National Bank Ltd. and others (Appellants)
Habib Bank Ltd. and others (Respondents)
High Court Division
(Civil Appellate Division)
ABM Khairul Haque J
KM Khaled J
February 18, 2002.
Cases referred to-
Bankers Trust Co. vs. State Bank of Indict (1991) 2 Lloyd’s Report 443; Hing Yip Hing Fat Co. Ltd. vs The Daiwa Bank Ltd. of Honk Kong High Court; Miller vs Bahii Madho Das 23 IA 106.
Dr. M. Zahir Senior Advocate with M Hassan, AHM Mizanur Rahman, Advocates-For the Appellant. (In First Appeal No. 202 of 1993).
Syed Ishtiaq Ahmed, Senior Advocate with Syed Refat Ahmed, Nihad Kabir, Advocates-For the Respondent. (In First Appeal No. 202 of 1993).
Dr. M. Zahir, Senior Advocate with M Hassan, AHM Mizanur Rahman, Advocates For the Appellant. (In First Appeal No. 204 of 1993).
Dr. Rafiqur Rahman, Senior Advocate with Sirajur Rahman, Emad Uddin Chowdhury, Advocates-For Respondent No. 1. (In First Appeal No. 204 of 1993).
Manzur?ur?Rahim, Senior Advocate with HM Mushfiqur Rahman, Afreen Mohiuddin, Advocates- For Respondent No.3. (In First Appeal No. 204 of 1993).
Not represented- Respondent Nos. 2, 4?6. (In First Appeal No. 204 of 1993).
Appeal from Original Decree No. 202 of 1993
Appeal from Original Decree No. 204 of 1993.
ABM Khairul Haque J.- The First Appeal No. 202 of 1993 and First Appeal No. 204 of 1993 are taken up together for hearing because both the appeals arose from the same transaction although there are two separate judgments. First Appeal No. 202 of 1993 arose out of Money Suit No. 65 of 1989 filed by Habib Bank Ltd., Deira, Dubai Branch, United Arab Emirates, against National Bank Ltd., Head Office, Dilkusha Commercial Area, Dhaka, claiming US$ 3,58,577 equivalent to Taka 1,18,15,112.15 paisa in the First Commercial Court, Dhaka. This suit was transferred to the Second Commercial Court, by order of the District Judge on 10?7?1990 and was re?numbered as Money Suit No. 108 of 1990. This suit was decreed on 24?5?1993. First Appeal No. 204 of 1993 arises out of Title Suit No. 56 of 1987. Filed by one Mr. Salauddin against National Bank Ltd. and others claiming Taka 92,72,400. This suit was decreed on 31?5?1993 against National Bank Ltd., defendant No. 1, defendant Nos. 4, 5 and 6 on contest. The National Bank Ltd. filed both the appeals.
2. The facts leading to the filing of the above noted two suits, one by Mr. Md. Salauddin, the plaintiff in Title Suit No. 56 of 1987 and the other one filed by Habib Bank Ltd (‘HBL’ for short) are that on the request of one Md. Salauddin (the plaintiff in Title Suit No. 56 of 1987) the National Bank Ltd., Khulna Branch, Khulna (‘NBL’ for short) opened a letter of credit being No. 7?9?86 dated 3rd March, 1986 for US$ 2,79,500 in favour of Navegadora Panocenica SA (the defendant No. 5 in TS No. 56 of 1987), in order to import 6500 metric tons of cement made in Indonesia on the basis of Indent No. 22 of 1985 dated 30?9?1985 issued by Aqua Marine Ltd (the defendant No. 4 in TS No. 56 of 1987) on the basis of C & F to Chalna Port. The Bank of Credit and Commerce International Overseas Ltd., Deira, Dubai Branch, (the defendant No. 2 in TS No. 56 of 1987) was the advising bank on the said letter of credit. The letter of credit contains terms and conditions, inter alia, that the bill of lading of the said goods must be issued not later than 15th March, 1986 and the bill of exchange must be negotiated within 21 days from the date of shipment. The plaintiff of Title Suit No. 56 of 1987 deposited Taka 35,00,000 by way of margin against the said letter of credit on 3?3?1986 in favour of National Bank Ltd., Khulna Branch (defendant No. 1 in both the suits). In due course, 7(seven) bills of lading all dated 13th March, 1986, in respect of shipment of 6200 metric tons of cement, were issued on behalf of the vessel, MV Del Santiago, owned by Shuwa Kamn Kaisha Ltd (the defendant No. 6 in TS No. 56 of 1987) at the port at Padang in Indonesia. On 14th March, 1986, the said ship sailed for Chalna Port with the aforesaid cargo of cement from Padang Port. The seller of the aforesaid 6200 NIT of cement, Navegadora Panocenica SA has its banking transactions with the Habib Bank Ltd., Deira, Dubai Branch, in United Arab Emirates, the plaintiff in Money Suit No. 65 of 1989 in the First Commercial Court, Dhaka. The said seller presented all his shipping documents along with the bill of exchange, for US$ 2,66,600 with the said Habib Bank Ltd, Dubai Branch. Since there was no discrepancy in all those documents the Habib Bank Ltd duly negotiated those document presented by the seller and thereafter, in accordance with the terms and conditions of the letter of credit, sent a telex message on 18th March, 1986, on its New York Branch, for realisation of the full amount of USS 2,66,600 from the account of the National Bank Ltd, Khulna, maintained with American Express International Banking Corporation, New York (AMEX for short). The Habib Bank, Dubai Branch, also informed the NBL, Khulna Branch, by its telex dated 20?3?1986 about their such demand of payment from AMEX, New York. In the meantime, the plaintiff of TS No. 56 of 1987 came to learn from Aqua Marine Ltd on the 20th March, 1986, that the vessel MV Del Santiago carrying the cargo of cement for him in Bangladesh sank on 18th March, 1986 about 30 miles of Mias Island and, as such, he instructed the National Bank Ltd, Khulna, to stop payment on the concerned bill of exchange drawn on behalf of the seller. Accordingly, the NBL, Khulna, immediately revoked their authorisation in favour of AMEX, for payment in favour of the Habib Bank, New York Branch, and they, by their telex dated 28th March, 1986, informed the Habib Bank, NY Branch, about such cancellation of authorisation of payment. The Habib Bank Branch continued to demand their claim on the aforesaid bill of exchange and also forwarded the original set of all shipping documents on 19th May, 1986 in favour of the NBL, Khulna. They also sent the duplicate copies of the documents to them through ordinary air mail. But the defendant National Bank Ltd, by its telex dated 20th August, 1986 rejected their such claim.
