Delhi District Court
M/S Pahwa International vs M/S Icici Bank Ltd on 14 August, 2025
IN THE COURT OF SH.RAJ KUMAR TRIPATHI:
DISTRICT JUDGE (COMMERCIAL COURT)-08
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others)
CNR No. DLSE01-007119-2018
M/s Pahwa International
F-29, Okhla Industrial Area,
Phase-I, New Delhi-110 020.
........Plaintiff
Through:- Mr. Arun Khosla and
Mr. Manjit Kapil, advocates
Versus
1. M/s ICICI Bank Ltd.
Division 9A, Phelps Building,
Connaught Place, New Delhi-110 001.
......Defendant No.1
Through:- Mr. Ajay Monga
and Mr. Anmol Mehta, advocates
2. M/s Muenchner Bang EG,
Foreign Department,
Richard Strauss, 82,
D-81679, Munich, Germany.
......Defendant No.2
Through:- Ms. Diksha L.Kakar and
Mr. Rashneet Singh, advocates
3. M/s Wasan Overseas Pvt. Ltd.
5, Aradhana Enclave,
Sector-13, Ring Road,
New Delhi-110 066.
......Defendant No.3
Through:- Ms. Mansi Sood and
Raj Kumar Ms. Rishbha Arora, advocates
Tripathi
4. M/s Como Leather Fashion GMBH,
Digitally signed by
Raj Kumar Tripathi
Salzatabe 8, 85622, Feldkirchen, Germany.
Date: 2025.08.14 ......Defendant No.4
12:24:16 +0530
(Ex parte)
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 1 of 47
Date of filing : 28.08.2018
Final arguments heard on : 09.07.2025, 14.07.2025,
17.07.2025, 19.07.2025,
21.07.2025 & 22.07.2025
Date of Judgment : 14.08.2025
JUDGMENT:
1.1 Plaintiff M/s Pahwa International filed the present
suit against defendants on 28.08.2018 claiming a sum of US$
39,507/- and Rs.97,96,180/- along with pendente lite and future
interest and cost of the proceedings.
Factual matrix of plaintiff’s case
2.1 Plaintiff is engaged in manufacturing, export and
import of leather garments. Defendant no.3 M/s Wasan Overseas
Pvt. Ltd., a buying house is engaged in procuring orders for
leather fashion garments and placing them with fabricators/
exporters on behalf of foreign buyer. Defendant no.4 M/s Como
Leather Fashion GMBH is a foreign buyer. Defendant no.2 M/s
Muenchner Bang EG is the banker of the defendant no.4.
2.2 Case of the plaintiff is that defendant no.4 had placed
an order upon defendant no.3 for leather garments. Defendant
no.2 issued a Letter of Credit vide reference no.15.0506 dated
26.05.2015 in the sum of USD 5,05,058.50 in favour of defendant
no.3 with the facility of nomination of a second beneficiary for
Raj
Kumar payment of leather garments. On the basis of said purchase order
Tripathi and Letter of Credit, defendant no.3 placed an order upon plaintiff
Digitally signed
by Raj Kumar
Tripathi
for leather garments in the sum of US$ 5,05,058.50 while
Date:
2025.08.14
12:24:23 +0530
directing its bankers, defendant no.1 to transfer the said
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 2 of 47
irrevocable Letter of Credit in favour of plaintiff.
2.3 Defendant no.1, vide letter dated 10.06.2015,
transferred the said Letter of Credit dated 26.05.2015 issued by
defendant no.2 in favour of plaintiff as the second beneficiary in
accordance with terms of ‘UNIFORM CUSTOMS AND
PRACTICES OF DOCUMENTARY CREDITS (LATEST
VERSION) [UCP]’. The plaintiff delivered the first consignment
of leather garments and forwarded documents, through its banker
M/s Punjab and Sind Bank, Bhandari House, Nehru Place, New
Delhi-110 019, vide Reference No. 30/190079/15 dated
30.07.2015 relating to Invoice No. 054/15-16 dated 24.07.2015 in
the sum of US$ 1,38,069. Plaintiff delivered second consignment
and forwarded documents, vide Reference No. 30/195140/15
dated 20.08.2015 relating to Invoice No. 074/15-16 dated
10.08.2015 in the sum of US$ 1,45,728/-.
2.4 Plaintiff delivered third and last consignment and
forwarded documents, through its banker vide Reference No.
30/195155/15 dated 01.09.2015 relating to Invoice No. 090/15-16
dated 20.08.2015 in the sum of US$ 1,97,581.50. Defendant no. 1
credited a sum of US$ 99,949 to plaintiff against Reference No.
30/190079/15 relating to invoice amount of US$ 1,38,069.
Likewise, defendant no.1 also credited sum of US$ 86,161.70 to
plaintiff against Reference No. 30/195140/15 relating to invoice
amount of US$ 1,45,728.
2.5 Plaintiff’s further case is that its banker addressed
Raj
Kumar Swift Message dated 27.11.2015 to defendant no.1, whereby it
Tripathi objected to transfer of an amount of US$ 99,941.58 against
Digitally signed
by Raj Kumar
Tripathi
invoice amount of US$ 1,38,069. The plaintiff’s banker addressed
Date: 2025.08.14
12:24:31 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 3 of 47
another Swift Message dated 27.11.2015 to the defendant no.1,
whereby it asked for payment of an amount of US$ 1,97,581/-
against Invoice No. 090/15-16 dated 20.08.2015. The plaintiff’s
banker addressed another Swift Message dated 05.12.2015 to
defendant no.1, whereby it objected to transfer of an amount of
US$ 99,941.58 against invoice amount of US$ 1,38,069. The
plaintiff’s banker addressed Swift Message dated 05.12.2015 to
defendant no.1, whereby it objected to transfer of an amount of
US$ 86,161.70 against invoice amount of US$ 1,45,728.
Plaintiff’s banker also addressed Swift Message dated 05.12.2015
to defendant no.1 to transfer an amount of US$ 1,97,581.50
against Reference No. 30/195155/15.
2.6 As per plaintiff, defendant no.1 had not responded to
the said Swift Messages of its banker. However, defendant no.3
forwarded Swift Message dated 07.12.2015 purportedly as having
been sent by the defendant no.1 regarding payment of US$
99,941.58 against Reference nos.30/190079-195140/15. It is
alleged that the said Swift Message is a forged and fabricated
document. On 20.01.2016, plaintiff’s banker addressed a letter to
defendant no.1 that effecting partial payments indicated that
discrepancies were accepted and full payment is due according to
the terms and conditions of Letter of Credit. It also stated that
partial payment can only be effected with agreement of the
presenter i.e. negotiating bank. It also asked to pay balance US$
2,95,275.80 along with interest @ 16.5% per annum plus US$
Raj
Kumar 500 against Swift Charges.
Tripathi
Digitally signed
2.7 On 10.02.2016, defendant no.3 addressed another e-
by Raj Kumar
Tripathi
Date: 2025.08.14
mail to plaintiff purportedly Swift Message from defendant no.1
12:24:38 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 4 of 47
regarding payment of US$ 75,000 against Reference No.
30/195155/15. On 12.02.2016, defendant no.3 addressed another
e-mail to the plaintiff purportedly a Swift Message from
defendant no.1 regarding payment of US$ 75,000 against
Reference No. 30/190079/15 and 30/195140/15. The plaintiff’s
banker addressed Swift Message dated 17.03.2016 regarding non-
receipt of any payment against Reference No. 30/195155/15 dated
03.09.2015 and balance payment against Reference No.
-30/190079/15 and Reference No. 30/195140/15.
2.8 According to plaintiff, its banker forwarded Swift
Messages dated 07.12.2015, 10.02.2016 and 12.02.2016 to
defendant no.1. Plaintiff submitted letter dated 21.03.2016 along
with delivery sheet dated 07.09.2015 regarding contention of
defendant no.1 pertaining to non-receipt of documents covered
vide Reference No. 30/195155/15. The plaintiff stated that M/s
Lufthansa Cargo Airway Bill No. 020-4374 1854 dated
20.08.2015 with confirmation by M/s Alfa Trans so that goods
covered by Reference No.30/195155/15 delivered to the
defendant no.4. In response to the letter dated 17.03.2016 sent
by the plaintiff’s banker, the defendant no.1 addressed Swift
Message dated 23.03.2016 that against the aforesaid three
consignments, it had made payment of US$ 99,941.58/- only
against Reference No. 30/190079/15, and a sum of US$
86,161.70 against Reference No. 30/195140/15 and no payment
against Reference No. 30/195155/15. Defendant no.1 addressed
Raj
Kumar Swift Message dated 07.04.2016 stating therein that it had not
Tripathi made payment as conveyed vide Swift Messages dated
Digitally signed
by Raj Kumar
Tripathi
07.12.2015, 10.02.2016 and 12.02.2016. Plaintiff’s banker
Date: 2025.08.14
12:24:45 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 5 of 47
addressed Swift Message dated 19.04.2016 to defendant no.1 in
reference to Swift Message dated 07.04.2016 of defendant no.1
that Swift Messages dated 07.12.2015, 10.02.2016 and
12.02.2016 were forged and fabricated, and expressed surprise as
to inaction of defendant no.1 regarding forgery of the said
messages, and asked it to make payment.
2.9 According to plaintiff, defendant no.1 addressed
letter dated 02.05.2016 to its banker that defendant no.3 has
confirmed that it has not shared the said Swift Messages with the
plaintiff and denied obligation to make any payment relating to
the documents tendered by the plaintiff’s banker.
2.10 In response thereto, plaintiff’s banker sent letter dated
16.05.2016 highlighting fallacy in the stand of defendant no.1
regarding part payments made against 2 of 3 consignments and
non-payment of 3rd consignment. Plaintiff sent notice dated
20.05.2016 to defendants asking them to make payment of US$
2,95,275.22 together with interest @ 16.5% per annum.
Defendant no.1 did not respond to the said notice in writing but
made transfer of sum of US$ 77,197.19 on 13.07.2016.
Defendants no.3 and 4 admitted that they had received the goods
sent by the said 3 consignments and expressed willingness to
settle the matter. However, they refused to honour their
commitment.
