defendant no.2 Tripathi Date: 2025.08.14 12:25:46 +0530
4. Document showing remittance of USD Mark-D1W1/4 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 14 of 47 99,941.58 by defendant no.1 on 23.11.2015
5. Document showing payment of USD Mark-D1W1/5 99,941.58 paid by defendant no.1 to Punjab & Sind Bank on 24.11.2015
6. Document showing payment of USD Mark-D1W1/6 86,161.70 paid by defendant no.1 to Punjab & Sind Bank on 18.12.2015
7. Communication dated 22.03.2016 issued Mark-D1W1/7 by defendant to Punjab & Sind Bank
8. Letter dated 15.04.2016 of Punjab & Mark-D1W1/8 Sind Bank
9. Letter dated 02.05.2016 issued by Mark-D1W1/9 defendant no.1 to Punjab & Sind Bank
10. Letter dated 11.05.2016 issued by LC Mark-D1W1/10 issuing Bank returning the documents
11. Letter dated 28.06.2016 received by Mark-D1W1/11 defendant no.1 from defendant no.3
12. Document showing payment of USD Mark-D1W1/12 77,197.19 paid by defendant no.1 to Punjab & Sind Bank on 08.07.2016
13. Swift Message dated 12.07.2016 sent by Mark-D1W1/13 SCB Germany to ICICI Bank Evidence of defendant no.2
11.1 In its defence, defendant no.2 examined its Authorized Representative Mr. Michael Dandorfer as DW2/1. He tendered his evidence by way of affidavit, Ex.D2W1/A. The following documents have been relied upon by defendant no.2's :-
S.No. Details of the Document Exhibit Mark
1. The excerpt from official register of the Ex.D2W1/1 Council Court at Munich dated
12.06.2018 along with its English Raj translation in his favour Kumar Tripathi 2. Copy of internal communication of Ex.D2W1/2 Digitally signed by Raj Kumar Tripathi Munchner Bank eG in respect of Date: 2025.08.14 application for the Letter of Credit 12:25:54 +0530 No.15.0506 along with English CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 15 of 47 translation
3. Letter dated 08.10.2015 addressed by the Ex.D2W1/3 Airbus Group Bank to Munchner Bank eG along with English translation
4. Copy of relevant extract from the Ex.D2W1/4 commercial register B of the local Court Munich of the insolvency proceedings in respect of Como Leather Fashion GMBH along with English Translation
5. Copy of letter dated 18.12.2015 Ex.D2W1/5 addressed by Munchner Bank eG to Airbus Group Bank along with English Translation
6. Affidavit under section 65B of The Ex.D2W1/B Indian Evidence Act,1872 Evidence of defendant no.3 12.1 On the other hand, defendant no.3 has examined its AR Mr. Jatinder Wasan as D3W1, who tendered his evidence by way of affidavit, Ex.D3W1/A. The documents relied upon by D3W1 are as under:-
S.No. Details of the Documents Exhibit Mark
1. Certificate of Incorporation, Memorandum of Ex.D3W1/1 (Colly.) Association and articles of Association of defendant no.3 company
2. Master LC dated 22.05.2015 bearing Ex.D3W1/2 Reference No.15.0506 issued by defendant no.2
3. Invoice No.054/15-16 dated 24.07.2015 Ex.D3W1/3 issued by plaintiff in favour of defendant no.4 for US$1,38,069
4. Invoice No.054/15-16 dated 24.07.2015 Ex.D3W1/4 issued by defendant no.3 in favour of defendant no.4 for US$1,50,910.20
5. Invoice No.061/15-16 dated 24.07.2015 Ex.D3W1/5 Raj issued by plaintiff in favour of defendant Kumar no.4 for US$23,680 Tripathi Digitally signed 6. Invoice No.061/15-16 dated 24.07.2015 Ex.D3W1/6 by Raj Kumar Tripathi Date: 2025.08.14 12:26:01 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 16 of 47 issued by defendant no.3 in favour of defendant no.4 for US$25,756
7. Invoice No.074/15-16 dated 10.08.2015 Ex.D3W1/7 issued by plaintiff in favour of defendant no.4 for US$1,45,728
8. Invoice No.074/15-16 dated 10.08.2015 Ex.D3W1/8 issued by defendant no.3 in favour of defendant no.4 for US $1,57.248
9. Invoice No.090/15-16 dated 20.08.2015 Ex.D3W1/9 issued by plaintiff in favour of defendant no.4 for US$ 1,97,581.50.
10. Invoice No.090/15-16 dated 20.08.2015 Ex.D3W1/10 issued by defendant no.3 in favour of defendant no.4 for US$ 2,12,969.70.
