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2023 DIGILAW 787 (CAL)

Dalgreen Agro Pvt. Ltd. v. Shaikh Asadur Rahman

2023-05-15

KRISHNA RAO

body2023
JUDGMENT : KRISHNA RAO, J. The plaintiff has filed the present suit against the defendants praying for a decree for a sum of US $428500 along with interest and pendent lite interest at the rate of 18% per annum and further interest at the rate of 18% per annum from due dates of payment of the Letters of Credit, or in the alternative decree for Rs. 4 Crores as damages. CASE OF THE PLAINTIFF: 1. The plaintiff is a Company incorporated under the provisions of Companies Act, 1956 and is engaged in several businesses including trading and exports of agriculture products. The defendant no. 1 is a businessman who is carrying on the business at Bangladesh. The defendant no. 1 is an importer of agriculture products and he functions through various agents including the defendant nos. 2 and 3. The defendant no. 2 carries on business under the name and style of Mamun Brothers as Sole Proprietor at Bangladesh. The defendant no. 3 carries on business under the name and style of Shad Enterprises as a Sole Proprietor at Bangladesh. The defendant nos. 4 and 5 are the community brokers acting in tandem from the office of the defendant no. 5 at Kolkata. The defendant nos. 4 and 5 carry on business through various companies/partnerships/proprietorship concerns which are family run companies controlled by defendant nos. 4 and 5. 2. The defendant no. 4 controls several companies including LNC Agro Mills Pvt. Limited. The majority shareholding of LNC Agro Mills Private Limited is that of defendant no. 4 and his family members. The defendant no. 4 is also in control of a proprietorship concern named and styled as Nivedita Exports. 3. The defendant nos. 7 and 8 are Customs House clearing and forwarding agent at Ghojadanga Port, India and Bhomra Port, Bangladesh respectively. The defendant no. 8 is also the CNF agent of the defendant no. 1. The defendant no. 6 carries on business under the name and style of R.B. Roadways as a Sole proprietor at Ghodanga Gate. 4. In the month of January, 2015, the defendant nos. 4 and 5 had approached the plaintiff with the proposal for exporting rice and wheat to Bangladesh and at that point of time the defendant no. 5 identified himself as a business partner of the defendant no. 4. The defendant nos. 4. In the month of January, 2015, the defendant nos. 4 and 5 had approached the plaintiff with the proposal for exporting rice and wheat to Bangladesh and at that point of time the defendant no. 5 identified himself as a business partner of the defendant no. 4. The defendant nos. 4 and 5 had given attractive proposal for doing the business with the plaintiff which led to various meetings which was held between the plaintiff and the defendants. 5. The defendant nos. 4 and 5 introduced the plaintiff to the defendant No. 1 as an importer of Bangladesh having high repute and the defendant No. 1 was introduced by the defendant Nos. 4 and 5 as Vice-Chairman of Khulna Chamber of Commerce. Considering the status of the defendant Nos. 1, 4 and 5, the plaintiff had no occasion to mistrust or disbelieve the representations of the defendants and relying on such representation and reasonably believing the same to be true, the plaintiff proceeded with the defendants for business. The defendant Nos. 1, 4 and 5 required the plaintiff to export rice and wheat from India to Bangladesh in favour of two consignees i.e. defendant Nos. 2 and 3 who were also identified as concerns under the control and management of defendant No. 1. 6. The defendant Nos. 4 and 5 were acting as brokers of the defendant Nos. 1, 2 and 3 and had represented that they would take care of the entire modalities of identifying the sellers of such agriculture products which is to be exported and would also take the responsibility of the transporters as well as CNF agents. The entire modality of purchasing rice and wheat, the shipment of the same as well as the responsibilities pertaining to the clearance by the customs authority were undertaken by the defendant Nos.4 and 5 in consultation with the defendant Nos. 1, 2 and 3. 7. The plaintiff was introduced to one LNC Agro Mills Private Limited as one of the primary suppliers of rice whereas the suppliers of wheat were one Asis Kumar Dutta, B.N. Traders, M.H. Trading and Nividita Exports. Apart from the aforesaid wheat supplier, the defendant No. 5 also identified himself as one of the wheat supplier. 8. The plaintiff had procured rice and wheat from the sellers and suppliers identified by the defendant Nos. 1, 4 and 5. Apart from the aforesaid wheat supplier, the defendant No. 5 also identified himself as one of the wheat supplier. 8. The plaintiff had procured rice and wheat from the sellers and suppliers identified by the defendant Nos. 1, 4 and 5. The defendant No. 6 was identified by the defendant Nos. 4 and 5 as the transporter of the communities lifting the same from suppliers in transporting the same to Ghojadanga Land Port in India side of the border with Bhorma Port on the Bangladesh side of the Border. 9. The plaintiff procured rice and wheat from the aforesaid sellers for the purpose of exporting the same to the defendant No. 1 and such procurement of rice and wheat was done on several dates. The purchases were made by the plaintiff at the instance of defendant Nos. 1, 4 and 5 on the basis of oral agreement made between the plaintiff and the defendant Nos. 1 to 5 entered into between the said parties at the office of the defendant No. 5 with the following terms and conditions: (i) The plaintiff would first procure the rice and wheat from the suppliers identified by the defendant Nos. 1, 4 and 5. (ii) The defendant Nos. 4 and 5 shall take all necessary steps for transportation of wheat and rice to the plaintiff. (iii) The defendant Nos. 1, 4 and 5 also identified the defendant No. 6 for the purpose of taking all necessary steps to transport the commodities from the said sellers to the plaintiff and from the plaintiff as the exporter to the defendant No. 1 and /or his representatives as the importer in Bangladesh. (iv) The plaintiff would receive