2.11 It is submitted that defendants no.1 and 2 are under
obligation under ‘UCP’ to make payment of the invoices raised by
Raj
Kumar the plaintiff. Plaintiff filed a consumer complaint with National
Tripathi
Digitally signed Consumer Dispute Redressal Commission (NCDRC). However,
by Raj Kumar
Tripathi
Date: 2025.08.14
12:24:52 +0530
the same was withdrawn on 03.05.2017 to file a fresh civil suit.
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 6 of 47
2.12 Plaintiff avers that on 01.11.2017, defendant no.3
offered to pay the amount in installments. First installment of
Rs.40,00,000/- was paid on 01.11.2017, second installment of
Rs.9,00,000/- was paid on 23.01.2018, third installment of
Rs.40,00,000/- was paid on 05.03.2018, fourth installment of
Rs.9,00,000/- was paid on 23.03.2018, fifth installment of
Rs.2,00,000/- was paid on 26.03.2018 and sixth installment of
Rs.25,00,000/- in installments. As such, defendant no.3 made
payment of Rs. 1,25,00,000/-. Thereafter, the said defendant
refused to make further payment. Plaintiff claims to have
suffered loss of Rs.19,28,758/- on account of duty drawbacks,
loss of Rs.6,09,081.49 on account of incentive under MEIS
scheme of Government of India and Rs.10,40,770/- on account of
loss of benefit of bank subvention. Hence, the present suit.
Defence of Defendant No.1
3.1 Defendant no.1 ICICI Bank Ltd., in its written
statement, contended that it has no privity of contract with the
plaintiff. There was a contract between defendants no.3 and 4,
where under, defendant no.3 acted as a ‘seller’ and defendant no.4
acted as a ‘buyer’. Pursuant to the said contract, defendant no.2
issued Letter of Credit dated 26.05.2015 for US$ 8,57,603.57 in
favour of defendant no.3 at the instance of defendant no.4, which
was transferable. The expiry date of said Letter of Credit was
06.07.2015, which was amended to 05.08.2015.
Raj
Kumar 3.2 The said Letter of Credit was issued by a German
Tripathi
Digitally signed
by Raj Kumar
Bank in Germany and it was required to be advised to defendant
Tripathi
Date: 2025.08.14
12:24:58 +0530 no.3 and accordingly defendant no.1 was the advising bank. The
Letter of Credit was governed by ‘UNIFORM CUSTOMS AND
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 7 of 47
PRACTICES OF DOCUMENTARY CREDITS (LATEST
VERSION) [UCP 600). Plaintiff was seller of goods to defendant
no.3, who had requested the defendant no.1 to transfer the said
Letter of Credit in favour of plaintiff vide letter dated 28.05.2015.
Defendant no.1 had transferred the said Letter of Credit in favour
of plaintiff vide communication dated 10.06.2015.
3.3 Defendant no.1 contends that it will make payment
only on receipt of payment from issuing bank/defendant no.2 as it
was only an advising bank and not confirming bank. Therefore, it
is not liable to honour Letter of Credit. As per defendant, the third
set of documents received on 18.04.2016 were photocopies only.
Defendant no.3 submitted first set of documents for an amount of
US$ 1,50,910/- on 19.08.2015. the second set of documents was
submitted for an amount of US$ 1,57,248 on 27.08.2015.
Defendant no.3 had lodged the said documents with defendant
no.2, which refused the said documents vide Swift Messages
dated 28.08.2015 and 01.09.2015 on the ground that documents
were presented after expiry of LOC.
3.4 Defendant no.1 claims to have received certain
inward remittances in the sum of US$ 99,941.58 against amount
of US$ 1,50,910 in relation to first set of documents on
23.11.2015 which amount was transferred to Punjab and Sind
Bank on 24.11.2015 being part payment received from the foreign
bank. On 17.12.2015, defendant no.1 received further inward
Raj
Kumar
remittance in the sum of US$ 86,161.70 against amount of US$
Tripathi
Digitally signed by
1,57,248/- in relation to second set of documents which amount
Raj Kumar
was paid to Punjab and Sind Bank on 18.12.2015 as part payment
Tripathi
Date: 2025.08.14
12:25:04 +0530
received from foreign bank. On 17.03.2016, Punjab and Sind
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 8 of 47
Bank sought further confirmation regarding status of payment.
Defendant no.1 responded thereto that part payments were
effected.
3.5 Defendant no.1 further contended that the third set of
documents forwarded by Punjab and Sind Bank, vide covering
letter dated 18.04.2016, which was substituted by defendant no.3
for US$ 2,12,969.70 on 29.04.2016 were lodged with defendant
no.2 on 02.05.2016. However, defendant no.2 returned the said
documents on 11.05.2016 stating that consignee was no longer
customer of the issuing bank. On 16.05.2016, Punjab and Sind
Bank sought confirmation of defendant no.1 regarding status of
the payment. Defendant no.1 vide communication dated
23.05.2016 returned the documents to Punjab and Sind Bank.
3.6 Defendant no.1 claims to have received final
settlement dated 28.06.2016 from defendant no.3. Pursuant
thereto, an amount of US$ 31,099.60 each was paid to Punjab and
Sind Bank by defendant no.1 in relation to first and second set of
documents. There was an independent discussion between
plaintiff and defendant no.3, whereby defendant no.3 had agreed
to make payment to plaintiff and in fact, defendant no.3 made
some payments to plaintiff. As defendant no.3 has not made
complete payment, plaintiff started communicating with
defendant no.1. It is contended that liability is of defendant no.2
being the issuing bank and/or of defendant no.3. Denying its
liability towards the plaintiff, defendant no.1 prayed to dismiss
Raj the suit with exemplary cost.
Kumar
Tripathi
Digitally signed
Defence of Defendant no.2
by Raj Kumar
Tripathi
Date: 2025.08.14
4.1 Defendant no.2, in the written statement, contended
12:25:11 +0530
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(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 9 of 47
that it is neither a necessary nor a proper party. Defendant no.2
claims to have discontinued its international business in the year
2016 and the documents relating to the transaction in question are
not available with it. Defendant no.2 is reported to have provided
international service to defendant no.4 from 2014 till 2016.
4.2 Defendant no.2 admitted to have issued Letter of
Credit vide Reference No.15.0506 in the sum of US$ 5,05,058.50.
However, it contends that the applicant in respect of said LC is
not the defendant no.4. The applicant for said LC is Como Sport
e.K./Inh Erwin Honigstein. The said LC had expired on
05.08.2015. Thus, it had no obligation to make any payment
against claim of plaintiff.
4.3 According to defendant no.2, as of 18.12.2015, one
Airbus Group Bank GMBH Limited stepped into loan
arrangement of the said two entities and discharging the liabilities
of the said companies. Defendant no.4 has become insolvent and
its liabilities are taken over by Airbus Group Bank GMBH
Limited. Denying its liability to make any payment to plaintiff,
defendant no.2 submitted that no case for grant of any relief has
been made out against it.
Defence of Defendant no.3
5.1 The defendant no.3, in the written statement,
contended that present suit has been filed by plaintiff to avoid
repayment of personal loan extended by Mrs. Aditi Wasan, one of
Raj the directors of the defendant no.3 to Mr. Surinder Singh Pahwa,
Kumar
Tripathi one of the partners of the plaintiff. It denied that there was any
Digitally signed
by Raj Kumar privity of contract or legal relationship between plaintiff and
Tripathi
Date: 2025.08.14
12:25:19 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 10 of 47
defendant no.3. Defendant no.3 claims to have no liability to the
plaintiff.
5.2 As per defendant no.3, defendant no.1 failed to
release the payments, as per Letter of Credit. The obligation to
make payment was upon defendants no. 2 and 4. Defendant no.
4 raised purchase order upon the plaintiff, which raised invoices
against defendant no.4. It is contended that plaintiff submitted
requisite documents to defendant no.1 on 14.08.2015, 22.08.2015
and 07.09.2015 after expiry of the said LOC on 05.08.2015.
5.3 Defendant no.3 claims to be a buying house which is
engaged in introducing buyers to sellers and acting as
intermediary for such transactions on behalf of buyer and earns a
certain percentage as commission.
5.4 Defendant no.3 claims to have introduced defendant
no.2 to plaintiff. Defendant no.4 had placed an order upon the
plaintiff vide purchase order dated 09.03.2015. The said
purchase order did not make any mention of defendant no.3 as
buyer, consignee or agent. Defendant no.4 opened Letter of Credit
vide Reference No.15.0506 dated 22.05.2015 in favour of
defendant no.3 as the first beneficiary for US$ 9,70,132.15 for
several shipments. The last date of shipment was 15.06.2015 with
the last date for presentation of documents on 06.07.2015 which
was subsequently extended to 05.08.2015. Defendant no.3, at the
request of defendant no.4, nominated the plaintiff as second
beneficiary and defendant no.1 transferred the said LOC to the
Raj extent of US$ 5,05,058.50 in favour of plaintiff.
Kumar
Tripathi 5.5 Defendant no.3 contends that it was made a
Digitally signed
by Raj Kumar
Tripathi
beneficiary of said LOC to receive commission and transfer the
Date:
2025.08.14
12:25:26 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 11 of 47
balance as per invoices raised by the seller. Defendant no.4 had
complained that the goods were not delivered at time and delay in
shipment was causing difficulty as the goods were supplied after
expiry of the said LOC. Defendant no.3 being intermediary had
taken responsibility of co-ordinating delivery between plaintiff
and defendant no.4. Defendant no.4 had also complained about
sub-standard quality of the goods which could not pass basic
quality checks.
5.6 The defence of defendant no.3 is that the plaintiff
was in financial trouble and Mr.Surinder Singh Pahwa, partner of
the plaintiff pressurized Mrs.Aditi Wasan, one of the directors of
defendant no.3 for payment of the said shipment. Defendant no.3
paid an amount of Rs.1,25,00,000/- from personal account of
Ms.Aditi Wasan to Mr. Surinder Singh Pahwa. Mr.Pahwa induced
Mrs.Wasan to sign an agreement. Denying its liability to pay any
amount to plaintiff, defendant no.3 prayed to dismiss the suit with
exemplary and punitive costs.
Defendant no.4 is ex parte
6.1 As per record of the case, as noted in order dated
24.11.2018, defendant no.4 was served through e-mail on
15.11.2018, speed post on 21.11.2018 and courier on 19.11.2018.