11. E-mail dated 24.08.2015 along with Ex.D3W1/11 attachments thereto from defendant no.3 to defendant no.4
12. E-mail dated 25.08.2015 along with Ex.D3W1/12 attachment thereto from defendant no.3 to defendant no.4
13. E-mail dated 07.09.2015 from defendant no.1 Ex.D3W1/13 to defendant no.3
14. E-mail dated 13.09.2015 along with trailing Ex.D3W1/14 e-mails exchanged between defendant no.3 and defendant no.4.
15. E-mail dated 14.09.2015 along with trailing Ex.D3W1/15 e-mail exchanged between defendant no.3 and defendant no.4
16. E-mail dated 03.07.2015 from plaintiff to Ex.D3W1/16 defendant no.3 along with trailing e-mails from defendant no.3 to plaintiff repeatedly enquiring about the status of the already delayed shipment
17. E-mail dated 04.07.2015 from defendant no.3 Ex.D3W1/17 to plaintiff with respect to delay in shipment of goods and penalty for the same
18. E-mail dated 24.08.2015 along with trailing Ex.D3W1/18 e-mails, whereby the defendant no.3 forwarded e-mails dated 24.08.2015 and Raj Kumar 21.08.2015 received from defendant no.4 Tripathi Digitally signed by
19. E-mail dated 28.08.2015 along with Ex.D3W1/19 Raj Kumar Tripathi attachment thereto from defendant no.3 to Date: 2025.08.14 12:26:08 +0530 plaintiff forwarding pictures of defective CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 17 of 47 goods, as received from the defendant no.4
20. E-mail dated 31.08.2015 along with trailing Ex.D3W1/20 e-mails and attachments thereto, exchanged between defendant no.3 and defendant no.4
21. E-mail dated 02.09.2015 along with Ex.D3W1/21 attachments thereto from defendant no.4 to defendant no.3
22. E-mail dated 02.09.2015 from defendant no.3 Ex.D3W1/22 to plaintiff along with trailing e-mail whereby the e-mail dated 02.09.2015 received from defendant no.4 with regard to quality issues with the goods shipped by plaintiff was forwarded
23. E-mail dated 02.09.2015 along with trailing Ex.D3W1/23 e-mails and attachments thereto, exchanged between defendant no.3 and defendant no.4
24. E-mail dated 07.09.2015 along with Ex.D3W1/24 attachments thereto from defendant no.4 to defendant no.3
25. E-mail dated 13.09.2015 along with trailing Ex.D3W1/25 e-mails exchanged between defendant no.3 and defendant no.4
26. E-mail dated 13.09.2015 from defendant no.3 Ex.D3W1/26 to plaintiff along with trailing e-mail and attachment thereto regarding quality issues with the shipped goods as raised by defendant no.4
27. E-mail dated 14.09.2015 along with trailing Ex.D3W1/27 e-mails exchanged between defendant no.3 and defendant no.4
28. E-mail dated 14.09.2015 from plaintiff to Ex.D3W1/28 defendant no.3 along with trailing e-mails and attachments forwarding exchanges between defendant no.3 and defendant no.4 regarding quality issues with the shipped goods
29. E-mail dated 28.09.2015 from defendant no.4 Ex.D3W1/29 to defendant no.3 Raj 30. Debit Note No.2015-025 dated 25.09.2015 Ex.D3W1/30 Kumar issued by defendant no.4 against the plaintiff Tripathi for an amount of USD 3,47,602.58 Digitally signed by Raj Kumar Tripathi
31. E-mail dated 27.08.2015 along with trailing Ex.D3W1/31 Date: 2025.08.14 12:26:16 +0530 e-mails exchanged between defendant no.3 and defendant no.4 whereby the defendant CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 18 of 47 no.3 was following up on payments even though the LC had expired on account of plaintiff's delay
32. E-mail dated 24.11.2015 from defendant no.3 Ex.D3W1/32 to defendant no.1 along with trailing e-mail
33. E-mail dated 24.11.2015 from defendant no.1 Ex.D3W1/33 to defendant no.3 forwarding a Swift Message showing payment of USD 99,941.58 from defendant no.1 to plaintiff under Reference No.30/190079/15
34. E-mail dated 17.12.2015 from defendant no.4 Ex.D3W1/34 to defendant no.3
35. E-mail dated 18.12.2015 along with Ex.D3W1/35 attachments thereto, from defendant no.1 to defendant no.3
36. E-mail dated 19.12.2015 from defendant no.1 Ex.D3W1/36 to defendant no.3 forwarding 2 Swift Messages both dated 18.12.2015. whereby the amount of USD 1,62,112.45 received from defendant no.4 was partly transferred to plaintiff (USD 86,161,70) and partly to another seller (USD 69,941.40)
37. E-mail dated 16.09.2015 from defendant no.1 Ex.D3W1/37 to defendant no.3 along with attached Foreign Remittance Advice Slips
38. Foreign Remittance Advice Slips dated Ex.D3W1/38 (Colly.)
13.07.2016 received by defendant no.3 from defendant no.1 bank are
39. E-mail dated 10.02.2016 along with trailing Ex.D3W1/39 e-mail and Swift Message dated 09.02.2016 as part of the internal communication of defendant no.3
40. E-mail dated 12.02.2016 along with trailing Ex.D3W1/40 e-mail and Swift Message dated 12.02.2016 exchanged between defendant no.3 and plaintiff
41. Swift Message dated 08.07.2016 regarding Ex.D3W1/41 payment of EUR 70,033.58 (which was later converted into USD 77,197.19)
42. Swift Message dated 12.07.2016 regarding Ex.D3W1/42 Raj payment of EUR 70,033.58 (which was later Kumar converted into USD 77,197.19) Tripathi 43. E-mail dated 26.08.2016 along with trailing Ex.D3W1/43 Digitally signed by Raj Kumar e-mail exchanged between defendant no.3 Tripathi Date: 2025.08.14 12:26:22 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 19 of 47 and plaintiff with regard to EUR 70,033.58 (which was later converted into US $ 77,197.19) being advance payment against an unconnected shipment
44. E-mail dated 04.05.2016 along with trailing Ex.D3W1/44 e-mails and attachment exchanged between defendant no.3 and defendant no.4 regarding the proforma invoice for the unconnected shipment, against which the advance of EUR 70,033.58 (which was later converted into USD 77,197.19) was received
45. Certificate dated 29.06.2016 from defendant Ex.D3W1/45 no.4 for the purpose of treating it as being effectively the same entity for the purpose of payments as Como Leather Fashion GMBH (the entity which made the actual payment of EUR 70,033.58)
46. E-mail dated 04.07.2016 along with trailing Ex.D3W1/46 e-mails and attachments thereto exchanged between defendant no.1 and defendant no.3
47. E-mail dated 05.07.2016 along with trailing Ex.D3W1/47 e-mails exchanged between defendant no.4 and defendant no.3 with respect to adjustment of the payment of EUR 70,033.58 (which was later converted into US$77,197.19) against the pending invoices
48. E-mail dated 06.07.2016 from defendant no.4 Ex.D3W1/48 to defendant no.3 along with attachments thereto, informing them that the payment of EUR 70,033.58 (which was later converted into USD 77,197.19) has been amended to reflect defendant no.4 as the remitter
49. E-mail dated 06.07.2016 from defendant no.4 Ex.D3W1/49 to defendant no.3 along with attachments thereto, informing them about the payment of EUR 70,033.58 (which was later converted into USD 77,197.19)
50. E-mail dated 06.07.2016 along with trailing Ex.D3W1/50 e-mails exchanged between defendant no.1 to defendant no.3 regarding the payment of EUR 70,033.58 (which was later converted Raj into USD 77,197.19) Kumar Tripathi 51. E-mail dated 08.07.2016 along with trailing Ex.D3W1/51 Digitally signed by Raj Kumar e-mails exchanged between defendant no.1 Tripathi and defendant no.3 with regard to the amount Date: 2025.08.14 12:26:29 +0530 of EUR 70,033.58 (which was later CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 20 of 47 converted into USD 77,197.19)
52. Transcript of Whatsapp conversation Ex.D3W1/52 between Ms.Aditi Wasan and Mr. Surinder Pahwa from 08.09.2017 to 03.09.2018
53. Board Resolution in favour of Kr. Jatinder Ex.D3W1/53 Wasan issued by defendant no.3 company Findings and analysis 13.1 I have heard the arguments advanced by learned counsel for parties.
13.2 At the outset, learned counsel for defendant no.1 submitted that plaintiff claims to be a registered partnership firm but has not filed any document of list of registered partners which is mandatory requirement. Thus, the suit is not instituted by an authorized person and hence, suit of plaintiff is liable to be rejected.
13.3 Similarly, learned counsel for defendant no.2 submitted that the suit filed by plaintiff is barred by the provisions of section 69 (2) of The Indian Partnership Act, 1932 as the person instituting the suit is not shown as a registered partner in the Register of Firms. No Partnership Deed or any document to prove the existence of the partnership firm and partners therein has been filed and proved on record by plaintiff. The purported photocopy of acknowledgment of registration dated 20.05.1997 without any details as to its constitution or business is not a valid proof of registration of plaintiff firm. Thus, she prayed to dismiss the suit being not maintainable.