commodities as the purchaser and thereafter would send such goods to the defendant No. 1 or his associates namely, the defendant No. 2 and 3 would be the respective consignees. (v) The defendant No. 1 would a open Letter of Credit for each of the invoices raised by the plaintiff on the defendant Nos. 1, 2 and 3 through the Islami Bank of Bangladesh and the negotiating bank of the plaintiff was to be ICICI bank, Bhowanipur branch, Kolkata. (vi) The plaintiff’s goods would be handled by the defendant No. 7 who was a license Customs clearing and forwarding agent. The said agent was represented by three persons, namely, Prasanta Sarkar, Achinta Sarkar and Samir Sarkar. (vi) The plaintiff’s goods would be handled by the defendant No. 7 who was a license Customs clearing and forwarding agent. The said agent was represented by three persons, namely, Prasanta Sarkar, Achinta Sarkar and Samir Sarkar. These three persons were identified as PSA Enterprises. (vii) The defendant No. 7 would forward the goods to the defendant No. 8 who was the CNF agent of the defendant No. 1 and accordingly, the goods would be received by the defendant No. 1 and his associates namely, the defendant Nos. 2 and 3. (viii) The plaintiff would be required only to raise invoices and the Letter of Credit would be honoured within 21 days of shipment that is the receipt of goods by importer. 10. As per the terms and conditions, shipment of rice and wheat was done and invoices were raised by the plaintiff in favour of the defendant No. 1 through the defendant Nos. 2 and 3 on several dates. The defendant No. 1 through the defendant Nos. 2 and 3 arranged Letter of Credit corresponding to the invoices on several dates. The said Letter of Credit were issued from Bangladesh and were received at the office of the plaintiffs banker at Bhawanipur branch. The plaintiff had also made payments with regard to the consignments to the respective suppliers as per the oral agreement for a total sum of Rs. 2,51,65,315/-. 11. The defendants have taken all steps for the purpose of honouring the first letter of credit dated 19th March, 2015 in accordance with the agreement between the parties, however, payments under other Letter of Credit were delayed from time to time and were not made at all. The defendant Nos. 1, 2 & 3 and the defendant Nos. 4 and 5 have acted in breach of their obligation. 12. The defendants deliberately raised issues pertaining to the documents referred to in the Letters of Credit for the third and fourth consignment only for the purpose of delaying payments. The plaintiff had provided all requisite documents to the defendants such as proforma invoices, transport challan as mentioned in the Letters of Credit. 13. The goods covered by the Letters of Credit bearing No. 086815010373 had crossed the border from India to Bangladesh on 26th April, 2015 and requisite endorsement were made thereon by the custom authorities. The plaintiff had provided all requisite documents to the defendants such as proforma invoices, transport challan as mentioned in the Letters of Credit. 13. The goods covered by the Letters of Credit bearing No. 086815010373 had crossed the border from India to Bangladesh on 26th April, 2015 and requisite endorsement were made thereon by the custom authorities. The endorsement made by the respective Custom Authority in India as well as from Bangladesh on the invoice of the packing list dated 24th April, 2015, it is proved that the goods have been crossed the border of Bangladesh. The documents submitted by the plaintiff for the purpose of payment under the Letters of Credit bearing No. 086815010330 has been made over to the negotiating Bank of the plaintiff being the ICICI Bank Limited, Bhawanipur Branch for the purpose of negotiating the same with the banker of the defendant Nos. 2 and 3 namely Islamic Bank of Bangladesh Limited. 14. The goods covered by the letter of credit bearing No. 086815010330 had crossed the border from India to Bangladesh on 22nd April, 2015 with requisite endorsement were made thereon by the Custom Authorities. The documents submitted by the plaintiff for the purpose of payment under the Letters of Credit being No. 08681501 0372 has been made over to the negotiating bank of the plaintiff being the ICICI bank Limited, Bhowanipur Branch for the purpose of negotiating with the banker of the defendant Nos. 2 and 3 namely Islamic Bank of Bangladesh Limited. The goods covered by the said Letters of Credit had crossed the border from India to Bangladesh on 30th May, 2015 with the requisite endorsement made by the custom authorities. 15. The negotiating bank of the plaintiff, ICICI bank Limited, Bhawanipur branch had made over the SWIFT messages issued by the negotiating bank of the defendant Nos. 2 and 3 namely the Islamic Bank of Bangladesh Limited. As per the SWIFT messages, it appears that carriers has not been identified in the truck receipt and there had been a discrepancy with such carrier have not being approved by the Indian Bank’s Association. The negotiating bank of the defendant No. 1 had pointed out that there existed a non-compliance on the part of the plaintiff with regard to Clause No. 15 of F46A of the Letters of Credit which required the transporter to be an Indian Banks Association approved transporter. 16. The negotiating bank of the defendant No. 1 had pointed out that there existed a non-compliance on the part of the plaintiff with regard to Clause No. 15 of F46A of the Letters of Credit which required the transporter to be an Indian Banks Association approved transporter. 16. The plaintiff had confronted the defendant Nos. 4 and 5 when it was informed that the transporter’s challans had been issued by one Jain Parivahan which is an Indian Banks Association approved transporter whereas the defendant No. 6 was the actual transporter who had caused delivery of goods. The said fact was not informed to the plaintiff at the time of shipment of goods which had resulted in three Letters of Credit being dishonoured but the said facts were in the knowledge of the defendant Nos. 1 to 3 and 6 to 8. 