- (1.) Leave granted.
(2.) Sky Impex Limited (as buyer) entered into an agreement with JCE Consultancy (as seller) on 1.12.2001. The sale consideration for the products to be supplied by JCE Consultancy was determined at US$13,70,000 (approximately Rs.9 crores). The product was to be delivered no later than 30.1.2002. The buyer was to confirm receipt and certify quality and quantity. As per the agreement, the product was to be further transferred by the buyer (Sky Impex Limited) to Samsung Gulf Electronics, Dubai (hereafter referred to as "Samsung, Dubai"), a wholly owned subsidiary of Samsung Corporation, South Korea (hereinafter referred to as "Samsung, South Korea). Consequent upon supply of the product under the contract/agreement dated 1.12.2001, Samsung Dubai was to issue a bill of exchange valued at US$14,32,000, in favour of the buyer Sky Impex Limited. Sky Impex Limited was to further endorse the bill of exchange in favour of the seller (JCE Consultancy). Within 72 hours wherefrom the seller was required to transfer to Sky Impex Limited US$62,000 as commission. Alternatively, the buyer (Sky Impex Limited) could transfer, upon delivery, a sum of US$13,70,000, as sale consideration for the product. It was also provided in the agreement, that after endorsement of bill of exchange, the liability of the buyer towards the seller would stand exhausted. Thereupon, the seller would hold the bill of exchange, in due course, and get vested with the authority under the Negotiable Instrument Act, to claim value, directly from Samsung, Dubai. Importantly, the agreement dated 1.12.2001 provided that the contract would be governed by the laws of India. The agreement dated 1.12.2001 being of substantial relevance in the present controversy, is being extracted hereinunder:- "Sky Impex Limited BVI Agreement No.SA/100/019 This agreement is made this day December the 1 st 2001 between M/s. Sky Impex Ltd., having its registered office at Omer Hodge Bldg., 2 nd Floor, Wickham's Cay1, P.O. Box-985, Road Town, Tortola, British Virgin Islands, herein referred to as the 'the Buyer' and M/s. J.C.E. Consultancy a proprietorship Company having its office at 108, Rohini Complex, WA-121, Shakarpur, Delhi 110092, India, herein referred to as 'the Seller'. The Agreement between the two parties constitute the following: 1. The buyer has agreed to purchase Coke Calcination packages from the Seller to the value of USD 1,370,000 as per order sheet dated November, 25 th , 2001 and duly acknowledge by the Seller. 2. The above packages will be delivered by the Seller to the Buyer, no later than January, 30 th 2002. The packages shall be handed over by the Seller to the Buyer's representative as per communication in writing to be sent by the Buyer to the Seller. 3. The Buyer should provide a Performance Certificate to the Seller, confirming that the above packages are in accordance with the order placed and thereafter the Buyer shall not have any claims against the Seller in respect to the quality of the packages and quantity ordered. 4. it is understood by the Seller that the said packages are to be further transferred by the Buyer to M/s. Samsung Gulf Electronics, Dubai, a company registered under the laws of Dubai, UAE and which is a wholly owned subsidiary of Samsung Corporation, South Korea. 5. The Buyer shall receive from Samsung Gulf Electronics, Dubai a Bill of Exchange for the value of approx. USD 1,432,000 due for payment of July, 2002 and shall endorse the same to the seller as consideration for the sale of the packages to the Buyer. Within 72 hours of receiving settlement of the said Bill of Exchange the Seller shall transfer to the Buyer the amount of USD 62,000 to the nominated account of the Buyer as his commission. Alternatively the Buyer shall transfer to the Seller the sum of USD 1,370,000 against delivery of goods to a Bank account that shall be nominated by the Seller. 6. After endorsement of the said Bill of Exchange, the liability of the Buyer towards the Seller ceases and the Seller shall become holder in due course of the Bill of Exchange with all the rights as per the Negotiable Instrument Act to claim value directly from the Samsung Gulf Electronics, Dubai. 7. The Buyer, however, in good faith shall follow up with Samsung Gulf Electronics, for payment of the said Bill of Exchange at maturity expected in July, 2002 and shall in good faith keep the Seller informed of any development in respect of settlement of the Bill. 8. This contract is governed by the Laws of India."
(3.) Through a delivery receipt dated 28.1.2002, Sky Impex Limited confirmed having received the product valued at US$13,70,000 under the contract/agreement dated 1.12.2001. The buyer neither complained about quality nor quantity. There was also no protest that the goods/product was not received in time. The aforesaid receipt of goods implies the delivery of the product by JCE Consultancy to Sky Impex Limited. On 1.2.2002, Samsung, Dubai executed a bill of exchange valued at US$14,32,745 in favour of the buyer Sky Impex Limited. This implies further delivery of goods/product from Sky Impex Limited to Samsung, Dubai. The said bill of exchange was then endorsed in favour of the seller JCE Consultancy, in terms of agreement dated 1.12.2001.;