Raj Kumar 13.4 In the lines of arguments addressed by learned Tripathi counsel for defendants no.1 and 2, learned counsel for defendant Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 no.3 argued that Mr. Surinder Singh Pahwa is not duly authorized 12:26:36 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 21 of 47 to file the present suit. Mr. Pahwa has failed to prove the relevant documents on record in proof of plaintiff firm and his authorization to depose in the case on behalf of plaintiff. Thus, the suit of plaintiff is categorically barred u/s 69 (2) of The Partnership Act, 1932.
13.5 To the aforesaid arguments about the maintainability of the suit and same being barred u/s 69 (2) of The Indian Partnership Act, 1932, counsel for plaintiff chose not to make any submissions.
13.6 I have considered the arguments advanced on maintainability of the suit and perused the material on record. 13.7 Plaintiff claiming to be a registered partnership firm has filed the instant suit for recovery against defendants through its partner Mr. Surinder Singh Pahwa, who is reported to have been duly authorized to institute or defend any legal proceedings on behalf of plaintiff (para no.1 and 2 of the plaint). 13.8 Chapter VII of The Indian Partnership Act, 1932 (in short 'The Act') deals with registration of firms. Section 69 of The Act provides the effect of non-registration of the firms. For ease of convenience, section 69 (2) of The Act is extracted herein below:-
"69: Effect of non-registration.
69. (1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any Court by or on behalf of any person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is Raj Kumar or has been shown in the Register of Firms as a Tripathi partner in the firm.Digitally signed by (2) No suit to enforce a right arising from a contract
Raj Kumar Tripathi shall be instituted in any Court by or on behalf of a Date: 2025.08.14 12:26:43 +0530 firm against any third party unless the firm is registered and the persons suing are or have been CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 22 of 47 shown in the Register of Firms as partners in the firm.
(3) The provisions of sub-sections (1) and (2) shall apply also to a claim of set-off or other proceeding to enforce a right arising from a contract, but shall not affect--
(a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise the property of a dissolved firm, or
(b) the powers of an official assignee, receiver or Court under the Presidency-towns Insolvency Act, 1909 (2 of 1909), or the Provincial Insolvency Act, 1920 (5 of 1920), to realise the property of an insolvent partner. (4) This section shall not apply--
(a) to firms or to partners in firms which have no place of business in [the territories to which this Act extends], or whose places of business in [the said territories] are situated in areas to which, by notification under [section 56], this Chapter does not apply, or
(b) to any suit or claim of set-off not exceeding one hundred rupees in value which, in the Presidency-towns, is not of a kind specified in section 19 of the Presidency Small Cause Courts Act, 1882 (15 of 1882), or, outside the Presidency-
towns, is not of a kind specified in the Second Schedule to the Provincial Small Cause Courts Act, 1887 (9 of 1887), or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim."
13.9 The Partnership Deed is a foundational document for forming a partnership. It alone is not a proof of registration. The Partnership Deed needs to be accompanied by proof of its registration with the Registrar of Firms. The Register of Firms is open to public inspection upon payment of prescribed fees, allowing interested parties to verify the registration status of a Digitally signed by Raj Raj Kumar Tripathi Kumar Date: firm. In essence, the "Certificate of Registration" or a "Certified Tripathi 2025.08.14 12:26:52 +0530 copy of an entry in the Register of Firms" are primary and most reliable methods to prove the registration of a Partnership Firm CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 23 of 47 under The Indian Partnership Act, 1932.
13.10 The relevant portion of cross-examination of PW1 Mr. Surinder Singh Pahwa conduced by counsel for defendant no.1 on 27.01.2025 and by counsel for defendant no.2 on 17.03.2025 are reproduced herein below for ready reference:-
"27.01.2025 Q.1 How many partners are there in the plaintiff firm?
Ans. There are four partners.
Q.2 Is it correct that you have not filed along with the plaint Form-A?
Ans. No. We have filed Form-B. Q.3 Who were partners in the plaintiff firm at the time of filing of the present suit? Ans. Myself, Ravel Kaur Pahwa, Narender Singh Sethi and Nanak Singh Bajaj.
Q.4 Who are current partners of the plaintiff firm? Ans. Surinder Singh Pahwa, Prabhjyot Singh Pahwa, Harmeet Kaur.
The witness is shown Ex.PW1/2 and is asked Q.5 Who has signed Ex.PW1/2?
Ans. My signature appears at point-A, signature of Mr. Narender Singh at point-B, signature of Nanak Bajaj appears at point-C, Mrs. Ravel Kaur's signature appears at point-D and of Nirver Singh, my son appears at point-E. Q.6 I put it to you that the persons named by you, who have signed Ex.PW1/2 are not the registered partners of plaintiff firm and thus, had no authority to issue Ex.PW1/2 to you?
Ans. It is incorrect.
Q.7 Is it correct that when the suit was filed plaintiff did not file Form-A and Form-A has also not been filed after change of partners? Ans. Yes.
17.03.2025 Q.1 When was plaintiff partnership firm registered? Ans. 1995.
Q.2 Is it correct that you have not produced the Raj Partnership Deed of plaintiff firm along with the Kumar plaint?
Tripathi Ans. It is incorrect (Volunteered it is at page 65 to Digitally signed by Raj Kumar 71) Tripathi Date: 2025.08.14 Q.3 I put it to you that the document at page 65 is a 12:26:59 +0530
Retirement-cum-Induction Deed dated 07.08.2012 and not a partnership Deed as per your above CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 24 of 47 answer?
Ans. Yes. Because when the company was established was proprietorship. Q.4 Is it correct that you have not made any averment under the plaint or produced any document with respect to the current partners of the plaintiff firm?
Ans. It is correct."
13.11 From the aforesaid cross-examination of PW1, it is to be noted that plaintiff did not file the Partnership Deed along with the plaint. A Retirement-cum-Induction Deed dated 07.08.2012 was filed by plaintiff. PW1 has admitted that the said deed is not a Partnership Deed. He has further admitted that there is no averment in the plaint nor he has produced any document with respect to the current partners of the plaintiff firm. 13.12 PW1 has relied upon copy of Registration Certificate of Partnership Deed i.e. Form-B (Mark-A-colly). Form-A records the name of registered partners. The said Form-A has admittedly not been filed and proved on record by plaintiff. Plaintiff has only filed Form-B i.e. purported photocopy of acknowledgment of registration of firm along with Retirement-cum-Induction Deed dated 04.08.2012. The said documents have not been proved on record by plaintiff in accordance with law. 13.13 The Partnership Deed (as referred in para no.1 of the plaint) or any document to prove the existence of partnership firm and the partners therein on the date of filing of the suit i.e. on 28.08.2018 has neither been filed nor proved on record by plaintiff. The plaintiff has only filed a purported photocopy of Raj acknowledgment of the registration dated 20.05.1997 without any Kumar Tripathi details as to its constitution or business. From the said document, Digitally signed by Raj Kumar Tripathi it is not proved on record that Mr. Surinder Singh Pahwa was one Date: 2025.08.14 12:27:07 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 25 of 47 of the partners of the plaintiff firm on the date of filing of the suit. Thus, plaintiff has miserably failed to prove on record as to who were the registered partners of the plaintiff firm on the date of filing of the suit.
