CS(COMM) 29/2022

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 17^th January, 2022.

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CS(COMM) 29/2022

SATISH KANSAL

..... Plaintiff

Through:

Mr. Abhishek Aggarwal, Advocate.

Versus

SYNERGY TRADECO NV & ANR.

..... Defendants

Through:

Mr. Ajay Monga with Mr. Ateev

Mathur and Mr. Amol Sharma

Advocates for HDFC Bank/R-2.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

[VIA VIDEO CONFERENCING]

JUDGMENT

AMIT BANSAL, J. (Oral)

IA No.719/2022(for exemption)

1.

Allowed, subject to all just exceptions.

2.

The application is disposed of.

IA No.720/2022(u/S. 12A of the Commercial Courts Act, 2015)

3.

For the reasons stated in the application, the same is allowed.

IA No.718/2022(u/O.XXXIX R.1&2 CPC)

4.

By way of the present application under Order XXXIX Rule 1 & 2 of

the Code of Civil Procedure, 1908 (CPC), the plaintiff seeks restraint order

against payments to the defendant no.1 of amounts covered under the Letter

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/000201

CS(COMM) 29/2022

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of Credit (LC) No.027LC01212850007 dated 12^th October, 2021 and LC

No.027LC01212600008 dated 24^th September, 2021, which are due for

payments on 17^th January, 2022 and 28^th January, 2022 respectively.

5.

Notice in the said application was issued on 14^th January, 2022 and

parties were asked to file short submissions. Short submissions have been

filed on behalf of the defendant no.2/HDFC Bank.

6.

None appears on behalf of the defendant no.1.

7.

The case of the plaintiff is that sale orders for certain goods/materials

were placed by the plaintiff on 13^th September, 2021 and 5^th October, 2021

with the defendant no. 1 and Letters of Credit (LCs) drawn on the defendant

no.2/HDFC bank were opened on 24^th September, 2021 and 12^th October,

2021 in the sum of US$ 1,50,877.05 and US$ 49,589.39. On 2^nd December,

2021 and 18^th December, 2021, when the goods/materials, which was a

subject matter of LCs, were received by the plaintiff, they was found to be

defective. Reliance is placed on the e-mails dated 23^rd December, 2021 and

16^th January, 2022, to contend that the defendant no.1 has acknowledged

that the goods supplied by the defendant no.1 to plaintiff were defective.

8.

Counsel for the plaintiff relies upon Clauses 43P and 45A of the LC

dated 24^th September, 2021 to contend that the description of

goods/materials supplied by the defendant no.1 did not match the

description mentioned in the LCs as also the partial shipment was not

allowed in terms of the LCs. Therefore, it is submitted that fraud has been

played upon the plaintiff by the defendant no. 1. It is further contended that

irretrievable injustice would be caused if the aforesaid amounts under the

LCs are remitted to the defendant no.1.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/000201

CS(COMM) 29/2022

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9.

Counsel appearing on behalf of the defendant no.2/HDFC bank

submits that the case pleaded by the plaintiff is not that of egregious fraud

and irretrievable injustice. The case of the plaintiff is that out of the four

containers supplied by the defendant no.1 to the plaintiff, only two

containers have defective goods. Therefore, at best, the case made out by

the plaintiff is with regard to breach of contract and it is not the case of

fraud.

10.

It is further submitted that SBI, Antwerp has already added its

confirmation to the LCs and therefore, SBI, Antwerp has become liable to

pay the defendant no.1 and consequently, draw upon the account of the

defendant no.2 for the amounts under the LC No. 027LC01212850007. The

acceptance of the documents was conveyed by the defendant no. 2/HDFC

bank to SBI, Antwerp on 27^th November, 2021 stating that the documents

are in accordance with the LC. In respect of second LC No.

027LC012126000