17. Subsequently, the plaintiff had been informed by its bankers ICICI Bank, Bhawanipur Branch, that the negotiating bank of the defendants Nos. 2 and 3 being the Islamic bank had informed the defendant No. 2 and 3 that they had not received the concern goods covered by the respective Letters of Credit. On enquiry the plaintiff came to know that the defendant No. 4 belongs to a business family in Bardhaman and not in Bangladesh. On further enquiry the plaintiff came to know that the shipment for export made by the plaintiff at the Indian Port was accepted by the CNF agent identified by the defendant Nos. 4 and 5 but the documents thereafter have been tampered and changed to reflect other consignor and consignees. It was further discovered that the corresponding Letters of Credit for the goods exported by the plaintiff had been issued by one Maa Banijja Bhandar in favour of Nivedita Exports. The said Nivedita exports is a concern under the control of the defendant No. 4 and it is shown as proprietorship firm of the wife of the defendant No. 4. 18. The plaintiff further came to know that the purported Maa Banijja Bhandar is a part of Maa Group of business entity which would be evident from a visiting card of the defendant No. 4 made over to the plaintiff by the defendant no. 4 during the negotiation representing himself to be a resident of Bangladesh. 18. The plaintiff further came to know that the purported Maa Banijja Bhandar is a part of Maa Group of business entity which would be evident from a visiting card of the defendant No. 4 made over to the plaintiff by the defendant no. 4 during the negotiation representing himself to be a resident of Bangladesh. Admittedly goods exported by the plaintiff had crossed the Indian Border at Ghojadanga Port into the Bhomra Port at Bangladesh had been duly certified by the office of the Assistant Commissioner of Customs at Ghogadanga Land Customs Station for the goods exported by the plaintiff under the concerned Letters of Credit. 19. The plaintiff had made several demands for payment with respect of the goods covered under the Letters of Credit but the defendant No. 1, 2 and 3 have refused or neglected to make payment to the plaintiff. CASE OF THE DEFENDANTS: 20. The defendant Nos. 1, 2, 3, 4, 5, 6 and 7 have filed their separate written statements but the defendant No. 8 had neither entered appearance nor had filed any written statement inspite of receipt of writ of summons. 21. The defendant No. 1 has admitted that he is a businessman with great reputation in Bangladesh and also acquired considerable goodwill in India specifically in the State of West Bengal but the defendant no. 1 has denied any commercial dealing relationship with the other defendants or the plaintiff. Though the defendant No. 1 has filed written statement but subsequently he has not appeared in the suit neither he had cross-examined the witnesses of the plaintiff nor had adduce any evidence on his behalf. 22. The defendant No. 2 in his written statement has admitted that he is the proprietor of one Mamun Brothers and is engaged in the business of importing foodstuffs from overseas countries and selling them to the retail local market in Bangladesh. He has further admitted that as per the request of the defendant No. 4 on behalf of the plaintiff, he had accepted the offer and accordingly placed orders for supply of Indian non-basmati rice and opened Letters of Credit No. 86815010277 dated 19th March, 2015 and No. 86815010324 dated 2nd April, 2015 through the Islamic Bank Ltd. and materials under those Letters of Credit were received and payments were made. During shipment of goods in the above Letters of Credit, the defendant no. During shipment of goods in the above Letters of Credit, the defendant no. 2 had opened third and fourth Letters of Credit for export of Non-Basmati rice No. 086815010130 dated 6th April, 2015 US $ 152,500 and No. 86815010372 dated 20th April, 2015 for US $ 123,500 for supply of Indian wheat and No. 8681501387 dated 23rd April, 2015 for US $ 152,500 for supply of non Indian Basmati Rice with the Islamic Bank Bangladesh Limited, Khulna Branch in favour of the plaintiff. The said Letters of Credit were accordingly sent to ICICI bank Limited and the shipment under Letter of Credit No. 86815010387 dated 23rd April, 2017 was duly completed by the plaintiff and the defendant No. 2 had paid the said amount on receipt of the goods. As regard the other two Letters of Credit, no shipment of scheduled 502 metric tons of Indian non-Basmati Rice and 500 metric tons of Indian wheat by the plaintiff was made to the defendant within the scheduled time framed nor at any subsequent stage but the plaintiff had sent the fabricated documents through Bhowanipur Branch of the negotiating bank being ICICI Bank Limited for being sent to Islamic bank Bangladesh Limited for collection of USD 1,23,500 and 1,52,500. The defendant No. 2 had informed the bank who had issued the Letters of Credit that the documents are false and fabricated and no consignment of goods as detailed in the documents have reached to the defendant and requested the Islamic Bank Limited not to pay any amount to the negotiating bank that is ICICI Bank Limited. 23. The defendant No. 3 admitted that he is the proprietor of M/s Shad Enterprises having its office at West Mecot Road, Khulna, Bangladesh and engaged of importing food staffs from overseas countries and selling to the retail market in Bangladesh. He also admits that defendant no. 4 on behalf of plaintiff induced to accept the offer and accordingly placed orders for supply of Indian non Basmati Rice and opened Letters of Credit No. 086815010278 dated 19th March, 2015 and No. 86815010327 dated 2nd April, 2015 through Islamic Bank, Bangladesh Ltd. He also admits that materials were received and payments were also made through the above Letters of Credit. The defendant no. The defendant no. 3 also opened Letter of Credit No. 086815010373 dated 20th April, 2015 for an amount of USD 1,52,500.00 with the Islamic Bank Bangladesh Ltd. for export of 502.400 MT of Indian Non Basmati Rice and due date of expiry of the said Letters of Credit was on 18th July, 2015 but no shipment of 502.400 MT Indian Non Basmati Rice was received by the defendant and he requested the Bank not to pay any amount to the negotiating bank i.e. ICICI Bank, Bhowanipore Branch. 