2016 (8) TMI 1533

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.... France entered into a contract with the plaintiff who processed frozen sea food in India. The plaintiff accordingly exported 700 cartons of frozen sea food pursuant to Ext. A2 purchase order as amended by Ext. A3 purchase order issued by the first defendant. Defendants 4 and 5 are the partners of the first defendant and the third defendant is the negotiating bank of the second defendant at France through whom the letter of credit was to be encashed. The cargo shipped from Kochi in India on 30.06.1994 on the basis of an irrevocable letter of credit reached the destination at Marceille in France on 16.08.1994. But the payment towards the value of the cargo was not effected to the plaintiff and hence the suit was laid for realisation of a sum....

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....fendant or on defendants 4 and 5 as per the terms of Ext. A3 amended purchase order. A.S. No. 152/1999 filed by the plaintiff to extend the liability to defendants 1, 4 and 5 was dismissed by this court by judgment dated 10.02.2003. This court opined that a personal liability could be fastened on the Agent only if the Principal is undisclosed or cannot be sued even if disclosed. This court relied on Exceptions (2) and (3) of Section 230 of the Indian Contract Act, 1872 (the 'Act' for short) to hold that the Agent is not personally liable. The plaintiff pursued the matter in Civil Appeal No. 635/2005 whereupon the Supreme Court by order dated 20.01.2005 remanded the case to this court for decision on merits. The Supreme Court in Coch....

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....ion of personal liability under a contract as per Exception (1) to Section 230 of the Act is however rebuttable and not absolute. The defendants have a case that the very contract of the second defendant with the plaintiff and its local banker (Indian Bank, Kochi) was scrapped by the Commercial Court Records of Marseille. The foreign judgment found amongst the records was refused to be marked for the reason that the evidence in the case had been closed and arguments commenced. The foreign judgment declared the contract entered into between the plaintiff and the second defendant as well as the credit facility as being null and void. 6. The trial court though has not admitted the foreign judgment in evidence has curiously enough held that th....

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....al of the issue on merits unless the foreign judgment is dislodged for weighty reasons which are wholly absent. We would have remanded the case to the trial court to enable the parties to have the foreign judgment admitted in evidence and for a finding on its conclusiveness. The parties could also be afforded an opportunity to lead further evidence to establish that the foreign judgment was obtained by fraud and hence not conclusive. But we are shocked to decipher that defendants 2 and 3 have not been impleaded in the appeal suit wherein defendants 1, 4 and 5 alone are the respondents. A remand of the suit for retrial of the issues is impossible unless all the defendants in the suit are eo-nominee impleaded in the appeal suit also against t....