TaxTMI 
TaxTMI 
TaxTMI 
2025 (7) TMI 1627
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....ing 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 is allegedly an importer of agricultural products in....
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....ified 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 licensed Customs clearing and forwarding agent. The said agent was represented by three persons, nam....
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.... 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 only thereafter that issues were raised regarding alleged discrepancies with the non-fulfilment of clauses of the LC. Is....
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....hed 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 documents were supported by forged customs seals and fabricated signatures purporting to be from both Indian (Ghojadanga) and Bangladeshi (Bhomra) customs authorit....
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....ing 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 had issued a Letter of Authorization in favour of Mr. Prasanta Sarkar, who represented P.K. Ghosh and Sons. He maintained that P.K. Ghosh and Sons acted as the carrying and forw....
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....rmed 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 simultaneously issued legal notices dated 17th January, 2016 claiming damages for non-compliance under the trading agreement. 29. The present appeal has been filed only by the defenda....
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....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 the documents were cleared to forward the documents and consignment to the CNF agent of the importers (defendant nos. 2 and 3), being the defendant no. 8 herein. Thereafter it is the duty of the CNF agent of th....
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....ing 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 importer at Bangladesh the question of any fraud of the present appellants could not and does not arise. 38. Mr. Anirban Ray, learned Senior Counsel appearing on behalf of the plaintiff/respondent herein has support....
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....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 Bhomra Border. As such Clearing and Forwarding Agent, the assignment of this defendant was restricted to getting the documents passed by the Indian Customs at Ghojadanga, receive and get the consignment passed by Indian Customs and after....
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....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 price of the goods sold and delivered. 44. Moreover, the actual delivery of goods along with the documents to the defendant No. 8 had also not been established. The onus was on the appellants to prove delivery of goods to the importer. The products we....
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....t 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 consignments had been transported and handed over to defendant No. 8 as claimed by the present appellants however could not be substantiated. The defendant No. 8 acted on behalf of defendant Nos. 2 and as contended by the appellants the consignment was delivered to the said defendant no. ....