The said defendant chose not to appear and contest the suit by
way of filing written statement despite service. Accordingly,
defendant no.4 statutorily forfeited its right to file written
Raj Kumar
Tripathi statement. As a result thereof, right of defendant no.4 to file
Digitally signed by
Raj Kumar Tripathi written statement to the suit was directed to be closed vide order
Date: 2025.08.14
12:25:32 +0530
dated 27.09.2022.
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 12 of 47
6.2 Due to non appearance of defendant no.4 despite
service, it was directed to be proceeded ex parte on 27.09.2022.
Replication
7.1 Plaintiff filed replication to the written statement of
defendants no.1 and 3, wherein, the averments made in the plaint
have been reiterated and the averments and allegations of the
written statements have been denied.
Issues
8.1 On the basis of pleadings of the parties, the following
issues were framed on 03.09.2024:-
(i) Whether plaintiff is entitled for recovery of a sum of US$
39,507 as prayed for?OPP.
(ii) Whether plaintiff has suffered any loss, if so, to what
extent?OPP.
(iii) Whether defendants are jointly and severally liable to pay
the amount as prayed for in the suit?OPP.
(iv) Whether plaintiff is entitled for interest, if so, at what rate
and for which period? OPP.
(v) Relief.
Evidence of plaintiff
9.1 In support of its case, plaintiff has examined two
witnesses i.e. its partner Mr. Surinder Singh Pahwa as PW1 and
Raj Kumar Mr. Karan Verma, Manager, Punjab & Sind Bank, Nehru Place
Tripathi
Digitally signed by
Branch, New Delhi as PW2.
Raj Kumar Tripathi
Date: 2025.08.14
12:25:39 +0530
9.2 PW1 Mr. Pahwa filed his evidence by way of
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 13 of 47
affidavit, Ex.PW1/A, wherein he has reiterated the same facts as
mentioned in the plaint. Before coming to the testimony of PW1,
the documents relied upon by him are put in a tabulated form as
under:-
S.No. Details of the Document Exhibit Mark
1. Copy of Registration Certificate of Mark-A (colly.)
Partnership Deed
2. Original Letter of Authority dated Ex.PW1/2
01.08.2018
3. Copy of Purchase Order Ex.PW1/3
4. Copy of Letter of Credit Ex.PW1/4
5. Copy of Invoice No.054/15-16 dated Ex.PW1/5 (Colly.)
24.07.2015 along with supporting
documents
6. Copy of Invoice No.074/15-16 dated Ex.PW1/6 (colly.)
10.08.2015 along with supporting
documents
7. Copy of Invoice No.090/15-16 dated Mark-B
20.08.2015 along with supporting
documents
8. Copy of Legal Notice dated 20.05.2016 Ex.PW1/8 (Colly.)
9. Copy of Legal Notice dated 24.10.2016 Ex.PW1/9
Evidence of defendant no.1
10.1 On the other hand, defendant no.1 has examined its
Relationship Manager Mr. Tarun Kaushik as D1W1. Mr. Kaushik
filed his evidence by way of affidavit, Ex.D1W1/A. He relied
upon the following documents:-
S.No. Details of the Document Exhibit Mark
1. Power of Attorney Mark-D1W1/1
Raj 2. Swift Message dated 28.08.2015 of Mark-D1W1/2
Kumar defendant no.2
Tripathi 3. Swift Message dated 01.09.2015 of Mark-D1W1/3
Digitally signed
by Raj Kumar
defendant no.2
Tripathi
Date: 2025.08.14
12:25:46 +0530
4. Document showing remittance of USD Mark-D1W1/4
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 14 of 47
99,941.58 by defendant no.1 on
23.11.2015
5. Document showing payment of USD Mark-D1W1/5
99,941.58 paid by defendant no.1 to
Punjab & Sind Bank on 24.11.2015
6. Document showing payment of USD Mark-D1W1/6
86,161.70 paid by defendant no.1 to
Punjab & Sind Bank on 18.12.2015
7. Communication dated 22.03.2016 issued Mark-D1W1/7
by defendant to Punjab & Sind Bank
8. Letter dated 15.04.2016 of Punjab & Mark-D1W1/8
Sind Bank
9. Letter dated 02.05.2016 issued by Mark-D1W1/9
defendant no.1 to Punjab & Sind Bank
10. Letter dated 11.05.2016 issued by LC Mark-D1W1/10
issuing Bank returning the documents
11. Letter dated 28.06.2016 received by Mark-D1W1/11
defendant no.1 from defendant no.3
12. Document showing payment of USD Mark-D1W1/12
77,197.19 paid by defendant no.1 to
Punjab & Sind Bank on 08.07.2016
13. Swift Message dated 12.07.2016 sent by Mark-D1W1/13
SCB Germany to ICICI BankEvidence of defendant no.2
11.1 In its defence, defendant no.2 examined its
Authorized Representative Mr. Michael Dandorfer as DW2/1. He
tendered his evidence by way of affidavit, Ex.D2W1/A. The
following documents have been relied upon by defendant no.2’s :-
S.No. Details of the Document Exhibit Mark
1. The excerpt from official register of the Ex.D2W1/1
Council Court at Munich dated
12.06.2018 along with its English
Raj translation in his favour
Kumar
Tripathi 2. Copy of internal communication of Ex.D2W1/2
Digitally signed
by Raj Kumar
Tripathi
Munchner Bank eG in respect of
Date:
2025.08.14
application for the Letter of Credit
12:25:54 +0530
No.15.0506 along with English
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 15 of 47
translation
3. Letter dated 08.10.2015 addressed by the Ex.D2W1/3
Airbus Group Bank to Munchner Bank
eG along with English translation
4. Copy of relevant extract from the Ex.D2W1/4
commercial register B of the local Court
Munich of the insolvency proceedings in
respect of Como Leather Fashion GMBH
along with English Translation
5. Copy of letter dated 18.12.2015 Ex.D2W1/5
addressed by Munchner Bank eG to
Airbus Group Bank along with English
Translation
6. Affidavit under section 65B of The Ex.D2W1/B
Indian Evidence Act,1872
Evidence of defendant no.3
12.1 On the other hand, defendant no.3 has examined its
AR Mr. Jatinder Wasan as D3W1, who tendered his evidence by
way of affidavit, Ex.D3W1/A. The documents relied upon by
D3W1 are as under:-
S.No. Details of the Documents Exhibit Mark
1. Certificate of Incorporation, Memorandum of Ex.D3W1/1 (Colly.)
Association and articles of Association of
defendant no.3 company
2. Master LC dated 22.05.2015 bearing Ex.D3W1/2
Reference No.15.0506 issued by defendant
no.2
3. Invoice No.054/15-16 dated 24.07.2015 Ex.D3W1/3
issued by plaintiff in favour of defendant
no.4 for US$1,38,069
4. Invoice No.054/15-16 dated 24.07.2015 Ex.D3W1/4
issued by defendant no.3 in favour of
defendant no.4 for US$1,50,910.20
5. Invoice No.061/15-16 dated 24.07.2015 Ex.D3W1/5
Raj issued by plaintiff in favour of defendant
Kumar no.4 for US$23,680
Tripathi
Digitally signed 6. Invoice No.061/15-16 dated 24.07.2015 Ex.D3W1/6
by Raj Kumar
Tripathi
Date: 2025.08.14
12:26:01 +0530CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 16 of 47
issued by defendant no.3 in favour of
defendant no.4 for US$25,756
7. Invoice No.074/15-16 dated 10.08.2015 Ex.D3W1/7
issued by plaintiff in favour of defendant
no.4 for US$1,45,728
8. Invoice No.074/15-16 dated 10.08.2015 Ex.D3W1/8
issued by defendant no.3 in favour of
defendant no.4 for US $1,57.248
9. Invoice No.090/15-16 dated 20.08.2015 Ex.D3W1/9
issued by plaintiff in favour of defendant
no.4 for US$ 1,97,581.50.
10. Invoice No.090/15-16 dated 20.08.2015 Ex.D3W1/10
issued by defendant no.3 in favour of
defendant no.4 for US$ 2,12,969.70.
11. E-mail dated 24.08.2015 along with Ex.D3W1/11
attachments thereto from defendant no.3 to
defendant no.4
12. E-mail dated 25.08.2015 along with Ex.D3W1/12
attachment thereto from defendant no.3 to
defendant no.4
13. E-mail dated 07.09.2015 from defendant no.1 Ex.D3W1/13
to defendant no.3
14. E-mail dated 13.09.2015 along with trailing Ex.D3W1/14
e-mails exchanged between defendant no.3
and defendant no.4.
