SOUMEN SEN, J. - (1.) THE suit is instituted for recovery of price of goods sold and delivered by the plaintiff to the defendant No.1. In spite of repeated opportunities being given to the defendant No.1 to appear and contest the suit, the said defendant No.1, has failed to enter appearance.
(2.) THE defendant No.2 appeared and produced certain documents in this proceeding in order to enable the Court to adjudicate issues involved in this suit. Although, in view of Order 8 Rule 5 of the Code of Civil Procedure, the plaintiff is otherwise entitled to a decree since the defendant No.1 although had the opportunity to appear and contest the proceeding did not enter appearance, however, the plaintiff has produced one witness to give evidence in support of its claim in the suit. The case of the plaintiff as it appears from the Plaint is that the plaintiff has been a regular supplier of diverse quantities and qualities of tea to the defendant No.1, the mode of payment appears to be by way of bills of exchange drawn by the plaintiff on the defendant No.1. The plaintiff used to ship such quantities and qualities of tea to the defendant No.1. The plaintiff would send the documents in respect of such shipment including the Bill of Lading and the Invoice through the defendant No.2 to the banker of the defendant No.1 in Singapore. The invoice used to be sent by the plaintiff through the defendant to the banker of the defendant No.1 which would contain the payment and collection terms which varied from 90 to 180 days on "documents against acceptance" basis. The defendant No.1 in the past had made payment in terms of the aforesaid arrangement. Between January, 2001 and February, 2002, the defendant No.1 placed diverse orders on the plaintiff for supply of diverse quantities and qualities of tea. Pursuant to such order, the plaintiff sold and delivered to the defendant No.1 the said qualities and quantities of tea particulars whereof are set out hereinbelow: - Following the arrangement alluded to above, the documents were sent to the defendant No.1 in respect of such consignments from the office of the defendant No.2. The said documents were duly accepted by the defendant No.1 and the said consignments were duly received and/or taken delivery of by the defendant No.1 at Singapore in connection with the aforesaid sale of tea, the plaintiff drew several bills of exchanges on the defendant No.1 which were duly accepted by the defendant No.1. The plaintiff got the said bills discounted through the defendant No.2 and received payment of the discounted value thereof from the defendant No.2. The defendant No.1, however, has failed, neglected and/or refused to honour its obligation under the said bills and to make payment thereunder on the due dates mentioned in such bills. The defendant has failed, neglected and refused to honour any of the 14 bills of exchange, although, the due date of amounts of such bills had expired.
(3.) THE defendant in admission and acknowledgement of its liabilities and indebtedness to the plaintiff, requested the plaintiff to extend the due date of payment of the sum of the said bills and on the basis of such request, the plaintiff had extended due dates in respect of 5 bills as mentioned in Paragraph 15 of the plaint. In spite of extending the due dates of the said bills, the defendant No.1 expressed its inability to make payment of the said 5 bills within the extended due dates thereof and requested for further extension which the plaintiff had refused to grant. The defendant No.1 has failed to make payment of the price of the aforesaid consignments of tea in spite of having received the said consignments without objection and having appropriated the same. The plaintiff has examined one Mr. Sujit Bhattacharya being one of the directors of the company. Mr. Bhattacharya in his evidence has corroborated the statements made in the Plaint, in fact, the witness is the person who has verified the Plaint. The said witness has produced three sets of documents, namely, Invoice and Bill of Lading, an application filed under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1983 and 14 bills of exchange. In respect of some of the bills of exchange, the due date for making payment was extended. The bills of exchanges would show that the defendant No.1 had accepted the said bills of exchange and in most of the bills of exchange there are endorsement of Honkong and Sanghai Bank. The plaintiff attempted to produce the original documents before the Court. The HSBC of the Singapore Branch, however, has refused to produce the original of the said documents on specious plea that they are not bound to produce such documents before an Indian Court. The witness, however, produced duplicate copies of the bills of exchanges and submitted that a set of such documents have been given to the defendant No.2 for being presented to the defendant No.1 for realization of the amount covered under the said bills of exchange. Since the HSBC, Singapore refused to produce the original, a subpoena was issued to the defendant No.2 to produce copies of the 14 bills of exchanges drawn by the plaintiff on the defendant No.1 consequent whereupon Mr. Kamal Pal, Assistant Manager, Asset Recovery Management Branch appeared and filed such documents. The witness of the plaintiff has duly identified the said documents and submitted that these are the said bills of exchange that have been exhibited earlier as Exhibit 'c' collectively. The witness has categorically stated that these are the copies of the bills of exchange that the plaintiff had submitted to the Indian Bank. The Exhibit 'B', namely, an application filed by the bank before the Debt Recovery Tribunal also refers to the same set of 14 bills of exchange which were presented to the defendant No.1 through HSBC, Singapore and it was due to such failure on the part of the defendant No.1 to make payment even after the expiry of the due dates, such bills were presented for payment on the defendant No.1 which were dishonoured by non - payment by the said defendant No.1 upon presentation. The defendant No.2 in the said proceeding had claimed US $676465.71 amounting to Rs.3,01,16,540/ -;