TaxTMI 
TaxTMI 
2025 (7) TMI 1627
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.... the trial and as such the question of adducing evidence on their behalf could not and does not arise at all. It was either an intentional act on their part to absolve or find an escape route for the defendant nos. 6 & 7, the present appellants from any liability due to lack of evidence but as luck would have it, the said ploy did not fructify and materialize as the said defendant nos. 6 and 7 had suffered a decree along with the other defendants. 3. The prefatory observation is on a careful reading of the pleadings, evidence and the findings of the learned Single Judge. 4. Curiously the defendant Nos. 6 and 7 are the appellants. Although separate written statement was filed by them and even at the trial they attempted to disassociate themselves from the liability on separate grounds, but they seemed to be united in appeal. 5. For the sake of convenience we briefly narrate the facts. 6. The plaintiff/respondent herein namely, Dalgreen Agro Private Limited is a company incorporated under the provisions and the Companies Act and engaged in several businesses including trading and export of agricultural products in Kolkata. The defendant no. 1 namely, Shaikh Asadur Rahman ....
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....oresaid commodities viz rice and wheat from the suppliers identified by the defendant nos. 1 4, and 5; b) The defendant nos.4 and 5 would take all necessary steps for transportation of the said commodities to the plaintiff. c) The defendant nos. 1, 4 and 5 also identified the defendant no.6 for the purpose of taking all necessary steps to transport the commodities from the said sellers to the plaintiff and from the plaintiff as the exporter to the defendant no. 1 and/or his representatives as the importer In Bangladesh. d) The plaintiff would receive the commodities as the purchaser and thereafter would send such goods to the defendant no. 1 and/or his associates namely, the defendant nos. 2 and 3. The plaintiff would be consignor and the defendant nos. 2 and 3 would be the respective consignees. e) The defendant no. 1 would open a Letter of Credit for each of the Invoices raised by the plaintiff on the defendant nos. 1, 2 and 3 through the Islami Bank of Bangladesh and the negotiating Bank of the plaintiff was to be ICICI Bank, Bhowanipore Branch, Kolkata. f) The plaintiff's goods would be handled by the defendant no. 7 who was a li....
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....ement in the deposition of the Appellant No. 1/ Defendant No.6. 11. Three Letters of Credit were thereafter issued: LC No. 86815010372 dated 20.04.2015 (USD 123,500) by Mamun Brothers (Defendant No. 2); LC No. 86815010373 (USD 152,500) by Shad Enterprises (Defendant No. 3); and LC No. 86815010330 (USD 152,500), by Mamun Brothers. All three LCs were issued by Islami Bank of Bangladesh and routed for negotiation through ICICI Bank, Kolkata. The plaintiff duly raised invoices dated 17.04.2015, 20.04.2015, and 22.04.2015 and submitted supporting export documentation to ICICI Bank, including packing lists, insurance policies, phytosanitary certificates, and customs-endorsed export declarations bearing the stamp of Ghojadanga Land Customs (Exhibit G, H and I, with objection). By a letter no.2470 dated 2 December, 2015, the Assistant Commissioner of Customs, Ghojadanga Land Customs, India had also certified that the exports were effected under the aforesaid unpaid Letters of Credit (LC) and shipping bills for which the payments had not been received. 12. The documents submitted by the plaintiff were verified by ICICI Bank and then forwarded to the issuing bank in Bangladesh. It was ....
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....sponse to the above email, Dalgreen responded by email dated 5th February, 2016 (Exhibit BB with objection) stating that the goods under the LCs had been dispatched in April. Moreover, refuting the discrepancies as frivolous and it was pointed out that the non-receipt of goods was first communicated by the importers vide letters dated 31st December, 2015 and 1st January, 2016 (Exhibit Q, R, S with objection) several months after the goods had been dispatched in April 2015, indicating that the objection was an afterthought. 17. Subsequent investigations conducted by the Bangladesh Customs Authority i.e. the Investigation Report dated 18th June 2017, revealed that the very same goods initially shipped by the plaintiff under the three dishonoured Letters of Credit were made to enter into Bangladesh under three new LCs, namely LC Nos. 868150103353, 86815010279, and 86815010339. These new LCs were issued by Maa Banijjaya Bhandar, a firm owned and controlled by Defendant No. 1. The export documents accompanying these consignments misrepresented the identity of the consignor, showing Nivedita Exports in place of the plaintiff, Dalgreen Agro Pvt. Ltd. The investigation found that these ....
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.... was also proved. 21. The plaintiffs in support of their case have adduced the following three witnesses-DW 1-Utpal Chaudhary, DW 2 - Rajesh Chura and DW 3 - Investigating Officer, Bhowanipore PS. 22. DW 1, Utpal Chaudhary, served as the Chief Operating Officer (COO) of the Plaintiff Company at the time of the dispute. In his capacity as COO of Dalgreen Ltd., he was responsible for overseeing the entire operational chain to ensure its smooth functioning. 23. He deposed that the transportation of the consignments was carried out by R.B. Roadways (Defendant No. 6), whose role was to deliver the goods to Defendants Nos. 1, 2, and 3 in Bangladesh. He further stated that the entire transaction had been arranged by the defendants themselves, and specifically, that the appointment of R.B. Roadways had been made by Defendants Nos. 1, 2, 3, 4, and 5 (Q.36). It was also accepted by him that Defendant No. 6, R.B. Roadways, was required to hand over the consignment to Defendant No. 7. Additionally, DW 1 acknowledged that payments relating to the export shipments had been completed in respect of both Defendants Nos. 6 and 7. 24. Furthermore, DW 1 admitted that the Plaintiff Company ....