13.14 Ex.PW1/2 is the Authority Letter on the letter head of plaintiff firm. In the said Letter of Authority, neither the registration of the firm number nor the name of the registered partners are given.
13.15 For proving the registration of a partnership firm under The Indian Partnership Act, 1932, the most definitive and conclusive document is Certificate of Registration. The Registrar of firms issues the said Certificate on being satisfied that all the provisions of section 58 of The Indian partnership Act, 1958 have been complied with. The said Certificate also serves as legal evidence of the firm's existence and registered status. 13.16 Section 68 of The Act explicitly states that a certified copy of an entry relating to a firm in the Register of Firms can be produced as proof of the fact of registration of such firm, and of the contents of any statement, intimation or notice recorded or noted therein. Thus, a certified copy of the firm's details as maintained in the official register can be obtained by a party which holds significant evidentiary value to prove the registration of a firm.
13.17 In the instant case, plaintiff has neither filed nor proved the Certificate of Registration of plaintiff firm on record nor filed certified copy of an entry relating to the firm in the Raj Kumar Register of Firms showing the name of registered partners of the Tripathi Digitally signed firm. In Form-B, the date of registration is shown as 20.05.1997 by Raj Kumar Tripathi Date: 2025.08.14 12:27:13 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 26 of 47 while PW1 in his cross-examination deposed that the plaintiff's partnership firm was registered in 1995. Thus, there is discrepancy in the oral testimony of PW1 and the documentary evidence i.e. Mark-A (colly.) relied upon by him. In the absence of relevant documents i.e. Certificate of Registration of plaintiff firm or certified copy of entry of the firm issued by Registrar of Firm showing Mr. Surinder Singh Pahwa as registered partner of the firm, plaintiff has miserably failed to prove that it was a registered partnership firm on the date of filing of the suit and Mr. Surinder Singh Pahwa was one of the registered partners of the plaintiff firm on the date of filing of the suit. 13.18 As per section 69 (2) of The Act, a suit to enforce a right arising from a contract on behalf of a partnership firm against third parties can only be filed, if (i) the firm is registered and (ii) the person suing on behalf of the firm is shown in the Register of Firms as a partner in the firm.
13.19 In the case in hand, plaintiff has failed to prove on record that it was a duly registered firm under The Indian Partnership Act, 1932 on the date of filing of the suit. Plaintiff has further failed to prove on record that Mr. Surinder Singh Pahwa (PW1) was a registered partner in the Register of Firms. Thus, the instant suit filed by plaintiff is held to be not maintainable and barred by the provisions contained under section 69 (2) of The Indian Partnership Act, 1932.
Issue wise findings are as under:-
Raj Issues no.(i) & (iii) Kumar Tripathi Whether plaintiff is entitled for recovery of a sum of US$ 39,507 Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 12:27:21 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 27 of 47 as prayed for?OPP. AND
Whether defendants are jointly and severally liable to pay the amount as prayed for in the suit?OPP.
14.1 The aforesaid two issues are taken up together as they require appreciation of same set of facts and evidence. 14.2 Onus to prove the abovementioned issues lies on plaintiff.
14.3 In order to discharge the onus to prove the issue, plaintiff has examined its partner Mr. Surinder Singh Pahwa as PW1.
14.4 Mr. Pahwa filed his evidence by way of affidavit, Ex.PW1/A, wherein, he has deposed and corroborated about the facts as set out in the plaint. He has relied upon and proved the documents as mentioned in para no.7.2 of the judgment. 14.5 Mr. Pahwa has deposed on behalf of plaintiff firm on the basis of Authority Letter dated 01.08.2018, Ex.PW1/2. In preceding paragraph no.12.17 to 12.19, this Court has held that plaintiff has failed to prove that it is a duly registered firm with the Registrar of Firms. Plaintiff has further failed to prove that PW1 is its registered partner. The persons, who have signed the Authority Letter, Ex.PW1/2 have also not been proved to be the registered partners of the firm on the date of filing of the suit. Thus, plaintiff has miserably failed to prove on record that PW1 is authorized to file the present suit against defendants and depose on behalf of it.
Raj Kumar 14.6 Further, paragraphs no.48 to 56 of the affidavit of Tripathi Digitally signed by Raj Kumar evidence (Ex.PW1/A) of PW1 are found to be beyond pleadings.
Tripathi Date: 2025.08.14 12:27:28 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 28 of 47Hence, they are directed to be struck off from his evidence affidavit. It is well settled that no party can be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. Reliance is placed upon "Ram Sarup Gupta (dead) by LRs vs. Bishun Narain Inter College And Others" (1987) 2 Supreme Court Cases 555.
14.7 The instant suit filed by plaintiff is predicated on the irrevocable Letter of Credit in the sum of US$ 5,05,058.50 issued by defendant no.2 at the instance of defendant no.4 and advised by defendant no.1 on behalf of the original beneficiary/buyer, the defendant no.3 herein.
14.8 As per case of plaintiff, plaintiff had sent three shipments of goods of the value of US$ 1,38,069, US$ 1,45,728 and US$ 1,97,581.50 ordered by defendant no.3 for supply to defendant no.4. Plaintiff presented the material documents of dispatch in compliance with the terms of the said Letter of Credit to defendant no.1 through its bank i.e. Punjab and Sind Bank. Part payments amounting to US$ 99,949 and US$ 86,161.70 were received by plaintiff for first two consignments while no payment was received against the third consignment. Thus, plaintiff has claimed interest at the prevalent bank lending rate from the dates of three consignment of garments that are subject matter of the instant suit till payment is made.
14.9 Learned counsel for plaintiff submitted that Raj defendant no.1 is liable to pay the entire amount claimed in the Kumar Tripathi suit in the capacity of the advising bank of the subject Letter of Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 Credit having commercial banking duties contracted to discharge 12:27:34 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 29 of 47 which it has admittedly not discharged causing its loss to the extent claimed in the suit.
14.10 Per contra, learned counsel for defendant no.1 submitted that defendant no.1 acted as an advising bank and has only advised the transfer of LC in favour of plaintiff. Defendant no.1 has no privity of contract of any nature whatsoever with any of the parties and thus, is not, at all liable to make any payment to plaintiff. Defendant no.1 was only obligated to forward the payment once it is received from the German Bank. 14.11 For ease of convenience, the relevant portion of cross-examination of PW1 is reproduced hereunder for ready reference:-
"Q.9 Is it correct that letter of credit is between issuing bank and beneficary? Ans. Yes Q.10 Is it correct that in the present case LC was issued by the German Bank (Defendant no.2)?
Ans. Yes Q.11 Is it correct that your contract in the transaction was with defendant no.4 through defendant no.3?
