JUDGMENT: 1. The plaintiff has sued for Rs.2.38 crores with interest @ 15% p.a from the defendant bank, for accounts, for a declaration that the defendant is holding all the sale proceeds of palm oil received by it under a consent decree obtained in Suit No. 855 of 1979 including a sum of Rs.45.30 lakhs in trust for and as agents of the plaintiff, for an injunction against the defendant for remitting that amount the United Asian Bank (UAB) or to the credit of one Patel Holdings and for accounts and directions in that behalf. 2. The plaintiff carried on business in palm oil. The plaintiff got certain Letters of Credits (LCs) issued with regard to certain import consignments. The first consignment under the LCs was cleared. Thereafter the LCs were seen by the defendant bank to be fraudulently obtained by the plaintiff. The bank refused to act upon the LCs. The second consignment was not cleared as per the averments made in para 8 of the plaint itself. There has been another litigation between the parties upon the LCs, copies of which are not produced in this suit. When the third consignment arrived the defendant bank claimed that the LC was fraudulently obtained as per averments in para 9 of the plaint. 3. It is the plaintiff's case in paras 13 to 15 of the plaint that the suit consignment was confiscated by the Collector of Customs. It was declared unfit for human consumption. It was put up for public auction on or about 23rd May, 1978. The public auction came to be stayed. 4. It is the plaintiff's case in para 19 of the plaint that the shipper, one M/s. Tokyo Marine Company Ltd., filed a suit inter alia against the plaintiff as defendant No.1 therein and against the defendant bank as defendant No.3 therein. The parties entered into consent terms which have been recited in para 19 of the plaint. Under the consent terms a decree was obtained by the shipper for Rs.8.75 lakhs against the plaintiff herein in full and final settlement of the claims of the shipper against the plaintiff herein. The shipper and the plaintiff herein authorised the defendant bank herein to pay Rs.8.75 lakhs to the shipper. For that purpose the defendant bank was allowed to obtain delivery of 2403 metric tonnes of palm oil which was imported and stored. The shipper and the plaintiff herein authorised the defendant bank herein to pay Rs.8.75 lakhs to the shipper. For that purpose the defendant bank was allowed to obtain delivery of 2403 metric tonnes of palm oil which was imported and stored. Defendant No.3 bank was also to pay fine and penalty that may be levied upon the plaintiff herein. The possession of the palm oil imported by the plaintiff herein were agreed to be handed over to the defendant bank herein. It was agreed that the defendant bank herein would be entitled to obtain possession of the oil and sell the same by public auction or private treaty as it may deem fit at such price as it may deem fit and to appropriate the proceeds towards the satisfaction of the amounts payable by the plaintiff herein to the shipper. On the basis of the said consent terms decree was passed in Suit No. 855 of 1979 by this Court. 5. The plaintiff has claimed in para 20 of the plaint that the consent terms have been executed by the plaintiff under coercion and that the plaintiff has agreed to sign the consent terms to mitigate further losses and claims. 6. The plaintiff has averred in paragraph 21(b) of the plaint that after the consent terms were executed on 1/6/1979 the defendant bank obtained delivery orders of the oil from the Collector of Customs on 16th June, 1979 and the ultimate delivery by 11th July, 1979. It is the plaintiff's case that the defendant bank sold the oil to Liberty Oil Mills and Allana Oil Mills without consulting the plaintiff. 7. The plaintiff has challenged the sale of palm oil made by the defendant bank on the ground that it was sold at undervaluation. In para 21(c) the plaintiff claims that the defendant is only a banker and has no knowledge of the sale of oil. The plaintiff has further averred that it was understood between the parties that the oil will be sold only with the consent, approval and under the instructions of the plaintiff and not otherwise. That, of course, is not a part of the agreement represented by the consent terms. The plaintiff claims that the consent terms were signed pursuant to such oral agreement. Further terms of the agreement would be excluded under Section 91 of the Indian Evidence Act, 1872. That, of course, is not a part of the agreement represented by the consent terms. The plaintiff claims that the consent terms were signed pursuant to such oral agreement. Further terms of the agreement would be excluded under Section 91 of the Indian Evidence Act, 1872. It is also the plaintiff's case in para 21(c) of the plaint that the plaintiff would not have agreed to the consent terms, if the defendant had not agreed to sell the oil with the consent, approval and under the instructions of the plaintiff. 8. The plaintiff has claimed in para 21(e) of the plaint that the plaintiff continues to be the owner and the defendant was the trustee in respect of the consignment. The plaintiff called upon the defendant to fix the price of the palm oil under the oral agreement between the parties. The defendant denied any such agreement. 9. It is the plaintiff's case in para 23 of the plaint that the defendant sold 2400 metric tonnes of palm oil on 4/6/1979 for the price of Rs.6970/per metric tonne when the market price was higher about Rs.1800/to Rs.2500/per metric tonne arbitrarily, capriciously and with ulterior motive without ascertaining the market price. The plaintiff claims that the defendants sold about 1250 metric tonne to Liberty Oil Mills and about 1160 metric tonnes of oil to Allana Oil Mills. The plaintiff claims that those purchasers have paid the defendant Rs.1.27 crores by 31st December, 1979 leaving a balance of Rs.41.14 lakhs to be recovered by the defendant from the purchasers. 10. It is the plaintiff's case in para 24 of the plaint that it was the duty of the defendant to sell the palm oil at the best price with the consent and consultation of the plaintiff. The plaintiff claims that the defendant carried out the transactions behind the back of the plaintiff in the wrongful and irresponsible manner and has caused loss and damage to the plaintiff. The plaintiff has computed the damages suffered by the plaintiff in para 25 of the plaint. 11. The plaintiff has further claimed in para 26(b) that the defendant has wrongfully remitted various amounts to UAB without the consent of the plaintiff. 12. The plaintiff has computed the damages suffered by the plaintiff in para 25 of the plaint. 11. The plaintiff has further claimed in para 26(b) that the defendant has wrongfully remitted various amounts to UAB without the consent of the plaintiff. 12. The plaintiff has claimed in para 27 of the plaint that the defendant bank cannot keep or retain any amount of the proceeds of the sale of the oil upon the cancelled or revoked letters of credit and despite the consent terms. 13. The plaintiff has accordingly claimed in para 28 of the plaint that the defendant bank has wrongfully and unauthorisedly debited the plaintiff’s current account with Rs.43.16 lakhs in respect of the aforesaid consignment as also for legal expenses storage and insurance charges etc. The plaintiff claims that the wrongful debt with interest aggregates to Rs.84.56 lakhs in the plaintiff’s current account. The plaintiff has claimed loss and damages of Rs.76.56 of account of the wrongful debits in para 28 of the plaint. 14. The plaintiff has further claimed in para 29 of the plaint that the defendant bank opened a Bills Maturity Deposit Account (BMDA), but has “not given” the plaintiff any credit for any sales realization. The plaintiff claims that the defendant bank has given wrongful debit advices in respect of the remittances to UAB and wrongfully carried the surplus of the sale proceeds in the BMDA account and has not credited the plaintiff’s current account with the surplus or the interest earned by the defendant during that period though the defendant bank has charged interest to the plaintiff. 15. The plaintiff has claimed Rs.6.92 lakhs from the defendant as also Rs.9.19 lakhs as per the particulars of claim Exhibit-J to the plaint. These particulars of claim are in respect of the penalty paid to the Collector of Customs and interest thereon. The plaintiff has further claimed Rs.2.38 lakhs from the defendant bank as per the particulars of Exhibit-K to the plaint which is for damages and loss suffered by the plaintiff due to undervaluation of the sale price of oil sold by the defendant being the difference in the prevailing market price less the actual sale price of oil with interest thereon @ 15% p.a. The plaintiff has claimed the aggregate sum of Rs.2.38 crores from the defendant. 16. Hence in essence this is a suit for damages. 16. Hence in essence this is a suit for damages. The damages are upon the sale of oil at an undervaluation. The plaintiff has accordingly claimed a money decree of Rs.2.60 crores with accounts and the declaration that the defendant bank held the sale proceeds in trust and an injunction against the defendant from remitting the proceeds to UAB or the export. The sale itself is challenged as made under an agreement which is voidable on the ground of coercion. 17. It is the defendant’s defence that the plaintiff has no current account with the defendant. No LC was opened by the defendant. Certain forged and fabricated LCs were got issued by the plaintiff for the benefit of the plaintiff in connivance with the officers of the Foreign Exchange Department in relation to palm oil from one Patel Holdings without any requisite application for opening the LCs. The defendant has set out the normal procedure of opening LC which the plaintiff has not followed. The defendant has set out that the consignments arrived and were dealt with by the plaintiff and the custom authorities in the litigation between them to which the defendant was not a party. The defendant has refuted that the LCs were cancelled by the defendant because they were not even issued by the defendant, but fraudulently got obtained by the plaintiff. 18. It is the defendant’s case that upon the shipper having sued the plaintiff as also the defendant herein, the parties entered into consent terms under which the defendant herein was to sell the oil which arrived under the three consignments at the price obtainable by it and to appropriate the proceeds towards the amounts payable by the defendant to the shipper on behalf of the plaintiff as the importer and upon remittance to UAB. 19. The defendant has denied the case of the plaintiff having signed the consent terms under coercion. The defendant claims that the plaintiff never challenged the validity of the consent terms though a case of coercion would make the consent terms voidable under Section 15 of the Indian Contract Act, 1872 and accordingly would fall with the explanation to Order 23 Rule 3 of the CPC relating to compromise of suits under such consent terms representing the agreement between the parties. The defendant has accordingly denied that it has illegally proceeded to sell the consignment of oil. 20. The defendant has accordingly denied that it has illegally proceeded to sell the consignment of oil. 20. The defendant has denied the oral agreement alleged by the plaintiff that it had to obtain the consent of the plaintiff to sell the oil and relating to the consultation with the plaintiff for price of the oil. The defendant has denied that it was the trustee of the plaintiff or any relationship with the plaintiff or that it breached the consent terms as such trustees. The defendant bank has claimed that it has sold the oil at the best available market price and has denied the sale to be arbitrary or under ulterior motive. It has denied the unlawful gains. It has denied that it has carried out sale behind the back of the plaintiff and claimed full authority under the consent terms to sell the oil in the manner it chose. The defendant has denied that it has gained wrongfully or irresponsibly or that the plaintiff has any legitimate dues from the sale price or cannot credit its account for any amount. The defendant has accordingly denied the entire claim of the plaintiff of loss or damage suffered by the plaintiff. 