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....ation and stated that the plaintiff had lodged a complaint against defendants nos. 2 and 3 with the High Commission of India in Dhaka, which had taken some action. Although he confirmed that the police complaint at Bhowanipur Police Station led to an FIR he did not know if the FIR specifically named defendants nos. 6 and 7. 27. When questioned about Md. Zakir Hossain of Raj Traders, he stated he had not met him but knew he was a clearing agent for defendants nos. 2 and 3 at Bhomra Port. He acknowledged the plaintiff had made payments but disagreed that defendant no. 7 had fully performed its duties. 28. The plaintiff's COO (PW1) testified that the plaintiff was not involved in selecting either the transporter or the customs agent and that the entire logistical chain was managed by Defendant Nos. 1 to 5 (PW1). The substitution of R.B. Roadways for Jain Parivahan was only revealed after the goods had been dispatched. Importantly, Indian Customs endorsements confirmed that the goods had exited Indian territory at Ghojadanga and entered Bangladesh. Despite this, the importers, Defendants Nos. 2 and 3 denied receipt of goods via SWIFT messages (Exhibit Q, R, S with objection), and....
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....ossed the border. Then when the trucks had come back they had submitted the receiving challan. Then we had prepared a bill and submitted it to Dalgreen. Then they used to pay me through cheque. 34. So, you are aware personally and have seen the consignment cross the border-Am I correct ?/ Yes, I have seen the consignment crossed the border. After giving the gate pass the drivers entered Bangladesh. After unloading the consignment the drivers gave me back the challans. Then through this challan I prepared a bill. Then Dalgreen used to pay me through cheque after I submitted the challans to them. The dates are written behind the challans on which I have submitted the challans. Then may stamped and received the challans." 33. The defendant no. 7 in his written statement stated that it was a recognised clearing and forwarding agent duly registered with the customs authorities at Kolkata and the plaintiff had appointed him as its CNF agent for export to Bangladesh. It was also been specified that the assignment of this defendant was limited to getting documents passed by the Indian Customs at Ghojadanga, to receive and get the consignment passed by Indian Customs and after t....
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.... were not the purchaser. The plaintiff has failed to establish that all the defendants have the same character and they have a joint liability to discharge. It is submitted that the learned Single Judge while recording that it was primarily a breach of the defendant nos. 1 to 5 and in spite of the fact that the goods had crossed the border and the importer had received the goods, had held that the negligence of the defendant Nos. 6 & 7 is established. If it were a claim on account of negligence they would possibly have had limited liability on account of damages that could have been assessed. The said defendants have acted bona fide and had merely discharged their function and duties entrusted upon them. 37. Mr. Sengupta has referred to the plaint in extenso to show that the plaintiff has made an attempt to establish fraud on the part of the defendants which include the defendant Nos.6 and 7 (the present appellants) but had failed to particularize the said fraud or to establish at the trial that there has been a fraud perpetrated by the said defendants along with the other defendants. Having regard to the fact that the goods have been delivered to the accredited CNF Agent of the....
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....porter and the said consignment note was organized by the defendant No. 7 herein. Apart from what has been stated in this paragraph, this defendant has no further obligation to follow. All the trucks carrying the consignment of this defendant has crossed the Border and the obligation of this defendant was completely fulfilled This defendant thereafter raised the bills upon the plaintiff and the same has duly been paid by the plaintiff without any demur or objection. This defendant states that surprisingly this defendant has been made a party to the proceedings but "Jain Parivahan" is conspicuously absent from the list of defendants." 40. The defendant no. 7 in paragraph 5 of the written statement while acknowledging that he was appointed as clearing and forwarding agent for the purpose of export of rice and wheat of the plaintiff to Bangladesh has stated as follows :- "This defendant is a recognized Clearing & Forwarding Agent duly registered with the Customs Authorities at Kolkata and in the usual course of business, the plaintiff has appointed this defendant as its Clearing & Forwarding Agent for the purpose of export made by the plaintiff to Bangladesh at Ghojadanga ....
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.... the consignment note of Jain Parivahan which is the bank approved transporter and which ought to have been the transporter for the purpose of transportation of the goods under the Letters of Credit. The evidence of the defendant Nos. 6 and 7 have clearly established that they had knowledge that the defendant no. 6 was not the bank approved transporter and has used the consignment note of Jain Parivahan at the time of handing over the documents at the border for facilitating the delivery of goods to defendant No. 8 the CNF agent of the importers, defendant Nos. 1,2 and 3 in Bangladesh. 43. A few of the documents exhibited by the plaintiffs were marked with objection and we have referred to the said documents in the foregoing paragraphs. However, nothing much turned on objection being raised with regard to the said documents being marked as exhibits. The discrepancy for which the negotiating bank of the importer had refused to honour the payment under the LC is fortified by the evidence adduced and established by the plaintiff at the trial and the present appellants have failed to give any plausible explanation for their acts and conduct that had resulted in non-payment of the pr....
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.... not the approved transporter and used consignment note of Jain Parivahan due to which the payment was denied to the plaintiff. It is also proved from the evidence that since inception the defendants have conspired to cheat the plaintiff and committed the fraudulent act as the rice and wheat exported by the plaintiff was duly received at the Bangladesh border which was confirmed by the Custom Authorities of both the countries but in spite of receipt of the said consignment the defendants failed to pay the amount to the plaintiff on the ground that the goods were not transported through bank's approved transporter. On the other hand, the defendant nos. 2 and 3 have admitted that the shipment under Letters of Credit No. 086815010387 dated 23rd April, 2017, Letter of Credit No. 086815010278 dated 19th March, 2015 and No. 086815010322 dated 2nd April, 2015 were duly completed and payment has also made under the said Letters of Credits." 49. At the trial it has been established beyond any doubt that the plaintiff had no knowledge whether the consignment was transported through the approved transporter of the Indian Bank's Association or not. 50. That the cons....