Ans. Yes Q.12 In a LC transaction you are aware that there may be an advising bank, who advises LC to the beneficiary through banking channels?
Ans. Yes, it is correct.
Q.13 Is it correct that defendant no.1 was merely an advising bank of LC?
Ans. It is incorrect that defendant no.1 was merely an advising bank of LC. (Vol. It was a transferring bank and the documents were to be routed through defendant no.1). Q.14 I put it to you that defendant no.1 had taken no obligation to make any payment to Raj Kumar plaintiff unless the payment is received from Tripathi your contracting party defendant no.4 through defendant no.2?Digitally signed by
Raj Kumar Tripathi Ans. Yes. (Vol. Under the LC obligation Date: 2025.08.14 12:27:41 +0530 under Uniform Customs and Practices for CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 30 of 47 Documentary Credit-600 (UCP 600), bank has to advise that the document is accepted/rejected or existence of discrepancies within ten banking days. They have to notify to the bank in this case Punjab and Sind Bank. In this case ICICI Bank has notified within the said period).
Q.16 I put it to you that under UCP-600, the obligations of pointing/raising discrepancies is on the LC issuing bank and/or the negotiating bank, if any as the case may be and not on any advising bank.
Ans. It is correct that the obligation of pointing and raising discrepancies on the documents is of defendant no.2 bank, who is to do that in terms of UCP-600.
Q.17 Is it correct that you had routed the documents through your bank namely Punjab & Sind Bank?
Ans. Yes.
Q.18 I put it to you that as and when amounts were received from the German Bank, the same were credited to plaintiff through banking channel namely your bank? Ans. Yes.
Q.19 Is it correct that Punjab & Sind Bank acted as a negotiating bank namely you submitted the documents to Punjab & Sind Bank and it made payments to plaintiff and forwarded the documents to the German Bank (through ICICI Bank) for reimbursement? Ans. Yes.
Q.20 Is it correct that you never corresponded with ICICI Bank directly as it was your banker Punjab & Sind Bank (PSB), who had interacted being bank to bank communications in relation to chasing payment from defendant no.2?
Ans. Yes. The plaintiff has also corresponded with ICICI Bank when payment was not forthcoming.
XXXX XXXX XXXX
Q.26 Is it correct that any bank to a LC
Raj transaction is not concerned with the goods
Kumar which is subject matter of plaintiff's contract
Tripathi
Digitally signed by
with defendant no.3 and 4?
Raj Kumar Tripathi
Date: 2025.08.14
Ans. It is correct.
12:27:47 +0530
Q.27 I put it to you that the transferring of LC is also by the issuing bank by defendant no.3 and advised through ICICI Bank as is evident CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 31 of 47 from Ex.PW1/4?
Ans. It is correct that the transfer of LC was advised by ICICI Bank on instruction of defendant no.3.
Q.29 Is it correct that there is no privity of bank of plaintiff and ICICI Bank? Ans. It is correct.
Q.32 Is it correct that ICICI Bank never withheld any money received by it from the German Bank and instead made all payments whatever was received?
Ans. It is correct. (Vol. ICICI Bank did not follow the LC procedure and chase payment from German Bank).
Q.34 Is it correct that under UCP-600 advising bank acts as post office and merely is a channel of communication between issuing bank, beneficiary/beneficiaries bank? Ans. It is correct."
14.12 From the aforesaid cross-examination of PW1, so far as defendant no.1 is concerned, the following facts emerge:-
(i) LC is not issued by defendant no.1/ICICI Bank. The same was issued by the German Bank i.e. defendant no.2.
(ii) The plaintiff's contract in transaction was with defendant no.4 through defendant no.3.
(iii) There was no obligation on part of defendant no.1 for pointing and raising discrepancies on the documents and the same was to be done by defendant no.2 bank in terms of UCP-600.
(iv) There was no obligation of defendant no.1 to make any payment to plaintiff unless the payment was received from its contracting party i.e. defendant no.4 through defendant no.2
(v) Defendant no.1 acted only an advising bank i.e. a channel of communication between issuing bank and beneficiary's bank.
Raj Kumar (vi) Defendant no.1 has no privity of contract with plaintiff. Tripathi Digitally signed by Raj Kumar
(vii) Defendant no.1 never withheld any money received by it Tripathi Date: 2025.08.14 12:27:54 +0530 from German Bank and made all payments to plaintiff through its CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 32 of 47 bank whatever was received from defendant no.2. 14.13 It is not in dispute that the LC in question is governed by Articles of UCP-600. Article 2 defines advising bank as the bank that advises the credit at the request of the issuing bank. The issuing bank means the bank that issues a credit at the request of an applicant or in its own behalf. The expression 'Negotiation' means the purchase by the nominated bank of drafts (drawn on a bank other than the nominated bank) and/or documents under a complying presentation, by advancing or agreeing two advance funds to the beneficiary on or before the banking day on which reimbursement is due to the nominated bank. Article 14 deals with standard for examination of documents and Article 16 deals with discrepant documents, waiver and notice.
14.14 In the case in hand, defendant no.1 is only an advising bank which had no obligation to make payment to plaintiff. The liability of raising of discrepancy of documents was also of defendant no.2 and not of defendant no.1. As per PW1 as and when monies were credited by the German Bank through banking channel, the same was credited in the account of plaintiff. Thus, on the basis of evidence led by plaintiff and the facts which emerge from the cross-examination of plaintiff, the liability for claiming the dues cannot be fastened upon defendant no.1. 14.15 Coming to the liability of defendant no.2, learned counsel for plaintiff submitted that defendant no.2 is liable to make payment of entire amount claimed in the suit in its capacity Raj Kumar Tripathi of the issuing bank of the subject Letter of Credit applying the Digitally signed by Raj Kumar Tripathi statutory provisions of the UCP as also for fraudulently releasing Date: 2025.08.14 12:28:01 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 33 of 47 plaintiff's dispatched documents related to three consignments of garments to defendant no.4 which has enjoyed deliveries of plaintiff's supplies of garments without having to pay for them. 14.16 Per contra, learned counsel for defendant no.2 submitted that defendant no.2 has no liability and/or any obligation under the Letter of Credit after its expiry. There is no privity of contract between plaintiff and defendant no.2. She further argued that no payments were released (full or part) under LC No. 15.0506 by defendant no.2 as the same was time sensitive containing therein a date of expiry i.e. 05.08.2015. Even no payments were released by defendant no.2 after expiry of LC. She further submitted that the communication of deficiency was issued by defendant no.2 upon receipt of the documents under the said LC.
15.1 I have considered the submissions advanced by learned counsel for parties and perused the material on record. 15.2 Plaintiff has submitted that defendant no.2 is liable to make payment of entire amount as claimed in the suit in the capacity of the issuing bank of the subject Letter of Credit. 15.3 Article-2 of UCP-600 defines issuing bank which means 'the bank that issues a credit at the request of an applicant or on its own behalf'. Article-4 deals with Credits v. Contracts and it provides that "a credit by its nature is a separate transaction from the sale or other contract on which it is based. Banks are in no way concerned with or bound by such contract......" . Further, Raj "a beneficiary can in no case avail itself of the contractual Kumar Tripathi relationship existing between banks or between the applicant and Digitally signed by Raj Kumar Tripathi the issuing bank".
