PETITIONER:
STATE BANK OF INDIA & ORS.
Vs.
RESPONDENT:
MANGANESE ORE (INDIA) LTD. & ANR.
DATE OF JUDGMENT: 08/10/1996
BENCH:
K. RAMASWAMY, G.B. PATTANAIK
ACT
HEADNOTE
JUDGMENT
ORDER
This appeal by special leave arises from the judgment of the Division Bench of the Bombay High Court made on October 30-31, 1979 in Appeal No.163/71.
The first respondent-Manganese Ore (India) Ltd. laid the suit against the appellant and M/s.Emmenor Export Traders, the first defendant to recover the suit amount in the sum of Rs.1,69,000/- and odd. The trial Court in Special Suit No.91/69 by judgment and decree dated April 30, 1971 decreed a sum of Rs.1,66,191.10 as against the first defendant. On appeal by the first respondent, the High Court reverted the decree as against the appellant and made the appellant liable to pay over the same. When the leave was granted by this Court, the appellant was directed to deposit the decretal amount and the first respondent was given liberty to withdraw the amount on furnishing adequate security to the satisfaction of the Registrar of the High court.
The question in this case is: whether the appellant is liable to honour the letters of credit entered into between the appellant and M/s. Emmenor Export Traders? The admitted position is that under the letters of credit a conditional contract was entered into between the appellant and the first defendant. The most important clauses relating thereto are as under:
"Clauses l(i) and l(iii)(b). Clause
1(i) provides in respect of the
documents for negotiations.
Firstly, it is the seller’s signed
commercial invoice in quadruplicate
based on the weight, sampling,
analysis and moisture determined at
the time of shipment, valuing the
ore at the ratio of 17 U.S. dollars
converted into @ Rs.4.75 to one
U.S. dollar per dry metric Tonne of
1,000/- Kg. net dry weight, F.O.B.
Vishakhapattanam, on the basis of
40 percent Manganese with the pro
rata scale for each unit of
Manganese content above or below
40 per cent down to the minimum of
39 per cent. The clause 1(ii)(b)
speaks about the certificate in
triplicate from M/s, R.G. Briggs
and Co. Private Ltd. of sampling
assaying and moisture, determined
at the port of shipment showing the
material to conform to the
following contracted qualities.
(B) hard lumpy, Indian Low grade
Manganese Ore having the following
chemical analysis at 105 degrees C.
minimum 39 per cent. (F.E.) Iron
Maximum 8.25 per cent SIO-2 Maximum
23.00 per cent Phosphorus minimum
0.23 per cent (All approximately)."
The trial Court as well as the High Court have recorded a finding that the quality of the goods supplied by the first defendant to the buyers did not match the quality contracted for under the letters of credit. The trial Court considered this aspect of the matter and the obligation to honour the contract in paragraph 13 and concluded as under:
"Now I proceed to see whether, the
Plaintiff had complied with both
these clauses. It is not now
disputed that inboth the supplies
made by the Plaintiff to the
Defendant No.1, the phosphorus was
more than the agreed maximum of
0.23 and that in one of the
supplies the Manganese was below
the minimum of 39 per cent. This
can be found from the documents
presented by the Plaintiff to
Defendant No.2 at the time
negotiations on 20th June 1966.
They are exhibits 80 to 85.
Exhibits 81 to 84 are the
certificates issued by the analyser
R.V. Briggs and Co. Exhibit 81
shows the Manganese to be 38.06 per
cent and the phosphorus to be 0.240
per cent and exhibit 84 shows that
the phosphorus was 0 246 per cent.
Now this approximation clause
qualifying these percentages stated
either in the letter of credit
exhibit 78 or in the agreement at
exhibit 69 cannot be so read as to
allow the percentages to go below
or above theagreed minimums and
maximums. The minimum and the
maximum percentages shall have to
be treated as the percentages of
rejection limits. The approximate
percentage can be slightlyabove the
minimum agreed and slightly below
the maximum agreed. This clause
regarding approximation cannot be
read so as to allow a percentage
below the rejection limits. If this
is allowed there will be no limit
in lowering down the minimum and
the shooting up the maximum. In my
opinion the minimum and maximum
percentage stated in the agreement
at exhibit 68 or in the attached
sheet of letter of credit at
exhibit 78, shall have to be taken
as rejection limits."
Thus, the trial Court found that the first respondent had not fulfilled the terms and conditions of the letters of credit in respect of the quality of the goods and did not grant the decree against the appellant.
The High Court also recorded the finding as under:
"It will thus be seen that the two
shipments so far as Phosphorus was
concerned, (exceeded the maximum
which was shown therein, namely,
0.23 in one case by 0.01 per cent
and in the other by 0.16 per cent.
So far as manganese is concerned,
the first was down by 0.04 per cent
while in the second consignment. it
was up by 0.1 per cent. There is no
dispute between the parties about
these facts. The shipments when
sampled and analysed did not confer
exactly to the quality
spocifications either in the
agreement dated 18th March or the
letter of Credit dated 6th May is
not a matter of dispute."
Having found that the shipment of the goods was not in conformity with the quality and specification either in the agreement dated 18th march or the letters of credit dated 6th March. The question arises: whether the appellant has been absolved of its liability to honour the contract entered into with the first defendant in terms of the letters of credit granted by the appellant? The High Court has proceeded on the premise that the appellant had submitted the bills for crediting the amount to the value of the goods supplied; it had enclosed all the credit letters required under the agreement including the analyst report and having accepted them, it has the duty to honour the letters of credit. It had given credit to the account of the first respondent-plaintiff of the amount of the value which was shipped under the letters of credit. We think that the High Court was not right in that behalf. It is seen that letters of credit are not irrevocable and unconditional contract entered into between the appellant and first defendant. It is subject to the compliance of the quality of the goods supplied by the first defendant to the plaintifffirst respondent. In view of the undisputed and admitted position that the goods were not of the quality conformable to either to the original agreement or the letters of credit. as stated earlier, the appellant is not obliged to honour the letters of credit, it being a condition precedent, namely, goods supplied shall be of the quality in conformity with the conditions of the letters of credit. The High Court has evaluated the quality of the goods supplied and relied upon the last clause namely, "approximate" and held that since the quality of the goods are approximate to the conformity of the quality, the appellant is not absolved of its liability to honour the letters of credit entered into between the appellant and first defendant. We think that the High Court was not right in its conclusion. But When the parties have admitted that the goods supplied were not of the specification and the standard required under the letters of credit vis-a-vis the appellant and the first defendant, the obligation to honour the letters of credit having been conditional one, the appellant is absolved of its liability to honour the letters of credit and pay over the value of the goods supplied by the first respondent to the first defendant. Therefore, the view taken by the trial Court is correct and that of the High Court is not sustainable in law. The judgment and decree of the appellate Court stands set aside and that of the trial stands restored, namely, the fists respondent shall seek for the payment from the first defendant. Since the appellant was directed to deposit as per the orders of this Court, if the amount is already withdrawn, the appellant is at liberty to recover the same from the security furnished by the appellant. If the security is not sufficient, it will be open to the appellant to recover the balance amount from the first respondent in accordance with law.
The appeal is accordingly allowed, but, in the circumstances, without costs.