21. The plaintiff must, therefore, essentially prove that the consent terms were executed inter alia by and between the shipper, the plaintiff and the defendant herein by coercion. If that is not seen the entire case of the plaintiff and the sale having been effected at an undervaluation falls to ground. Upon proving the execution of the consent terms by coercion, the plaintiff must further show the sale of oil at an undervaluation by proving the market price of the oil on the precise dates of sale to be entitled to the damages claimed by the plaintiff to that end. 22. Justice Karnik as he then was framed the following issues on 15th June 2009 which are answered as follows: Sr.No. Issues Findings 1. Whether the plaintiff proves that he duly made applications for opening two Letters of Credit and duly opened the same as mentioned in para 5 of the plaint. Has not been argued or pressed and is accordingly not answered 2. Whether the plaintiff proves that he duly made applications for opening two Letters of Credit and duly opened the same as mentioned in para 5 of the plaint. Has not been argued or pressed and is accordingly not answered 2. Whether the plaintiff proves that the Consent Terms filed before this Court in Suit No. 855 of 1979 were signed by him under coercion and the same are not binding on him as mentioned in para 20 of the plaint. No 3. Whether the plaintiff proves that the defendant was not entitled to sell the suit consignment of oil without prior consent of the plaintiff as mentioned in paras 21(e) and 24 of the plaint. No 4. Whether the plaintiff proves that the defendant is holding the sale proceeds of the palm oil received by it under consent decree in Suit No. 855 of 1979 including the sum of Rs.45,30,500/in trust and as bankers for the benefit of the plaintiff as mentioned in paras 21(e) and 34 of the plaint. No 5. Whether the plaintiff proves that he has suffered losses due to false allegations leveled by the defendant alleging opening of fraudulent Letters of Credit as mentioned in paras 9, 10, 11, 14, 25, 26 and 27 of the plaint. No 6. Whether the plaintiff proves that he suffered further losses due to sale of palm oil by the defendant arrived per SS Fujit Suki Maru to Liberty Oil Mills and Allana Oil Mills pursuant to consent terms at arbitrary prices as mentioned in paras 23 and 25 of the plaint. No 7. Whether the plaintiff proves that the defendant has wrongfully debited amount of Rs.43,16,555.14 p in the plaintiff's account without any proper authorization by him as mentioned in paras 23 and 29 of the plaint. No 8. Whether the plaintiff proves that the prices as mentioned by him were the prevailing price at that time and he is entitled to recover a sum of rs.2,38,45,386.46p as per particulars of claim and further interest at 15% p.a on the principal amount of Rs.2,60,41,965.83p from the date of institution of the suit till payment or realization excluding the period between 16th April, 1996 and 23rd February 2000 as per undertaking dated 8th March 2000 as mentioned in paras 25 and 33 of the plaint. No 9. No 9. Whether the defendant proves that the suit is bad for nonjoinder of State of Maharashtra as necessary party as mentioned in para 2 of the Written Statement. No 10. Whether the defendant proves that the plaintiff had no current account with the defendant as alleged by the plaintiff at the time when the Letters of Credit was fraudulently procured by the plaintiff as mentioned in para 3 of the written statement. Is not required to be answered as is accordingly not answered. 11. Whether the defendant proves that it was liable to remit the amount to the United Asian Bank, in spite of its claim that the Letters of Credit were fraudulent or unauthorisedly opened as mentioned in para 26 of the written statement. Is not required to be and is accordingly not answered. 12. What order? As per final order. 23. The plaintiff has led evidence of one Sureshkumar Jaju as also one Hitesh Anilkumar Jaju who are the family members of the plaintiff. The plaintiff has further examined a witness from the Bombay Commodity Exchange Limited to prove the market price of oil. 24. The evidence of P.W.1 and 2 shows that the plaintiff had a current account with the defendant and held an import license. The plaintiff obtained two LCs in favour of the exporter one Patel Holdings through UAB, Penang, Malaysia. The plaintiff imported refined palm oil in three consignments. The first consignment was clear uneventfully. The second consignment resulted in an inquiry with the defendant by the Collector of Customs resulting in certain penalty of Rs.28 lakhs imposed on the plaintiff. The defendant sued the plaintiff in Debt Recovery Tribunal (DRT) which suit has been dismissed. It is the plaintiff’s evidence that the third consignment could not be cleared because the defendant informed the Collector of Customs that the LCs were cancelled. The Collector of Customs confiscated the goods and imposed a personal penalty of Rs.12.65 lakhs which was paid by the plaintiff. The goods imported were declared unfit for the human consumption and were sold under auction on 23rd May, 1978. The plaintiff challenged the auction in a writ petition which resulted in certain minutes of the order being passed on 26th May, 1978. The shipper filed Suit No.855 of 1979 in this Court in which the aforesaid consent terms came to be executed on 1st June 1979. The plaintiff challenged the auction in a writ petition which resulted in certain minutes of the order being passed on 26th May, 1978. The shipper filed Suit No.855 of 1979 in this Court in which the aforesaid consent terms came to be executed on 1st June 1979. It is averred in para 17 of the affidavit of evidence of Sureshkumar Jaju on behalf of the plaintiff that the defendant sold the consignment of oil without the prior consent of the plaintiff and which was less than the market price. The defendant remitted certain amounts to UAB and wrongfully debited the plaintiff’s account. The defendant opened BMD Account but did not give credit to the plaintiff in the said account and hence the defendant is liable to pay Rs.2.60 crores. It is also stated in the penultimate para of the said affidavit of evidence that the defendant owes Rs. 2.38 crores in the capacity of a trustee of the plaintiff for the benefit of the plaintiff. 25. The affidavit of evidence is followed by certain examination-in-chief before the Court with regard to the family members of the plaintiff. The plaintiff’s status in the family and its business as HUF which is irrelevant and need not be adverted to. The cross examination of the said Sureshkumar Jaju is also initially with regard to the HUF and the business of the plaintiff in oil. Upon the personal knowledge of the witness he has been asked questions of three consignments which are admittedly received. Thereafter the witness has been asked about the price of oil. The oral answer of the witness shows the range of the price between Rs.7000/and Rs.9000/per metric tone. Later in the evidence the market price at the time of import in 197879 has been stated between Rs.7000 to Rs.9500 per metric tone. The witness has refuted that the market price was below Rs.6000/per metric tone and therefore, there was no loss to the plaintiff. 26. The other family member of the plaintiff Hitesh Anilkumar Jaju deposed that he assisted his father in his business and knew about the business of oil. He also deposed about the import license and the consignment of oil. 26. The other family member of the plaintiff Hitesh Anilkumar Jaju deposed that he assisted his father in his business and knew about the business of oil. He also deposed about the import license and the consignment of oil. Similarly he deposed about the confiscation by the Collector of Customs, the levy of penalty and the litigation between the plaintiff and the Collector of Customs upon the sale by public auction made by the Collector of Customs. He has deposed about the litigation between the parties to this suit and the Collector of Customs. He has also deposed that the plaintiff instructed the defendant bank not to remit any amount to UAB and that the defendant sold the goods below the then prevailing market price at Rs.6970/per metric tone even though the market price was higher by Rs.2000/ to Rs.2500/ in the range of Rs.9000/ to Rs.9500/. 27. The witness has mentioned nothing of the consent terms executed by and between the plaintiff, the defendant and the shipper in Suit No.855 of 1979, but has deposed that the defendant bank sold the consignment “without our consent and permission” at the rate lower than the prevailing market rate in para 17 of his deposition. He has deposed that because of the wrongful action of defendant bank the plaintiff was made to pay penalty of Rs.12.65 lakhs out of which Rs.5.73 lakhs was refunded and the plaintiff would be entitled to the balance amounts of Rs.6.92 lakhs with interest. He has also deposed that the Collector of Customs held that the oil which was shipped was fit for only industrial use and should have been sold to industrial users, but was sold instead to Liberty Oil Mills and Allana Oil Mills on 4th June 1979 (3 days after the execution of the consent terms on 1st June 1979). He has deposed that the Collector of Customs removed the seal from the storage tank containing the consignment only on 15th June, 1979 and that on 15th June 1979 a stay was granted by the Bombay City Civil Court in another suit (number which is not mentioned) and was vacated on 3rd July, 1979. The evidence shows that he was surprised that the defendant bank admitted that the oil was sold on 4th June 1979 (which admission has not been found on record). The evidence shows that he was surprised that the defendant bank admitted that the oil was sold on 4th June 1979 (which admission has not been found on record). He has thereafter deposed about the amount of Rs.45.13 lakhs being held by the defendant in trust including an amount of Rs.8.79 lakhs lying to the credit of plaintiff’s account No.921 which, he has deposed, was a running account and not closed till the date of the evidence being 18th March, 2014. The admission of this amount by the defendant has not been shown to Court. He has deposed about the observations of the Court in some other litigation the relevance of which is not shown. He has thereafter deposed about the withdrawal of certain amount pending the suit, which also does not relate to the proof of the claim in the suit. He has deposed about another suit filed by UAB which came to be withdrawn, but has not produced or relied upon the papers and proceedings of any other suit deposed about. It may be mentioned that the suit could have been withdrawn in view of the consent terms in Suit No.855 of 1979 which came to be acted upon and pursuant to which certain remittance came to be made. 28. The plaintiff has relied upon certain documents, only a few of which have been marked exhibits as being admissible in evidence by Justice Patel under his order dated 27th March, 2014 in the suit. ExhibitP1 is the power of attorney which may be accepted. ExhibitP3 is the certificate of the market price of oil in February 1980 and shall be considered presently. ExhibitP2 is the show cause notice issued by the Custom Authority dated 27th February, 1979, copy of the order passed in appeal against the order of Collector of Customs dated 29th January 1981, copy of the order in Suit No. 1861 of 1980 filed by the defendant bank against Union of India, the appeal which has been dismissed for default, copy of the order of DRT2 dated 14th August 2006 in the application filed by the defendant herein against the plaintiff and the copy of the order dated 6th January, 2009 of this Court in Suit No.2005 of 1980. 