15. E-mail dated 14.09.2015 along with trailing Ex.D3W1/15
e-mail exchanged between defendant no.3
and defendant no.4
16. E-mail dated 03.07.2015 from plaintiff to Ex.D3W1/16
defendant no.3 along with trailing e-mails
from defendant no.3 to plaintiff repeatedly
enquiring about the status of the already
delayed shipment
17. E-mail dated 04.07.2015 from defendant no.3 Ex.D3W1/17
to plaintiff with respect to delay in shipment
of goods and penalty for the same
18. E-mail dated 24.08.2015 along with trailing Ex.D3W1/18
e-mails, whereby the defendant no.3
forwarded e-mails dated 24.08.2015 and
Raj Kumar
21.08.2015 received from defendant no.4
Tripathi
Digitally signed by
19. E-mail dated 28.08.2015 along with Ex.D3W1/19
Raj Kumar Tripathi attachment thereto from defendant no.3 to
Date: 2025.08.14
12:26:08 +0530 plaintiff forwarding pictures of defectiveCS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 17 of 47
goods, as received from the defendant no.4
20. E-mail dated 31.08.2015 along with trailing Ex.D3W1/20
e-mails and attachments thereto, exchanged
between defendant no.3 and defendant no.4
21. E-mail dated 02.09.2015 along with Ex.D3W1/21
attachments thereto from defendant no.4 to
defendant no.3
22. E-mail dated 02.09.2015 from defendant no.3 Ex.D3W1/22
to plaintiff along with trailing e-mail
whereby the e-mail dated 02.09.2015
received from defendant no.4 with regard to
quality issues with the goods shipped by
plaintiff was forwarded
23. E-mail dated 02.09.2015 along with trailing Ex.D3W1/23
e-mails and attachments thereto, exchanged
between defendant no.3 and defendant no.4
24. E-mail dated 07.09.2015 along with Ex.D3W1/24
attachments thereto from defendant no.4 to
defendant no.3
25. E-mail dated 13.09.2015 along with trailing Ex.D3W1/25
e-mails exchanged between defendant no.3
and defendant no.4
26. E-mail dated 13.09.2015 from defendant no.3 Ex.D3W1/26
to plaintiff along with trailing e-mail and
attachment thereto regarding quality issues
with the shipped goods as raised by
defendant no.4
27. E-mail dated 14.09.2015 along with trailing Ex.D3W1/27
e-mails exchanged between defendant no.3
and defendant no.4
28. E-mail dated 14.09.2015 from plaintiff to Ex.D3W1/28
defendant no.3 along with trailing e-mails
and attachments forwarding exchanges
between defendant no.3 and defendant no.4
regarding quality issues with the shipped
goods
29. E-mail dated 28.09.2015 from defendant no.4 Ex.D3W1/29
to defendant no.3
Raj 30. Debit Note No.2015-025 dated 25.09.2015 Ex.D3W1/30
Kumar issued by defendant no.4 against the plaintiff
Tripathi for an amount of USD 3,47,602.58
Digitally signed
by Raj Kumar
Tripathi
31. E-mail dated 27.08.2015 along with trailing Ex.D3W1/31
Date: 2025.08.14
12:26:16 +0530
e-mails exchanged between defendant no.3
and defendant no.4 whereby the defendantCS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 18 of 47
no.3 was following up on payments even
though the LC had expired on account of
plaintiff’s delay
32. E-mail dated 24.11.2015 from defendant no.3 Ex.D3W1/32
to defendant no.1 along with trailing e-mail
33. E-mail dated 24.11.2015 from defendant no.1 Ex.D3W1/33
to defendant no.3 forwarding a Swift
Message showing payment of USD
99,941.58 from defendant no.1 to plaintiff
under Reference No.30/190079/15
34. E-mail dated 17.12.2015 from defendant no.4 Ex.D3W1/34
to defendant no.3
35. E-mail dated 18.12.2015 along with Ex.D3W1/35
attachments thereto, from defendant no.1 to
defendant no.3
36. E-mail dated 19.12.2015 from defendant no.1 Ex.D3W1/36
to defendant no.3 forwarding 2 Swift
Messages both dated 18.12.2015. whereby
the amount of USD 1,62,112.45 received
from defendant no.4 was partly transferred to
plaintiff (USD 86,161,70) and partly to
another seller (USD 69,941.40)
37. E-mail dated 16.09.2015 from defendant no.1 Ex.D3W1/37
to defendant no.3 along with attached
Foreign Remittance Advice Slips
38. Foreign Remittance Advice Slips dated Ex.D3W1/38 (Colly.)
13.07.2016 received by defendant no.3 from
defendant no.1 bank are
39. E-mail dated 10.02.2016 along with trailing Ex.D3W1/39
e-mail and Swift Message dated 09.02.2016
as part of the internal communication of
defendant no.3
40. E-mail dated 12.02.2016 along with trailing Ex.D3W1/40
e-mail and Swift Message dated 12.02.2016
exchanged between defendant no.3 and
plaintiff
41. Swift Message dated 08.07.2016 regarding Ex.D3W1/41
payment of EUR 70,033.58 (which was later
converted into USD 77,197.19)
42. Swift Message dated 12.07.2016 regarding Ex.D3W1/42
Raj payment of EUR 70,033.58 (which was later
Kumar converted into USD 77,197.19)
Tripathi 43. E-mail dated 26.08.2016 along with trailing Ex.D3W1/43
Digitally signed
by Raj Kumar e-mail exchanged between defendant no.3
Tripathi
Date: 2025.08.14
12:26:22 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 19 of 47
and plaintiff with regard to EUR 70,033.58
(which was later converted into US $
77,197.19) being advance payment against
an unconnected shipment
44. E-mail dated 04.05.2016 along with trailing Ex.D3W1/44
e-mails and attachment exchanged between
defendant no.3 and defendant no.4 regarding
the proforma invoice for the unconnected
shipment, against which the advance of EUR
70,033.58 (which was later converted into
USD 77,197.19) was received
45. Certificate dated 29.06.2016 from defendant Ex.D3W1/45
no.4 for the purpose of treating it as being
effectively the same entity for the purpose of
payments as Como Leather Fashion GMBH
(the entity which made the actual payment of
EUR 70,033.58)
46. E-mail dated 04.07.2016 along with trailing Ex.D3W1/46
e-mails and attachments thereto exchanged
between defendant no.1 and defendant no.3
47. E-mail dated 05.07.2016 along with trailing Ex.D3W1/47
e-mails exchanged between defendant no.4
and defendant no.3 with respect to
adjustment of the payment of EUR 70,033.58
(which was later converted into
US$77,197.19) against the pending invoices
48. E-mail dated 06.07.2016 from defendant no.4 Ex.D3W1/48
to defendant no.3 along with attachments
thereto, informing them that the payment of
EUR 70,033.58 (which was later converted
into USD 77,197.19) has been amended to
reflect defendant no.4 as the remitter
49. E-mail dated 06.07.2016 from defendant no.4 Ex.D3W1/49
to defendant no.3 along with attachments
thereto, informing them about the payment of
EUR 70,033.58 (which was later converted
into USD 77,197.19)
50. E-mail dated 06.07.2016 along with trailing Ex.D3W1/50
e-mails exchanged between defendant no.1 to
defendant no.3 regarding the payment of
EUR 70,033.58 (which was later converted
Raj
into USD 77,197.19)
Kumar
Tripathi 51. E-mail dated 08.07.2016 along with trailing Ex.D3W1/51
Digitally signed by
Raj Kumar
e-mails exchanged between defendant no.1
Tripathi and defendant no.3 with regard to the amount
Date: 2025.08.14
12:26:29 +0530 of EUR 70,033.58 (which was later
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 20 of 47
converted into USD 77,197.19)
52. Transcript of Whatsapp conversation Ex.D3W1/52
between Ms.Aditi Wasan and Mr. Surinder
Pahwa from 08.09.2017 to 03.09.2018
53. Board Resolution in favour of Kr. Jatinder Ex.D3W1/53
Wasan issued by defendant no.3 company
Findings and analysis
13.1 I have heard the arguments advanced by learned
counsel for parties.
13.2 At the outset, learned counsel for defendant no.1
submitted that plaintiff claims to be a registered partnership firm
but has not filed any document of list of registered partners which
is mandatory requirement. Thus, the suit is not instituted by an
authorized person and hence, suit of plaintiff is liable to be
rejected.
13.3 Similarly, learned counsel for defendant no.2
submitted that the suit filed by plaintiff is barred by the provisions
of section 69 (2) of The Indian Partnership Act, 1932 as the
person instituting the suit is not shown as a registered partner in
the Register of Firms. No Partnership Deed or any document to
prove the existence of the partnership firm and partners therein
has been filed and proved on record by plaintiff. The purported
photocopy of acknowledgment of registration dated 20.05.1997
without any details as to its constitution or business is not a valid
proof of registration of plaintiff firm. Thus, she prayed to dismiss
the suit being not maintainable.
Raj Kumar
13.4 In the lines of arguments addressed by learned
Tripathi
counsel for defendants no.1 and 2, learned counsel for defendant
Digitally signed by
Raj Kumar Tripathi
Date: 2025.08.14 no.3 argued that Mr. Surinder Singh Pahwa is not duly authorized
12:26:36 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 21 of 47
to file the present suit. Mr. Pahwa has failed to prove the relevant
documents on record in proof of plaintiff firm and his
authorization to depose in the case on behalf of plaintiff. Thus,
the suit of plaintiff is categorically barred u/s 69 (2) of The
Partnership Act, 1932.
13.5 To the aforesaid arguments about the maintainability
of the suit and same being barred u/s 69 (2) of The Indian
Partnership Act, 1932, counsel for plaintiff chose not to make any
submissions.
13.6 I have considered the arguments advanced on
maintainability of the suit and perused the material on record.
13.7 Plaintiff claiming to be a registered partnership firm
has filed the instant suit for recovery against defendants through
its partner Mr. Surinder Singh Pahwa, who is reported to have
been duly authorized to institute or defend any legal proceedings
on behalf of plaintiff (para no.1 and 2 of the plaint).
13.8 Chapter VII of The Indian Partnership Act, 1932 (in
short ‘The Act‘) deals with registration of firms. Section 69 of
The Act provides the effect of non-registration of the firms. For
ease of convenience, section 69 (2) of The Act is extracted herein
below:-
“69: Effect of non-registration.
69. (1) No suit to enforce a right arising from a
contract or conferred by this Act shall be instituted
in any Court by or on behalf of any person suing as a
partner in a firm against the firm or any person
alleged to be or to have been a partner in the firm
unless the firm is registered and the person suing is
Raj Kumar or has been shown in the Register of Firms as a
Tripathi partner in the firm.
Digitally signed by (2) No suit to enforce a right arising from a contract
Raj Kumar Tripathi shall be instituted in any Court by or on behalf of a
Date: 2025.08.14
12:26:43 +0530 firm against any third party unless the firm is
registered and the persons suing are or have beenCS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 22 of 47
shown in the Register of Firms as partners in the
firm.
(3) The provisions of sub-sections (1) and (2) shall
apply also to a claim of set-off or other proceeding
to enforce a right arising from a contract, but shall
not affect–
(a) the enforcement of any right to sue for
the dissolution of a firm or for accounts of a
dissolved firm, or any right or power to realise the
property of a dissolved firm, or
(b) the powers of an official assignee,
receiver or Court under the Presidency-towns
Insolvency Act, 1909 (2 of 1909), or the Provincial
Insolvency Act, 1920 (5 of 1920), to realise the
property of an insolvent partner.
(4) This section shall not apply–
(a) to firms or to partners in firms which
have no place of business in [the territories to which
this Act extends], or whose places of business in [the
said territories] are situated in areas to which, by
notification under [section 56], this Chapter does not
apply, or
(b) to any suit or claim of set-off not
exceeding one hundred rupees in value which, in the
Presidency-towns, is not of a kind specified in
section 19 of the Presidency Small Cause Courts
Act, 1882 (15 of 1882), or, outside the Presidency-
towns, is not of a kind specified in the Second
Schedule to the Provincial Small Cause Courts Act,
1887 (9 of 1887), or to any proceeding in execution
or other proceeding incidental to or arising from any
such suit or claim.”