24. The defendant No. 4 in the written statement denied that the defendant has ever represented himself as committee broker before the plaintiff but he has admitted that the defendant no. 4 is a reseller of agriculture product. The defendant No. 4 has further denied that he has introduced the defendant No. 1 with the plaintiff as importer of Bangladesh and as a Vice-Chairman of Khulna Chamber of Commerce. He has also denied that he never played any role in collusion with the other defendants for committing fraud upon the plaintiff. 25. The defendant No. 5 in his written statement has admitted that he is an agent and his work is only to meet people for business transaction and for anything else he is not at all responsible. He had introduced the plaintiff with the defendant No. 4 and he does not know any other defendants. 26. The defendant No. 6 in his written statement stated that the defendant is a transporter and carries on business under the name and style of R.B Roadways as its sole proprietor and the defendant firm is not the bank approved transporter. The defendant No. 6 stated that in the course of business, one LNC Agro Mills Private Limited, as the manufacturer and supplier of rice, appointed the defendant as his transporter for the purpose of transporting rice from Mill in Burdwan to Ghojadanga-Bhomra border on “two pay” basis for the purpose of export made by the plaintiff. The defendant No. 6 admitted that he has handed over the consignment to the clearing and forwarding agent of the plaintiff at Ghogadanga border that is defendant No. 7. 27. The defendant No. 6 further stated that though the defendant no. The defendant No. 6 admitted that he has handed over the consignment to the clearing and forwarding agent of the plaintiff at Ghogadanga border that is defendant No. 7. 27. The defendant No. 6 further stated that though the defendant no. 6 is not a bank approved transporter, all the tracks of the defendant loaded with the consignment cross the border under the consignment note of “Jain Parivvahan” which is Bank approved transporter and the said consignment note was organised by the defendant No. 7. The defendant No. 6 further stated that all the trucks carrying the consignment has crossed the border and the obligation was completely fulfilled. After delivery of the consignment, the defendant has raised bills upon the plaintiff and the same was duly paid by the plaintiff to the defendant without any demur. The defendant No. 6 has stated that he has been made as a party to the suit but the plaintiff has not made Jain Parivahan as party defendant in the present suit. 28. The defendant No. 7 in his written statement admitted that the defendant is recognised clearing and forwarding agent duly registered with the Customs authorities at Kolkata and in usual course of business, the plaintiff has appointed the defendant No. 7 as its clearing and forwarding agent for the purpose of export made by the plaintiff to Bangladesh at Ghojadanga–Bhorma Border. As such clearing and forwarding agent, the assignment of defendant No. 7 was restricted to getting the documents passed by the Indian Customs at Ghojadanga, received and get the consignment passed by the Indian Customs and after the documents cleared, forwarded the documents and consignment to the clearing and forwarding agent of the importer and in this case, defendant No. 8 is the clearing and forwarding agent of the importer being the defendant Nos. 2 and 3. The clearing and forwarding agent of the importer thereafter gets the document passed and consignment checked by the Bangladesh Customs, the documents are forwarded back to the clearing and forwarding agent of export and the consignment is delivered to the importer. The clearing and forwarding agent of the exporter then forward the documents to the exporter for submitting the same to the bank. 29. The defendant Nos. The clearing and forwarding agent of the exporter then forward the documents to the exporter for submitting the same to the bank. 29. The defendant Nos. 1, 2, 3, 4 and 5 have filed their written statement but subsequently they have not contested the suit either by cross examining the witness of the plaintiff or by adducing evidence on their behalf. Only the defendant Nos. 6 and 7 have contested the suit by filing written statement as well as by cross examining the witness of the plaintiff and have adduced evidence on their behalf. ISSUES FRAMED DURING THE TRIAL: 30. On considering the submissions made by the respective parties, suggestive issues submitted by the parties and after going through the pleadings of the parties the following issues were framed: 1. Whether the suit is maintainable in its present form as alleged by the defendants in the written statement? 2. Whether the plaint discloses any cause of action against the defendant in the present suit as pleaded by the defendants in their written statement? 3. Whether the defendants have acted in breach of modalities as agreed between the parties and mentioned in paragraph 13 of the plaint? 4. Whether the defendants have forged and manufactured documents as pleaded in the plaint? 5. Whether the defendants have colluded and conspired with each other and have misrepresented the plaintiff? 6. Whether the plaintiff and the defendant No. 2 have played fraud on each other? 7. Whether the plaintiff is entitled to get any relief as prayed for in the plaint? 8. Whether the plaintiff has any cause of action to file the suit? 9. Whether there was any agreement by and between the plaintiff and the defendant Nos. 1 to 5 as pleaded in paragraph 13 of the plaint? 10. Was the plaintiff entitled to invoke the letters of credit bearing L/C No. 086815010330 dated 22nd April, 2015 and L/C No. 086815010372 dated 24th May, 2015 and 30th May, 2015 for USD 152,500 and USD 123,500 without exporting and delivering the goods to the defendant No. 2? 11. Is the defendant No. 5 at all necessary party in the suit? 31. EVIDENCE ADDUCED ON BEHALF OF THE PLAINTIFF: (a) The plaintiff had adduced three witnesses in support of his claim namely: (i) PW-1 - Utpal Choudhry (ii) PW-2 - Rajesh Chura (iii) PW-3 - Supratik Sikder. 