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* IN TIIE HIGH COmX OF DELHI AT NEW DELHI
I- RFA (OS) 109/2013, C.M.APPL. 13237/2013
BANK OF INDIA Appellant
Through: Ms. Manjula Gandhi with
Mr. Shivanshu Kumar, Advocates.
* IN TIIE HIGH COmX OF DELHI AT NEW DELHI
I- RFA (OS) 109/2013, C.M.APPL. 13237/2013
BANK OF INDIA Appellant
Through: Ms. Manjula Gandhi with
Mr. Shivanshu Kumar, Advocates.
VERSUS
M/S. NIRLON LIMITED & ORS.
Through; Mr. Anshu Mahajan with
Mr. Karan Arora, Advocate for R-1.
Mr. S.N. Mehrotra, Advocate for R-3.
Through; Mr. Anshu Mahajan with
Mr. Karan Arora, Advocate for R-1.
Mr. S.N. Mehrotra, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BI.E MR. JUSTICE NAJMI WAZIRI
%
0^:12.2013
Respondents
The present appeal is directed against an order of the learned Single Judge rejecting the appellant's leave to defend application under Order-37, Rule III (V), CPC. The suit was filed by the respondent M/s Nirlon Limited stating that the appellant bank issuing the Letter of Credit No.16/24 for Rs.20,92,802/40 dated
12.06.1999 (which was to expire on 5.9.1999) defaulted and did not honour its commitment even though the documents were presented to it.
Xhis Court does not propose to deal with the merits of the case in detail in view of the order that is being made with the consent of the parties. The learned
Single .ludge rejected the bank's application for leave to defend holding that the rejection of 1999 was not unqualified and was conditional and that this coupled with the bank's conduct in not returning the documents meant that it could not be deemed to have refused them. On this finding and upon an interpretation of
Articic 13 and 14 of the Uniform Customs and Practice for Documentary Credit
(UCPDC) 500, learned Judge refused leave and decreed the suit in full.
2013:DHC:8580-DB r
Counsel for the parties made submissions with regard to the applicability or otherwise of the various provisions of the UCPDC. Equally, counsel for the appellant contended that despite noticing the appellant's contention that the suit had not disclosed about its being filed by an authorised person and also in the absence of a valid Resolution of the company supporting the suit or authorising its institution, the entire proceedings were not njaintainable. However, the state of pleadings and more importantly the documentary material on the record were not discussed in the impugned order.
Having heard the counsel for the parties, this Court is of the opinion that even though the appellant's contention in this regard have been noticed at paragraph 10, there is no finding based upon an analysis of material on record.
We also had the benefit of considering the suit file which prima facie does not disclose any document in support ofthe plaintiffs contention in that regard.
Having regard to the above state of affairs and the other issues involved, this Court is of the opinion that the matter requires to be reconsidered by the
Single Judge who shall proceed to hear the parties afresh. Learned counsel for the parties stated that suit itself can be heard finally. Counsel for the parties agreed that no oral evidence shall be led in this regard. In the circumstances, appellant/defendant is granted leave to contest the suit unconditionally. Written statement will be filed within two weeks. The matter shall be listed before the
Single .ludge on 13"^ January, 2014.
After framing the issues, the Court shall proceed to hear the suit finally upon the documentary materials available with it. The learned Single Judge is also requested to expeditiously dispose of the suit having regard to the fact that it was filed in the year 2001.
The appeal is allowed in the above terms. i
DECEMBER Oj, 2013/vks/
S. RAVINDRA BHAT, J
/AZIRI, J
2013:DHC:8580-DB
HON'BI.E MR. JUSTICE NAJMI WAZIRI
%
0^:12.2013
Respondents
The present appeal is directed against an order of the learned Single Judge rejecting the appellant's leave to defend application under Order-37, Rule III (V), CPC. The suit was filed by the respondent M/s Nirlon Limited stating that the appellant bank issuing the Letter of Credit No.16/24 for Rs.20,92,802/40 dated
12.06.1999 (which was to expire on 5.9.1999) defaulted and did not honour its commitment even though the documents were presented to it.
Xhis Court does not propose to deal with the merits of the case in detail in view of the order that is being made with the consent of the parties. The learned
Single .ludge rejected the bank's application for leave to defend holding that the rejection of 1999 was not unqualified and was conditional and that this coupled with the bank's conduct in not returning the documents meant that it could not be deemed to have refused them. On this finding and upon an interpretation of
Articic 13 and 14 of the Uniform Customs and Practice for Documentary Credit
(UCPDC) 500, learned Judge refused leave and decreed the suit in full.
2013:DHC:8580-DB r
Counsel for the parties made submissions with regard to the applicability or otherwise of the various provisions of the UCPDC. Equally, counsel for the appellant contended that despite noticing the appellant's contention that the suit had not disclosed about its being filed by an authorised person and also in the absence of a valid Resolution of the company supporting the suit or authorising its institution, the entire proceedings were not njaintainable. However, the state of pleadings and more importantly the documentary material on the record were not discussed in the impugned order.
Having heard the counsel for the parties, this Court is of the opinion that even though the appellant's contention in this regard have been noticed at paragraph 10, there is no finding based upon an analysis of material on record.
We also had the benefit of considering the suit file which prima facie does not disclose any document in support ofthe plaintiffs contention in that regard.
Having regard to the above state of affairs and the other issues involved, this Court is of the opinion that the matter requires to be reconsidered by the
Single Judge who shall proceed to hear the parties afresh. Learned counsel for the parties stated that suit itself can be heard finally. Counsel for the parties agreed that no oral evidence shall be led in this regard. In the circumstances, appellant/defendant is granted leave to contest the suit unconditionally. Written statement will be filed within two weeks. The matter shall be listed before the
Single .ludge on 13"^ January, 2014.
After framing the issues, the Court shall proceed to hear the suit finally upon the documentary materials available with it. The learned Single Judge is also requested to expeditiously dispose of the suit having regard to the fact that it was filed in the year 2001.
The appeal is allowed in the above terms. i
DECEMBER Oj, 2013/vks/
S. RAVINDRA BHAT, J
/AZIRI, J
2013:DHC:8580-DB
JUDGMENT