13.9 The Partnership Deed is a foundational document for
forming a partnership. It alone is not a proof of registration. The
Partnership Deed needs to be accompanied by proof of its
registration with the Registrar of Firms. The Register of Firms is
open to public inspection upon payment of prescribed fees,
allowing interested parties to verify the registration status of a
Digitally
signed by
Raj Raj Kumar
Tripathi
Kumar Date: firm. In essence, the “Certificate of Registration” or a “Certified
Tripathi 2025.08.14
12:26:52
+0530
copy of an entry in the Register of Firms” are primary and most
reliable methods to prove the registration of a Partnership Firm
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 23 of 47
under The Indian Partnership Act, 1932.
13.10 The relevant portion of cross-examination of PW1
Mr. Surinder Singh Pahwa conduced by counsel for defendant
no.1 on 27.01.2025 and by counsel for defendant no.2 on
17.03.2025 are reproduced herein below for ready reference:-
“27.01.2025
Q.1 How many partners are there in the plaintiff
firm?
Ans. There are four partners.
Q.2 Is it correct that you have not filed along with
the plaint Form-A?
Ans. No. We have filed Form-B.
Q.3 Who were partners in the plaintiff firm at the
time of filing of the present suit?
Ans. Myself, Ravel Kaur Pahwa, Narender Singh
Sethi and Nanak Singh Bajaj.
Q.4 Who are current partners of the plaintiff firm?
Ans. Surinder Singh Pahwa, Prabhjyot Singh
Pahwa, Harmeet Kaur.
The witness is shown Ex.PW1/2 and is asked
Q.5 Who has signed Ex.PW1/2?
Ans. My signature appears at point-A, signature of
Mr. Narender Singh at point-B, signature of Nanak
Bajaj appears at point-C, Mrs. Ravel Kaur’s
signature appears at point-D and of Nirver Singh,
my son appears at point-E.
Q.6 I put it to you that the persons named by you,
who have signed Ex.PW1/2 are not the registered
partners of plaintiff firm and thus, had no authority
to issue Ex.PW1/2 to you?
Ans. It is incorrect.
Q.7 Is it correct that when the suit was filed plaintiff
did not file Form-A and Form-A has also not been
filed after change of partners?
Ans. Yes.
17.03.2025
Q.1 When was plaintiff partnership firm registered?
Ans. 1995.
Q.2 Is it correct that you have not produced the
Raj Partnership Deed of plaintiff firm along with the
Kumar plaint?
Tripathi Ans. It is incorrect (Volunteered it is at page 65 to Digitally signed by Raj Kumar 71) Tripathi Date: 2025.08.14 Q.3 I put it to you that the document at page 65 is a 12:26:59 +0530
Retirement-cum-Induction Deed dated 07.08.2012
and not a partnership Deed as per your aboveCS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 24 of 47
answer?
Ans. Yes. Because when the company was
established was proprietorship.
Q.4 Is it correct that you have not made any
averment under the plaint or produced any document
with respect to the current partners of the plaintiff
firm?
Ans. It is correct.”
13.11 From the aforesaid cross-examination of PW1, it is to
be noted that plaintiff did not file the Partnership Deed along with
the plaint. A Retirement-cum-Induction Deed dated 07.08.2012
was filed by plaintiff. PW1 has admitted that the said deed is not
a Partnership Deed. He has further admitted that there is no
averment in the plaint nor he has produced any document with
respect to the current partners of the plaintiff firm.
13.12 PW1 has relied upon copy of Registration Certificate
of Partnership Deed i.e. Form-B (Mark-A-colly). Form-A records
the name of registered partners. The said Form-A has admittedly
not been filed and proved on record by plaintiff. Plaintiff has
only filed Form-B i.e. purported photocopy of acknowledgment
of registration of firm along with Retirement-cum-Induction Deed
dated 04.08.2012. The said documents have not been proved on
record by plaintiff in accordance with law.
13.13 The Partnership Deed (as referred in para no.1 of the
plaint) or any document to prove the existence of partnership firm
and the partners therein on the date of filing of the suit i.e. on
28.08.2018 has neither been filed nor proved on record by
plaintiff. The plaintiff has only filed a purported photocopy of
Raj acknowledgment of the registration dated 20.05.1997 without any
Kumar
Tripathi details as to its constitution or business. From the said document,
Digitally signed
by Raj Kumar
Tripathi
it is not proved on record that Mr. Surinder Singh Pahwa was one
Date: 2025.08.14
12:27:07 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 25 of 47
of the partners of the plaintiff firm on the date of filing of the suit.
Thus, plaintiff has miserably failed to prove on record as to who
were the registered partners of the plaintiff firm on the date of
filing of the suit.
13.14 Ex.PW1/2 is the Authority Letter on the letter head of
plaintiff firm. In the said Letter of Authority, neither the
registration of the firm number nor the name of the registered
partners are given.
13.15 For proving the registration of a partnership firm
under The Indian Partnership Act, 1932, the most definitive and
conclusive document is Certificate of Registration. The Registrar
of firms issues the said Certificate on being satisfied that all the
provisions of section 58 of The Indian partnership Act, 1958 have
been complied with. The said Certificate also serves as legal
evidence of the firm’s existence and registered status.
13.16 Section 68 of The Act explicitly states that a certified
copy of an entry relating to a firm in the Register of Firms can be
produced as proof of the fact of registration of such firm, and of
the contents of any statement, intimation or notice recorded or
noted therein. Thus, a certified copy of the firm’s details as
maintained in the official register can be obtained by a party
which holds significant evidentiary value to prove the registration
of a firm.
13.17 In the instant case, plaintiff has neither filed nor
proved the Certificate of Registration of plaintiff firm on record
nor filed certified copy of an entry relating to the firm in the
Raj
Kumar Register of Firms showing the name of registered partners of the
Tripathi
Digitally signed firm. In Form-B, the date of registration is shown as 20.05.1997
by Raj Kumar
Tripathi
Date: 2025.08.14
12:27:13 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 26 of 47
while PW1 in his cross-examination deposed that the plaintiff’s
partnership firm was registered in 1995. Thus, there is
discrepancy in the oral testimony of PW1 and the documentary
evidence i.e. Mark-A (colly.) relied upon by him. In the absence
of relevant documents i.e. Certificate of Registration of plaintiff
firm or certified copy of entry of the firm issued by Registrar of
Firm showing Mr. Surinder Singh Pahwa as registered partner of
the firm, plaintiff has miserably failed to prove that it was a
registered partnership firm on the date of filing of the suit and Mr.
Surinder Singh Pahwa was one of the registered partners of the
plaintiff firm on the date of filing of the suit.
13.18 As per section 69 (2) of The Act, a suit to enforce a
right arising from a contract on behalf of a partnership firm
against third parties can only be filed, if (i) the firm is registered
and (ii) the person suing on behalf of the firm is shown in the
Register of Firms as a partner in the firm.
13.19 In the case in hand, plaintiff has failed to prove on
record that it was a duly registered firm under The Indian
Partnership Act, 1932 on the date of filing of the suit. Plaintiff
has further failed to prove on record that Mr. Surinder Singh
Pahwa (PW1) was a registered partner in the Register of Firms.
Thus, the instant suit filed by plaintiff is held to be not
maintainable and barred by the provisions contained under
section 69 (2) of The Indian Partnership Act, 1932.
Issue wise findings are as under:-
Raj Issues no.(i) & (iii) Kumar Tripathi Whether plaintiff is entitled for recovery of a sum of US$ 39,507 Digitally signed by Raj Kumar Tripathi Date: 2025.08.14 12:27:21 +0530 CS (COMM.) No.1294/2018 (M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 27 of 47 as prayed for?OPP. AND
Whether defendants are jointly and severally liable to pay the
amount as prayed for in the suit?OPP.
14.1 The aforesaid two issues are taken up together as
they require appreciation of same set of facts and evidence.
14.2 Onus to prove the abovementioned issues lies on
plaintiff.
14.3 In order to discharge the onus to prove the issue,
plaintiff has examined its partner Mr. Surinder Singh Pahwa as
PW1.
14.4 Mr. Pahwa filed his evidence by way of affidavit,
Ex.PW1/A, wherein, he has deposed and corroborated about the
facts as set out in the plaint. He has relied upon and proved the
documents as mentioned in para no.7.2 of the judgment.
14.5 Mr. Pahwa has deposed on behalf of plaintiff firm on
the basis of Authority Letter dated 01.08.2018, Ex.PW1/2. In
preceding paragraph no.12.17 to 12.19, this Court has held that
plaintiff has failed to prove that it is a duly registered firm with
the Registrar of Firms. Plaintiff has further failed to prove that
PW1 is its registered partner. The persons, who have signed the
Authority Letter, Ex.PW1/2 have also not been proved to be the
registered partners of the firm on the date of filing of the suit.
Thus, plaintiff has miserably failed to prove on record that PW1 is
authorized to file the present suit against defendants and depose
on behalf of it.
Raj
Kumar 14.6 Further, paragraphs no.48 to 56 of the affidavit of
Tripathi
Digitally signed
by Raj Kumar
evidence (Ex.PW1/A) of PW1 are found to be beyond pleadings.
Tripathi
Date: 2025.08.14
12:27:28 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 28 of 47
Hence, they are directed to be struck off from his evidence
affidavit. It is well settled that no party can be permitted to travel
beyond its pleadings and that all necessary and material facts
should be pleaded by the party in support of the case set up by it.
Reliance is placed upon “Ram Sarup Gupta (dead) by LRs vs.
Bishun Narain Inter College And Others” (1987) 2 Supreme
Court Cases 555.
14.7 The instant suit filed by plaintiff is predicated on the
irrevocable Letter of Credit in the sum of US$ 5,05,058.50 issued
by defendant no.2 at the instance of defendant no.4 and advised
by defendant no.1 on behalf of the original beneficiary/buyer, the
defendant no.3 herein.
14.8 As per case of plaintiff, plaintiff had sent three
shipments of goods of the value of US$ 1,38,069, US$ 1,45,728
and US$ 1,97,581.50 ordered by defendant no.3 for supply to
defendant no.4. Plaintiff presented the material documents of
dispatch in compliance with the terms of the said Letter of Credit
to defendant no.1 through its bank i.e. Punjab and Sind Bank.