11. Is the defendant No. 5 at all necessary party in the suit? 31. EVIDENCE ADDUCED ON BEHALF OF THE PLAINTIFF: (a) The plaintiff had adduced three witnesses in support of his claim namely: (i) PW-1 - Utpal Choudhry (ii) PW-2 - Rajesh Chura (iii) PW-3 - Supratik Sikder. During the evidence of plaintiff’s witnesses altogether 46 documents were exhibited as Exhibits “A to TT.” At the time of cross-examination of PW-1, one document was exhibited as “Exhibit – 1” (b) The defendant Nos.6 has adduced one witness in support of his claim namely: (i) DW-1 - Firoz Aktar Baidya. During the evidence of DW-1, one document was exhibited as “Exhibit-2.” (c) The defendant no. 7 has adduced one witness in support of his claim namely: (i) DW-2 - Prasanta Sarkar. 32. DECISION WITH REASONS: (a) Issue number 1, 2, 8 and 9 are taken up together. 1. Whether the suit is maintainable in its present form as alleged by the defendants in the written statement? 2. Whether the plaint discloses any cause of action against the defendant in the present suit as pleaded by the defendants in their written statement? 8. Whether the plaintiff has any cause of action to file the suit? 9. Whether there was any agreement by and between the plaintiff and the defendant Nos. 1 to 5 as pleaded in paragraph 13 of the plaint? The plaintiff has filed the suit against the defendants praying for a decree for a sum of US $ 428500 along with interest. As per the case made out by the plaintiff in the plaint that the defendant Nos. 4 and 5 on or about January, 2015 introduced the plaintiff to the defendant No. 1 as an importer of Bangladesh having high repute and it was also informed that the defendant No. 1 is also a Vice-Chairman of Khulna Chamber of Commerce and considering the position of the defendant No. 1, the plaintiff had agreed to start the business with the defendants to export rice and wheat from India to Bangladesh in favour of two consignees namely defendant No. 2 and 3 who were also identified as concerns under the control and management of the defendant No. 1. The defendant No. 4 and 5 who represented the plaintiff that they would take care of the entire modalities of identifying the sellers of such agriculture products and also identifying the transporters as well as CNF agents who would take care of the entire transaction including transportation of the agricultural products. In the month of January, 2015, the plaintiff was introduced to one LNC Agro Mills Private Limited for the purpose of supply of rice grains to the plaintiff by the defendant Nos. 4 and 5. The plaintiff had procured rice and wheat from the aforesaid sellers for the purpose of exporting the same to the defendant No. 1. The said purchases were made by the plaintiff at the instance of defendant Nos. 1, 4 and 5 on the basis of an oral agreement made between the parties which are as follows: (i) The plaintiff would first procure the rice and wheat from the suppliers identified by the defendant Nos. 1, 4 and 5. (ii) The defendant Nos. 4 and 5 take all necessary steps for transportation of wheat and rice to the plaintiff. (iii) The defendant Nos. 1, 4 and 5 also identified the defendant No. 6 for the purpose of taking all necessary steps to transport the committees from the said sellers to the plaintiff and from the plaintiff as the exporter to the defendant No. 1 and/or his representatives as the importer in Bangladesh. (iv) The plaintiff would receive communities as the purchaser and thereafter sent such goods to the defendant No. 1 or his associates namely, the defendant Nos. 2 and 3 would be respective consigning. (v) The defendant No. 1 would a Letter of Credit for each of the invoices raised by the plaintiff on the defendant Nos. 1, 2 and 3 through the Islamic Bank of Bangladesh and the negotiating bank of the plaintiff was to be ICICI Bank, Bhowanipur Branch, Kolkata. (vi) The plaintiff’s goods would be handled by the defendant No. 7 who was a license Customs clearing and forwarding agent. The said dated was represented by three persons, namely, Prasanta Sarkar, Achinta Sarkar and Samir Sarkar. These three persons were identified as PSA Enterprises. (vi) The plaintiff’s goods would be handled by the defendant No. 7 who was a license Customs clearing and forwarding agent. The said dated was represented by three persons, namely, Prasanta Sarkar, Achinta Sarkar and Samir Sarkar. These three persons were identified as PSA Enterprises. (vii) The defendant No. 7 would forward the goods to the defendant No. 8 who was the CNF agent of the defendant No. 1 and accordingly, the goods would be received by the defendant No. 1 and his associates namely, the defendant Nos. 2 and 3. (viii) The plaintiff would be required only to raise invoices and the Letter of Credit would be honoured within 21 days of shipment that is the receipt of goods by importer. The only involvement of the plaintiff was to procure the goods and make necessary payments for the purpose of exporting goods to the defendant Nos. 1, 2 and 3. The defendants had taken all the steps for the purpose of honouring the first Letter of Credit dated 19th March, 2015 in accordance with the agreement between the parties but payment under other Letters of Credit, no payment was made and the defendants No. 1 to 5 have acted in breach of their obligation to the plaintiff at Bangladesh and Bhowanipur. It is the specific case of the plaintiff that the defendants have violated the terms and condition of the oral agreement and the oral agreement is admitted by the defendants in their written statement and the plaintiff has categorically made an averment at paragraph 52 of the plaint that the cause of action has arisen in the month of July, 2015 when the payment were due under the Letters of Credit and thereafter on 31st December, 2015 when the defendants alleged that they have not received the goods and is continuing thereafter on day-to-day for non-payment of dues payable to the plaintiff. The defendant no. The defendant no. 2 has admitted that as per the request of the defendant No. 4 on behalf of the plaintiff, he had accepted the offer and accordingly placed orders for supply of Indian non-basmati rice and opened Letters of Credit No. 