Date: 2025.08.14 12:28:08 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 34 of 4715.4 In the instant case, the Letter of Credit was issued by defendant no.2 on 26.05.2015, wherein defendant no.3 was the first beneficiary and plaintiff was the second beneficiary. The LC stood expired since 05.08.2015. As per Article-6 (e) of UCP-600, a presentation by and on behalf of the beneficiary must be made on or before the expiry date.
15.5 Relevant portion of cross-examination of PW1 is extracted herein below of ready reference:-
17.03.2025 Q.11 Do you know on what dates the documents referred to under paragraph no.8,9 and 10 of your affidavit Ex.PW1/A were forwarded to Punjab & Sind Bank by ICICI Bank?
Ans. The documents were received by ICICI Bank on 14.08.2015, 22.08.2015 and 07.09.2015 respectively.
Q.12 On what dates did you receive the payments mentioned in paragraph no.11 and 12?
Ans. The payments in the sum of US$ 99,941 has been credited on 07.12.2015 and the payment in the sum of US$ 86,161.70 has been credited on 18.12.2015.
Q.13 Under what provision of the UCP-600 is the defendant no.2 obligated to "make the entire payment covered by the invoices raised by the plaintiff"?
Ans. I am not sure of the exact provision. However, as per UCP-600, the LC says cannot amend the amount for documents they can refuse but cannot amend, if they want to amend, they have to inform the LC advising bank which in this case is ICICI Bank.
Q.15 Is it correct that the documents and invoices relating to the transaction under the suit have not been forwarded to defendant no.2 by the plaintiff firm?
Ans. Yes, it is correct.
Raj Q.18 Is it correct that defendant no.2 has not issued Kumar any undertaking to the plaintiff firm?
Tripathi Ans. Yes, it is correct.
Q.19 What services according to were to be Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 12:28:14 +0530 provided by defendant no.2 to the plaintiff?
Ans. Nothing."
CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 35 of 4715.6 From the aforesaid cross-examination of PW1, it is noted that plaintiff did not have any account or dealings with defendant no.2. Defendant no.2 has also not given any binding undertaking to plaintiff firm for making payment. Defendant no.2 did not provide any services to plaintiff. Indisputably, in the present case, the documents were received by defendant no.1 being the "advising bank" after the expiry date of LC and were thereafter presented to defendant no.2. Thus, defendant no.2 which is a issuing bank had no obligation to release any payment in respect of the LC. PW1 himself has admitted in his cross- examination that the documents were received by defendant no.1 on 14.08.2015, 22.08.2015 and 07.09.2015 i.e. after the expiry of LC which is 05.08.2015. PW1 has further admitted that no documents were presented to defendant no.2 nor any amount towards the payment were received from defendant no.2. Thus, plaintiff has failed to point out that defendant no.2 has been involved in the commercial transactions between plaintiff and defendants no.3 & 4.
15.7 Mark-D1W1/2 is the swift message dated 28.08.2015 and Mark-D1W1/3 is the swift message dated 01.09.2015 of defendant no.2. The said documents have been relied upon by defendant no.1's witness Mr. Tarun Kaushik during the course of his evidence. Defendant no.2 has contended that upon receipt of first set of documents from the presenter (defendant no.1), a swift Raj message dated 28.08.2015 was addressed by it to defendant no.1 Kumar Tripathi categorically stating that "DOCUMENTS UNDER A.M. L/C Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 12:28:22 +0530 ARE STILL UNPAID DUE TO THE FOLLOWING DISCREPANCIES. L/C IS EXPIRED". Further, on receipt of CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 36 of 47 second set of documents from defendant no.1, a swift messages dated 01.09.2015 was addressed by defendant no.2 to defendant no.1 stating that "DOCUMENTS UNDER A.M. L/C ARE STILL UNPAID DUE TO THE FOLLOWING DISCREPANCIES. L/C IS EXPIRED".
15.8 Pursuant to order dated 03.03.2020, statement of Mr. Naveen Chandra, representative of defendant no.1 under Order X of The Code of Civil Procedure, 1908 was recorded on 27.09.2022 and 18.10.2022. Mr. Chandra in his statement recorded on 18.10.2022 confirmed that the refusal by defendant no.2 to make payment under the LC was on account of the LC having already expired, by way of swift messages which was communicated to both defendant no.3 and the plaintiff. Thus, the stand of defendant no.2 stands fortified from the statement of Mr. Chandra that defendant no.2 refused to make payment under the LC to plaintiff as the LC had already expired. 15.9 In view of foregoing reasons and discussions, in the considered opinion of this Court, plaintiff has failed to prove its case against defendant no.2. Plaintiff has further failed to prove any liability or obligation of defendant no.2 to make any payment to plaintiff firm. Thus, no liability can be fastened upon defendant no.2 for making payment of the amount as claimed in the suit.
16.1 In respect of liability of defendant no.3, learned counsel for plaintiff submitted that defendant no.3 is liable to make payment of entire amount as claimed in the suit in its Raj Kumar capacity of the buyers which place the order on plaintiff and Tripathi Digitally signed transferred the benefit of LC issued by defendant no.2.
by Raj Kumar Tripathi Date: 2025.08.14 12:28:28 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 37 of 47Thereafter, upon defaults in payments due towards plaintiff, defendant no.3 admitted its liability by executing and complying with the admitted whatsapp agreement by making part payments aggregating a sum of Rs.1.25 Crores through its Director Mrs. Aditi Wasan to plaintiff's partner Mr. Surinder Singh Pahwa. 16.2 Per contra, learned counsel for defendant no.3 submitted that plaintiff and defendant no.3 have no privity of contract or any other legal relationship, therefore, defendant no.3 has no liability to make any payment to plaintiff. She submitted that plaintiff's contract for the goods supplied by it was concluded with defendant no.4 as the buyer/purchaser, and not with defendant no.3 and the payments were also received from defendant no.3 16.3 She further argued that defendant no.3 has no liability as an agent of defendant no.4. defendant no.3 was acting as an intermediary/agent of defendant no.4 and received commission from defendant no.4 in exchange of its services. 16.4 She further submitted that defendant no.3 has no liability under the Master Letter of Credit No.15.05506 dated 20.05.2015. The said Master Letter of Credit was issued by defendant no.2 on the instructions of defendant no.4 in favour of defendant no.3 as the first beneficiary, for the purpose of various transactions/shipments including but not limited to (i) the shipments of the goods to be supplied by plaintiff to defendant no.4 and (ii) the commission to be paid by defendant no.4 to Raj defendant no.3 in respect of the said shipment. It was for this Kumar reason that a total amount of the Master LC was US$ 970,132.15 Tripathi Digitally signed by Raj Kumar which was more than the total value of the goods to be supplied Tripathi Date: 2025.08.14 12:28:34 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 38 of 47 by plaintiff. The terms of the Master LC itself specified that it would be governed by the UCP-600.
