Nisha Aggarwal v. Vipesh Shah & Ors

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J. NOVEMBER 06, 2008 mm

i.5 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order: 06.11.2008 + RFA 267/2007 NISHA AGGARWAL ..... Appellant Through: Mr. K.A.Singh, Adv. for Mr. Sandeep Aggarwal, Adv. versus VIPESH SHAH & ORS. ..... Respondents Through: Mr. Dhruv Wahi with Mr. Vikram Singh, Advocates for R- 2 & 3 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R.MIDHA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J.(Oral) 1. Vide impugned order dated 5.3.2005 plaint has been rejected holding that the appellant has not been able to show any cause of action viz-a-viz defendant No.2 and 3 much less at Delhi. 2. Defendant No.2 and are Barclays Bank, Birminghan Trade Center, United Kingdom and Barclays Bank, Willesden & Notting Hill Branch respectively. 3. Defendant No.1 is Vipesh Shah. 4. Suit filed by the appellant seeks damages in sum of £11,005/- together with interest @24% per annum. 5. It is stated in the plaint that the appellant is the proprietor of Navlakshmi Exports and defendant No.1 Vipesh Shah is carrying on business under the name and style of "Natural Giftware" and is based in the United Kingdom. It is stated that defendants 2 and 3 are the bankers of Vipesh Shah. Stating that the appellant and Vipesh Shah entered into a contract requiring appellant to supply furnishing items to Vipesh Shah it is pleaded that after completing the requisite formalities the goods to be sent to Vipesh Shah were shipped on 22.3.1999 and that on 7.4.1999, along with a covering letter, plaintiff forwarded the documents pertaining to the export consignment to its banker namely Punjab National Bank to be forwarded to defendant No.3 with instructions that the documents should be handed over to defendant No.1 i.e. Vipesh Shah on acceptance of bill of exchange on 40 days credit from date of bill of lading dated 27.3.1999. 6. Further pleading made are that the banker of the plaintiff i.e. Punjab National Bank transmitted the documents to defendant No.3 and that Vipesh Shah managed to obtain the documents and armed with the same got released the consignment at the port of destination and did not remit any money resulting in the plaintiff suffering a loss of the value of the consignment. 7. In para 34 of the plaint it is pleaded as under:- "That the defendant No.2 and 3 being the bankers of defendant No.1 were under a moral obligation to collect the consignment consideration from defendant No.1. Since defendant No.2 and 3 had miserably failed in their duties, the plaintiff through its counsel on 15.3.2000 sent a legal notice calling upon the defendants No.2 and 3 to pay to the plaintiff the export consideration." 8. Suffice would it be to state, and as per the legal knowledge of this Court, the only concept of a legally enforceable moral obligation is under Hindu law as per which a son owes an obligation to clear the pious debts of his father. The law of contract does not envisage any moral obligation of any party. 9. Be that as it may, from a perusal of the plaint and in particular para No.12 which reads as under:- "That on 07.04.99, the plaintiff alongwith its covering letter forwarded the entire export consignment documents amounting to Pd.Str.13,088/- to their bankers namely Punjab National Bank, Shakti Nagar Branch, Delhi 110007 to be forwarded to Barclays Bank, Willesden & Notting Hill Branch, P.O.Box: 3750, London NW 10 6 AQ, United Kingdom, the bankers of the defendant no. 1, with instructions that the documents will be handed over to the defendant no. 1 on acceptance of the Bill of Exchange for 40 days credit from the day of bill of lading dated 27.03.99." the inevitable conclusion is that the case pleaded in the plaint is that defendant No.3 was to deliver the documents to defendant No.1 provided he accepted the bill of exchange which had a 40 days credit. 10. Having herself pleaded so in the plaint, t