86815010330 dated 6th April, 2015 for US $ 152,500 for the export of Indian non-basmati rice and No. 086815010372 dated 20th April, 2015 US $123,500 for the export of Indian wheat and No. 86815010387 dated 23rd April, 2015 for US $ 152,500 for supply of Indian non-basmati rice with the Islamic Bank Bangladesh Limited, Khulna Branch in favour of the plaintiff. The said Letters of Credit were accordingly sent to ICICI bank Limited and the shipment under Letter of Credit No. 86815010387 dated 23rd April, 2017 was duly completed by the plaintiff and the defendant No. 2 had paid the said amount on receipt of the goods. The defendant no. 3 also admitted that as per request of defendant no. 4 on behalf of plaintiff, he had accepted the offer and accordingly placed orders for supply of Indian Non Basmati Rice and open Letters of Credit No. 086815010278 dated 19th March, 2015 and No. 086815010322 dated 2nd April, 2015 and the payments were also made. It is also admitted that defendant no. 3 had opened Letters of Credit No. 086815010373 dated 20th April, 2015 for an amount of USD 1,52,500.00 but the said consignment was not received and defendant no. 3 had requested the bank not to pay an amount of negotiating Bank. In view of the above, this Court holds that the suit filed by the plaintiff is maintainable in its present form and the plaintiff has disclosed the cause of action for filing this case and admittedly there was an oral agreement between the plaintiff and the defendants, accordingly issue Nos. 1, 2, 8 and 9 are decided in favour of the plaintiff. (b) ISSUES No. 3, 4, 5, 6 ARE TAKEN UP TOGETHER: 3. Whether the defendants have acted in breach of modalities as agreed between the parties and mentioned in paragraph 13 of the plaint? 4. Whether the defendants have forged and manufactured documents as pleaded in the plaint? 5. Whether the defendants have colluded and conspired with each other and have misrepresented the plaintiff? 6. Whether the plaintiff and the defendant No. 2 have played fraud on each other? 4. Whether the defendants have forged and manufactured documents as pleaded in the plaint? 5. Whether the defendants have colluded and conspired with each other and have misrepresented the plaintiff? 6. Whether the plaintiff and the defendant No. 2 have played fraud on each other? The plaintiff had examine PW-1 namely Utpal Choudhary who is the Chief Operating Officer of the plaintiff’s Company and during his examination, he has narrated the facts of the case as mentioned in the plaint. Exhibit A proves that the plaintiff had procured rice and wheat. Exhibit B is the details of invoices raised by the plaintiff with respect of Indian non-basmati rice and Indian wheat total amounting to Rs.1358500/. Exhibit C is the details of Letters of Credit issued in favour of the plaintiff. Exhibit D is the Letter of Credit No. 086815010 372 dated 20th April, 2015 for an amount of USD 123500, and the issuing bank is the Islamic Bank Bangladesh Limited. Exhibit E is the Letter of Credit No. 086815010330 dated 6th April, 2015 for an amount of USD 152500 and the issuing bank is the Islamic Bank Bangladesh Limited. Exhibit F is the Letter of Credit No. 086815010373 dated 20th April, 2015 for an amount of USD 152500 and the issuing bank is the Islamic bank Bangladesh Limited. The goods covered by the Letter of Credit No. 086815010373 (Exhibit F) had crossed the border from India to Bangladesh on 26th April, 2015 and the same was duly endorsed by the Customs Authority of India as well as Bangladesh which is the part of Exhibit G. The documents submitted by the plaintiff for the purpose of payment under the Letter of Credit No. 086815010330 has been made over to the negotiating bank of the plaintiff that is ICICI Bank Limited, Bhawanipur for the purpose of negotiating the same with the banker of defendant No. 2 and 3 namely Islamic Bank of Bangladesh Limited. The document submitted by the plaintiff in connection with Letter of Credit No. 086815010330 is marked as Exhibit H. The goods covered by the Letter of Credit No. 086815010330 had crossed the border from India to Bangladesh on 22nd April, 2015 and the same was duly endorsed by the Customs Authorities of India as well as Bangladesh and the said documents have been marked as part of Exhibit H. The documents submitted by the plaintiff for the purpose of payment under the letter of credit No. 086815010372 has been made over to the negotiating bank of the plaintiff that is ICICI Bank Limited for the purpose of negotiating with the banker of defendant No. 2 and 3 namely Islamic bank of Bangladesh Limited.The documents submitted by the plaintiff in connection with the Letter of Credit No. 086815010372 is marked as exhibit -I. The negotiating bank of the plaintiff had made over the SWIFT messages issued by the negotiating bank of the defendant No. 2 and 3 that is Islamic Bank of Bangladesh Limited, for the respective letter of credit which are: (a) SWIFT message for the letter of credit bearing No. 0868 15010373 is marked as exhibit K. (b) SWIFT message for letter of credit bearing No. 086815010330 is marked as Exhibit-L (c) SWIFT message for the Letter of Credit bearing No. 086815010372 is marked as Exhibit-M. In the said messages, it reflects that the carriers has not been identified in the truck receipt and there had been a discrepancies which such carrier not being approved by the Indian Bank’s Association. As per Clause 46A (15) of Letter of Credit (Exhibit-D) it is mentioned that “Goods carried by truck and truck operators/driver should be approved by Indian bank’s Association. A certificate to this effect must accompany the original document.” The plaintiff had confronted the same to the defendant Nos. 4 and 5 and it was informed to the plaintiff that the transporters challan has been issued by one Jain Parivahan which is the Indian bank’s Association approved transporter but the defendant No. 6 was the actual transporter who had caused delivery of the goods but the said fact has not been informed by the defendants to the plaintiff at the time of shipment of the goods due to which the three letters of credit have been dishonoured. The defendant no. The defendant no. 6 in his written