29. 29. The plaintiff has relied upon these orders to show that the plaintiff’s claim in this suit is merited and that the claim of the defendant has been dismissed throughout. It is argued on behalf of the plaintiff that the defendant filed 12 suits and one writ petition against the plaintiff all of which have been dismissed. It is, therefore, argued that this suit is merited. 30. From the aforesaid proceeding on record it may be stated that the show cause notice of the order of the Collector of Customs and in appeal do not matter as aforesaid Suit No.855 of 1979 is an independent action of the shipper in which the aforesaid consent terms have been signed and which came to be challenged well before the order was passed in appeal which has been relied upon by the plaintiff. Similarly Suit No.1861 of 1980 filed by the defendant against the Union of India is not material to determine the efficacy of the agreement between the parties as represented in the consent terms which are sought to be challenged for making the claim of damages. The application of the defendant which is stated to have been dismissed by the DRT is shown by Counsel on behalf of defendant to have been dismissed since in the cause title the name of defendant No.2 is “substantially defective” that though the borrower is HUF it is shown as the firm. The OA against the other defendants therein has been disposed off under the order dated 14th August, 2006, part of ExhibitP2 (colly) which is relied upon by the plaintiff. 31. Another order relied upon by the plaintiff dated 6th January, 2009 decrees the suit of defendant No.1 being Suit No.2005 of 1980 essentially against the store keeper of the consignment of oil being one M/s. Navbharat Trading Corporation (Navbharat). In that suit the essential issue was whether the defendant bank herein which was the plaintiff in that suit was liable to pay the separate charges to Navbharat, whether it proved that it had the first charge on the oil under those consignments and whether Navbharat proved that it had a lien for the payment of its storage charges upon the consignments of oil. Navbharat did not defend the suit. The plaintiff bank (the defendant bank herein) proved its first charge. Navbharat did not defend the suit. The plaintiff bank (the defendant bank herein) proved its first charge. It is observed in that judgment that the plaintiff would be entitled to the same in preference to the lien claimed by Navbharat. The judgment makes a reference to the claim of the Custom Authorities for the default of Rs.12.65 lakhs levied upon the plaintiff herein which was paid by the defendant bank herein as also the consent terms in Suit No. 855 of 1979 under which the plaintiff incurred and paid the demurrage charges and cleared the goods and thereafter obtained possession of the imported goods and was to sell the goods by public auction or private treaty and was entitled to appropriate the sale proceeds towards the satisfaction of the amounts due and payable by defendant Nos. 2 to 7 therein (including the plaintiff herein) which was admitted and acknowledged. Such suit of the defendant bank came to be decreed to the extent of the sale proceeds of the suit goods (which were the consignments of oil) with 17% interest thereon. 32. It is not known for what purpose the plaintiff has relied upon the decree in that suit which is essentially against Navbharat, but which in fact makes a reference of admission and acknowledgment of the claim of the defendant bank herein upon the sale of the goods being under the consignments of oil. 33. The Advocate on behalf of the plaintiff sought to rely upon copies of some other proceedings. It may be mentioned that the Court cannot rely upon any of the documents not produced on record. Hence no such copies are accepted on record or considered. 34. Such are the averments of the plaintiff and the oral and documentary evidence led by the plaintiff. It is upon such evidence that the above issues would be required to be decided. 35. Issue No. 1 : The issue relates to the opening of the Letters of Credit (LCs) and the consequent import of the consignment of oil. The very opening of the LCs though stated to be fraudulently opened as per the case of the defendant has not been essentially pressed by the defendant because the plaintiff’s claim of damages in the suit is upon the wrongful and arbitrary sale of oil at an undervaluation by the defendant. Consequently the LCs may be taken to be correctly opened. Consequently the LCs may be taken to be correctly opened. Even if the goods were imported under genuine LCs which were issued in favour of the exporter M/s. Patel Holdings, the claim of the plaintiff is not upon the LCs. Hence this issue becomes irrelevant to consider in view of it not having been pressed by the defendant. Consequently this issue is not being argued or proved and is not answered. 36. Issue No.2: This relates to the execution of the consent terms in Suit No.855 of 1979 of the shipper against the plaintiff as defendant No.1 therein and against the defendant bank as defendant No.3 therein signed inter alia by the plaintiff. The plaintiff has claimed that the consent terms are not binding upon the plaintiff, it having been signed under coercion. The consent terms run thus: “CONSENT TERMS 1. Decree in favour of the plaintiff in the sum of Rs.8,75,000/ (Rupees Eight Lakhs Seventy Five Thousand) as against defendant No.1 in full and final settlement of all their claims against the defendants. The plaintiffs and defendant No.1 hereby agree and irrevocably authorise defendant No.3 to pay the said sum of Rs.8,75,000/( Rupees Eight Lakhs Seventy Five Thousand) to Messrs. P & I Services of India on behalf of the plaintiffs in full and final settlement of all their claims and to recover the same from defendant Nos. 1 and 2. 2…… 3….... 4….... 5. Agreed and declared that defendant No.3 is entitled to and be entitled to obtain the exclusive possession of the said oil mentioned in Clause 3 herein above and to sell the same either by public auction or by private treaty as defendant No.3 may deem fit and at such price and on such terms and conditions as may be deemed fit and proper by defendants No.3 and to appropriate the proceeds thereof towards the satisfaction of all the amounts due and payable by defendant Nos. 1 and 2 to defendant No.3 which defendant Nos. 1 and 2 hereby admit and acknowledge and if required to remit the same or any part thereof the United Asian Bank, Penang”. 37. The consent terms have been set out in para 19 of the plaint. The plaintiff has averred that on the basis of the aforesaid consent terms a consent decree was passed by this Court. That was on 1st June, 1979. 38. 37. The consent terms have been set out in para 19 of the plaint. The plaintiff has averred that on the basis of the aforesaid consent terms a consent decree was passed by this Court. That was on 1st June, 1979. 38. The plaintiff has averred in para 20 of the plaint that the consent terms were obtained by coercion. This is because there were several proceedings which took place due to cancellation of LCs by the defendant and the plaintiff had no other alternative, but to agree to the consent terms under coercion in order to mitigate further loss and damages. 39. Upon the case of the defendant that the letters of credit were not at all opened by the plaintiff and that that fact was brought to the defendant’s notice much later, the defendant may have initiated various actions, civil as also criminal, against the plaintiff. Indeed it is argued on behalf of the plaintiff that there were 12 other suits and one writ petition filed by the plaintiff and also a criminal case investigated by the CBI. The plaintiff has neither relied upon nor produced copies of any of the proceedings or any of the orders passed therein. It is merely argued by Counsel on behalf of the plaintiff that all those actions have been dismissed. No dismissal is shown except the dismissal on the technicality of the name of the plaintiff herein not being correctly mentioned as HUF, but as a firm which resulted in dismissal of the application before the DRT2 on 14th August, 2006 against defendant No.2. Even the judgment dated 6th January, 2009 which is in the suit filed by the defendant bank is essentially against Navbharat Trading Corporation, the storage keeper in respect of the lien claimed by the storage keeper but not proved by the storekeeper and which charge was confirmed as the first charge of the plaintiff upon the suit consignments. 40. Though the plaintiff has vaguely referred to “several proceedings” allegedly filed by the defendant due to cancellation of the LCs (which are stated not to have been cancelled by the defendant as they were not even issued in the first place) the plaintiff claims to be coerced because they were filed and also because the plaintiff would mitigate his loss. 41. 41. Indeed a party may enter into consent terms in view of civil proceedings filed by the bank or any other party against it. The plaintiff, as a prudent businessman, would weigh the pros and cons of the various defences that suit party might have to take and agree to settle the dispute entirely by allowing the sale of the consignment. No such consent terms can be vitiated by coercion on that ground. If it was so, no consent terms entered into by parties before any Court could be accepted so as to bring to an end that litigation and/or various other litigations. 42. Even the case of coercion to mitigate further loss and damages is misconceived because any party, more specially a prudent businessman would enter into consent terms and agree to sell certain goods and to make payment from the sale proceeds indeed to mitigate the loss and damages otherwise incurred by such parties. 43. It would, therefore, have to be seen whether the coercion alleged by the plaintiff in para 28 of the plaint and upon which the aforesaid issue has been framed, would be coercion as defined in Section 15 of the Indian Contract Act, 1872, which runs thus: “15. “Coercion” defined – “Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement”. No party is shown or proved to have made the plaintiff sign the consent terms under threat of committing any offence under the IPC for eg., of intimidation. The plaintiff has not alleged that any party had unlawfully detained the consignment of goods or threatened to detain it if the consent terms were not signed to the prejudice of the plaintiff so that the plaintiff would be constrained to sign the consent terms. 