TaxTMI 
TaxTMI 
2012 (1) TMI 392
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....al would be decided with reference to the pleadings in the plaint and the ex-parte evidence led at the trial. 2. We therefore commence our journey by noting the relevant averment in the plaint. They are to be found in paragraphs 3 to 7 of the plaint, which we shall be soon reproducing, but before that would highlight that the respondent 'Shree Acids & Chemicals Ltd.' was the plaintiff and the appellants were the defendants in the suit. The two appellants are: 'M/s.Eloff Hansson (India) Pvt. Ltd.' impleaded as defendant No. 1 and 'M/s.Eloff Hansson Abforsta Sweden' impleaded as defendant No. 2. Paragraphs 3 to 7 of the plaint read as under:- 3. The defendant No. 1 is a Private Limited Company and has....
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....been containerized. Accordingly, the plaintiff company got the L/C amended for US$ 15000. The shipment for 171.985 MT arrived at Mumbai on or about 15th April 1997. The goods were got cleared by the plaintiff company after payment of requisite custom duties and other charges amounting to Rs. 54,824/- (Rupees Fifty four thousand eight hundred twenty four only) and Rs. 1,37,600/- (Rupees One Lakh Thirty Seven thousand Six hundred only) respectively. However, when the goods were decontainerized and were loaded in the trucks, it was revealed that the mixed waste was bad. It contained high percentage of moisture. Out of the total goods received, 56.220 MT was sent by the plaintiff company to the factory of M/s.Shree Industries Limited, situated ....
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....material as it is. However, no breakup whatsoever was given of the said amount. 3. A perusal of the aforesaid paragraphs of the plaint would reveal that qua defendant No. 1 it was pleaded in the plaint that it is a private limited company incorporated in India and was the wholly owned subsidiary company of defendant No. 2, registered in Sweden. It is further pleaded against defendant No. 1 that it represented that 300 MT of mixed waste could be supplied against Letter of Credit to be opened in the name of M/s. Espee Trading Corporation, 1359, Broadways, USA and that, as pleaded in paragraph 5, the plaintiff placed an order for 100 MT mixed waste and opened an LC in favour of M/s.Espee Trading Corporation. It is further pleaded that the g....
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....le or purchase of goods for a merchant residing abroad, or where the agent does not disclose the name of the principal and lastly when the principal though disclosed cannot be sued. 7. The pleadings in the plaint would reveal that vis-a-vis defendant No. 1 it has specifically been pleaded by the plaintiff that at the instance of defendant No. 1 the plaintiff agreed to import goods to be exported from USA by M/s.Espee Trading Corporation on whom the Letter of Credit was to be opened and was opened. Though not pleaded in the plaint as to what was the role of defendant No. 1, it is apparent from the pleadings that the case of the plaintiff was that defendant No. 1 was acting on behalf of M/s.Espee Trading Corporation i.e. was the agent of M....
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..../L date. Price basis: CIF Bombay by sea. Shipment: Jan/Feb. 97 Payment: By an irrevocable telex operative Letter of Credit opened through any bank in New York and payable at the counters of negotiating Bank in New York. LC to be advised through Bank of India, 277 Park Avenue, New York, NY 10172 USA. L/C SHOULD INDICATE FOLLOWING SPECIFIC CLAUSE DRAFTS DRAWN ON NEGOTIATING BANK IN NEW YORK ACCEPTABLE AND L/C MUST AUTHORISE THE NEGOTIATING BANK TO CLAIM REIMBURSEMENT ON DUE DATE BY DEBITING THEIR ACCOUNT MAINTAINED WITH THEM (OR) OTHER BANK IN NEW YORK. Beneficiary: M/s.Espee Trading Corpn. 1359 Broadway Suit No. 2210, NY 1100 18, New York USA. ....