statement as well as in his evidence admitted that defendant no. 6 is not a bank’s approved transporter but all the trucks of the defendant loaded with the consignment cross the border under the consignment of “Jain Parivahan” which is the bank’s approved transporter and the consignment note was organized by the defendant no. 7. As per clause (iii) of the oral agreement it was agreed that “The defendant Nos. 1, 4 and 5 also identified the defendant No. 6 for the purpose of taking all necessary steps to transport the commodities from the said sellers to the plaintiff and from the plaintiff as the exporter to the defendant No. 1 and /or his representatives as the importer in Bangladesh.” The defendant No. 6 has made the specific averment in paragraph 6 his written statement with regard with regard to transportation of rice from the mill from Burdwan to Ghojadanja which reads as follows: “6. In the usual course of business, one LNC Agro Mills Private Limited, as the manufacturer and Supplier of Rice, appointed this defendant as its transporter for the purpose of transporting Rice from the Mill in Burdwan to Ghojadanga-Bhomra border on “to pay” basis for the purpose of export made by the plaintiff. This defendant handed over the consignment to the Clearing & Forwarding Agent of the plaintiff at Ghojadanga Border being the defendant No. 7 herein. As this defendant is not a Bank approved transporter, all the trucks of this defendant loaded with the consignment crossed the border under the consignment note of “Jain Parivahan”, which is Bank approved transporter and the said consignment note was organized by the defendant No. 7 herein. Apart from what has been stated in this paragraph, this defendant has no further obligation to follow. All the trucks carrying the consignment of this defendant has crossed the Border and the obligation of this defendant was completely fulfilled. This defendant thereafter raised the bills upon the plaintiff and the same has duly been paid by the plaintiff without any demur or objection. All the trucks carrying the consignment of this defendant has crossed the Border and the obligation of this defendant was completely fulfilled. This defendant thereafter raised the bills upon the plaintiff and the same has duly been paid by the plaintiff without any demur or objection. This defendant states that surprisingly this defendant has been made a party to the proceedings but “Jain Parivahan” is conspicuously absent from the list of defendants.” The defendant No. 7 has made out the specific averment in paragraph 5 with regard to his appointment as clearing and forwarding agent for the purpose of export of rice and wheat of the plaintiff to Bangladesh which reads as follows: “(5) This defendant is a recognized Clearing & Forwarding Agent duly registered with the Customs Authorities at Kolkata and in the usual course of business, the plaintiff has appointed this defendant as its Clearing & Forwarding Agent for the purpose of export made by the plaintiff to Bangladesh at Ghojadanga – Bhomra Border. As such Clearing and Forwarding Agent, the assignment of this defendant was restricted to getting the documents passed by the Indian Customs at Ghojadanga, receive and get the consignment passed by Indian Customs and after the documents are cleared, forward the documents and the consignment to the Clearing and Forwarding Agent of the Importer and in this case, the defendant No. 8 is the Clearing and Forwarding Agent of the Importers being defendants No. 2 and 3. The Clearing and Forwarding Agent of the Importer thereafter gets the documents passed and consignment checked by the Bangladesh Customs, the documents are forwarded back to the Clearing and Forwarding Agent of Exporter and the consignment is delivered to the importer. The Clearing and Forwarding Agent of the Exporter then forwards the documents to the Exporter for submitting the same to Bank. Apart from what has been stated in this paragraph, this defendant has no further obligation to follow. A copy of the Authorisation letter issued by the plaintiff to this defendant is enclosed herewith and marked with Letter “A.” DW-1, namely Firoz Aktar Baidya during his cross-examination categorically stated that : “Yes, I have seen the consignment crossed the border. After giving the gate pass the drivers entered Bangladesh. After unloading the consignment, the drivers gave me back the challans. Then through this challan I prepared a bill. After giving the gate pass the drivers entered Bangladesh. After unloading the consignment, the drivers gave me back the challans. Then through this challan I prepared a bill. Then Dalgreen used to pay me through cheques after I submitted the challans to them. The dates are written back of the challans on which I have submitted the challans. Then they stamp and received the challans.” Admittedly, all the materials sought to be supplied by the plaintiff had crossed the border and reached Bangladesh. The DW-2, Prasanta Sarkar admitted that he has involved in the transaction having made over the documents to the defendant No. 8 acting on behalf of the defendant Nos. 1, 2 and 3. In the cross-examination, the DW-2 has also stated that he has no responsibility after the goods cross the border. As per the admitted case of the defendant Nos. 6 and 7 that the defendant No. 6 is not the bank approved transporter but had transported the goods and crossed the border under the consignment note of Jian Parivahan which is the bank approved transporter. This part of the evidence of the defendant Nos. 6 and 7 proves that they had the knowledge that the defendant no. 6 was not the bank approved transporter and have used the consignment note of Jain Parivaan and the said fact was not brought to the notice of the plaintiff and have received the transportation charges from the plaintiff by suppressing the fact due to which the plaintiff had suffered financial loss. The other defendants were also had the knowledge that the defendant No. 6 is not the approved transporter but have allowed the defendant No. 6 to transport the goods to the Bangladesh border under the consignment of “Jain Parivahan” and thus it is proved that the defendants are inconnivance