44. It does not require authority to determine that entering upon the consent terms by the plaintiff herein (as defendant No.1 in the action of the shipper) would not amount to coercion for selling the goods to pay off the legitimate claims of various parties. 44. It does not require authority to determine that entering upon the consent terms by the plaintiff herein (as defendant No.1 in the action of the shipper) would not amount to coercion for selling the goods to pay off the legitimate claims of various parties. Indeed the plaintiff as the importer would have legal obligations to various parties including the shipper, exporter and the bank upon whom the LCs were opened, the custom authorities as also the port authorities, nothing of which is shown to have been separately and independently discharged by the plaintiff by payment to any of these parties. Even if genuine LCs were opened by the plaintiff they would be for payment to the exporter or the shipper. If not paid there would be legitimate mediation by the bank and/or the exporter or the shipper in respect of the consignment of goods imported for which the LCs were opened. The plaintiff as the prudent businessman would consider that amount it was obliged to pay including demurrage charges for the goods lying in the port, charges of penalty imposed by the custom authority as also the amount which would legitimately be expected to be claimed by the exporter, who had to be paid under the LCs, would be settled by sale of the consignment itself. 45. Coercion, which is expressed as duress in English law has been extensively considered with regard to the unlawful and illegitimate pressure exercised on a contracting party more specially in commercial transactions resulting in, what has been termed as, economic duress, which is voidable at law. Anson's Law of Contract, 29th Edition at page 350 shows the law on duress. In modern cases the pressure exercised to constitute duress is shown as 'illegitimate pressure'. Anson considers that the various pressures must be distinguished. The pressure which the contracting party is not expected to submit to is an illegitimate pressure as against legitimate pressures which the law does not take into account. Consequently illegitimate pressure may not be unlawful, but is yet illegitimate. Unlawful pressure occurs with the coercive party threatens to do something that is a breach of common law or a statutory duty. It may be a crime, a tort or a breach of contract. A contract executed under such pressure may be set aside by the other party. Consequently illegitimate pressure may not be unlawful, but is yet illegitimate. Unlawful pressure occurs with the coercive party threatens to do something that is a breach of common law or a statutory duty. It may be a crime, a tort or a breach of contract. A contract executed under such pressure may be set aside by the other party. However the position is different where what is threatened is not an unlawful act. It is not duress to threaten to do that which one has a legal right to do for eg., to refuse to enter into a contract or to terminate the contract lawfully. Hence a party may threaten to take legitimate legal proceedings or having taken such proceedings may legitimately threaten to enforce it. Another party, weighing the situation may agree to settle. The threat to prosecute or continue a litigation legally would not result in illegitimate pressure. Hence the settlement entered into between the parties could not be termed as under coercion or duress. At page 356 of the aforesaid edition of Anson's law of contract the author sets out that threats of lawful action is ordinarily not duress thus: “It is not ordinarily duress to threaten to do that which one has a right to do, for instance to refuse to enter into a contract or to terminate a contract lawfully. In the cut-and-thrust of business relationships various types of pressure may be brought to bear in differing situations. Where there are shortages in goods or services the person who wishes to acquire them has little choice. Thus a private person or undertaking is generally permitted to refuse to deal with another at all or except on specified terms, and the poor person who has to agree to pay a high rent to get a roof over his head is nevertheless bound”. 47. The author has cited the case of Lloyds Bank Ltd. Vs. Bundy 1975 QB 326 at page 336 in which Lord Justice Denning MR observed that no bargain will be upset which is the result of the ordinary interplay of market forces. 47. The author has cited the case of Lloyds Bank Ltd. Vs. Bundy 1975 QB 326 at page 336 in which Lord Justice Denning MR observed that no bargain will be upset which is the result of the ordinary interplay of market forces. He gave the illustration of a homeless man who agrees to pay high rent to the landlord to get a roof over his head for which the common law would not interfere and also a borrower in urgent need of money who borrows at high interest guaranteed by a friend for which also the common law will not interfere. That case however dealt with an unfair advantage gained and unconscientious use of power by a stronger party against a weaker resulting in an unconscionable transaction accentuated by undue influence in a fiduciary relationship, the case being between the banker and the customer who has defaulted under a overdraft account resulting in “inequality of bargaining power”. Persons similarly placed may make contracts by which they are bound even if the terms appear unreasonable. 48. Hence in the absence of any inequality and in the case of businessman who have the same bargaining power as banks and other authorities mere claiming of influence or pressure is not enough. 49. In the case of Lynch Vs. Director of Public Prosecutions for Northern Ireland (D.P.P.) 1975 AC 653 at 669 it has been held that duress cannot be accepted as a defence to murder. In that case a person was charged with having murdered a police officer. The case against him was of abetement. He claimed that he was made to act under duress. The Lord Chief Justice in a unanimous decision held in the criminal Court of appeal that duress could not be accepted as a defence to murder. The Court considered the question of duress in general at page 670 thus: “Someone who acts under duress may have a moment of time, even one of the utmost brevity, within which he decides whether he will or will not submit to a threat. There may consciously or subconsciously be a hurried process of balancing the consequences of disobedience against the gravity or the wickedness of the action that is required. The result will be that what is done will be done most unwillingly but yet intentionally. Terminology may not, however, much matter. There may consciously or subconsciously be a hurried process of balancing the consequences of disobedience against the gravity or the wickedness of the action that is required. The result will be that what is done will be done most unwillingly but yet intentionally. Terminology may not, however, much matter. The authorities show that in some circumstances duress may excuse and may therefore be set up as a special defence”. The Law Lord considered separately that duress cannot be negative criminal responsibility. 50. The case of Pao On and Ors. Vs. Lau Yiu and Anr., 1979 (3) All ER page 65 is the authority of what constitutes economic duress in a commercial contract under English law. That was a case of purchase of shares of a listed company at specified prices under a written contract. The purchaser gave an undertaking that he would not sell or transfer certain of those shares allotted to him by heavy selling. The market could be depressed and the shares would be devalued. The purchaser realised that by his undertaking not to sell the shares he was exposed to the risk that the price of the shares might fall below par. Hence the purchaser sought a guarantee against a firm in the price of shares. The seller agreed to buy back the shares from the purchaser at the specified value under a separate written subsidiary agreement. The purchaser, appreciating that he had made a bad bargain, informed the seller that he would not complete the main agreement unless the subsidiary agreement was cancelled and replaced by a true guarantee by way of indemnity guaranteeing the price of a part of the shares. The seller was anxious to complete the transaction for keeping public confidence. He chose to avoid the litigation and gave the indemnity in place of the subsidiary agreement. He failed to fulfill his promise of indemnity under the guarantee and interalia asserted that he was induced by economic duress on the part of the plaintiff when sued. At page 78 of the judgment it was held that the guarantee was not avoidable. It was held not to be duress as a coercion of the will so as to vitiate consent. It was observed that duress required coercion so as to vitiate consent and commercial pressure alone does not constitute duress. At page 78 of the judgment it was held that the guarantee was not avoidable. It was held not to be duress as a coercion of the will so as to vitiate consent. It was observed that duress required coercion so as to vitiate consent and commercial pressure alone does not constitute duress. This could be seen from the fact of whether such party did or did not protest; whether he had an alternative course open to him (such as an adequate legal remedy) at the time of the alleged coercion, whether he was independently disposed and whether after entering into the contract he had taken steps to avoid it. It was observed that in that case the defendant considered the matter thoroughly, chose to avoid litigation and formed the opinion that it was more apparent than real. It was held that there was commercial pressure, but no coercion. The Court considered the aspect of 'economic duress'. It held that the compulsion had to be such that the party was deprived of 'his freedom of exercising his will'. He must have entered into the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure. The Court also considered the American jurisprudence which lays stress on matters such as alternative remedy available, the fact or absence of protest, the availability of independent advise, the benefit received, and the speed with which the victim sought to avoid the contract. The Court concluded that the act must be such that the victim's consent was not a voluntary act. 52. It could hardly be said that in the case of a trader and an importer such as the plaintiff he would put his pen to paper as a non-voluntary act obtained without his consent. He is expected to and is seen to have considered the pros and cons of the transaction given the fact that the defendant bank contended that the LCs were fraudulently obtained by the plaintiff not issued by the bank. JUDGMENT: 1. He is expected to and is seen to have considered the pros and cons of the transaction given the fact that the defendant bank contended that the LCs were fraudulently obtained by the plaintiff not issued by the bank. JUDGMENT: 1. The plaintiff has sued for Rs.2.38 crores with interest @ 15% p.a from the defendant bank, for accounts, for a declaration that the defendant is holding all the sale proceeds of palm oil received by it under a consent decree obtained in Suit No. 855 of 1979 including a sum of Rs.45.30 lakhs in trust for and as agents of the plaintiff, for an injunction against the defendant for remitting that amount the United Asian Bank (UAB) or to the credit of one Patel Holdings and for accounts and directions in that behalf. 