Part payments amounting to US$ 99,949 and US$ 86,161.70 were
received by plaintiff for first two consignments while no payment
was received against the third consignment. Thus, plaintiff has
claimed interest at the prevalent bank lending rate from the dates
of three consignment of garments that are subject matter of the
instant suit till payment is made.
14.9 Learned counsel for plaintiff submitted that
Raj defendant no.1 is liable to pay the entire amount claimed in the
Kumar
Tripathi suit in the capacity of the advising bank of the subject Letter of
Digitally signed by
Raj Kumar
Tripathi
Date: 2025.08.14
Credit having commercial banking duties contracted to discharge
12:27:34 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 29 of 47
which it has admittedly not discharged causing its loss to the
extent claimed in the suit.
14.10 Per contra, learned counsel for defendant no.1
submitted that defendant no.1 acted as an advising bank and has
only advised the transfer of LC in favour of plaintiff. Defendant
no.1 has no privity of contract of any nature whatsoever with any
of the parties and thus, is not, at all liable to make any payment to
plaintiff. Defendant no.1 was only obligated to forward the
payment once it is received from the German Bank.
14.11 For ease of convenience, the relevant portion of
cross-examination of PW1 is reproduced hereunder for ready
reference:-
“Q.9 Is it correct that letter of credit is
between issuing bank and beneficary?
Ans. Yes
Q.10 Is it correct that in the present case LC
was issued by the German Bank (Defendant
no.2)?
Ans. Yes
Q.11 Is it correct that your contract in the
transaction was with defendant no.4 through
defendant no.3?
Ans. Yes
Q.12 In a LC transaction you are aware that
there may be an advising bank, who advises
LC to the beneficiary through banking
channels?
Ans. Yes, it is correct.
Q.13 Is it correct that defendant no.1 was
merely an advising bank of LC?
Ans. It is incorrect that defendant no.1 was
merely an advising bank of LC. (Vol. It was a
transferring bank and the documents were to
be routed through defendant no.1).
Q.14 I put it to you that defendant no.1 had
taken no obligation to make any payment to
Raj Kumar plaintiff unless the payment is received from
Tripathi your contracting party defendant no.4 through
defendant no.2?
Digitally signed by
Raj Kumar Tripathi Ans. Yes. (Vol. Under the LC obligation
Date: 2025.08.14
12:27:41 +0530
under Uniform Customs and Practices forCS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 30 of 47
Documentary Credit-600 (UCP 600), bank has
to advise that the document is
accepted/rejected or existence of discrepancies
within ten banking days. They have to notify
to the bank in this case Punjab and Sind Bank.
In this case ICICI Bank has notified within the
said period).
Q.16 I put it to you that under UCP-600, the
obligations of pointing/raising discrepancies is
on the LC issuing bank and/or the negotiating
bank, if any as the case may be and not on any
advising bank.
Ans. It is correct that the obligation of
pointing and raising discrepancies on the
documents is of defendant no.2 bank, who is to
do that in terms of UCP-600.
Q.17 Is it correct that you had routed the
documents through your bank namely Punjab
& Sind Bank?
Ans. Yes.
Q.18 I put it to you that as and when amounts
were received from the German Bank, the
same were credited to plaintiff through
banking channel namely your bank?
Ans. Yes.
Q.19 Is it correct that Punjab & Sind Bank
acted as a negotiating bank namely you
submitted the documents to Punjab & Sind
Bank and it made payments to plaintiff and
forwarded the documents to the German Bank
(through ICICI Bank) for reimbursement?
Ans. Yes.
Q.20 Is it correct that you never corresponded
with ICICI Bank directly as it was your banker
Punjab & Sind Bank (PSB), who had
interacted being bank to bank communications
in relation to chasing payment from defendant
no.2?
Ans. Yes. The plaintiff has also corresponded
with ICICI Bank when payment was not
forthcoming.
XXXX XXXX XXXX
Q.26 Is it correct that any bank to a LC
Raj transaction is not concerned with the goods
Kumar which is subject matter of plaintiff's contract
Tripathi
Digitally signed by
with defendant no.3 and 4?
Raj Kumar Tripathi
Date: 2025.08.14
Ans. It is correct.
12:27:47 +0530
Q.27 I put it to you that the transferring of LC
is also by the issuing bank by defendant no.3
and advised through ICICI Bank as is evidentCS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 31 of 47
from Ex.PW1/4?
Ans. It is correct that the transfer of LC was
advised by ICICI Bank on instruction of
defendant no.3.
Q.29 Is it correct that there is no privity of
bank of plaintiff and ICICI Bank?
Ans. It is correct.
Q.32 Is it correct that ICICI Bank never
withheld any money received by it from the
German Bank and instead made all payments
whatever was received?
Ans. It is correct. (Vol. ICICI Bank did not
follow the LC procedure and chase payment
from German Bank).
Q.34 Is it correct that under UCP-600
advising bank acts as post office and merely is
a channel of communication between issuing
bank, beneficiary/beneficiaries bank?
Ans. It is correct.”
14.12 From the aforesaid cross-examination of PW1, so far
as defendant no.1 is concerned, the following facts emerge:-
(i) LC is not issued by defendant no.1/ICICI Bank. The same was
issued by the German Bank i.e. defendant no.2.
(ii) The plaintiff’s contract in transaction was with defendant
no.4 through defendant no.3.
(iii) There was no obligation on part of defendant no.1 for
pointing and raising discrepancies on the documents and the same
was to be done by defendant no.2 bank in terms of UCP-600.
(iv) There was no obligation of defendant no.1 to make any
payment to plaintiff unless the payment was received from its
contracting party i.e. defendant no.4 through defendant no.2
(v) Defendant no.1 acted only an advising bank i.e. a channel of
communication between issuing bank and beneficiary’s bank.
Raj
Kumar (vi) Defendant no.1 has no privity of contract with plaintiff.
Tripathi
Digitally signed
by Raj Kumar
(vii) Defendant no.1 never withheld any money received by it
Tripathi
Date: 2025.08.14
12:27:54 +0530 from German Bank and made all payments to plaintiff through its
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 32 of 47
bank whatever was received from defendant no.2.
14.13 It is not in dispute that the LC in question is
governed by Articles of UCP-600. Article 2 defines advising
bank as the bank that advises the credit at the request of the
issuing bank. The issuing bank means the bank that issues a
credit at the request of an applicant or in its own behalf. The
expression ‘Negotiation’ means the purchase by the nominated
bank of drafts (drawn on a bank other than the nominated bank)
and/or documents under a complying presentation, by advancing
or agreeing two advance funds to the beneficiary on or before the
banking day on which reimbursement is due to the nominated
bank. Article 14 deals with standard for examination of
documents and Article 16 deals with discrepant documents,
waiver and notice.
14.14 In the case in hand, defendant no.1 is only an
advising bank which had no obligation to make payment to
plaintiff. The liability of raising of discrepancy of documents was
also of defendant no.2 and not of defendant no.1. As per PW1 as
and when monies were credited by the German Bank through
banking channel, the same was credited in the account of plaintiff.
Thus, on the basis of evidence led by plaintiff and the facts which
emerge from the cross-examination of plaintiff, the liability for
claiming the dues cannot be fastened upon defendant no.1.
14.15 Coming to the liability of defendant no.2, learned
counsel for plaintiff submitted that defendant no.2 is liable to
make payment of entire amount claimed in the suit in its capacity
Raj Kumar
Tripathi of the issuing bank of the subject Letter of Credit applying the
Digitally signed by
Raj Kumar Tripathi statutory provisions of the UCP as also for fraudulently releasing
Date: 2025.08.14
12:28:01 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 33 of 47
plaintiff’s dispatched documents related to three consignments of
garments to defendant no.4 which has enjoyed deliveries of
plaintiff’s supplies of garments without having to pay for them.
14.16 Per contra, learned counsel for defendant no.2
submitted that defendant no.2 has no liability and/or any
obligation under the Letter of Credit after its expiry. There is no
privity of contract between plaintiff and defendant no.2. She
further argued that no payments were released (full or part) under
LC No. 15.0506 by defendant no.2 as the same was time sensitive
containing therein a date of expiry i.e. 05.08.2015. Even no
payments were released by defendant no.2 after expiry of LC. She
further submitted that the communication of deficiency was
issued by defendant no.2 upon receipt of the documents under the
said LC.
15.1 I have considered the submissions advanced by
learned counsel for parties and perused the material on record.
15.2 Plaintiff has submitted that defendant no.2 is liable to
make payment of entire amount as claimed in the suit in the
capacity of the issuing bank of the subject Letter of Credit.
15.3 Article-2 of UCP-600 defines issuing bank which
means ‘the bank that issues a credit at the request of an applicant
or on its own behalf’. Article-4 deals with Credits v. Contracts
and it provides that “a credit by its nature is a separate transaction
from the sale or other contract on which it is based. Banks are in
no way concerned with or bound by such contract……” . Further,
Raj “a beneficiary can in no case avail itself of the contractual
Kumar
Tripathi relationship existing between banks or between the applicant and
Digitally signed
by Raj Kumar
Tripathi the issuing bank”.
Date: 2025.08.14
12:28:08 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 34 of 47
15.4 In the instant case, the Letter of Credit was issued by
defendant no.2 on 26.05.2015, wherein defendant no.3 was the
first beneficiary and plaintiff was the second beneficiary. The LC
stood expired since 05.08.2015. As per Article-6 (e) of UCP-600,
a presentation by and on behalf of the beneficiary must be made
on or before the expiry date.
15.5 Relevant portion of cross-examination of PW1 is
extracted herein below of ready reference:-
17.03.2025
Q.11 Do you know on what dates the documents
referred to under paragraph no.8,9 and 10 of your
affidavit Ex.PW1/A were forwarded to Punjab &
Sind Bank by ICICI Bank?
Ans. The documents were received by ICICI Bank
on 14.08.2015, 22.08.2015 and 07.09.2015
respectively.
Q.12 On what dates did you receive the payments
mentioned in paragraph no.11 and 12?
Ans. The payments in the sum of US$ 99,941 has
been credited on 07.12.2015 and the payment in the
sum of US$ 86,161.70 has been credited on
18.12.2015.
Q.13 Under what provision of the UCP-600 is the
defendant no.2 obligated to “make the entire
payment covered by the invoices raised by the
plaintiff”?