3. On this dispute, telexes on different dates were exchanged between the National Bank Ltd, Khulna Branch and the Habib Bank Ltd., Dubai Branch, but ultimately, when the National Bank Ltd did not pay the amount of bill of exchange, the Habib Bank Ltd filed a suit being Money Suit No. 65 of 1989 against them on 18th March. 1989 praying, inter alia, for a decree for USS 3,58,577 equivalent to Taka 1, 18,15,112.15 with interest at the rate of 15% per annum till realisation, in the First Commercial Court, Dhaka.
4. Meanwhile the importer at whose instance the letter of credit for importing 6500 metric tons of cement was opened also filed a suit on 19th January, 1987 being Title Suit No. 56 of 1987 also in the aforesaid First Commercial Court, Dhaka, against the National Bank Ltd and others praying for a decree for a declaration that the said seller, the defendant No. 5, is not entitled to any amount against the letter of credit No. 7?9?86 and the defendant No. I is not entitled to debit any account of the plaintiff, in respect of the said letter of credit and a decree for Taka 35,00,000 against the defendant No. I with interest thereon with effect from 20-3-1986 till realisation and in the alternative prayed for a decree for Taka 92,72,400 with interest till realisation.
5. The Money Suit No. 65 of 1989 was duly contested by the defendant National Bank Ltd by filing a written statement denying all material allegations and praying for dismissal of the suit. The main contention of the defendant in this suit is that the plaintiff Habib Bank Ltd neither paid any money nor negotiated the concerned shipping documents of the seller Navegadora Panocenica SA and that is the reason they sent the original shipping documents to National Bank Ltd. more than two months later on the 19th May, 2001. The further contention of the defendant is that the alleged negotiation was not made within the stipulated period of negotiation on 6th April, 1986, but was antedated and made backdated to match the date on which the ship was caught in distress on 18th March, 1986, as such, they prayed for dismissal of the suit. The learned Judge framed the following issues:
1. Is the suit maintainable?
2. Is the suit barred by law of limitation?
3. Is the plaintiff entitled to the decree as prayed for?
4. Is the plaintiff entitled to any other relief?
6. On behalf of the plaintiff Habib Bank Ltd, Deira, Dubai Branch, its Manager deposed as PW 1 He stated in his examination-in-chief that the National Bank Ltd., Khulna Branch, opened an irrevocable letter of credit in favour of Ms. Navegadora Panocenica SA; Dubai. The letter of credit was for importing 6500 metric tons of cement for US$ 2,79,500. There was no restriction for negotiating the documents under the letter of credit. The last date of shipment was 15th March, 1986, the documents were to be negotiated within 21 days. This witness stated that all the documents were found correct. Finding no discrepancy in the document they lodged their claim with the American Express International Corporation, New York on 18th March, 1986 and claimed reimbursement from them. On 20th March, 1986, they also requested their New York Branch as to whether they received the said amount. They sent another telex on the same day to the National Bank Ltd, Khulna, informing them that they submitted their claim for reimbursement. The Habib Bank Ltd, NY informed them by telex that AMEX refused to pay, that the cancellation of the LC was illegal because it was irrevocable, that they sent telexes dated 4?5?1986, 12?6?1986, 19?6?1986, 9?7?1986, 17?7?1986. (Exhibit 11 series), etc. to National Bank Ltd, Khulna, in this matter but to no effect. On 258?1986, the defendant sent a telex stating that no payment can be made as the shipper did not fulfill the conditions under the LC. This witness further stated that the defendant had no right to refuse payment because the bank deals with the documents and not with the goods, that by telex dated 26?81986 they informed the National Bank Ltd, Khulna that they having forwarded all the documents stipulated in the letter of credit they were entitled to the payment, that the National Bank Ltd., Khulna by its telex dated 8?6?1987 informed the Read Office of the Habib Bank Ltd. that since the negotiation was antedated, payment was not made, that, in fact, the negotiation was not antedated and it was within time as stipulated, that all the documents required under the LC were dispatched to the defendant, that there was no discrepancy in any of the documents, that they did never intimate them that they were holding the documents at the disposal of the plaintiff, that if the issuing bank refuses payment under the letter of credit they are either to return the documents or intimate the beneficiary that they are holding the documents at the disposal of the negotiating bank within a reasonable time, that this was the practice of the bank and this was uniform commercial practice. This witness further stated that the reasonable time in banking practice was 72 hours after receipt of the documents. This witness denied that the documents were not negotiated on 18?3-1986 or that the documents were discrepant or that no opportunity was given to the defendant to see the documents and that the documents were supposed to be sent on collection basis because the letter of credit was freely negotiable. He further denied that they have negotiated the documents mala fide or that they were merely collecting agent of the supplier.
7. In his cross-examination this witness stated that he is in the service of the plaintiff since 1976 and he represents Habib Bank, and that all the documents in their possession were filed in Court. He further stated that their prayers were for reimbursement against the letter of credit but he admitted that other than the bill of exchange they did not file any document showing payment to the supplier, that the bill of exchange is the order by the supplier on the importer to pay a certain sum of money to a certain person to cover the value of the goods exported, that he did not remember whether in the plaint he stated the fact of payment to the supplier. He also admitted that they did not submit any document to show actual payment and that by payment he meant bill of exchange.
8. This witness further stated in his cross-examination that all the documents required under the LC were sent on 19?5?1986 as asked for by their Head Office. This witness admitted in his cross-examination that both the expiry date and the negotiation date in the letter of credit were 6th April, 1986. The bill of exchange mentioned in the LC was from the beneficiary to the applicant and beneficiary meant Navegadora and the applicant meant Mr. MA Chowdhury. The bill of exchange (Exhibit 15(1) was drawn by the beneficiary on the applicant and made to the order of Habib Bank. This witness categorically stated that by negotiation he meant receiving the documents, scrutinising the same, finding them in conformity with the LC, paying the amount to the parties and reimbursement. He could not say how they paid the party, that he did not remember the date of payment but it was immediately after negotiation, that Navegadora is their regular client and they maintained their account with them, that they had the statement of account to show payment but they did not adduce it that he would not say that the plaintiff-bank was a collecting bank. He further stated that he could not remember as to whether he mentioned the date and place of payment made to the party in the plaint.