2. The plaintiff carried on business in palm oil. The plaintiff got certain Letters of Credits (LCs) issued with regard to certain import consignments. The first consignment under the LCs was cleared. Thereafter the LCs were seen by the defendant bank to be fraudulently obtained by the plaintiff. The bank refused to act upon the LCs. The second consignment was not cleared as per the averments made in para 8 of the plaint itself. There has been another litigation between the parties upon the LCs, copies of which are not produced in this suit. When the third consignment arrived the defendant bank claimed that the LC was fraudulently obtained as per averments in para 9 of the plaint. 3. It is the plaintiff's case in paras 13 to 15 of the plaint that the suit consignment was confiscated by the Collector of Customs. It was declared unfit for human consumption. It was put up for public auction on or about 23rd May, 1978. The public auction came to be stayed. 4. It is the plaintiff's case in para 19 of the plaint that the shipper, one M/s. Tokyo Marine Company Ltd., filed a suit inter alia against the plaintiff as defendant No.1 therein and against the defendant bank as defendant No.3 therein. The parties entered into consent terms which have been recited in para 19 of the plaint. Under the consent terms a decree was obtained by the shipper for Rs.8.75 lakhs against the plaintiff herein in full and final settlement of the claims of the shipper against the plaintiff herein. The parties entered into consent terms which have been recited in para 19 of the plaint. Under the consent terms a decree was obtained by the shipper for Rs.8.75 lakhs against the plaintiff herein in full and final settlement of the claims of the shipper against the plaintiff herein. The shipper and the plaintiff herein authorised the defendant bank herein to pay Rs.8.75 lakhs to the shipper. For that purpose the defendant bank was allowed to obtain delivery of 2403 metric tonnes of palm oil which was imported and stored. Defendant No.3 bank was also to pay fine and penalty that may be levied upon the plaintiff herein. The possession of the palm oil imported by the plaintiff herein were agreed to be handed over to the defendant bank herein. It was agreed that the defendant bank herein would be entitled to obtain possession of the oil and sell the same by public auction or private treaty as it may deem fit at such price as it may deem fit and to appropriate the proceeds towards the satisfaction of the amounts payable by the plaintiff herein to the shipper. On the basis of the said consent terms decree was passed in Suit No. 855 of 1979 by this Court. 5. The plaintiff has claimed in para 20 of the plaint that the consent terms have been executed by the plaintiff under coercion and that the plaintiff has agreed to sign the consent terms to mitigate further losses and claims. 6. The plaintiff has averred in paragraph 21(b) of the plaint that after the consent terms were executed on 1/6/1979 the defendant bank obtained delivery orders of the oil from the Collector of Customs on 16th June, 1979 and the ultimate delivery by 11th July, 1979. It is the plaintiff's case that the defendant bank sold the oil to Liberty Oil Mills and Allana Oil Mills without consulting the plaintiff. 7. The plaintiff has challenged the sale of palm oil made by the defendant bank on the ground that it was sold at undervaluation. In para 21(c) the plaintiff claims that the defendant is only a banker and has no knowledge of the sale of oil. The plaintiff has further averred that it was understood between the parties that the oil will be sold only with the consent, approval and under the instructions of the plaintiff and not otherwise. In para 21(c) the plaintiff claims that the defendant is only a banker and has no knowledge of the sale of oil. The plaintiff has further averred that it was understood between the parties that the oil will be sold only with the consent, approval and under the instructions of the plaintiff and not otherwise. That, of course, is not a part of the agreement represented by the consent terms. The plaintiff claims that the consent terms were signed pursuant to such oral agreement. Further terms of the agreement would be excluded under Section 91 of the Indian Evidence Act, 1872. It is also the plaintiff's case in para 21(c) of the plaint that the plaintiff would not have agreed to the consent terms, if the defendant had not agreed to sell the oil with the consent, approval and under the instructions of the plaintiff. 8. The plaintiff has claimed in para 21(e) of the plaint that the plaintiff continues to be the owner and the defendant was the trustee in respect of the consignment. The plaintiff called upon the defendant to fix the price of the palm oil under the oral agreement between the parties. The defendant denied any such agreement. 9. It is the plaintiff's case in para 23 of the plaint that the defendant sold 2400 metric tonnes of palm oil on 4/6/1979 for the price of Rs.6970/per metric tonne when the market price was higher about Rs.1800/to Rs.2500/per metric tonne arbitrarily, capriciously and with ulterior motive without ascertaining the market price. The plaintiff claims that the defendants sold about 1250 metric tonne to Liberty Oil Mills and about 1160 metric tonnes of oil to Allana Oil Mills. The plaintiff claims that those purchasers have paid the defendant Rs.1.27 crores by 31st December, 1979 leaving a balance of Rs.41.14 lakhs to be recovered by the defendant from the purchasers. 10. It is the plaintiff's case in para 24 of the plaint that it was the duty of the defendant to sell the palm oil at the best price with the consent and consultation of the plaintiff. The plaintiff claims that the defendant carried out the transactions behind the back of the plaintiff in the wrongful and irresponsible manner and has caused loss and damage to the plaintiff. The plaintiff has computed the damages suffered by the plaintiff in para 25 of the plaint. 11. The plaintiff claims that the defendant carried out the transactions behind the back of the plaintiff in the wrongful and irresponsible manner and has caused loss and damage to the plaintiff. The plaintiff has computed the damages suffered by the plaintiff in para 25 of the plaint. 11. The plaintiff has further claimed in para 26(b) that the defendant has wrongfully remitted various amounts to UAB without the consent of the plaintiff. 12. The plaintiff has claimed in para 27 of the plaint that the defendant bank cannot keep or retain any amount of the proceeds of the sale of the oil upon the cancelled or revoked letters of credit and despite the consent terms. 13. The plaintiff has accordingly claimed in para 28 of the plaint that the defendant bank has wrongfully and unauthorisedly debited the plaintiff’s current account with Rs.43.16 lakhs in respect of the aforesaid consignment as also for legal expenses storage and insurance charges etc. The plaintiff claims that the wrongful debt with interest aggregates to Rs.84.56 lakhs in the plaintiff’s current account. The plaintiff has claimed loss and damages of Rs.76.56 of account of the wrongful debits in para 28 of the plaint. 14. The plaintiff has further claimed in para 29 of the plaint that the defendant bank opened a Bills Maturity Deposit Account (BMDA), but has “not given” the plaintiff any credit for any sales realization. The plaintiff claims that the defendant bank has given wrongful debit advices in respect of the remittances to UAB and wrongfully carried the surplus of the sale proceeds in the BMDA account and has not credited the plaintiff’s current account with the surplus or the interest earned by the defendant during that period though the defendant bank has charged interest to the plaintiff. 15. The plaintiff has claimed Rs.6.92 lakhs from the defendant as also Rs.9.19 lakhs as per the particulars of claim Exhibit-J to the plaint. These particulars of claim are in respect of the penalty paid to the Collector of Customs and interest thereon. 15. The plaintiff has claimed Rs.6.92 lakhs from the defendant as also Rs.9.19 lakhs as per the particulars of claim Exhibit-J to the plaint. These particulars of claim are in respect of the penalty paid to the Collector of Customs and interest thereon. The plaintiff has further claimed Rs.2.38 lakhs from the defendant bank as per the particulars of Exhibit-K to the plaint which is for damages and loss suffered by the plaintiff due to undervaluation of the sale price of oil sold by the defendant being the difference in the prevailing market price less the actual sale price of oil with interest thereon @ 15% p.a. The plaintiff has claimed the aggregate sum of Rs.2.38 crores from the defendant. 16. Hence in essence this is a suit for damages. The damages are upon the sale of oil at an undervaluation. The plaintiff has accordingly claimed a money decree of Rs.2.60 crores with accounts and the declaration that the defendant bank held the sale proceeds in trust and an injunction against the defendant from remitting the proceeds to UAB or the export. The sale itself is challenged as made under an agreement which is voidable on the ground of coercion. 17. It is the defendant’s defence that the plaintiff has no current account with the defendant. No LC was opened by the defendant. Certain forged and fabricated LCs were got issued by the plaintiff for the benefit of the plaintiff in connivance with the officers of the Foreign Exchange Department in relation to palm oil from one Patel Holdings without any requisite application for opening the LCs. The defendant has set out the normal procedure of opening LC which the plaintiff has not followed. The defendant has set out that the consignments arrived and were dealt with by the plaintiff and the custom authorities in the litigation between them to which the defendant was not a party. The defendant has refuted that the LCs were cancelled by the defendant because they were not even issued by the defendant, but fraudulently got obtained by the plaintiff. 18. The defendant has refuted that the LCs were cancelled by the defendant because they were not even issued by the defendant, but fraudulently got obtained by the plaintiff. 18. It is the defendant’s case that upon the shipper having sued the plaintiff as also the defendant herein, the parties entered into consent terms under which the defendant herein was to sell the oil which arrived under the three consignments at the price obtainable by it and to appropriate the proceeds towards the amounts payable by the defendant to the shipper on behalf of the plaintiff as the importer and upon remittance to UAB. 19. The defendant has denied the case of the plaintiff having signed the consent terms under coercion. The defendant claims that the plaintiff never challenged the validity of the consent terms though a case of coercion would make the consent terms voidable under Section 15 of the Indian Contract Act, 1872 and accordingly would fall with the explanation to Order 23 Rule 3 of the CPC relating to compromise of suits under such consent terms representing the agreement between the parties. The defendant has accordingly denied that it has illegally proceeded to sell the consignment of oil. 20. The defendant has denied the oral agreement alleged by the plaintiff that it had to obtain the consent of the plaintiff to sell the oil and relating to the consultation with the plaintiff for price of the oil. The defendant has denied that it was the trustee of the plaintiff or any relationship with the plaintiff or that it breached the consent terms as such trustees. The defendant bank has claimed that it has sold the oil at the best available market price and has denied the sale to be arbitrary or under ulterior motive. It has denied the unlawful gains. It has denied that it has carried out sale behind the back of the plaintiff and claimed full authority under the consent terms to sell the oil in the manner it chose. The defendant has denied that it has gained wrongfully or irresponsibly or that the plaintiff has any legitimate dues from the sale price or cannot credit its account for any amount. The defendant has accordingly denied the entire claim of the plaintiff of loss or damage suffered by the plaintiff. 