O.A. Nos. 105 and 106 of 2004. Case: State Bank of India Vs Anil and Co. and Ors.. Mumbai Debt Recovery Tribunals
| Case Number | O.A. Nos. 105 and 106 of 2004 |
| Counsel | For Appellant: Vimadalal, Adv., i/b., Vimadalal and Co. and For Respondents: G.R. Kinkhabwala, Adv., i/b., Mulla and Mulla and Craigie Blunt and Caroe |
| Judges | K.J. Paratwar, Presiding Officer |
| Issue | Indian Stamp Act, 1899 - Sections 2(2), 2(3) and 35 - Schedule - Articles 13 and 49; Negotiable Instruments Act, 1881 - Section 19; Indian Stamp (Amendment) Act, 1988 - Section 2(3) |
| Citation | II (2006) BC 83 |
| Judgement Date | Thursday February 23, 2006 |
| Court | Mumbai Debt Recovery Tribunals |
Judgment:
K.J. Paratwar, Presiding Officer
K.J. Paratwar, Presiding Officer-Certain common questions of facts and law are involved in these two matters which can therefore be conveniently decided by this common judgment,
The original applications are thus:
In O.A. No. 105 of 2004 the claim is of US $ 10,68,864.91 with interest on US $ 7,79,710 @18% p.a. w.e.f. 10.2.2004 till payment;
In O.A. No. 106 of 2004 the claim is of US $ 5,22,690.06 with interest on US $3,71,481.60 as above.
The defendant No. 1 in O.A. No. 105 of 2004 is partnership firm of which defendant Nos. 2 and 3 are partners. The defendant No. 2 in O.A. No. 106 of 2004 is the proprietor of defendant No. 1. The defendant Nos. 1/2 are used as acceptors of the bills of exchange drawn by M/s. Diam N. V. of Belgium. The details of the bills are set out below:
--------------------------------------------------------------------------------
O.A. No. 105 O.A. No. 106 of 2004of 2004--------------------------------------------------------------------------------
Bill 22.10.2001 25.7.2001 5.9.2001Dates US $ US $ US $7,79,710 1,85,877.41 2,46,481.60Due Dates 18.1.2002 22.10.2001 4.12.2001Date of 11.8.2003 11.9.2003 11.9.2003Dishonour
through
Notary
Drawer M/s. Diam M/s. Diam M/s. DiamN.V. N.V. N.V.Antwerpen, Antwerpen, Antwerpen,Belgium Belgium BelgiumAcceptor/ Defendant Defendant DefendantDrawee Nos. 1/2 Nos. 1/2 Nos. 1/2Amount Allahabad Allahabad Allahabadpayable Bank Bank Bankthrough
Part ...No.... US $ ...No...Payments 60,877.41on17.1.2002--------------------------------------------------------------------------------
4. Since the defendants did not make payments despite repeated demands and notice, these O.As. are filed.
The defendants have resisted the O.As by similar written statements at Exh. 8 in both the matters. They do not deny that the bills of exchange were drawn and in fact their liability to make payment under the bills. They have come out with a case that they had exported rough diamonds to M/s. Diam N.V. valuing US $ 7,79,710 vide Invoice dated 22.10.2001 in O.A. No. 105 of 2004 and US $ 4,32,359.01 vide invoices dated 25.7.2001 and 5.9.2001 in O.A. No. 106 of 2004. As against these invoices, they imported finished diamonds against the Bills of Exchange in question. The defendants are entitled from M/s. Diam N.V., balance sum of which is US $ 26,602.90 in O.A. No. 105 of 2004 and US $ 2,914.35 in O.A. No, 106 of 2004. The defendants claim to be not liable to make payment under the Hundis and in fact are entitled, as stated above, to the set-off from M/s. Diam N. V., Belgium. The O.As are sought to be dismissed on said grounds.
The evidence in these cases is thus:
(i) O.A. No. 105 of 2004-The claim affidavits of Mr. R.G. Rodrigues (Exhs. 10 and 30), officer of the Bank and Mr. Mukesh Kumar Sanchati (Exh. 15) while bill of exchange is at Exh. 12, the notarisation certificate is at Exh. 13. The defendant has produced on record invoices (Exhs. 16 to 23) and the letters by it to M/s. Diam N.V., Belgium (Exhs. 24 and 25), to R.B.I. (Exh. 26).
(ii) In O.A. No. 106 of 2004-The claim affidavits of Mr. R.G. Rodrigues (Exhs. 9 and 31) and of defendant Mr. Mukesh Kumar Sanchati (Exh. 16). The bills of exchange are at Exhs. 11 and 12 and noting and protesting certificate is at Exh. 13. The defendants' invoices...
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