9. He denied that they did not pay. He further stated that before 8?6?1987 they did not know that the ship sank. They asked from AMEX without sending the documents but certified that they negotiated the documents. This witness identified the envelope cover (Annexure C) in which the documents were sent. He stated that they did not send the documents in time because they did not get the money in time. He further denied that the sent the documents after the expiry of the date with mala fide intention. He denied that they did not negotiate the documents on 18?3?1986 or on any other date.
10. On behalf of the defendant one Binoy Kumar Sikder deposed as DW 1. He stated in his examination-in-chief that he looks after the matters relating to foreign exchange and letters of credit of the Khulna Branch of the defendant batik. He stated that one MA Chowdhury applied in writing for opening a letter of credit for US$ 2,79,500 to import 6500 metric tons of cement from abroad. On his application they opened the letter of credit in favour of Navegadora Panocenica SA. It was stipulated in the said letter of credit that the bill of lading Must be dated not later than 15?3?1986 and bill of exchange must be negotiated within 21 days from the date of shipment. The expiry date of LC was 6?4?1986. It was also stipulated in the letter of credit that it was the responsibility of the supplier to send the cargo to Mongla Port in Bangladesh but the ship was in distress within 30 miles after it sailed from the port at Padang, Indonesia and later on he came to learn from the indentor about the sinking of the ship. At that time the importer instructed them not to make payments till the ship reaches Bangladesh. There was another condition in the letter of credit that the beneficiary would furnish a certificate in respect of sinking or loss of the ship, that they got the said certificate on 22?5?1986. This witness further stated that the beneficiary sent those documents on 19?5-1986 and on receipt of those documents on 22?5-1986 they did not pay any money on the letter of credit. They informed them that they were not paying the money because of non fulfillment of the terms and conditions of the letter of credit and later they informed them that they were not bound to pay the money on the letter of credit because in delaying to send the documents, the terms and conditions of the letter of credit were not fulfilled. This witness further stated that according to Article 46 of the UCP the documents have to be forwarded before the expiry date for presentation of the document, that they were not bound to pay the plaintiff in accordance with the UCP rules, that the plaintiff did not negotiate the documents with clean hands, that Habib Bank did not pay any money to the supplier as far as they knew. The witness in his cross-examination stated that he was all through aware of the transactions in connection with the letter of credit between the plaintiff and the defendant, that he is in the service of the defendant since 1984, that the certificate of the supplier in respect of sending of the goods to Bangladesh in its responsibility was not furnished within the stipulated period, that the letter of credit was negotiable, the certificate in respect of sending the goods safely was forwarded to them with other shipping documents 62 days later. The American Express Bank, New York Branch was the paying bank of the letter of credit. This witness admitted that they sent a telex to the said paying bank revoking the authorisation on being informed by the importer about the sinking of the ship. The authorisation was cancelled on the instructions of the importer. He further stated that the documents sent by the Habib Bank was discrepant and was also fraudulent. They came to learn about the discrepancy about the documents on 22?5?1986, that they were not aware of the discrepancy in the LC when the authorisation was cancelled because they did not receive the documents till then. In reply as to how the documents were discrepant, this witness stated that the documents were discrepant because those documents were forwarded to them 62 days after the expiry date of the letter of credit, according to him, that was the discrepancy. This witness further stated that they did not return the documents received by them from the Habib Bank on 22?5?1986 but informed them that they were holding the documents at their risk, that they by their telexes dated 25?8?1985, 10?6?1986, 2?7?1987 and other telexes informed them that they were holding the documents at their disposal, that it was not necessary to return the discrepant documents at once but they should be informed about the fact of the discrepancy. This witness admitted that if the documents are discrepant it should be returned within a reasonable time. He denied that it is incorrect that Habib Bank in collusion with the exporter negotiated the documents by giving back date.
11. The learned Judge on consideration of the evidence on record found that the documents marked Exhibits 2, 4, 5 and 9 filed by the plaintiff in proof of negotiation of the concerned letter of credit were not disproved or denied by the DW 1. He found that the documents were sent to the defendant on 19?5?1986 but since there was no provision in the letter of credit as to when the documents were to be sent to the defendant, he held that the plea of delay raised by the defendant in sending the documents was not that much material. He further held that since the payment was refused much before sending of the documents on some other grounds, the so-called delay cannot outdo or vitiate the plaintiffs claim for payment. On the question raised by the defendant that the concerned letter of credit was on collection basis, the learned Judge held that they failed to produce any evidence to prove that the concerned letter of credit was on collection basis. The learned Judge further found that the letter of credit being an irrevocable one, according to Article 10 of the UCP, it means a definite undertaking by the issuing bank to the effect that they would pay without recourse provided the stipulated documents are presented and the terms and conditions are complied with and the credit provides for negotiation. He also found that the concerned letter of credit was opened for negotiation and the bank gave the necessary undertaking that the terms of the credit would be honored on due presentation. In reply to the contention of the defendant that they were not afforded all opportunity to examine the documents before the plaintiff hurriedly negotiated those, the learned Judge held that there was no such stipulation that the negotiation cannot be made before the documents were received by the defendant and that the receipt of the documents does not bear any connection with negotiation. On the question of refusal to make reimbursement on the plea of sinking of the ship, the learned Judge held that in view of Article 21 of the UCP the issuing bank is not relieved from its obligations from making reimbursement and that the plaintiff had nothing to do either with the actual transportation or with the safe arrival of the goods to its destination, because the bank deals with the documents and not with the goods. On the contention made on behalf of the defendant that in view of Article 45 of UCP the concerned shipping documents ought to have been presented to the defendant within the specific date, the learned Judge held that there is no such terms in the letter of credit that the issuing bank must receive the documents from the negotiating bank within the specified period. As such, he held that the contention of delay in sending the documents was fruitless and further held that there was no discrepancy in the documents. On the above noted findings the learned Judge decreed the suit for US$ 3,58,577 with interest at the rate of 15% thereon. Being aggrieved the defendant filed the instant appeal.
12. Dr. M. Zahir, Senior Advocate, appears with Mr. M Hassan and Mr. ABM Golam Mostafa, Advocates, on behalf of the appellant while Mr. Syed Ishtiaq Ahmed, Senior Advocate, appears with Mr. Syed Refat Ahmed, and Ms. Nihad Kabir, Advocates for the respondent in FA No. 202 of 1993.
