B. Bhattacharya, J. - (1.) This first miscellaneous appeal is at the instance of the defendant No. 2 in a suit for declaration and permanent injunction and is directed against Order No. 52 dated 2nd March, 2006 passed by the learned Judge, Fourth Bench, City Civil Court at Calcutta, in Title Suit No. 1616 of 2003, thereby allowing an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure filed by the plaintiff by restraining the defendants from realising the amount covered under the Letters of Credit of 42,225 US Dollars in favour of the defendant No. 2 or enforcing the said Letters of Credit till the disposal of the suit. Being dissatisfied, the defendant No. 2 has come up with the present first miscellaneous appeal.
(2.) The plaintiff -respondent No. 1 filed a suit being Title Suit No. 1616 of 2003 in the City Civil Court at Calcutta thereby praying for the following relief: a) Declaration that the Letter of Credit being No. 4048/KOL/D/58 on Bank of India, Overseas Brach, Kolkata -700001 is still subsisting. b) Permanent injunction restraining the defendants from enchasing withdrawing and or realising the amount covered under the Letter of Credit being No. 4048/KOL/D/58 on Bank of India, Overseas Brach, Kolkata -700001 in favour of M/s. Versions Trading Co., Dubai. c) Enquiry into damages. d) Cost of the suit with full advocates fees. e) Such other order or orders as the Learned Court may deem fit and proper.
(3.) The case made out by the plaintiff -respondent No. 1 may be summed up thus: (a) The plaintiff deals with the business of manufacturing of polyethylene pipes and fittings of various kinds and polymers, as a result, she is required to import and purchase raw materials such as PVC Resins from different sources. (b) The defendant No. 2 is a trading company who supplies the necessary raw materials for manufacturing and trading of plaintiff's products and for that purpose, they appointed the defendant No. 1 as their agent in Calcutta. (c) Pursuant to negotiation for supply of PVC Resins, the plaintiff accepted the offer of the defendants and communicated the acceptance of the said offer of the defendant No. 2 through its local agent, the defendant No. 1. Under the agreement, the defendant No. 2 was required to supply 100 Metric Ton in gross and 100 Metric Ton in net PVC OFF Grade K -67 Resins for a total price of 42,225 US Dollars and to deliver the above materials at Kolkata Port and for the same, the plaintiff had to issue Letters of Credit for 75 days from the date of bill of lading. (d) As per the said agreement, the plaintiff opened a Letter of Credit for 42,225 US Dollar in Bank of India, Overseas Branch, the respondent No. 3, on behalf of the plaintiff in favour of the defendant No. 2 as beneficiary. (e) The defendant No. 2 informed the plaintiff that the aforesaid raw materials were shipped in 5 containers containing 94 packets dated 5th September, 2003 for delivery of those articles at CIF Kolkata Port. (f) The aforesaid consignment arrived at Kolkata Port on 24th September, 2003 and upon arrival of the above consignment, the plaintiff filed the bill of entry and paid the customs duty charges. The consignment was loaded at Central Warehousing Corporation, Circular Garden Reach Division Road, Kolkata -700043 by the agent of the defendant. (g) During unloading of the above consignment at Central Warehousing Corporation, it was found that the material dispatched by the defendant No. 2 contained other chemicals which were not matching with the specification of PVC OFF Grade K -67 agreed to be supplied. It was further found that neither any stamp, sticker, packing slip and batch was there nor could the contents confirm that the subject product was made by the POLY beek, Germany. Those materials were not in export worthy JAMBOO bags as mentioned in packing list. There was even shortage in number of bags and in place of 94 JAMBOO bags as mentioned in the packing list, total 88 bags were found. Moreover, several bags were found in torn condition and the material was seeped in the containers itself. (h) Upon inspection of the materials and having knowledge of the above irregularity, the plaintiff issued several letters to the Insurance Company intimating the shortage and facts to the shipping company at Germany and their Indian agent. (i) On request of the plaintiff, the defendant sent one Mr. B.C. Barmecha, President of Ravi Enterprises, Kolkata to visit the warehouse, to ascertain the damages etc. and upon inspection, Mr. Barmecha acknowledged the irregularities complained and the shortage of the materials supplied and reported the matter to the defendant No. 2. The plaintiff made several representations to the defendant No. 2 for compensating the loss sustained but the defendant No. 2 did not take any step to remedy the breach.;