Ans. I am not sure of the exact provision. However,
as per UCP-600, the LC says cannot amend the
amount for documents they can refuse but cannot
amend, if they want to amend, they have to inform
the LC advising bank which in this case is ICICI
Bank.
Q.15 Is it correct that the documents and invoices
relating to the transaction under the suit have not
been forwarded to defendant no.2 by the plaintiff
firm?
Ans. Yes, it is correct.
Raj Q.18 Is it correct that defendant no.2 has not issued
Kumar any undertaking to the plaintiff firm?
Tripathi Ans. Yes, it is correct.
Q.19 What services according to were to be
Digitally signed
by Raj Kumar
Tripathi
Date: 2025.08.14
12:28:14 +0530 provided by defendant no.2 to the plaintiff?
Ans. Nothing.”
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 35 of 47
15.6 From the aforesaid cross-examination of PW1, it is
noted that plaintiff did not have any account or dealings with
defendant no.2. Defendant no.2 has also not given any binding
undertaking to plaintiff firm for making payment. Defendant no.2
did not provide any services to plaintiff. Indisputably, in the
present case, the documents were received by defendant no.1
being the “advising bank” after the expiry date of LC and were
thereafter presented to defendant no.2. Thus, defendant no.2
which is a issuing bank had no obligation to release any payment
in respect of the LC. PW1 himself has admitted in his cross-
examination that the documents were received by defendant no.1
on 14.08.2015, 22.08.2015 and 07.09.2015 i.e. after the expiry of
LC which is 05.08.2015. PW1 has further admitted that no
documents were presented to defendant no.2 nor any amount
towards the payment were received from defendant no.2. Thus,
plaintiff has failed to point out that defendant no.2 has been
involved in the commercial transactions between plaintiff and
defendants no.3 & 4.
15.7 Mark-D1W1/2 is the swift message dated 28.08.2015
and Mark-D1W1/3 is the swift message dated 01.09.2015 of
defendant no.2. The said documents have been relied upon by
defendant no.1’s witness Mr. Tarun Kaushik during the course of
his evidence. Defendant no.2 has contended that upon receipt of
first set of documents from the presenter (defendant no.1), a swift
Raj message dated 28.08.2015 was addressed by it to defendant no.1
Kumar
Tripathi categorically stating that “DOCUMENTS UNDER A.M. L/C
Digitally signed
by Raj Kumar
Tripathi
Date: 2025.08.14
12:28:22 +0530
ARE STILL UNPAID DUE TO THE FOLLOWING
DISCREPANCIES. L/C IS EXPIRED”. Further, on receipt of
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 36 of 47
second set of documents from defendant no.1, a swift messages
dated 01.09.2015 was addressed by defendant no.2 to defendant
no.1 stating that “DOCUMENTS UNDER A.M. L/C ARE STILL
UNPAID DUE TO THE FOLLOWING DISCREPANCIES. L/C
IS EXPIRED”.
15.8 Pursuant to order dated 03.03.2020, statement of Mr.
Naveen Chandra, representative of defendant no.1 under Order X
of The Code of Civil Procedure, 1908 was recorded on
27.09.2022 and 18.10.2022. Mr. Chandra in his statement
recorded on 18.10.2022 confirmed that the refusal by defendant
no.2 to make payment under the LC was on account of the LC
having already expired, by way of swift messages which was
communicated to both defendant no.3 and the plaintiff. Thus, the
stand of defendant no.2 stands fortified from the statement of Mr.
Chandra that defendant no.2 refused to make payment under the
LC to plaintiff as the LC had already expired.
15.9 In view of foregoing reasons and discussions, in the
considered opinion of this Court, plaintiff has failed to prove its
case against defendant no.2. Plaintiff has further failed to prove
any liability or obligation of defendant no.2 to make any payment
to plaintiff firm. Thus, no liability can be fastened upon
defendant no.2 for making payment of the amount as claimed in
the suit.
16.1 In respect of liability of defendant no.3, learned
counsel for plaintiff submitted that defendant no.3 is liable to
make payment of entire amount as claimed in the suit in its
Raj
Kumar capacity of the buyers which place the order on plaintiff and
Tripathi
Digitally signed
transferred the benefit of LC issued by defendant no.2.
by Raj Kumar
Tripathi
Date: 2025.08.14
12:28:28 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 37 of 47
Thereafter, upon defaults in payments due towards plaintiff,
defendant no.3 admitted its liability by executing and complying
with the admitted whatsapp agreement by making part payments
aggregating a sum of Rs.1.25 Crores through its Director Mrs.
Aditi Wasan to plaintiff’s partner Mr. Surinder Singh Pahwa.
16.2 Per contra, learned counsel for defendant no.3
submitted that plaintiff and defendant no.3 have no privity of
contract or any other legal relationship, therefore, defendant no.3
has no liability to make any payment to plaintiff. She submitted
that plaintiff’s contract for the goods supplied by it was concluded
with defendant no.4 as the buyer/purchaser, and not with
defendant no.3 and the payments were also received from
defendant no.3
16.3 She further argued that defendant no.3 has no
liability as an agent of defendant no.4. defendant no.3 was acting
as an intermediary/agent of defendant no.4 and received
commission from defendant no.4 in exchange of its services.
16.4 She further submitted that defendant no.3 has no
liability under the Master Letter of Credit No.15.05506 dated
20.05.2015. The said Master Letter of Credit was issued by
defendant no.2 on the instructions of defendant no.4 in favour of
defendant no.3 as the first beneficiary, for the purpose of various
transactions/shipments including but not limited to (i) the
shipments of the goods to be supplied by plaintiff to defendant
no.4 and (ii) the commission to be paid by defendant no.4 to
Raj
defendant no.3 in respect of the said shipment. It was for this
Kumar reason that a total amount of the Master LC was US$ 970,132.15
Tripathi
Digitally signed
by Raj Kumar
which was more than the total value of the goods to be supplied
Tripathi
Date: 2025.08.14
12:28:34 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 38 of 47
by plaintiff. The terms of the Master LC itself specified that it
would be governed by the UCP-600.
16.5 On 27.05.2015, the said LC was amended and the
last date for presentation of documents was changed to
05.08.2015. This amendment was made on the instructions of
defendant no.4, which is evident from the amendment produced
by plaintiff itself.
16.6 On 10.06.2015, again on the instructions of
defendant no.4, defendant no.3 nominated the plaintiff as the
second beneficiary and defendant no.1 bank irrevocably
transferred a part of the Master LC i.e. to the extent of US$
505,058.50 in favour of plaintiff for the purpose of making
payments for the goods to be supplied.
16.7 However, the fact that defendant no.3 was the first
beneficiary or that the plaintiff was made the second beneficiary
on the instructions of defendant no.4 does not fasten any liability
on defendant no.3 under the Master LC. Thus, it was submitted
that defendant no.3 could have no liability towards the plaintiff
under the said LC.
16.8 Referring to the written statement filed by defendant
no.3, statement of parties recorded under Order X CPC and the
affidavit filed on behalf of defendant no.3, counsel for defendant
no.3 submitted that the goods were shipped by plaintiff outside
the terms of LC since the LC had expired. Further, defendant
no.4 received the goods directly and released payments through
Raj its own banker viz. defendant no.2, independent of the LC.
Kumar
Tripathi Therefore, having accepted the payments received outside the LC
without demur, plaintiff is now stopped from claiming any further
Digitally signed
by Raj Kumar
Tripathi
Date: 2025.08.14
12:28:40 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 39 of 47
amounts which were due to it under the LC.
17.1 Considered the rival submissions of the parties and
perused the material on record.
17.2 Plaintiff in its plaint has pleaded that defendant no.3
is a buying house engaged in the business of procuring orders for
leather fashion garments and placing the same with
fabricators/exporters like the plaintiff on behalf of the ultimate
foreign buyers. Defendant no.4 is one such foreign buyer which
had placed an order for leather garments with defendant no.3.
17.3 In the course of his deposition, PW1 relied upon the
purchase order, Ex.PW1/3 and the invoices raised by plaintiff as
Ex.PW1/5 (colly.), Ex.PW1/6 (colly.) and Mark-B respectively.
17.4 On the other hand, defendant no.3 in its written
statement contended that it had introduced defendant no.4 to
plaintiff firm as a buyer and seller respectively. In furtherance of
the said association, defendant no.4 placed an order with plaintiff,
in terms of purchase order dated on 09.03.2015. The said
purchase order did not make any mention whatsoever of
defendant no.3 either as a buyer, consignee or agent. Under the
said purchase order, plaintiff firm raised the following four
invoices on defendant no.4:-
a. Invoice No.054/15-16 dated 24.07.2015 for a sum of USD
138,069;
b. Invoice No.061/15-16 dated 24.07.2015 for a sum of USD
Raj 23,680;
Kumar
Tripathi c. Invoice No.074/15-16 dated 24.07.2015 or a sum of USD
Digitally signed
by Raj Kumar
Tripathi
Date:
2025.08.14
145,728;
12:28:48 +0530
d. Invoice No.090/15-16 dated 29.08.2015 for a sum of USD
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 40 of 47
197,581.
17.5 The purchase order Ex.PW1/3 (at page 72 of
plaintiff’s documents) was issued on a supplier Form provided by
plaintiff which mentions ‘the buyer’ as defendant no.4. The
Supplier Order Form was signed by defendant no.3 i.e. Wasan
Overseas Pvt. Ltd. on behalf of defendant no.4. In the terms and
conditions at S.No.2 of Ex.PW1/3, it is mentioned that ‘inspection
will be conducted by M/s Wasan Overseas Pvt. Ltd. on behalf of
the buyer & the buyer shall also inspect at random. Thus, from
the purchase order, Ex.PW1/3, it is clear that buyer is defendant
no.4 and supplier is the plaintiff. The role of defendant no.3 is
only confined to the inspection of the goods to be done on behalf
of defendant no.4.
17.6 Ex.PW1/5 (colly.) are the invoices along with
supporting documents issued by plaintiff in the name of defendant
no.4. A bare look at the invoices, it is seen that plaintiff is the
supplier and defendant no.4 is the buyer/consignee.
17.7 Ex.D3W1/32 (page 139-142) of defendant no.3’s
documents is e-mail trail dated 24.11.2015 between defendant
no.1 and defendant no.3 showing remittance of USD 99941.58
was received by defendant no.1 from defendant no.4/its sister
concern.