13. Dr. M Zahir, the learned Advocate appearing on behalf of the appellant, National Bank Ltd, firstly, submits that the documents including the bill, to the terms and conditions of the letter of credit ought to have been negotiated within 6th April, 1986, that those documents not having been forwarded to the National Bank Ltd., Khulna, within the said period there was no negotiation within the meaning of the terms and conditions of the letter of credit. As such, there was no proper negotiation. Besides, he submits that the plaintiff Habib Bank Limited never made any payment to the beneficiary-seller on receipt of the bill of exchange and other documents without which there cannot be any negotiation in the eye of law. In this connection he refers to sections 46?48 of the Negotiable Instruments Act and submits that without physical delivery of the instruments there cannot be any negotiation and since in this case there was no physical delivery of the documents in favour of the National Bank Ltd., the question of payment on 18th March, 1986 or thereafter in any case, before 22nd May, 1986 does not arise. He further submits that the Habib Bank Ltd is not even entitled to any payment even after 22nd May, 1986 because of the delay in sending the documents to National Bank Ltd. which is itself a discrepancy. Besides, he submits, Rule 46 of the ICC Rules 400 requires that the documents must be sent to the issuing bank for payment before the expiry date as mentioned in the letter of credit. Since, in this case, the documents were not even posted by the last date of expiry on 6th April, 1986, the NBL rightly refused payment.
14. On the other hand, Mr. Syed Ishtiaq Ahmed, the learned Advocate appearing on behalf of the plaintiff-respondent, submits that in accordance with the terms and conditions of the letter of credit, the bill of lading was issued on 13th March, 1986 and the ship sailed on 14th March, 1986 and since the letter of credit was freely negotiable by any bank, immediately thereafter on 5th March, 1986 the plaintiff Habib Bank Limited negotiated the documents from the seller- beneficiary. He submits that immediately thereafter, in accordance with the terms and conditions of the letter of credit and in accordance with the practice and customs of the international trade, the plaintiff? bank by its telex dated 15th March. 1986 (Exhibit?2) asked for reimbursement of the negotiated amount from the AMEX, NY through its New York Branch of the Habib Bank Ltd., but after exchange of some telexes, the AMEX, NY by its telex dated 28th March, 1986 (Exhibit 9) informed them that the National Bank Ltd had already revoked authorisation of payment on the documents negotiated by the Habib Bank Ltd, Dubai. The learned Counsel, after referring to a number of telexes (Exhibit 11 series), submits that the reason given out in the belated telex of National Bank Ltd dated 20th August, 1986 (Exhibit 12) was absolutely illegal and violative of ICC Rules and international trade practice and customs. In this context, the learned Advocate firstly, submits that the letter of credit being a freely negotiable one was legally negotiated by the Habib Bank Ltd, Dubai, and the National Bank Ltd, had no right or authority to revoke authorisation causing non?payment to them. The learned Advocate refuted the contentions of Dr. M Zahir that negotiation would only be completed on handing the documents to the LC issuing bank but strenuously contends that the question of negotiation is between the seller on the one hand and the negotiating bank on the other and it does not mean handing over the documents by the negotiating bank to the LC issuing bank. In this connection, he explains the meaning of the word negotiation’ by referring to Article 10(b) (ii) of the ICC Rules, 500, as revised in 1993 and submits that although the word ‘negotiation’ was not defined in ICC Rules 1984 but it was correctly defined in the revised ICC Rules 500. He submits that the said definition should also be equally applicable to any transaction prior to 1994. As such, he submits that since the Habib Bank Ltd. on 18th March, 1986 negotiated the documents and having completed such negotiation for value, they were entitled to reimbursement from the NBL and the revocation of authorisation by the National Bank Ltd. Khulna was illegal.
15. We have heard the learned Advocates of both the sides and gone through the different documents adduced on behalf of both the parties.
The facts of this case raise important points in international trade. On the application of one Mr. MA Chowdhury, Station Road, Khulna, the Khu1na Branch of National Bank Ltd (NBL) issued a letter of credit for US$ 2,79,500. It was issued on 3rd March, 1986, to the Bank of Credit and Commerce International Overseas Ltd., Deira, Dubai (BCC1 in short) in favour of Navegadora Panocenica SA, PO Box 9097, Dubai. The letter of credit stipulated that the said amount was available by negotiation of the beneficiary’s draft on the applicant at sight without recourse to drawer for full invoice value covering the shipment, that the expiry date for negotiation was April 6, 1986, that the bill of lading must be dated March 15, 1986, that the bill of exchange must be negotiated within 21 (twenty-one) days from the date of shipment. In this case Mr. MA Chowdhury was the applicant, the NBL was the issuing bank, the BCCI was the advising bank at Dubai and Navegadora Panocenica SA is the seller of 6,200 metric tons of cement. The letter of credit (‘LC’, for short) was an irrevocable credit but not a confirmed credit. This document was exhibited by both Habib Bank Ltd., the plaintiff as Exhibit 1 and National Bank Ltd, the defendant as Exhibit D and D1. This is so important a document that we would set out most of it;
“Fm (from) National Bank Ltd., Khulna, Bangladesh to Bank of Credit and Commerce Deira, Dubai test 1953 dt. March, 1986 fr(for) usd-279500-with our Dilkusha br(branch).
Advise Navegadora Panocenica SA PO Box 9097 Dubai we opn(open) irrevocable L/C No. 07?9?86 dt. March 3, 1986 applicant MA Chowdhury, Station Road, Khulna, Bangladesh amt. usd 279500 (US Dollar two hundred seventy-nine thousand five hundred) only cnf to Chalna expirty for negotiation April 06, 1986 available by negotiation of beneficiary’s/draft on applicant at sight without recourse to drawer for full invoice value covering shipment of 6500 m/tons indonestan origin Buffalo Head brand ordinary grey portland cement confirming to bas 12/1978 at the rate of USD 43 per m/ton cnf. of Chalna packed in 6 ply brown sack paper bag of 50 kg net wet as per indent No. 22/85 dt. 30?9?1995 of Aquamarine Limited Chittagong by following documents (.)
(A) Beneficiary’s signed commercial invoice in octuplicate certifying merchandise Indonesia origin.