21. The defendant has denied that it has gained wrongfully or irresponsibly or that the plaintiff has any legitimate dues from the sale price or cannot credit its account for any amount. The defendant has accordingly denied the entire claim of the plaintiff of loss or damage suffered by the plaintiff. 21. The plaintiff must, therefore, essentially prove that the consent terms were executed inter alia by and between the shipper, the plaintiff and the defendant herein by coercion. If that is not seen the entire case of the plaintiff and the sale having been effected at an undervaluation falls to ground. Upon proving the execution of the consent terms by coercion, the plaintiff must further show the sale of oil at an undervaluation by proving the market price of the oil on the precise dates of sale to be entitled to the damages claimed by the plaintiff to that end. 22. Justice Karnik as he then was framed the following issues on 15th June 2009 which are answered as follows: Sr.No. Issues Findings 1. Whether the plaintiff proves that he duly made applications for opening two Letters of Credit and duly opened the same as mentioned in para 5 of the plaint. Has not been argued or pressed and is accordingly not answered 2. Whether the plaintiff proves that the Consent Terms filed before this Court in Suit No. 855 of 1979 were signed by him under coercion and the same are not binding on him as mentioned in para 20 of the plaint. No 3. Whether the plaintiff proves that the defendant was not entitled to sell the suit consignment of oil without prior consent of the plaintiff as mentioned in paras 21(e) and 24 of the plaint. No 4. Whether the plaintiff proves that the defendant is holding the sale proceeds of the palm oil received by it under consent decree in Suit No. 855 of 1979 including the sum of Rs.45,30,500/in trust and as bankers for the benefit of the plaintiff as mentioned in paras 21(e) and 34 of the plaint. No 5. Whether the plaintiff proves that he has suffered losses due to false allegations leveled by the defendant alleging opening of fraudulent Letters of Credit as mentioned in paras 9, 10, 11, 14, 25, 26 and 27 of the plaint. No 6. No 5. Whether the plaintiff proves that he has suffered losses due to false allegations leveled by the defendant alleging opening of fraudulent Letters of Credit as mentioned in paras 9, 10, 11, 14, 25, 26 and 27 of the plaint. No 6. Whether the plaintiff proves that he suffered further losses due to sale of palm oil by the defendant arrived per SS Fujit Suki Maru to Liberty Oil Mills and Allana Oil Mills pursuant to consent terms at arbitrary prices as mentioned in paras 23 and 25 of the plaint. No 7. Whether the plaintiff proves that the defendant has wrongfully debited amount of Rs.43,16,555.14 p in the plaintiff's account without any proper authorization by him as mentioned in paras 23 and 29 of the plaint. No 8. Whether the plaintiff proves that the prices as mentioned by him were the prevailing price at that time and he is entitled to recover a sum of rs.2,38,45,386.46p as per particulars of claim and further interest at 15% p.a on the principal amount of Rs.2,60,41,965.83p from the date of institution of the suit till payment or realization excluding the period between 16th April, 1996 and 23rd February 2000 as per undertaking dated 8th March 2000 as mentioned in paras 25 and 33 of the plaint. No 9. Whether the defendant proves that the suit is bad for nonjoinder of State of Maharashtra as necessary party as mentioned in para 2 of the Written Statement. No 10. Whether the defendant proves that the plaintiff had no current account with the defendant as alleged by the plaintiff at the time when the Letters of Credit was fraudulently procured by the plaintiff as mentioned in para 3 of the written statement. Is not required to be answered as is accordingly not answered. 11. Whether the defendant proves that it was liable to remit the amount to the United Asian Bank, in spite of its claim that the Letters of Credit were fraudulent or unauthorisedly opened as mentioned in para 26 of the written statement. Is not required to be and is accordingly not answered. 12. What order? As per final order. 23. The plaintiff has led evidence of one Sureshkumar Jaju as also one Hitesh Anilkumar Jaju who are the family members of the plaintiff. Is not required to be and is accordingly not answered. 12. What order? As per final order. 23. The plaintiff has led evidence of one Sureshkumar Jaju as also one Hitesh Anilkumar Jaju who are the family members of the plaintiff. The plaintiff has further examined a witness from the Bombay Commodity Exchange Limited to prove the market price of oil. 24. The evidence of P.W.1 and 2 shows that the plaintiff had a current account with the defendant and held an import license. The plaintiff obtained two LCs in favour of the exporter one Patel Holdings through UAB, Penang, Malaysia. The plaintiff imported refined palm oil in three consignments. The first consignment was clear uneventfully. The second consignment resulted in an inquiry with the defendant by the Collector of Customs resulting in certain penalty of Rs.28 lakhs imposed on the plaintiff. The defendant sued the plaintiff in Debt Recovery Tribunal (DRT) which suit has been dismissed. It is the plaintiff’s evidence that the third consignment could not be cleared because the defendant informed the Collector of Customs that the LCs were cancelled. The Collector of Customs confiscated the goods and imposed a personal penalty of Rs.12.65 lakhs which was paid by the plaintiff. The goods imported were declared unfit for the human consumption and were sold under auction on 23rd May, 1978. The plaintiff challenged the auction in a writ petition which resulted in certain minutes of the order being passed on 26th May, 1978. The shipper filed Suit No.855 of 1979 in this Court in which the aforesaid consent terms came to be executed on 1st June 1979. It is averred in para 17 of the affidavit of evidence of Sureshkumar Jaju on behalf of the plaintiff that the defendant sold the consignment of oil without the prior consent of the plaintiff and which was less than the market price. The defendant remitted certain amounts to UAB and wrongfully debited the plaintiff’s account. The defendant opened BMD Account but did not give credit to the plaintiff in the said account and hence the defendant is liable to pay Rs.2.60 crores. It is also stated in the penultimate para of the said affidavit of evidence that the defendant owes Rs. 2.38 crores in the capacity of a trustee of the plaintiff for the benefit of the plaintiff. 25. It is also stated in the penultimate para of the said affidavit of evidence that the defendant owes Rs. 2.38 crores in the capacity of a trustee of the plaintiff for the benefit of the plaintiff. 25. The affidavit of evidence is followed by certain examination-in-chief before the Court with regard to the family members of the plaintiff. The plaintiff’s status in the family and its business as HUF which is irrelevant and need not be adverted to. The cross examination of the said Sureshkumar Jaju is also initially with regard to the HUF and the business of the plaintiff in oil. Upon the personal knowledge of the witness he has been asked questions of three consignments which are admittedly received. Thereafter the witness has been asked about the price of oil. The oral answer of the witness shows the range of the price between Rs.7000/and Rs.9000/per metric tone. Later in the evidence the market price at the time of import in 197879 has been stated between Rs.7000 to Rs.9500 per metric tone. The witness has refuted that the market price was below Rs.6000/per metric tone and therefore, there was no loss to the plaintiff. 26. The other family member of the plaintiff Hitesh Anilkumar Jaju deposed that he assisted his father in his business and knew about the business of oil. He also deposed about the import license and the consignment of oil. Similarly he deposed about the confiscation by the Collector of Customs, the levy of penalty and the litigation between the plaintiff and the Collector of Customs upon the sale by public auction made by the Collector of Customs. He has deposed about the litigation between the parties to this suit and the Collector of Customs. He has also deposed that the plaintiff instructed the defendant bank not to remit any amount to UAB and that the defendant sold the goods below the then prevailing market price at Rs.6970/per metric tone even though the market price was higher by Rs.2000/ to Rs.2500/ in the range of Rs.9000/ to Rs.9500/. 27. The witness has mentioned nothing of the consent terms executed by and between the plaintiff, the defendant and the shipper in Suit No.855 of 1979, but has deposed that the defendant bank sold the consignment “without our consent and permission” at the rate lower than the prevailing market rate in para 17 of his deposition. 27. The witness has mentioned nothing of the consent terms executed by and between the plaintiff, the defendant and the shipper in Suit No.855 of 1979, but has deposed that the defendant bank sold the consignment “without our consent and permission” at the rate lower than the prevailing market rate in para 17 of his deposition. He has deposed that because of the wrongful action of defendant bank the plaintiff was made to pay penalty of Rs.12.65 lakhs out of which Rs.5.73 lakhs was refunded and the plaintiff would be entitled to the balance amounts of Rs.6.92 lakhs with interest. He has also deposed that the Collector of Customs held that the oil which was shipped was fit for only industrial use and should have been sold to industrial users, but was sold instead to Liberty Oil Mills and Allana Oil Mills on 4th June 1979 (3 days after the execution of the consent terms on 1st June 1979). He has deposed that the Collector of Customs removed the seal from the storage tank containing the consignment only on 15th June, 1979 and that on 15th June 1979 a stay was granted by the Bombay City Civil Court in another suit (number which is not mentioned) and was vacated on 3rd July, 1979. The evidence shows that he was surprised that the defendant bank admitted that the oil was sold on 4th June 1979 (which admission has not been found on record). He has thereafter deposed about the amount of Rs.45.13 lakhs being held by the defendant in trust including an amount of Rs.8.79 lakhs lying to the credit of plaintiff’s account No.921 which, he has deposed, was a running account and not closed till the date of the evidence being 18th March, 2014. The admission of this amount by the defendant has not been shown to Court. He has deposed about the observations of the Court in some other litigation the relevance of which is not shown. He has thereafter deposed about the withdrawal of certain amount pending the suit, which also does not relate to the proof of the claim in the suit. He has deposed about another suit filed by UAB which came to be withdrawn, but has not produced or relied upon the papers and proceedings of any other suit deposed about. He has thereafter deposed about the withdrawal of certain amount pending the suit, which also does not relate to the proof of the claim in the suit. He has deposed about another suit filed by UAB which came to be withdrawn, but has not produced or relied upon the papers and proceedings of any other suit deposed about. It may be mentioned that the suit could have been withdrawn in view of the consent terms in Suit No.855 of 1979 which came to be acted upon and pursuant to which certain remittance came to be made. 28. The plaintiff has relied upon certain documents, only a few of which have been marked exhibits as being admissible in evidence by Justice Patel under his order dated 27th March, 2014 in the suit. ExhibitP1 is the power of attorney which may be accepted. ExhibitP3 is the certificate of the market price of oil in February 1980 and shall be considered presently. ExhibitP2 is the show cause notice issued by the Custom Authority dated 27th February, 1979, copy of the order passed in appeal against the order of Collector of Customs dated 29th January 1981, copy of the order in Suit No. 1861 of 1980 filed by the defendant bank against Union of India, the appeal which has been dismissed for default, copy of the order of DRT2 dated 14th August 2006 in the application filed by the defendant herein against the plaintiff and the copy of the order dated 6th January, 2009 of this Court in Suit No.2005 of 1980. 