16.5 On 27.05.2015, the said LC was amended and the last date for presentation of documents was changed to 05.08.2015. This amendment was made on the instructions of defendant no.4, which is evident from the amendment produced by plaintiff itself.
16.6 On 10.06.2015, again on the instructions of defendant no.4, defendant no.3 nominated the plaintiff as the second beneficiary and defendant no.1 bank irrevocably transferred a part of the Master LC i.e. to the extent of US$ 505,058.50 in favour of plaintiff for the purpose of making payments for the goods to be supplied.
16.7 However, the fact that defendant no.3 was the first beneficiary or that the plaintiff was made the second beneficiary on the instructions of defendant no.4 does not fasten any liability on defendant no.3 under the Master LC. Thus, it was submitted that defendant no.3 could have no liability towards the plaintiff under the said LC.
16.8 Referring to the written statement filed by defendant no.3, statement of parties recorded under Order X CPC and the affidavit filed on behalf of defendant no.3, counsel for defendant no.3 submitted that the goods were shipped by plaintiff outside the terms of LC since the LC had expired. Further, defendant no.4 received the goods directly and released payments through Raj its own banker viz. defendant no.2, independent of the LC. Kumar Tripathi Therefore, having accepted the payments received outside the LC without demur, plaintiff is now stopped from claiming any further Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 12:28:40 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 39 of 47 amounts which were due to it under the LC.
17.1 Considered the rival submissions of the parties and perused the material on record.
17.2 Plaintiff in its plaint has pleaded that defendant no.3 is a buying house engaged in the business of procuring orders for leather fashion garments and placing the same with fabricators/exporters like the plaintiff on behalf of the ultimate foreign buyers. Defendant no.4 is one such foreign buyer which had placed an order for leather garments with defendant no.3. 17.3 In the course of his deposition, PW1 relied upon the purchase order, Ex.PW1/3 and the invoices raised by plaintiff as Ex.PW1/5 (colly.), Ex.PW1/6 (colly.) and Mark-B respectively. 17.4 On the other hand, defendant no.3 in its written statement contended that it had introduced defendant no.4 to plaintiff firm as a buyer and seller respectively. In furtherance of the said association, defendant no.4 placed an order with plaintiff, in terms of purchase order dated on 09.03.2015. The said purchase order did not make any mention whatsoever of defendant no.3 either as a buyer, consignee or agent. Under the said purchase order, plaintiff firm raised the following four invoices on defendant no.4:-
a. Invoice No.054/15-16 dated 24.07.2015 for a sum of USD 138,069;
b. Invoice No.061/15-16 dated 24.07.2015 for a sum of USD Raj 23,680;
Kumar Tripathi c. Invoice No.074/15-16 dated 24.07.2015 or a sum of USD Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 145,728;12:28:48 +0530
d. Invoice No.090/15-16 dated 29.08.2015 for a sum of USD CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 40 of 47 197,581.
17.5 The purchase order Ex.PW1/3 (at page 72 of plaintiff's documents) was issued on a supplier Form provided by plaintiff which mentions 'the buyer' as defendant no.4. The Supplier Order Form was signed by defendant no.3 i.e. Wasan Overseas Pvt. Ltd. on behalf of defendant no.4. In the terms and conditions at S.No.2 of Ex.PW1/3, it is mentioned that 'inspection will be conducted by M/s Wasan Overseas Pvt. Ltd. on behalf of the buyer & the buyer shall also inspect at random. Thus, from the purchase order, Ex.PW1/3, it is clear that buyer is defendant no.4 and supplier is the plaintiff. The role of defendant no.3 is only confined to the inspection of the goods to be done on behalf of defendant no.4.
17.6 Ex.PW1/5 (colly.) are the invoices along with supporting documents issued by plaintiff in the name of defendant no.4. A bare look at the invoices, it is seen that plaintiff is the supplier and defendant no.4 is the buyer/consignee. 17.7 Ex.D3W1/32 (page 139-142) of defendant no.3's documents is e-mail trail dated 24.11.2015 between defendant no.1 and defendant no.3 showing remittance of USD 99941.58 was received by defendant no.1 from defendant no.4/its sister concern.
17.8 Ex.D3W1/35 (page 145-147) of defendant no.3's documents is e-mail dated 18.12.2015 between defendant no.1 and defendant no.3 showing the remittance of USD 162112.45 was received by defendant no.1 from defendant no.4/its sister Raj Digitally signed by Raj Kumar concern, out of which, USD 86161.70 was paid (Mark-D1W1/6) Tripathi Kumar Date:
to plaintiff against invoice numbers 074/15-16 and 090/15-16 Tripathi 2025.08.14 12:28:55 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 41 of 47 (Ex.D3W1/34).
17.9 Ex.D3W1/46 (page 161-166) of defendant no.3's documents is e-mail trail dated 04.07.2016 between defendant no.1 and defendant no.3 showing that the remittance of USD 77,197.19 was received by defendant no.1 from defendant no.4/its sister concern.
17.10 Ex.D3W1/45 (page 160) of defendant no.3's documents is Certificate dated 29.06.2016 from defendant no.4 confirming that defendant no.4 and Como Leather are sister concerns and payments were made by Como Leather on behalf of defendant no.4.
17.11 The aforesaid documentary evidence duly proved on record shows that there is no privity of contract between plaintiff and defendant no.3. The purchase order was placed by defendant no.4 through defendant no.3 upon plaintiff. The goods were supplied by plaintiff to defendant no.4 delivered in Germany. The invoices were raised by plaintiff directly against defendant no.4.
The payment was also made directly by defendant no.4 through its banker to plaintiff.
17.12 PW1 in his cross-examination has admitted that defendant no.4 was the buyer of the goods. He has further admitted that no commission/compensation or consideration of any kind was paid by plaintiff to defendant no.2 regarding the goods supplied by him. He could not show any document in support of his contention that the order was received from Raj defendant no.3 on behalf of defendant no.4. Thus, from the Kumar Tripathi admission of plaintiff himself, it is seen that the goods were sent Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 by plaintiff to defendant no.4. Plaintiff has failed to bring any 12:29:02 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 42 of 47 iota of evidence on record to show that there was any contract or legal relationship between it and defendant no.3. Accordingly, defendant no.3 cannot be held liable for any recovery of money pursuant to the contract for sale of goods between plaintiff and defendant no.4.
17.13 From the document, Ex.PW1/3 i.e. purchase order, it is noted that the order for supply of goods was placed by defendant no.3 on behalf of defendant no.4. Thus, it is seen that defendant no.3 was only acting as an intermediary/agent of defendant no.4. Defendant no.3 claims to have received commission from defendant no.4 in exchange for its services. PW1 in his cross-examination has admitted that no commission or consideration of any kind was paid by plaintiff to defendant no.3 regarding the supply of goods to defendant no.4. Thus, as per section 230 of The Indian Contract Act, 1872, defendant no.3 being an agent is not liable for the acts of its principal i.e. defendant no.4.
