Decided on March 12,2009

James Finlay Plc Appellant
Mahi Fish Processing Ltd. Respondents


MD.FAZLUL KARIM,J. - (1.) These Petitions for Leave to Appeal at the instance of appellants are directed against the judgment and decree dated 5-12-2007 passed by the High Court Division in First Appeal No. 16 of 1998 dismissing the appeal by upholding the judgment and decree dated 31-8-1997 passed by the Subordinate Judge, 2nd Court, Chittagong in Money Suit No. 3 of 1992 decreeing the suit.
(2.) The facts alleged in the case, in short, are that the plaintiff as an exporter of frozen fish entered into an agreement with defendant No. 5 'Flag Importers Inc' of USA through their agent defendant No. 6 for exporting headless prawn and accordingly, an irrevocable letter of credit was opened being Letter of Credit No. 667392, dated 11-10-1990, for US $ 3, 00,000 by the importer aforesaid. Subsequently, value of the letter of credit was enhanced to US$ 7,50,000 and the said letter of credit was opened through Philadelphia International Bank, New York, the LC opening bank. Agrani Bank was the negotiating bank in Bangladesh. The plaintiff submitted the bill of lading to defendant No. 7, Agrani Bank, the L/C confirming Bank. Out of 8 there was no problem with regards to 3 bills of lading being Nos. 900280, 900279 and 900278 but with regard to the other bills of lading being Nos. 900289, 900290, 900291, 900302 and 900304, the defendant delivered the cargo without endorsement on original L/C. So, defendant No. 7, Agrani Bank, the L/C confirming Bank, did not get money from the L/C opening Bank as they refused to pay the money for the exported goods to the plaintiff and deprived the plaintiff from his legitimate claim and the plaintiff was deprived of US$ 5, 24,441. For non-payment of the said money the plaintiff suffered huge pecuniary loss in money, good-will and reputation; the plaintiff has also suffered other losses. Since Agrani Bank, defendant No.7, the L/C confirming Bank, did not pay debt as per contract, the factory and business of the plaintiff was inoperative for a long time and accordingly, a huge amount of interest was credited against the loan account of the plaintiff with Agrani Bank proforma defendant No. 7 and due to the negligence of defendant Nos.1-4 the plaintiff did not get the price of the exported goods and therefore, he was also entitled to compensation of the amount mentioned in the schedule of the plaintiff. In order to recover the compensation the plaintiff instituted the aforesaid money suit praying for a decree of Taka 4,88,96,323.43 as damage and compensation against the defendants and pendenti lite interest at the rate of 18% per annum till recovery of the decretal amount.
(3.) After institution of the suit the defendants satisfied the claims of three bills of lading Nos. 900289, 900290 and 900291 totaling to US $ 2,49,988,37 equivalent to Taka 1,04,29,211, and 24. After deducting the said amount the balance stood at Taka 2,93,96,765,63 payable to the plaintiff. So the plaintiff prayed for decree to the extent of the said amount along with 18% interest per annum thereupon.;

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