with each other and committed fraud upon the plaintiff by transporting the goods to the transporter which was not the approved transporter and used consignment note of Jain Parivahan due to which the payment was denied to the plaintiff. It is also proved from the evidence that since inception the defendants have conspired to cheat the plaintiff and committed the fraudulent act as the rice and wheat exported by the plaintiff was duly received at the Bangladesh border which was confirmed by the Custom Authorities of both the countries but in spite of receipt of the said consignment the defendants failed to pay the amount to the plaintiff on the ground that the goods were not transported through bank’s approved transporter. On the other hand, the defendant nos. 2 and 3 have admitted that the shipment under Letters of Credit No. 086815010387 dated 23rd April, 2017, Letter of Credit No. 086815010278 dated 19th March, 2015 and No. 086815010322 dated 2nd April, 2015 were duly completed and payment has also made under the said Letters of Credits. It is not the case of the defendant nos. 2 and 3 that the consignment of above Letters of Credits were transported through some other transporters then the defendant no. 6. Accordingly the issues Nos. 3, 4, 5 and 6 are decided in favour of the plaintiff and against the defendants. ISSUES NOS. 7,10 AND 11ARE TAKEN UP TOGETHER: 7. Whether the plaintiff is entitled to get any relief as prayed for in the plaint? 10. Was the plaintiff entitled to invoke the Letter of Credit bearing L/C No. 086815010330 dated 22nd April, 2015 and L/C No. 086815010372 dated 24th May, 2015 and 30th May, 2015 for USD 152,500 and USD 123,500 without exporting and delivering the goods to the defendant No. 2? 11. Is the defendant No. 5 at all necessary party in the suit? There is no denial with regard to the existence of Letter of Credit No. 086815010330 and 086815010372 but the payment was denied with respect of the said Letter of Credit on the ground that the transporter was not the approved transporter of the bank’s Association. Subsequently, the defendants have raised further defects in the documents but the said was not proved by adducing any evidence that the other documents which the plaintiff had produced was not in consonance with the Letter of Credit. Subsequently, the defendants have raised further defects in the documents but the said was not proved by adducing any evidence that the other documents which the plaintiff had produced was not in consonance with the Letter of Credit. As stated above, from the evidence of DW-1 and DW-2 as well as the documents certified by the Customs Authorities of India as well as Bangladesh, the rice and wheat reached at Bangladesh border and there is no denial with regard to the said fact. The DW-1 in his cross examination has admitted that he has brought the consignment from Burdhwan and handed over to its PSA Enterprises. The DW-2 has also admitted that the goods were exported to Bangladesh through Ghojadanga Port through the defendant no. 7 and the defendant no. 7 acting as a clearing and handling agent of the plaintiff handed over the goods to the defendant no. 8 who was acting in the capacity of the clearing and forwarding agent of the defendant Nos. 2 and 3. The defendant No. 2 in his cross-examination has also admitted that he has involved in the transaction having being made over the documents to the defendant No. 8 acting on behalf of defendant Nos. 1, 2 and 3. It is evident from the record that the plaintiff had no knowledge whether the consignment were transported through the approved transporter of the bank’s Association or not. The documents produced before the plaintiff to proves that the consignment have been reached at Bangladesh and the documents have been received by the defendant No. 8 on behalf of defendant Nos. 2 and 3 and accordingly the plaintiff has released the payment of the defendant transporter. It is evident from the record that the consignments have been transported and reached at the Bangladesh and the same was within the knowledge of the defendant No. 8 and the defendant No. 8 acted on behalf of the defendant Nos. 2 and 3 and thus it cannot be said that the consignment was not transported or delivered at Bangladesh and not received by the defendant nos. 2 & 3. 2 and 3 and thus it cannot be said that the consignment was not transported or delivered at Bangladesh and not received by the defendant nos. 2 & 3. The defendant No. 5 has filed his written statement but has not adduce any evidence, in the written statement in paragraphs 3 and 4, he has admitted that he had introduced the plaintiff with the defendant No. 4 and the defendant No. 5 was the agent in respect of three Letter of Credit by which rice was exported to Memun Brothers and Shad Enterprises of the defendant Nos. 2 and 3 respectively and the rice were duly exported and from the payment remittance in respect of the Letters of Credit, it is evident that defendant no. 5 performed his duty completely. The defendant no. 7 relied upon the judgment reported in Union of India vs. M/s. Chaturbhai M. Patel and Co. (1997) 1 SCC 747 and submits that it is well settled that fraud like any other changes of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt. The judgment relied upon by the defendant no. 7 is not applicable in the present suit. In this case, the defendant no. 6 admitted that all the trucks of the defendant loaded with the consignment of “Jain Parivahan” which is the bank approved transporter and the consignment note was organized by the defendant no. 7. In view of the above the issues no. 7, 10 and 11 are decided in favour of the plaintiff and against the defendants. 33. CONCLUSION: After going through the plaint, written statements, exhibits and the evidence of the parties, this Court finds that the plaintiff has proved the case and the plaintiff is entitled to get the relief as prayed for in the plaint. The defendants are directed to pay a sum of US$428500 along with interest at the rate of 18% per annum from 1st June, 2015 till the realisation of the decreetal amount within 60 days from date. 34. C.S No. 58 of 2016 is thus disposed of. Decree be drawn accordingly.