(B) Full set clean shipped on board bill of lading drawn or endorsed to the order of National Bank Ltd Khulna showing freight prepaid and marked notify applicant and us giving full name and address.
(D) Bill of lading evidencing shipments from any Indonesian port to Chalna by sea vsls (Vessel).
(D) Bill of lading must be dated not later march 15,1986. Bill of exchange must be negotiated within 21 days from the date of shipment.
(E) Packing list in duplicate.
(F) Certificate of origin by supplier acceptable partial shipment allowed transshipment prohibited.
(x) Documents evidencing shipment must not be dated earlier than date of opening of this credit.
(x) Invoice should indicate “imports under wage earner scheme” and importers Ire No. B?40355 and LC authorisations Form No. 07905.
(x) Short form ‘bill of lading’ not acceptable.
(x) Invoice to indicate indentors’ name and their registration No. B? 21319.
(x) Immdte(immediate) upon shipment, beneficiary shall inform the name of the Vsl (vessel) nd(and) date of shipment quoting reference of our LC No. to National Bank Ltd., international divn (division), Dhaka over tlx/cable (tlx No. 642791 NBL ho bj and cable nation bank) copy of such cable/tlx must be included along with other shipping documents.
(x) Supplier will airmail 3 sets of nonnegotiable documents either direct to buyer or/and sellers local agent Aquamarine Ltd, 58 Agrabad PO Box 748 Chittagong.
(x) Cargo discharging terms:
Fully at openers risk 1000 in/t pwwd Friday/holiday excluded even used and demurrage/dispatch money as per gencon charter party agreement.
(x) Shipment to be made thru (through) (vessel) MVD Delsantiago.
(x) Beneficiary shall issue certificate to the effect that in case the vessel disappears or is arrested or detained for any reason the beneficiary shall take immediate and all actions to ensure the tracing/release of the vessel at their cost and will also ensure safe arrival of the ship at the port of destination i.e. Chalna Bangladesh and such certificate by the beneficiary should accompany with the documents for negotiation. Draft must be marked “drawn under national bank lid credit 7?9?86 dt 3?3?86” (.) we hereby agree with drawers, endorsers and bona fide holders of draft drawn under and in compliance with the terms of this credit shall be honoured on due presentation.
Instructions Fr (For) The Negotiating Bank.
(x) Anit (amount) of draft negotiated should be endorsed on the reverse of the credit.
(x) Yr (your) advising and other charges will be on account of beneficiary.
(x) In reimbursement please draw/claim on our HO A/C with American Express Int’l Banking Corpn New York USA.
(x) Six copies of invoice to be sent with original set of documents by registered airmail and two copies of invoice with duplicate set by subsequent air mail.
This credit is subject to uniform customs and practice for documentary credit 1993 revision ICC publication No. 400. This is operative instrument. No. Mail confirmation follows stop.
(Words in brackets are supplied).
16. On 15th March, 1986, the ship, namely MV Del Santiago, sailed with 6,200 metric tons of cement from the port at Padang, Indonesia, towards the port at Chalna, Bangladesh. In the meantime on 18th March, 1986, as it appears, only 30(thirty) miles off from the port, the ship was either on the verge of sinking or was in great distress. The whereabouts of the consignment of cement was also not known. These facts with regard to the goods are not, however, relevant for our purpose because the bank deals with the documents and not with the goods. It is stated only to understand the background of the next events.
17. On the 18th March, 1986, the HBL, set a telex (Exhibit 2) to its branch at New York claiming reimbursement from the New York Branch of the American Express International Banking Corporation (‘AMEX’ for short):
“Exhibit No. 2 telex.
= 45430 Habibk em
69,541 we hav (have) ? negotiated doc(documents) for usd 2,66,600 against LC No. 7?9?1986 of National Bank Ltd Khulna Bangladesh pis (please) claim on our behalf USD. 2,66,600. Frm (from) their head office acctt (account) American Express hit Banking Corporation New York and credit our acctt (account) with you under tested tlx (telex) cfmn (confirm) to us our fbp.
tested usd 266600?dtd 1813
Habib Bank Dubai
(Words in brackets are supplied).
From this telex it appears that the HBL, Dubai, negotiated the document for US$ 2,66,600 against the LC No. 7?9?86 of NBL, Khulna. The HBL, NY immediately on the same day got in touch with the New York Branch of AMEX by a telex (Exhibit 3) and claimed reimbursement. Thereafter, there was exchange of telexes between the two branches of HBL over the above issue and ultimately, the AMEX, NY by its telex dated March 28, 1986, (Exhibit 9) informed HBL NY about cancellation of authorisation for reimbursement by them and advised them to contact NBL direct.
18. The papers on record show that the HBL, Dubai, did not contact NBL, before June 4, 1986, for the reasons best known to them. Why they chose to keep silent for the next more than 2 (two) months is not understood, specially when they were so eager to get the reimbursement on 18th March, 1986, till they were informed about the cancellation of authorisation on 28th March, 1986. The HBL, Dubai, however, in the meantime sent the concerned documents in original, by registered post on 19th May, 1986 while the duplicate copy, by ordinary air?i?nail (Paragraph 8 of the plaint), as such, there was a delay of about 6(six) weeks in sending the documents to the issuing bank which definitely violates Article 46 of the `ICC No. 400. Article 46 reads as follows:
“a. All credits must stipulate an expiry date for presentation of documents for payment, acceptance or negotiation.
b. Except as provided in Article 48(a), documents must be presented on or before such expiry date.
19. The LC issued by the NBL, Khulna, the defendant, stipulated sending of the original set of documents by registered air mail and the duplicate set by air mail and that the expiry date as 21(twenty-one) days after the date of shipment. The HBL, the plaintiff, itself understood in the same manner. The PW 1 in his deposition admits so: “Both expiry date and negotiation date in the LC are 6th April/86”. As such, the last date of sending the documents was 5th April, 1986. Instead, they posted it on 19th May, 1986, in clear violation of Article 46 of ICC No. 400.
PW I in his cross-examination explains the reason for such delay thus: “We did not send the documents in time because we got no money in time.”
This statement may be the plain truth but is no explanation for the delay.