29. The plaintiff has relied upon these orders to show that the plaintiff’s claim in this suit is merited and that the claim of the defendant has been dismissed throughout. It is argued on behalf of the plaintiff that the defendant filed 12 suits and one writ petition against the plaintiff all of which have been dismissed. It is, therefore, argued that this suit is merited. 30. From the aforesaid proceeding on record it may be stated that the show cause notice of the order of the Collector of Customs and in appeal do not matter as aforesaid Suit No.855 of 1979 is an independent action of the shipper in which the aforesaid consent terms have been signed and which came to be challenged well before the order was passed in appeal which has been relied upon by the plaintiff. Similarly Suit No.1861 of 1980 filed by the defendant against the Union of India is not material to determine the efficacy of the agreement between the parties as represented in the consent terms which are sought to be challenged for making the claim of damages. The application of the defendant which is stated to have been dismissed by the DRT is shown by Counsel on behalf of defendant to have been dismissed since in the cause title the name of defendant No.2 is “substantially defective” that though the borrower is HUF it is shown as the firm. The OA against the other defendants therein has been disposed off under the order dated 14th August, 2006, part of ExhibitP2 (colly) which is relied upon by the plaintiff. 31. Another order relied upon by the plaintiff dated 6th January, 2009 decrees the suit of defendant No.1 being Suit No.2005 of 1980 essentially against the store keeper of the consignment of oil being one M/s. Navbharat Trading Corporation (Navbharat). In that suit the essential issue was whether the defendant bank herein which was the plaintiff in that suit was liable to pay the separate charges to Navbharat, whether it proved that it had the first charge on the oil under those consignments and whether Navbharat proved that it had a lien for the payment of its storage charges upon the consignments of oil. Navbharat did not defend the suit. The plaintiff bank (the defendant bank herein) proved its first charge. It is observed in that judgment that the plaintiff would be entitled to the same in preference to the lien claimed by Navbharat. The judgment makes a reference to the claim of the Custom Authorities for the default of Rs.12.65 lakhs levied upon the plaintiff herein which was paid by the defendant bank herein as also the consent terms in Suit No. 855 of 1979 under which the plaintiff incurred and paid the demurrage charges and cleared the goods and thereafter obtained possession of the imported goods and was to sell the goods by public auction or private treaty and was entitled to appropriate the sale proceeds towards the satisfaction of the amounts due and payable by defendant Nos. 2 to 7 therein (including the plaintiff herein) which was admitted and acknowledged. 2 to 7 therein (including the plaintiff herein) which was admitted and acknowledged. Such suit of the defendant bank came to be decreed to the extent of the sale proceeds of the suit goods (which were the consignments of oil) with 17% interest thereon. 32. It is not known for what purpose the plaintiff has relied upon the decree in that suit which is essentially against Navbharat, but which in fact makes a reference of admission and acknowledgment of the claim of the defendant bank herein upon the sale of the goods being under the consignments of oil. 33. The Advocate on behalf of the plaintiff sought to rely upon copies of some other proceedings. It may be mentioned that the Court cannot rely upon any of the documents not produced on record. Hence no such copies are accepted on record or considered. 34. Such are the averments of the plaintiff and the oral and documentary evidence led by the plaintiff. It is upon such evidence that the above issues would be required to be decided. 35. Issue No. 1 : The issue relates to the opening of the Letters of Credit (LCs) and the consequent import of the consignment of oil. The very opening of the LCs though stated to be fraudulently opened as per the case of the defendant has not been essentially pressed by the defendant because the plaintiff’s claim of damages in the suit is upon the wrongful and arbitrary sale of oil at an undervaluation by the defendant. Consequently the LCs may be taken to be correctly opened. Even if the goods were imported under genuine LCs which were issued in favour of the exporter M/s. Patel Holdings, the claim of the plaintiff is not upon the LCs. Hence this issue becomes irrelevant to consider in view of it not having been pressed by the defendant. Consequently this issue is not being argued or proved and is not answered. 36. Issue No.2: This relates to the execution of the consent terms in Suit No.855 of 1979 of the shipper against the plaintiff as defendant No.1 therein and against the defendant bank as defendant No.3 therein signed inter alia by the plaintiff. The plaintiff has claimed that the consent terms are not binding upon the plaintiff, it having been signed under coercion. The consent terms run thus: “CONSENT TERMS 1. The plaintiff has claimed that the consent terms are not binding upon the plaintiff, it having been signed under coercion. The consent terms run thus: “CONSENT TERMS 1. Decree in favour of the plaintiff in the sum of Rs.8,75,000/ (Rupees Eight Lakhs Seventy Five Thousand) as against defendant No.1 in full and final settlement of all their claims against the defendants. The plaintiffs and defendant No.1 hereby agree and irrevocably authorise defendant No.3 to pay the said sum of Rs.8,75,000/( Rupees Eight Lakhs Seventy Five Thousand) to Messrs. P & I Services of India on behalf of the plaintiffs in full and final settlement of all their claims and to recover the same from defendant Nos. 1 and 2. 2…… 3….... 4….... 5. Agreed and declared that defendant No.3 is entitled to and be entitled to obtain the exclusive possession of the said oil mentioned in Clause 3 herein above and to sell the same either by public auction or by private treaty as defendant No.3 may deem fit and at such price and on such terms and conditions as may be deemed fit and proper by defendants No.3 and to appropriate the proceeds thereof towards the satisfaction of all the amounts due and payable by defendant Nos. 1 and 2 to defendant No.3 which defendant Nos. 1 and 2 hereby admit and acknowledge and if required to remit the same or any part thereof the United Asian Bank, Penang”. 37. The consent terms have been set out in para 19 of the plaint. The plaintiff has averred that on the basis of the aforesaid consent terms a consent decree was passed by this Court. That was on 1st June, 1979. 38. The plaintiff has averred in para 20 of the plaint that the consent terms were obtained by coercion. This is because there were several proceedings which took place due to cancellation of LCs by the defendant and the plaintiff had no other alternative, but to agree to the consent terms under coercion in order to mitigate further loss and damages. 39. Upon the case of the defendant that the letters of credit were not at all opened by the plaintiff and that that fact was brought to the defendant’s notice much later, the defendant may have initiated various actions, civil as also criminal, against the plaintiff. 39. Upon the case of the defendant that the letters of credit were not at all opened by the plaintiff and that that fact was brought to the defendant’s notice much later, the defendant may have initiated various actions, civil as also criminal, against the plaintiff. Indeed it is argued on behalf of the plaintiff that there were 12 other suits and one writ petition filed by the plaintiff and also a criminal case investigated by the CBI. The plaintiff has neither relied upon nor produced copies of any of the proceedings or any of the orders passed therein. It is merely argued by Counsel on behalf of the plaintiff that all those actions have been dismissed. No dismissal is shown except the dismissal on the technicality of the name of the plaintiff herein not being correctly mentioned as HUF, but as a firm which resulted in dismissal of the application before the DRT2 on 14th August, 2006 against defendant No.2. Even the judgment dated 6th January, 2009 which is in the suit filed by the defendant bank is essentially against Navbharat Trading Corporation, the storage keeper in respect of the lien claimed by the storage keeper but not proved by the storekeeper and which charge was confirmed as the first charge of the plaintiff upon the suit consignments. 40. Though the plaintiff has vaguely referred to “several proceedings” allegedly filed by the defendant due to cancellation of the LCs (which are stated not to have been cancelled by the defendant as they were not even issued in the first place) the plaintiff claims to be coerced because they were filed and also because the plaintiff would mitigate his loss. 41. Indeed a party may enter into consent terms in view of civil proceedings filed by the bank or any other party against it. The plaintiff, as a prudent businessman, would weigh the pros and cons of the various defences that suit party might have to take and agree to settle the dispute entirely by allowing the sale of the consignment. No such consent terms can be vitiated by coercion on that ground. If it was so, no consent terms entered into by parties before any Court could be accepted so as to bring to an end that litigation and/or various other litigations. 42. No such consent terms can be vitiated by coercion on that ground. If it was so, no consent terms entered into by parties before any Court could be accepted so as to bring to an end that litigation and/or various other litigations. 42. Even the case of coercion to mitigate further loss and damages is misconceived because any party, more specially a prudent businessman would enter into consent terms and agree to sell certain goods and to make payment from the sale proceeds indeed to mitigate the loss and damages otherwise incurred by such parties. 