17.8 Ex.D3W1/35 (page 145-147) of defendant no.3’s
documents is e-mail dated 18.12.2015 between defendant no.1
and defendant no.3 showing the remittance of USD 162112.45
was received by defendant no.1 from defendant no.4/its sisterRaj
Digitally
signed by
Raj Kumar
concern, out of which, USD 86161.70 was paid (Mark-D1W1/6)
Tripathi
Kumar Date:
to plaintiff against invoice numbers 074/15-16 and 090/15-16
Tripathi 2025.08.14
12:28:55
+0530CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 41 of 47
(Ex.D3W1/34).
17.9 Ex.D3W1/46 (page 161-166) of defendant no.3’s
documents is e-mail trail dated 04.07.2016 between defendant
no.1 and defendant no.3 showing that the remittance of USD
77,197.19 was received by defendant no.1 from defendant no.4/its
sister concern.
17.10 Ex.D3W1/45 (page 160) of defendant no.3’s
documents is Certificate dated 29.06.2016 from defendant no.4
confirming that defendant no.4 and Como Leather are sister
concerns and payments were made by Como Leather on behalf of
defendant no.4.
17.11 The aforesaid documentary evidence duly proved on
record shows that there is no privity of contract between plaintiff
and defendant no.3. The purchase order was placed by defendant
no.4 through defendant no.3 upon plaintiff. The goods were
supplied by plaintiff to defendant no.4 delivered in Germany. The
invoices were raised by plaintiff directly against defendant no.4.
The payment was also made directly by defendant no.4 through
its banker to plaintiff.
17.12 PW1 in his cross-examination has admitted that
defendant no.4 was the buyer of the goods. He has further
admitted that no commission/compensation or consideration of
any kind was paid by plaintiff to defendant no.2 regarding the
goods supplied by him. He could not show any document in
support of his contention that the order was received from
Raj defendant no.3 on behalf of defendant no.4. Thus, from the
Kumar
Tripathi admission of plaintiff himself, it is seen that the goods were sent
Digitally signed by
Raj Kumar Tripathi
Date: 2025.08.14
by plaintiff to defendant no.4. Plaintiff has failed to bring any
12:29:02 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 42 of 47
iota of evidence on record to show that there was any contract or
legal relationship between it and defendant no.3. Accordingly,
defendant no.3 cannot be held liable for any recovery of money
pursuant to the contract for sale of goods between plaintiff and
defendant no.4.
17.13 From the document, Ex.PW1/3 i.e. purchase order, it
is noted that the order for supply of goods was placed by
defendant no.3 on behalf of defendant no.4. Thus, it is seen that
defendant no.3 was only acting as an intermediary/agent of
defendant no.4. Defendant no.3 claims to have received
commission from defendant no.4 in exchange for its services.
PW1 in his cross-examination has admitted that no commission or
consideration of any kind was paid by plaintiff to defendant no.3
regarding the supply of goods to defendant no.4. Thus, as per
section 230 of The Indian Contract Act, 1872, defendant no.3
being an agent is not liable for the acts of its principal i.e.
defendant no.4.
17.14 Plaintiff’s claim is that upon default in payments,
defendant no.3 admitted its liability by executing and complying
with the admitted whatsapp agreement by making part payments
aggregating a sum of Rs.1.25 Crores through its director Mrs.
Aditi Wasan to plaintiff’s partner Mr. Surinder Singh Pahwa.
17.15 The aforesaid claim of plaintiff has been disputed
and denied by defendant no.3 by contending that Mrs. Aditi
Wasan, in her personal capacity as a family friend of Mr. Surinder
Singh Phawa had given him a personal loan which was sent from
Raj Kumar
Tripathi her personal account in the personal account of Mr. Pahwa, which
Digitally signed by
Raj Kumar Tripathi had no connection either to plaintiff or defendant no.3. No
Date: 2025.08.14
12:29:08 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 43 of 47
accounts of either defendant no.3 or plaintiff firm were involved
in the said transaction which is confirmed from the bank account
statements of Mr. Surinder Singh Pahwa produced by plaintiff
(page no.234-237 of plaintiff’s documents as well as admission
by PW1 during his cross-examination).
17.16 D3W1 Mr. Jatinder Wasan has relied upon and
proved the transcript of whatsapp conversation between Mrs.
Aditi Wasan and Mr. Surinder Pahwa from 08.09.2017 to
03.09.2018 as Ex.D3W1/52. PW1 in his cross-examination has
admitted that all monies received by him by way of alleged
settlement were received from the personal account of Mrs. Aditi
Wasan. He could not show any document on record to support
his contention that defendant no.3 never paid any monies either to
him or the plaintiff by way of any alleged settlement.
17.17 The alleged executed whatsapp agreement as claimed
by plaintiff has neither been filed nor proved on record by PW1.
From the transcript of the whatsapp conversation that took place
between Mrs. Wasan and Mr. Pahwa, wherein there is reference of
a draft agreement sent by Mr. Pahwa purportedly between
plaintiff and defendant no.3, Mrs. Aditi Wasan has refused to sign
by stating that “this you make between you and me….I cannot
and do not want to settle this matter” (Draft Agreement). The
said whatsapp conversation has been admitted by plaintiff in its
affidavit of admission/denial of documents.
17.18 The whatsapp conversation contains only unsigned
Raj Kumar
draft agreement. The said draft agreement has neither been filed
Tripathi
nor proved on record by plaintiff. Plaintiff has not stated
Digitally signed by
Raj Kumar Tripathi
Date: 2025.08.14
12:29:15 +0530 anything about the final version of the agreement arrived between
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 44 of 47
the parties, if any. Ex.D3W1/52 (page no.193-194) of defendant
no.3’s documents show that there was further communication
between Mrs. Aditi Wasan and Mr. Pahwa regarding the amended
version of the agreement. Thus, in the absence of any agreement
being proved on record, reliance upon the same cannot be placed
by plaintiff.
17.19 In view of foregoing reasons and discussions,
plaintiff has failed to prove its case against defendant no.3 for
seeking recovery of the amount as claimed in the suit.
18.1 Lastly, coming to the role of defendant no.4, learned
counsel for plaintiff submitted that defendant no.4 is liable for
payment of entire amount as claimed in the suit in its capacity as
the recipient of all the goods supplied by plaintiff and never
having raised any complaint of any deficiency whatsoever.
18.2 It is matter of fact that defendant no.4 is ex parte in
the case. The defendant no.4’s right to file written statement was
directed to be closed vide order dated 27.09.2022.
18.3 The deposition of PW1 as mentioned in his affidavit
of evidence, Ex.PW1/A qua defendant no.4 has gone unrebutted
and unchallenged as defendant no.4 did not turn up to cross-
examine plaintiff’s witness in respect of the deposition and
averments made by him. The case of plaintiff is based on
documentary evidence. The documents proved by PW1 Mr.
Surinder Singh Pahwa have not been disputed and denied by
defendant no.4 and thus, they remained unchallenged. In view of
uncontroverted and unrebutted testimony of PW1, there is no
Raj
Kumar reason to doubt his version as deposed by him in his evidence
Tripathi
Digitally signed
affidavit, Ex.PW1/A and the documents proved by him.
by Raj Kumar
Tripathi
Date: 2025.08.14
12:29:21 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 45 of 47
18.4 In view of above, I am of the view that on the basis
of averments made in the plaint and the documents proved on
record, plaintiff has succeeded to prove its case against defendant
no.4 for an amount of US$ 39,507. Plaintiff has miserably failed
to prove on record that defendants no.1 to 3 are also jointly and
severally liable to make payment of the amount as claimed in the
suit.
18.5 For the foregoing reasons and discussions and as
already held in para no.13.19, that the suit filed by plaintiff is not
maintainable and is barred by the provisions contained under
section 69 (2) of The Indian Partnership Act, 1932, plaintiff is not
entitled for recovery of the amount even against defendant no.4 as
prayed in the prayer clause of the suit.
18.6 Issues no.(i) & (iii) are decided accordingly.
Issue no.(ii)
Whether plaintiff has suffered any loss, if so, to what extent?OPP.
19.1 Onus to prove this issue lies on plaintiff.
19.2 In para no.46 of the plaint, plaintiff has claimed a
sum of Rs.97,96,180/- on account of the losses suffered by it
under various heads.
19.3 PW1 in his cross-examination recorded on
17.03.2025, in reply to question no.20 has admitted that plaintiff
has not attached any document to indicate the losses suffered by
it. As plaintiff has neither filed nor placed on record any evidence
showing the losses alleged suffered by it, plaintiff is not entitled
Raj for an amount of Rs.97,96,180/- towards the losses as claimed in
Kumar
Tripathi the suit.
Digitally signed
by Raj Kumar 19.4 Plaintiff has failed to discharge the onus to prove the
Tripathi
Date: 2025.08.14
12:29:28 +0530
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 46 of 47
issue no.(ii). Same is decided accordingly against the plaintiff
and in defendants’ favour.
Issue no.(iv)
Whether plaintiff is entitled for interest, if so, at what rate and for
which period? OPP.
20.1 Onus to prove this issue lies on plaintiff.
20.2 In view of findings recorded in preceding paragraph
no.18.5 of the judgment in respect of issues no.(i) & (iii), wherein
it has been held that plaintiff is not entitled to recover an amount
of US$ 39,507 from the defendants, plaintiff is not entitled for
grant of interest as prayed for.
20.3 Accordingly, this issue is decided against plaintiff
and in favour of defendants.
Relief
21.1 In view of foregoing reasons and discussions and the
findings returned on issues no.(i) to (iv), plaintiff is not entitled
for grant of any relief. Accordingly, the suit filed by plaintiff is
dismissed with cost.
22.1 Decree sheet be drawn accordingly.
23.1 File be consigned to Record Room.
Announced in the open court Digitally
signed by Raj
Raj Kumar
Dated: 14.08.2025 Kumar
Tripathi
Date:
Tripathi 2025.08.14
12:29:35
+0530
(RAJ KUMAR TRIPATHI)
District Judge (Commercial Court)-08,
South-East District, Saket Courts, New Delhi
CS (COMM.) No.1294/2018
(M/s Pahwa International vs. ICICI Bank Ltd. & Others) Page 47 of 47