REVA KHETRAPAL, J.

1. The aforementioned suit has been filed by the Plaintiff as sole proprietor of M/s. Jain International, engaged in the business of manufacture and export of garments, for the recovery of the value of goods exported by him from the Defendant to whom the goods were entrusted for shipment.

2. The facts relevant for the decision of the suit are that one of the buyers of the Plaintiff, namely, ITTIERRE SPA, ZONA INDUSTRIALE, 86090 PETTORANELLO DI MOLISE (ISERNIA) ITALY, a Company based in Italy, placed orders upon the Plaintiff for Embroidered Ladies Readymade garments. Pursuant to the same, the said buyer opened a Letter of Credit in favour of the Plaintiff, being L/C No. 411831195757 dated 18.11.2008 for a total value of Euro 407,201.25 (Euro Four Hundred and Seven Thousand Two Hundred and One and Twenty Five Centimes), against which export shipments to the tune of Euro 110682.21 of which the Rupee equivalent was approximately 73 Lacs were effected.

3. It was a condition of the Letter of Credit that the Plaintiff had to book the goods for carriage only through the Defendant which was the nominated Freight Agency through which the goods were to be transported to the buyer. It was also a term of the Letter of Credit that the Airway Bill was to be issued to the order of the buyer, namely, ITTIERRE SPA (hereinafter “ITTIERRE”) and the party to be notified was stipulated as L. GERMANO & COS RL COMMERCITY VIA PORTUENSE 1555, ISOLA P4Z-0014H ROME ITALY (hereinafter “GERMANO”).

4. The Plaintiff entrusted the goods to the Defendant for consignment to the buyer in accordance with the aforesaid terms of the Letter of Credit and issued written instruction notes to the Defendant, one for each of the three shipments made. In the said instructions, the Plaintiff instructed the Defendant to consign the goods to the buyer and also mentioned the name of the party to be notified, namely, GERMANO. The Plaintiff submits that the instructions contained in the Letter of Credit were required to be followed to enable payments to be realized thereunder. The details of the three House Airway Bills issued by the Defendant and handed over to the Plaintiff were as under:-

(a) HAWB No.004659 dated 15.01.2009.

(b) HAWB No.004703 dated 29.01.2009.

(c) HAWB No.004707 dated 03.02.2009.

5. In accordance with the requirements of a House Airway Bill, the number of the Master Airway Bill issued by the actual carrier airlines with whom the Defendant claimed to have booked the cargo was entered in each of the above House Airway Bills issued by the Defendant. The Master Airway Bills were, however, not provided to the Plaintiff.

6. The Plaintiff then presented the necessary documents with its Bankers against the Letter of Credit along with the House Airway Bills issued by the Defendant. When the Plaintiff’s Bankers, in turn, presented the said documents to the Bankers of the buyer, the buyer’s Bankers refused to make payment under the Letter of Credit and returned the documents to the Plaintiff’s Bankers, who submitted them to the Plaintiff.

7. Faced with the buyer’s refusal of payment against the Letter of Credit, the Plaintiff enquired of the Defendant the status of the goods that had been consigned to the buyer as per the House Airway Bills of the Defendant. The Plaintiff was shocked to note from the documents provided by the Defendant, namely, the certification of delivery by the carrier airlines, viz., Emirates Sky Cargo and Qatar Airways that the cargo booked with them by the Defendant had already been delivered. The Plaintiff, surprised as to how the goods could have been delivered when the original House Airway Bills of the Defendant had been returned and were in its possession, requested the Defendant to provide the copies of the Master Airway Bills, which were then made available by the Defendant to the Plaintiff. The Plaintiff, from the said copies of the Master Airway Bills, came to know that the Defendant had consigned the goods