A.K.Bisi, J. - (1.) In the instant suit against defendant No. 1 the Hong Kong and Shanghai Banking Corporation Ltd. and defendant No. 2 the Export Credit & Guarantee Corporation Ltd. the plaintiff Rahee Industries Ltd. has sought declaration, if necessary, that the plaintiff alone is entitled to the balance sum of Rs. 97,02,153.90p calculated by defendant No. 1 on account of the original plaintiff out of the proceeds of the transaction between the original plaintiff and the Egyptian National Railways and is entitled to the credit of the said amount less the sum of Rs. 16,11,099/- already credited to the account of the original plaintiff with defendant No. 1, decree for permanent mandatory injunction against defendant No. 1 to credit the said sum to the account of the plaintiff and against defendant No. 2 not to make any claim on the said sum or any portion thereof, decree for Rs. 80,91,054/- against defendant No. 2, interest @ 18% per annum on the said sum of Rs. 80,91,054/- from 18.4.92 till the date of institution of the suit, interim interest and interest on judgment @ 18% per annum on the said sum of Rs. 80,91,054/- until realisation and some other reliefs.
(2.) Briefly stated the case of the plaintiff is that original plaintiff was a partnership firm registered under the Indian Partnership Act, 1932 and was carrying on business as an exporter of diverse products to diverse foreign buyers. On 8th October, 1985 the original plaintiff entered into an agreement with the Egyptian National Railways (hereinafter referred to as the foreign buyer) for supply of 20,00,000 clip bolts type D according to ENR specification to the said buyer for a total value of US $ 615,200 FOB, Calcutta. Under the said agreement the conditions of payment were inter alia, as follows: - (a) 20% of the total value of the contract as advance payment against presentation of a letter of guarantee covering the same amount and the same currency endorsed by a local bank in Cairo, Egypt. (b) 80% of the total value of the contract would be financed for a period of 3 years to be paid in 6 equal semi-annual consecutive instalments with fixed interest @ 90% per annum. The first instalment to be paid after 6 months from the date of each shipment. The half yearly capital instalment and the accrued interest would be secured by a letter of guarantee issued by the National Bank of Egypt covering the principal and the interest.
(3.) At the request of the original plaintiff and in terms of the aforesaid agreement defendant No. 1 acting as a banker of the original plaintiff duly furnished to the foreign buyer on behalf of the original plaintiff a bank guarantee covering 20% of the total value of the contract and the foreign buyer duly paid the said 20% of the total value of the contract to the original plaintiff. On 27th January, 1987 at the request of the original plaintiff defendant No. 2 in consideration of a premium of Rs. 81,891/- issued to the original plaintiff a specific shipment (political risk) Policy No. 14499/87 and sent the said policy to the original plaintiff from its head office at Bombay under a covering letter dated 30th January, 1987. The original plaintiff duly made supplies of 20,00,000 clip bolts to the foreign buyer in the following manner: - (a) 3,00,000 Nos. clip bolts on or about the 31st March, 1987. (b) 6,00,000 Nos. clip bolts on or about the 15th July, 1987. (c) 6,00,000 Nos. clip bolts on or about the 28th September, 1987. (d) 5,00,000 Nos. clip bolts on or about the 31st October, 1987. The foreign buyer duly deposited the amounts payable by the foreign buyer in terms of the contract and against the value of the shipments made by the original plaintiff from time to time with the banker of the foreign buyer i.e. The National Bank of Egypt. The said National Bank of Egypt, however, failed to remit any such amount to the original plaintiff in India. On enquiry the original plaintiff came to know that due to restriction imposed by the Egyptian Central Bank substantial delay would occur in the remittance of the said amounts to the original plaintiff. In terms of the said policy the original plaintiff from time to time made claims in the standard claim form upon defendant No. 2 for payment of the amounts lying blocked in the National Bank of Egypt in the account of the original plaintiff. Defendant No. 2 paid a total sum of Rs. 64,08,846/- being the amount of the total liability of defendant No. 2 under the said policy to the original plaintiff.;