43. It would, therefore, have to be seen whether the coercion alleged by the plaintiff in para 28 of the plaint and upon which the aforesaid issue has been framed, would be coercion as defined in Section 15 of the Indian Contract Act, 1872, which runs thus: “15. “Coercion” defined – “Coercion” is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860), or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement”. No party is shown or proved to have made the plaintiff sign the consent terms under threat of committing any offence under the IPC for eg., of intimidation. The plaintiff has not alleged that any party had unlawfully detained the consignment of goods or threatened to detain it if the consent terms were not signed to the prejudice of the plaintiff so that the plaintiff would be constrained to sign the consent terms. 44. It does not require authority to determine that entering upon the consent terms by the plaintiff herein (as defendant No.1 in the action of the shipper) would not amount to coercion for selling the goods to pay off the legitimate claims of various parties. Indeed the plaintiff as the importer would have legal obligations to various parties including the shipper, exporter and the bank upon whom the LCs were opened, the custom authorities as also the port authorities, nothing of which is shown to have been separately and independently discharged by the plaintiff by payment to any of these parties. Even if genuine LCs were opened by the plaintiff they would be for payment to the exporter or the shipper. Even if genuine LCs were opened by the plaintiff they would be for payment to the exporter or the shipper. If not paid there would be legitimate mediation by the bank and/or the exporter or the shipper in respect of the consignment of goods imported for which the LCs were opened. The plaintiff as the prudent businessman would consider that amount it was obliged to pay including demurrage charges for the goods lying in the port, charges of penalty imposed by the custom authority as also the amount which would legitimately be expected to be claimed by the exporter, who had to be paid under the LCs, would be settled by sale of the consignment itself. 45. Coercion, which is expressed as duress in English law has been extensively considered with regard to the unlawful and illegitimate pressure exercised on a contracting party more specially in commercial transactions resulting in, what has been termed as, economic duress, which is voidable at law. Anson's Law of Contract, 29th Edition at page 350 shows the law on duress. In modern cases the pressure exercised to constitute duress is shown as 'illegitimate pressure'. Anson considers that the various pressures must be distinguished. The pressure which the contracting party is not expected to submit to is an illegitimate pressure as against legitimate pressures which the law does not take into account. Consequently illegitimate pressure may not be unlawful, but is yet illegitimate. Unlawful pressure occurs with the coercive party threatens to do something that is a breach of common law or a statutory duty. It may be a crime, a tort or a breach of contract. A contract executed under such pressure may be set aside by the other party. However the position is different where what is threatened is not an unlawful act. It is not duress to threaten to do that which one has a legal right to do for eg., to refuse to enter into a contract or to terminate the contract lawfully. Hence a party may threaten to take legitimate legal proceedings or having taken such proceedings may legitimately threaten to enforce it. Another party, weighing the situation may agree to settle. The threat to prosecute or continue a litigation legally would not result in illegitimate pressure. Hence the settlement entered into between the parties could not be termed as under coercion or duress. Another party, weighing the situation may agree to settle. The threat to prosecute or continue a litigation legally would not result in illegitimate pressure. Hence the settlement entered into between the parties could not be termed as under coercion or duress. At page 356 of the aforesaid edition of Anson's law of contract the author sets out that threats of lawful action is ordinarily not duress thus: “It is not ordinarily duress to threaten to do that which one has a right to do, for instance to refuse to enter into a contract or to terminate a contract lawfully. In the cut-and-thrust of business relationships various types of pressure may be brought to bear in differing situations. Where there are shortages in goods or services the person who wishes to acquire them has little choice. Thus a private person or undertaking is generally permitted to refuse to deal with another at all or except on specified terms, and the poor person who has to agree to pay a high rent to get a roof over his head is nevertheless bound”. 47. The author has cited the case of Lloyds Bank Ltd. Vs. Bundy 1975 QB 326 at page 336 in which Lord Justice Denning MR observed that no bargain will be upset which is the result of the ordinary interplay of market forces. He gave the illustration of a homeless man who agrees to pay high rent to the landlord to get a roof over his head for which the common law would not interfere and also a borrower in urgent need of money who borrows at high interest guaranteed by a friend for which also the common law will not interfere. That case however dealt with an unfair advantage gained and unconscientious use of power by a stronger party against a weaker resulting in an unconscionable transaction accentuated by undue influence in a fiduciary relationship, the case being between the banker and the customer who has defaulted under a overdraft account resulting in “inequality of bargaining power”. Persons similarly placed may make contracts by which they are bound even if the terms appear unreasonable. 48. Hence in the absence of any inequality and in the case of businessman who have the same bargaining power as banks and other authorities mere claiming of influence or pressure is not enough. 49. In the case of Lynch Vs. Persons similarly placed may make contracts by which they are bound even if the terms appear unreasonable. 48. Hence in the absence of any inequality and in the case of businessman who have the same bargaining power as banks and other authorities mere claiming of influence or pressure is not enough. 49. In the case of Lynch Vs. Director of Public Prosecutions for Northern Ireland (D.P.P.) 1975 AC 653 at 669 it has been held that duress cannot be accepted as a defence to murder. In that case a person was charged with having murdered a police officer. The case against him was of abetement. He claimed that he was made to act under duress. The Lord Chief Justice in a unanimous decision held in the criminal Court of appeal that duress could not be accepted as a defence to murder. The Court considered the question of duress in general at page 670 thus: “Someone who acts under duress may have a moment of time, even one of the utmost brevity, within which he decides whether he will or will not submit to a threat. There may consciously or subconsciously be a hurried process of balancing the consequences of disobedience against the gravity or the wickedness of the action that is required. The result will be that what is done will be done most unwillingly but yet intentionally. Terminology may not, however, much matter. The authorities show that in some circumstances duress may excuse and may therefore be set up as a special defence”. The Law Lord considered separately that duress cannot be negative criminal responsibility. 50. The case of Pao On and Ors. Vs. Lau Yiu and Anr., 1979 (3) All ER page 65 is the authority of what constitutes economic duress in a commercial contract under English law. That was a case of purchase of shares of a listed company at specified prices under a written contract. The purchaser gave an undertaking that he would not sell or transfer certain of those shares allotted to him by heavy selling. The market could be depressed and the shares would be devalued. The purchaser realised that by his undertaking not to sell the shares he was exposed to the risk that the price of the shares might fall below par. Hence the purchaser sought a guarantee against a firm in the price of shares. The market could be depressed and the shares would be devalued. The purchaser realised that by his undertaking not to sell the shares he was exposed to the risk that the price of the shares might fall below par. Hence the purchaser sought a guarantee against a firm in the price of shares. The seller agreed to buy back the shares from the purchaser at the specified value under a separate written subsidiary agreement. The purchaser, appreciating that he had made a bad bargain, informed the seller that he would not complete the main agreement unless the subsidiary agreement was cancelled and replaced by a true guarantee by way of indemnity guaranteeing the price of a part of the shares. The seller was anxious to complete the transaction for keeping public confidence. He chose to avoid the litigation and gave the indemnity in place of the subsidiary agreement. He failed to fulfill his promise of indemnity under the guarantee and interalia asserted that he was induced by economic duress on the part of the plaintiff when sued. At page 78 of the judgment it was held that the guarantee was not avoidable. It was held not to be duress as a coercion of the will so as to vitiate consent. It was observed that duress required coercion so as to vitiate consent and commercial pressure alone does not constitute duress. This could be seen from the fact of whether such party did or did not protest; whether he had an alternative course open to him (such as an adequate legal remedy) at the time of the alleged coercion, whether he was independently disposed and whether after entering into the contract he had taken steps to avoid it. It was observed that in that case the defendant considered the matter thoroughly, chose to avoid litigation and formed the opinion that it was more apparent than real. It was held that there was commercial pressure, but no coercion. The Court considered the aspect of 'economic duress'. It held that the compulsion had to be such that the party was deprived of 'his freedom of exercising his will'. He must have entered into the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure. It held that the compulsion had to be such that the party was deprived of 'his freedom of exercising his will'. He must have entered into the contract against his will, must have had no alternative course open to him, and must have been confronted with coercive acts by the party exerting the pressure. The Court also considered the American jurisprudence which lays stress on matters such as alternative remedy available, the fact or absence of protest, the availability of independent advise, the benefit received, and the speed with which the victim sought to avoid the contract. The Court concluded that the act must be such that the victim's consent was not a voluntary act. 52. It could hardly be said that in the case of a trader and an importer such as the plaintiff he would put his pen to paper as a non-voluntary act obtained without his consent. He is expected to and is seen to have considered the pros and cons of the transaction given the fact that the defendant bank contended that the LCs were fraudulently obtained by the plaintiff not issued by the bank.