20. The learned Counsel for the plaintiff also could not offer any reason or justification for such delay in sending the said documents to the defendant. He however, submits in this respect, firstly, that there was no limitation of time for sending the documents since the plaintiff was not a collecting bank but a negotiating bank. This contention of the learned Counsel is not correct. The bank who is holding the documents whether in its capacity as a collecting bank or a negotiating bank must send the concerned documents to the LC issuing bank within the period as stipulated in the LC and even if the LC is silent in respect of the period of time the bank must return those documents within a reasonable time which may be one week to 10(ten) days at the most, depending on the circumstances, but it cannot be more than that period. Besides, without the said documents the applicant who is the importer will not be able even to release his goods from the port. One reason, however, as suggested by the learned Counsel for the defendant that as all concerned including the two banks, the plaintiff as well as the defendant, knew very well that the cargo being lost, nobody had any interest in the documents any more. That might be the case, no doubt, but the bank deals with the documents and not with the goods. It is however, needless to point out and presume that the LC issuing bank is obliged to reimburse the negotiating bank immediately on negotiation and in case of the collecting bank, within the stipulated period, on receipt of the documents.
21. The learned Counsel for the plaintiff submits secondly, that even if there was a delay in sending those documents, such delay was a mere technical discrepancy and the defendant having failed to raise such objection of discrepancy within a reasonable time, they are not entitled to raise such objection of discrepancy subsequently at the trial. The learned Counsel strenuously argues that unless such objection is not raised within 3(three) days or even within a reasonable period, LC issuing bank cannot subsequently raise such objection of discrepancy in the document, however genuine or serious those may be. In support of his contention he refers to the decision in the case of Bankers Trust Co vs. State Bank of Indict (1991) 2 Lloyd’s Report 443 and the case of Hing Yip Hing Fat Co. Ltd. vs. The Daiwa Bank Ltd. of Honk Kong High Court (Photostat copy supplied).
22. Article 16(c) of the ICC No. 400 provides that the issuing bank shall have a reasonable time in which to examine the documents and to determine whether to take up or refuse the documents. Bankers Trust case considers, among others, the reasonable time necessary for examining the documents. It found on the fact of the said case that eight working days taken for examining the documents were excessive while Hing Yip Hing Fat’s case found six working days a reasonable time for such a purpose in case of a bank in Hong Kong.
23. Article 14(d)(i) of ICC No. 500 effective from January 1, 1994, revises the earlier provision and now provides for giving notice for refusal of documents within seven banking days.
24. The case of Hing Yip Hing Fat Co. Ltd. vs. Daiwa Bank Ltd considered, among others, on the basis of articles 16(e) of the ICC No. 400, the question as to whether a bank can subsequently rely upon the discrepancy which was not specified in the original advice of discrepancies. Kaplan, J, at the first instance, analyses the position in the following manner:
“To say as Mr. Bunting does that the bank only has to specify the grounds relied on at the time of rejection is to introduce an element of unreality and uncertainty. On this basis, a bank could reject on 3 completely spurious grounds. It is then used and possibly months after rejection it puts in a defence admitting that these (3) grounds were spurious and relying upon a 4th arguable ground. How, in these circumstances, can it be said that the bank has acted without delay in stating the discrepancies in respect of which it genuinely refuses the documents? The whole purpose behind Article 16 seemed to me to be that the beneficiary should know precisely what his position is at the earliest opportunity.”
And he held:
“Under Article 16 the issuing bank has to state the discrepancies in respect of which the issuing bank refuses the documents. Daiwa did that on 14th September 1988. They were asked in March 1989 to confirm the position which they did. It is only in their defence that they seek to rely upon the Industrial point. Thus they did not act in accordance with Article 16(d) and I do not see how they can now contend that they are not precluded from claiming that the documents are not in accordance with the terms and conditions of the credit. In my judgment to find otherwise would be to ignore the clear meaning of Article 16(e) when read with Article 16(d)”.
25. The revised ICC 500 makes even all these problems clearer. Now under Article 14(d) (i), if the concerned bank decides to refuse the documents it must do so within seventh banking day and under Article 14(d) (iii), such notice must state all discrepancies in respect of which the bank refuses the documents.
26. In the instant case, it appears from the papers on record, that on receipt of the news of cancellation of authorisation on 28th March, 1986, the HBL, Dubai, the plaintiff, kept quiet for more than two months for reasons best known to them and sent a telex on 4th June, 1986 (Exhibit 11) to NBL, Khulna, informing them that USS 2,66,600 against their LC No. 7?9?86 had not yet been credited in their branch at New York, with a request to check as to when the said amount was debited by the AMEX, NY. This telex was followed by a series of telexes (Exhibit 11 series) from the plaintiff bank but without any response from the defendant bank. This conduct on the part of the defendant bank is deplorable and is not expected from a bank in dealing with its documentary credits. On receipt of the documents on 22nd May, 1986, they ought to have informed the plaintiff bank as to whether they were going to accept the documents or not. If they decide not to accept the documents, they ought to have informed their reasons for such non-acceptance promptly and immediately and at least within seven days. They also owed an immediate explanation about their cancellation of authorisation to AMEX, NY. Instead they kept mum till 20th August, 1986, for reasons best known to them. But whatever might be their reasons, their such conduct was deplorable and not expected in the international banking community.
27. The defendant bank sent a telex on 20th August, 1986 (Exhibit 12) almost two months after cancellation of authorisation of payment by the AMEX, NY in favour of the plaintiff-bank. In the meantime they got the documents from the plaintiff-bank on 22nd May, 1986. In their telex dated 20 August, 1986 (Exhibit 12), the defendant bank referred to a telex dated 18?6?1986 sent by the opener of the LC in which they communicated non?compliance of the LC terms by the beneficiary of the LC and the reason of non-reimbursement of’ the claims in favour of the plaintiff bank. In the said telex (Exhibit 12), the defendant bank while acknowledging receipt of the undertaking furnished by the beneficiary, raised objection as to failure to bring the ship physically to the port of destination. According to them, the terms and conditions of the LC required that the beneficiary would ensure actual safe arrival of the ship and mere furnishing of the certificate to that effect would not do. But a bank deals with the documents and not with the goods, as such, this is no discrepancy at all and this plea raised by the defendant-bank, as an excuse for refusing reimbursement, was not only illegal but preposterous. Besides, in the said telex, some kind of reason was given, as to why they termed them as a collecting bank and an agent of the beneficiary. The defendant bank sent another telex on 25th August, 1986, (Exhibit A) repeating the same worthless excuses. The plaintiff-bank, however, reiterated its claim by their another telex dated 5th October, 1986 (Exhibit 13).