17.14 Plaintiff's claim is that upon default in payments, defendant no.3 admitted its liability by executing and complying with the admitted whatsapp agreement by making part payments aggregating a sum of Rs.1.25 Crores through its director Mrs. Aditi Wasan to plaintiff's partner Mr. Surinder Singh Pahwa. 17.15 The aforesaid claim of plaintiff has been disputed and denied by defendant no.3 by contending that Mrs. Aditi Wasan, in her personal capacity as a family friend of Mr. Surinder Singh Phawa had given him a personal loan which was sent from Raj Kumar Tripathi her personal account in the personal account of Mr. Pahwa, which Digitally signed by Raj Kumar Tripathi had no connection either to plaintiff or defendant no.3. No Date: 2025.08.14 12:29:08 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 43 of 47 accounts of either defendant no.3 or plaintiff firm were involved in the said transaction which is confirmed from the bank account statements of Mr. Surinder Singh Pahwa produced by plaintiff (page no.234-237 of plaintiff's documents as well as admission by PW1 during his cross-examination).
17.16 D3W1 Mr. Jatinder Wasan has relied upon and proved the transcript of whatsapp conversation between Mrs. Aditi Wasan and Mr. Surinder Pahwa from 08.09.2017 to 03.09.2018 as Ex.D3W1/52. PW1 in his cross-examination has admitted that all monies received by him by way of alleged settlement were received from the personal account of Mrs. Aditi Wasan. He could not show any document on record to support his contention that defendant no.3 never paid any monies either to him or the plaintiff by way of any alleged settlement. 17.17 The alleged executed whatsapp agreement as claimed by plaintiff has neither been filed nor proved on record by PW1. From the transcript of the whatsapp conversation that took place between Mrs. Wasan and Mr. Pahwa, wherein there is reference of a draft agreement sent by Mr. Pahwa purportedly between plaintiff and defendant no.3, Mrs. Aditi Wasan has refused to sign by stating that "this you make between you and me....I cannot and do not want to settle this matter" (Draft Agreement). The said whatsapp conversation has been admitted by plaintiff in its affidavit of admission/denial of documents. 17.18 The whatsapp conversation contains only unsigned Raj Kumar draft agreement. The said draft agreement has neither been filed Tripathi nor proved on record by plaintiff. Plaintiff has not stated Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 12:29:15 +0530 anything about the final version of the agreement arrived between CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 44 of 47 the parties, if any. Ex.D3W1/52 (page no.193-194) of defendant no.3's documents show that there was further communication between Mrs. Aditi Wasan and Mr. Pahwa regarding the amended version of the agreement. Thus, in the absence of any agreement being proved on record, reliance upon the same cannot be placed by plaintiff.
17.19 In view of foregoing reasons and discussions, plaintiff has failed to prove its case against defendant no.3 for seeking recovery of the amount as claimed in the suit. 18.1 Lastly, coming to the role of defendant no.4, learned counsel for plaintiff submitted that defendant no.4 is liable for payment of entire amount as claimed in the suit in its capacity as the recipient of all the goods supplied by plaintiff and never having raised any complaint of any deficiency whatsoever. 18.2 It is matter of fact that defendant no.4 is ex parte in the case. The defendant no.4's right to file written statement was directed to be closed vide order dated 27.09.2022. 18.3 The deposition of PW1 as mentioned in his affidavit of evidence, Ex.PW1/A qua defendant no.4 has gone unrebutted and unchallenged as defendant no.4 did not turn up to cross- examine plaintiff's witness in respect of the deposition and averments made by him. The case of plaintiff is based on documentary evidence. The documents proved by PW1 Mr. Surinder Singh Pahwa have not been disputed and denied by defendant no.4 and thus, they remained unchallenged. In view of uncontroverted and unrebutted testimony of PW1, there is no Raj Kumar reason to doubt his version as deposed by him in his evidence Tripathi Digitally signed affidavit, Ex.PW1/A and the documents proved by him.
by Raj Kumar Tripathi Date: 2025.08.14 12:29:21 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 45 of 4718.4 In view of above, I am of the view that on the basis of averments made in the plaint and the documents proved on record, plaintiff has succeeded to prove its case against defendant no.4 for an amount of US$ 39,507. Plaintiff has miserably failed to prove on record that defendants no.1 to 3 are also jointly and severally liable to make payment of the amount as claimed in the suit.
18.5 For the foregoing reasons and discussions and as already held in para no.13.19, that the suit filed by plaintiff is not maintainable and is barred by the provisions contained under section 69 (2) of The Indian Partnership Act, 1932, plaintiff is not entitled for recovery of the amount even against defendant no.4 as prayed in the prayer clause of the suit.
18.6 Issues no.(i) & (iii) are decided accordingly. Issue no.(ii) Whether plaintiff has suffered any loss, if so, to what extent?OPP. 19.1 Onus to prove this issue lies on plaintiff. 19.2 In para no.46 of the plaint, plaintiff has claimed a sum of Rs.97,96,180/- on account of the losses suffered by it under various heads.
19.3 PW1 in his cross-examination recorded on 17.03.2025, in reply to question no.20 has admitted that plaintiff has not attached any document to indicate the losses suffered by it. As plaintiff has neither filed nor placed on record any evidence showing the losses alleged suffered by it, plaintiff is not entitled Raj for an amount of Rs.97,96,180/- towards the losses as claimed in Kumar Tripathi the suit.
Digitally signedby Raj Kumar 19.4 Plaintiff has failed to discharge the onus to prove the Tripathi Date: 2025.08.14 12:29:28 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 46 of 47 issue no.(ii). Same is decided accordingly against the plaintiff and in defendants' favour.
Issue no.(iv) Whether plaintiff is entitled for interest, if so, at what rate and for which period? OPP.
20.1 Onus to prove this issue lies on plaintiff. 20.2 In view of findings recorded in preceding paragraph no.18.5 of the judgment in respect of issues no.(i) & (iii), wherein it has been held that plaintiff is not entitled to recover an amount of US$ 39,507 from the defendants, plaintiff is not entitled for grant of interest as prayed for.
20.3 Accordingly, this issue is decided against plaintiff and in favour of defendants.
Relief 21.1 In view of foregoing reasons and discussions and the findings returned on issues no.(i) to (iv), plaintiff is not entitled for grant of any relief. Accordingly, the suit filed by plaintiff is dismissed with cost.
22.1 Decree sheet be drawn accordingly.
23.1 File be consigned to Record Room.
Announced in the open court Digitally
signed by Raj
Raj Kumar
Dated: 14.08.2025 Kumar
Tripathi
Date:
Tripathi 2025.08.14
12:29:35
+0530
(RAJ KUMAR TRIPATHI)
District Judge (Commercial Court)-08, South-East District, Saket Courts, New Delhi CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 47 of 47