I.P.MUKERJI, J. - (1.) THESE are two appeals preferred by the appellant/buyer from a judgment and order of the Hon'ble Court of the first instance dated 21 May 2009 in G.A. No. 1062 of 2009 connected with C.S. No. 13 of 2009 and order dated 12 June 2009 passed by the said court in inter alia G.A. No. 1062 of 2009 (though the C.S. NO. in the order is described as 13 of 2009, which ought to have been C.S. No. 111 of 2009), which cumulatively had the effect of discharging and or vacating the part of the interim order dated 23 April 2009 restraining the respondents from honouring the Letter of Credit relating to bill of lading dated 2 May 2009.
(2.) SINCE issues of facts and law are common in both these appeals, they are heard together, and are being disposed of by a common judgment. The appellant is an Indian buyer. The respondent No. 1 is the seller having its business in Singapore. The appellant contracted with the respondent No. 1 to buy from them about 800 logs of wood, described as Guyana Round Logs, valued at US$ 321, 480. The seller was to load the above consignment of logs in May 2008 from any port in Guyana and ship them CIF Kolkata by the vessel M.V. Destiny (later renamed as M.V. Maystar). It was to draw a Bill of Exchange for 100% invoice value.
(3.) PAYMENT was to be made by irrevocable Letter of Credit. The Letter of Credit dated 6 May 2008, was issued by the respondent No. 2, an Indian Bank. As is usual in banking practice, the respondent No. 3, a Singapore bank was the negotiating bank. In the Letter of Credit the respondent No. 3 reserved to itself a 'recourse' clause that is the right to realising money from the beneficiary, in the event money under it had been received wrongfully by beneficiary. Up till December 2008, the appellant believed the respondent No. 1 when it said that there was delay in shipment of goods. However, in the first week of December 2008 the respondent No. 1 disclosed to the appellant that the vessel had on or about 4 December 2008 sunk near Malta. Even at this stage the appellant did not disbelieve the respondent No. 1.;