28. However, in reply to another telex issued by the plaintiff bank oil 17th May, 1987, the defendant-bank by its telex dated 8th June, 1987 (Exhibit 14) raised objection for the first time to the effect that the negotiation of the documents on 18th March, 1986, as alleged by the plaintiff-bank, was actually done much later, beyond the period of the date of expiry of the date of negotiation on 6th April, 1986, giving a back date on 18?3?1986. This is a serious allegation no doubt but the reasons for such allegation was not put forward by the defendant-bank save and accept that the documents were posted on 19th May, 1986.
29. It appears from the above discussion of the evidence on record that the defendant-bank never raised the plea of discrepancy on the ground of delay in sending the concerned documents to them long after the expiry date of the LC on 6th April, 1986. According to the provisions of the Article 16(d) and Article 16(e) of the revised ICC No. 400 and the case-law discussed above, the defendant-bank ought to have raised such objection within a reasonable period which, in any case, cannot be more than ten banking days. The defendant-bank did not even raise such objection in their written statement filed on 21?10?1989. Only their witness in his cross-examination given as late as on 1?2?1993, raised for the first time their objection as to the delay of 62 days in sending those documents to them as a discrepancy itself in the following manner:
“?? Discrepancy ??? ???????? ?????? ?????? ???? ?? ?? ??? ????? ?? ??? ?? ???????? ????? ???? ???? Discrepancy 22-5?1986 ?????? Discrepancy ???????? ??????”
30. Although the defendant-bank raised the question of delay in sending the documents to them on many occasions but this objection with regard to discrepancy of documents because of delay was never specifically raised anywhere any time and, as such, would not now be of much help. The contention of the learned Counsel for the respondent that this piece of evidence is inadmissible, not being raised anywhere in the four corners of their written statement, is however, not correct, because the witness so divulged, in his cross-examination, but not in his examination-in-chief.
31. In this case, what the parties were expected to do is that the plaintiff-bank immediately on negotiation of the documents ought not only to have sent the telex on 18th March, 1986 claiming reimbursement of the bill amount from AMEX, NY but also ought to have sent the original set of documents to the defendant bank in Khulna, on the same day or immediately thereafter. The defendant-bank, on the other hand, ought to have allowed reimbursement as Spelt Out in the Letter of Credit. If there was any discrepancy in the documents, the defendant-bank could always re?claim the reimbursed amount and the plaintiff-bank was obliged to repay the entire amount with interest from the date of reimbursement. This would have been an ideal transaction as envisaged under the provisions of the ICC Rules. But it did not happen in that way.
32. On receipt of the news of the sinking of the ship (at least that was the initial news) on 18th March, 1986, everything went haywire. The plaintiff-bank claimed reimbursement at once but did not send the documents to the defendant-bank. The defendant-bank could not show any discrepancy in the documents but cancelled authorisation to the AMEX, NY presumably for no plausible reason. They, of course, consistently alleged that on receipt of the news of the loss of the ship and also the cargo, the plaintiff-bank only in order to help the beneficiary, who is their customer, demanded reimbursement without making any payment to the beneficiary, consequently there was no negotiation, as such, the demand of reimbursement by the plaintiff-bank was made fraudulently. This allegation, however, could not be substantiated by the defendant-bank by any evidence save and except the fact of sending the documents more than two months later as a circumstances to show that when the plaintiff-bank demanded reimbursement on 18th March, 1986, there was no document in existence. Those documents were subsequently prepared and ante-dated, made in collusion with the beneficiary. This is a possibility, no doubt, but nothing more.
33. In this case, the HBL, Dubai, the plaintiff, by its telex dated 18th March, 1986, (Exhibit 2), instructed its New York Branch to claim reimbursement of US$ 2,66,600 from AMEX, NY on their behalf as they had negotiated the document for the said amount against the LC No. 7?9?1986 of NBL, Khulna, Bangladesh. Their such claim of negotiation was thereafter repeated in dozens of subsequent telexes. The plaintiff stated so in its plaint also but nowhere it elaborated as to how they negotiated the documents. Did the representatives of the plaintiff-bank and the beneficiary only wink the eyes, kiss each other’s cheek, nod their heads and shake their hands or did they perform anything else and/or was there any other requirements to be performed to complete their ‘negotiation’?.
34. Under the circumstances, the plaintiff-bank has to show on evidence that it negotiated the documents from the beneficiary. Firstly, because it itself claimed so since 18th March, 1986, secondly, negotiation was the basis of its claim as the negotiating bank, and thirdly, the plaintiff cannot succeed only on the weakness of the defendant’s case, it has to prove its own case on preponderance of evidence.
35. Necessarily, this brings us to find out the meaning of the word ‘negotiation’.
36. In Gutteridge and Magrah, The Law of Bankers’ Commercial Credits, 7th Edition at page 11, ‘negotiation credit’ is described in this manner:
“A ‘negotiation’ credit, for instance, is strictly speaking, one which authorises the beneficiary to draw on the issuing bank or sometimes on the buyer and to negotiate the draft with the intermediary bank advising the creditor with his own or some other bank.”
This treatise further explains the position at pages 92?93 in this way:
“A negotiation credit is one calling for drafts on the issuing bank or the buyer and is an invitation to any bank to act on it. It carries the issuer’s promise or engagement that drafts properly drawn in accordance with the terms of the credit will be honoured”.
Raymond Jack, Documentary Credits, Second Edition, at paragraph 2.22, deals with the concept of negotiation in the following manner:
“With a negotiation credit the undertakings are directed to any bank, or to any bank of a description stated in the credit, which becomes a bona fide holder of any bill of exchange and the other documents which are stipulated by the credit. The purpose of making a credit a negotiation credit is that it enables a bank to negotiate (or buy) the documents from the beneficiary and then to present them under the credit and to receive payment in due course. In this way the beneficiary gets his money immediately from the negotiating bank, and the negotiating bank has the undertakings given by the credit available to it, and will present the documents under the credit as the party entitled in due course to payment.”
The same treatise further explains the position at paragraph 7.5(1) in this way:
“B. Negotiation Banks.
“7.5 (1) General : The term is here used to refer to a bank which acquires documents in its own right to be presented by it as a principal under a letter of credit which is a negotiation credit…………….In short, a negotiation credit in this sense is one where the undertaking given by the credit is addressed to all bona fide holders of the documents, or to banks generally or to banks of a particular description. It is open to such parties to negotiate, that is, to buy, the documents and to present them under the credit in their own right………..A bank which purchases the documents under a negotiation credit may be called a negotiation bank.”
37. From the above it would appear that negotiation, in the context of documentary credits, do not merely mean nodding of heads between the bank and the seller who hands over his draft and other documents to them but definitely means something more, something tangible. In order to complete the negotiation, the concerned bank must make the necessary payment against the draft and/or the documents. This incident of payment makes the bank which received the documents a negotiating bank, without which the said bank would not be a negotiating bank but may be a collecting bank to collect the payment from the issuing bank as an agent of the seller.
38. This legal position in respect of negotiating was also formally recognised in the revised ICC No. 500. Article 10(b) (ii) reads as follows:
“ii. Negotiation means the giving of value for draft(s) and/or document(s) by the bank authorised to negotiate. Mere examination of the documents without giving of value does not constitute a negotiation.”
This provision, however, is not a new law but only codifies the existing legal position.
39. Now let us see how the plaintiff bank itself understands and comprehends by the term negotiation. The witness on behalf of the plaintiff in his cross-examination, explains negotiation thus:
“By negotiation I mean receiving the documents, scrutinising the same, finding them in conformity with the LC, paying the amount to the party and reimbursement.”
From this discussion it would appear that the word negotiation clearly envisages the purchase of draft and documents by the concerned bank, even a promise to pay, at a later date. Would not do, there must be a corresponding payment to the beneficiary on receipt of the draft and the documents by the concerned bank, to make it a ‘negotiating bank.’
40. Now let us examine the evidence in this regard. But this is a surprise to us that the HBL, Dubai, the plaintiff, although claimed since 18th March, 1986, to have negotiated the documents, chose not to produce any evidence of payment to the beneficiary.
41. The learned Counsel for the plaintiff-respondent initially contends that there was no such need for the plaintiff-bank to prove payment to the beneficiary, that it was in between them and that the bank might even receive the documents from the beneficiary without making any payments, but then realising that such a transaction would make the plaintiff-bank a mere collecting bank, he resiled from his such argument.
42. The learned Counsel for the plaintiff-respondent firstly, refers to the Bill of Exchange Exhibit 15(1) as a proof for payment. We have ourselves examined this instrument from the records. It is a photostat copy of a typed copy. This Bill was purported to be drawn under NB, credit No. 7?9?86 dated 3?3?1986 issued for and on behalf of Navegadora Panocenica SA (the seller) upon MA Chowdhury, Station Road, Khulna, (the buyer) to pay to the order of HBL, Dubai, (the plaintiff) an amount of US$ 2,66,600.
43. Although this bill states that value of the bill was received by the seller but the instrument itself Exhibit 15(i) was unsigned. The learned Counsel tries to explain that this paper is obviously a photostat copy of the original bill which was sent to the defendant-bank on 19th May, 1986. The said original bill was also produced in the trial Court on behalf of the defendant and was marked as exhibit Exhibit F. When both the exhibits Exhibit 15(i) and Exhibit F are put together side by side, it becomes all very apparent that Exhibit I 5(i) is definitely not the photostat copy of the Exhibit F. Since all concerned admit the distinguishing features of both the instruments, we refrain from doing so here all over again as it is accepted that Exhibit 15(i) is not the photostat copy of the original bill Exhibit F. Since Exhibit 15(i) is a photostat copy of an instrument without any signature and the whereabouts of the original being unknown, it is inadmissible in evidence. The learned Counsel, however, points out that no objection was raised in respect of Exhibit 15(i) in the trial Court. But an omission to object in respect of an inadmissible evidence would not make it admissible. Reliance in this regard may be made to the decision in the case of Miller vs. Bahii Madho Das 23 IA 106. The learned Counsel further contends that this piece of paper (Exhibit 15(i) might be the photostat copy of their office copy. It does not, however, look that way, because, in that case the said office-copy ought to have been produced before the Court. In any event it does not even bear the endorsement on its reverse side as Exhibit F has.
44. Let us see what the witness on behalf of the plaintiff-bank states about the said document (Exhibit 15(i). The PW 1, in his examination-in-chief, did not make any attempt to prove the bill Exhibit 15(i) specifically although that was a vital piece of evidence to prove payment. He only mentioned in omnibus manner thus:
“Exhibit 15?15 (78). There was no discrepancy in any document.”
In his cross-examination he stated thus:
“Exhibit 15(i), the bill of exchange, is drawn on the applicant by Navegadora. Bill of exchange is drawn by the beneficiary on the applicant made by the order of Habib Bank”.
Clearly this statement in respect of Exhibit 15(i) is wrong and incorrect although stated on oath by a person no less than the Manager of the Dubai branch of HBL, the plaintiff. He was the concerned Manager of the HBL, Dubai, at the relevant time as such, is expected to know the relevant documents and the ins and outs of the concerned transaction. The original bill (Exhibit F) was admittedly with the defendant bank since 22nd May, 1986. It is not understood as to why instead of calling for the said original instrument from the possession of the defendant-bank the PW I chooses to make a wrong statement in Court.
Now let us consider, the Bill of Exchange bearing date March 15, 1986 (Exhibit F). The learned Counsel for the plaintiff-respondent invites us to hold that this document proves payment by the HBL, Dubai, in favour of Navegadora Panocenica SA. This is a standard form bill of exchange for US$ 2,66,600 drawn under NBL credit No. 07?9?86, to the order of HBL, Dubai, drawn by the seller without recourse to the drawer upon the buyer. This instrument was also duly endorsed on the reverse by the HBL to the order of NBL, Khulna, but without any date. This is a bill no doubt but it is not understood how it can evidence a payment in favour of the beneficiary. The endorsement on the reverse, made by HBL, Dubai, was a mere discharge of the bill in favour of the NBL, Khulna. It does not mean payment by the plaintiff-bank in favour of anybody. As such, we are unable to accept the contention of the learned Counsel that the bill (Exhibit F) itself is an evidence of payment.
45. Rather, the stipulated endorsement on the back of the LC although not conclusive on its own, would have gone a long way to prove such appointment. The Letter of Credit (Exhibit 1 and Exhibit D, D-1) embodies a number of terms and conditions. Under the heading Instructions for the Negotiating Bank it reads as follows: