INDIAN BANK versus M/S. SATYAM FIBRES (INDIA) PVT. LTD.

15. The Commission, while disposing of the complaint of the respon- dent by its original order dated 16.11.93, had held that not only the Bill of Exchange but the covering note accompanying those Bills clearly indicated that the Bill was to be accepted by the buyer and co-accepted by the H A Foreign Bank. It, then, proceeded to say as under : c "The Rules for Collection laid down by the International Cham- ber of Commerce leave no room for doubt that as per Article 3 of the said Rules, for giving effect to the instructions of the principal, i.e., the customer entrusting the operation of collection to his Bank, the remitting bank (viz. the Bank to which the principal has entrusted the operation of collection) is the collecting Bank. As observed earlier, under Article 15 it is the presenting Bank which is responsible for seeing that the form of acceptance of a Bill of Exchange appears to be complete and correct. Under Item C "General Provisions and Divisions" of the above Rules "All documents sent for collection must be accompanied by a collection order which has to be made by the Bank in accordance with the instructions of the client or the principal''. The opposite party Bank failed to do so. We reject its plea that it was not responsible to obtain the co-acceptance of the Bank and there was no deficiency of service on its part.

16. A mere perusal of the above passage of the Commission's judg- ment indicates that the Commission fell into a serious error in treating the "Remitting Bank" as the "Collecting Bank" and, then, fastening liability on E the appellant by observing that the appellant had not acted in accordance with Article 15 of the ICC Rules under which it was the responsibility of the "Presenting Bankn to see that the 11Docun1ents 11 were accepted in accord- ance with the instructions of the "Principal". The Commission thus treated appellant not only only as the "Remitting Bank" but also as the "Collecting Bank" and "Presenting Bank" which is not permissible as the identity of "Remitting Bank" is different and distinct from that of the "Collecting Bank" and/or the "Presenting Bank".

17. As pointed out earlier, the main judgment of the Commission is based on the ground that there was letter dated 26.8.91 which contained G specific instruction that there had to be co-acceptance by the Foreign Bank.

18. As against this, there is, admittedly, another letter of 26th August, 1991 from the respondent to the appellant which does nnt contain this instruction. When this letter was filed before the Commission and a review H of the judgment was sought on the ground that the letter containing the INDIANBANKv. SA1YAMFIBRFS(l)PVT.L1D",.SAGHIRAHMAD,J.] instruction for obtaining co-acceptance of the French Bank was never A issued to the appellant and that the only letter issued on that date was the letter in which this instruction was not mentioned, the Commission, instead of deciding the controversy as to whether the other letter relied upon by the respondent was, at all, sent or issued to the appellant, proceeded to decide the controversy on the ground that even if no such letter was issued, B the recital in the Bill of Exchange about co-acceptance by the French Bank was enough and the- appellant having not acted in terms of the Bill of Exchange and having not obtained the co-acceptance of the French Bank, was liable to pay to the respondent the entire price of the goods supplied to the Buyer to whom the documents would not have been delivered had it been mentioned that before delivering the documents to the Buyer, C co-acceptance by the French Bank was necessary, as in that event, the documents would have been either returned, as was done on previous occasions, or the French Bank would have given co-acceptance and thus made payment of the entire amount to the respondent.

19. In view of the findings recorded by us that under the ICC Rules, it is the responsibility of the "Principal" to give or send specific and precise instructions to the Bank besides sending the "Commercial/Financial Docu- ments", Commission was under a duty to decide as to whether the respon- dent had issued the letter containing the requirement of co-acceptance by the French Bank. The Commission could not legally avoid to decide this E question particularly as the appellant had contended before the Commis- sion that the letter No. 2776 of 26th August, 1991 was forged and fabricated by the respondent and that the only letter issued by the respondent was letter No. 2775 dated 26th August, 1991. The contents of both the letters have already been reproduced by the Commission in its judgment by which F the review application has been disposed of which would indicate that in the letter No. 2775, there is no requirement to obtain co-acceptance by the French Bank whereas in the other letter, namely, letter No. 2776, this condition has been specifically mentioned.

20. By filing letter No. 2775, of 26.8.91 along with the Review Petition G and contending that the other letter, namely, letter No. 2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea before the Commission that its judgment dated 16.11.93, which was based on letter No. 2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as H letter No. 2776 dated 26.8.91 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commis- sion which needs to be reminded that the Authorities, be they Constitu- tional, Statutory or Administrative, (and particularly those who have to decide a !is) possess the power to recall their judgments or orders if they are obtained by fraud as Fraud and Justice never dwell together (Fraus et just nunquam cohabitant). It has been repeatedly said that Fraud and deceit defend or excuse no man (Fraus et do/us nemini patrocinari debent).

21. In Smith v. Easi Elloe Rural District Council, (1950) AC 736, the House of Lords held that the effect of fraud would normally be to vitiate C any act or order. In another case. Lazams Estate Ltd. v. Beasley, (1956) 1 QB 702 at 712, Denning Ll said : "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels every- thing."

22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.

23. Since fraud effects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the G Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See : Benoy Krishna Mukherjee v. Mohan/a/ Goenka, AIR (1950) Cal. 287; Gajanand Sha & Ors. v. Dayanand Thakur, AIR (1943) Patna 127; Krishna Kumar v. Jawand Singh, AIR (1947) Nagpur 236; Devendra Nath Sarkar v. H Ram Rachpal Singh, ILR (1926) 1 Lucknow 341 = AIR 1926 Oudh 315; INDIANBANKv. SATYAMFIBRES(J) PVT. LID. (S. SAGHIRAHMAD,J.] Saiyed Muhammad Raza v. Ram Saroop & Ors., ILR (1929) 4 Lucknow 562 A = AIR (1929) Oudh 385 (FB); Bankey Behari Lal & Anr. v. Abdul Rahman & Ors., !LR (1932) 7 Lucknow 350 = AIR 1932 Oudh 63; Lekshmi Amma Chacld Amma v. Mamme11 Mammen, (1955) Kerala Law Times 459). The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (lshwar Mahton & Anr. v. Sitaram Kumar B & 01:<., AIR (1954) Patna 450) or to set aside the order recording com- · promise obtained by fraud. (Bindeshwari Pd. Chaudlzary v. Debendra Pd. Singh & Ors., AIR (1958) Patna 618; Smt. Tara Bai v. V.S. Krishnaswamy Rao, AIR (1985) Karnataka 270).

24. We may now turn to the next and allied questions; what is forgery, C whether forgery is a fraud and whether in the instant case, forgery and fraud and proved?

25. Forgery has its origin in the French word "Forger", which sig- nifies: "to frame or fashion a thing as the smith doth his worke upon the anvill. And it is used in our law for the fraudulant making and publishing of false writings to the prejudice of another mans right (Tenn"" da la Ley) (Stroud'sJudicial Dictionary, Fifth Edition Vol. 2).

26. In Webster's Comprehensive Dicitionary, International Edition, "Forgery'' is defined as : "The act of falsely making or materially altering, with intent to defraud; any writing which, if genuine, mi!iht be of legal efficacy F or the foundation of a legal liability."

27. This Definition was adopted in Rembert v. State, 25 Am. Rep. 639. In another case, namely, State v. Phelps, 34 Am. Dec. 672, it was laid down that forgery is the false making of any written instrument, for the purpose of fraud or deceit. This decision appears to be based on the meaning of G forgery as set out in Tomlin's Law Dictionary.

28. From the above, it would be seen that fraud is an essential ingredient of forgery.

29. Forgery under the Indian Penal Code is an offence which has H A been defined in Section 463, while Section 464, deals with the making of a false document. .Section 465 prescribes punishment for forgery. 'Forged document" is defined in Section 470 while Section 471 deals with the crime of using as genuine, the forged document. c

30. Forgery and Fraud are essentially matters of evidence which could be proved as a fact by direct evidence or by inferences drawn from proved facts.

31. The Privy Council in Salish Chandra Chatterjee v. Kumar Satish Kantha Roy & Ors., AIR (1923) PC 73, laid down as under : "Charges of fraud and collusion like those contained in the plaint in this case must, no doubt, he proved by those who make them • proved by established facts or inferences legitimately drawn from those facts taken together as a whole. Suspicions and surmises and conjecture are not permissible substitutes for those facts or those inferences, but that by no means requires that every puzzling artifice or contrivance resorted to by one accused of fraud must necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape.'

32. The above principle will apply not only to courts of law but also· to statutory tribunals which, like the Commission, are conferred power to record evidence by applying certain provisions of the Code of Civil Proce- dure including the power to enforce attendance of the witnesses and are also given the power to receive evidence on affidavits. The Commission under the Consumer Protection Act, 1986 decides the dispute by following the procedure indicated in Section 22 read with Section 13( 4) and (5) of the Act.

33. Sub-section ( 4) of the Section 13 which has been made applicable G to the proceeding before the Commission lays down that it shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely: (i) the summoning and enforcing the attendance of any defendant or witness and examining the witnes;; on oath; lNDIANBANKv. SATYAM FIBRES(!) PVT.LID. [S. SAG!IlRAHMAD • .T.] (ii) the discovery and production of any document or other A material object producible as evidence; (iii) the reception of evidence on affidavits; (iv) ……………………….. . (v) issuing of any commission for the examination of any witness; and (vi) …………….. . The Commission has, thus, jurisdiction not only to examine a witness C on oath but also to receive evidence in the from of affidavits.

34. The parties, in the instant case, have filed their affidavits annexing therewith a host of documents. These affidavits and documents were treated as evidence in the case. It was on the basis of this evidence that D the main case, as also the Review Petition, were decided by the Commis- sion.

35. Since the evidence of the parties is already on record and all vital facts either stan& admitted or proved, we proceed now to consider whether forgery and fraud are established. This we are doing in view of the E facts and circumstances of this case otherwise we would have either remanded the case to the Commission or directed the respondent to approach the Civil Court.

36. Parab'faphs 2, 3, 4, 5, and 6 of the Review Application filed by the appellant before the Commission are as under : "2. In brief, the case of the Complainant before this Hon'ble Commission was that it had by its letter of the 26th August, 1991, which letter enclosed the bills of exchange in question, gave specific instruction to the Opposite Party – the Bank – for securing G a co-acceptance by Societe Lyonnaise de Banque (the French Bank) before handing over the documents of title to the goods. Based upon this letter, the veracity of which was not questioned by the Opposite Party at that stage in the circumstances indicated hereinafter, this Hon'ble Commission was pleased to hold that the Opposite Party was responsible for not carrying out the instruc- H c lions contained in the letter dated 26th August, 1991, (Exhibit A to the Complaint) and thereby liable in damages caused to the complainant. It is correct that the Complainant had annexed a copy of the letter dated 26th August, 1991 with this Complaint. However, the Opposite Party – the Bank – failed to notice that this letter so annexed was not the same as the letter of the same date given by the Complainant to the Bank. The Complainant had given a letter on 26.8.1991 as a covering letter together with the bills of exchange, however with a vital difference that the body of the letter did not contain the material instructions regarding co-acceptance by the French Bank. 3. The letter produced before this Hon'ble Commission bears the same date as the letter actually given to the Bank purports to be a covering letter (as also was the letter given to the Bank) and bears a reference No. 2776 whereas the reference of the letter given to the Bank is 2775. Due to these apparent similarities, whilst drawing up the pleadings the material alterations made to the contents of the letter were overlooked. The opposite party states that the letter as produced before this Hon'ble Commission was not a true Copy of the letter given to the Bank. 4. One of the reasons why this lapse occurred is because the true significance and import of the letter was not understood and appreciated. After receiving a copy of the order of this Hon'ble Commission, it was found that the whole case had turned against the Bank based upon the letter of the Complainant produced before the Commission. It is thereafter when the copy of the letter which is with the Bank was perused, it was found that there is a material variation between that copy which was given to the Bank and its purported true copy which was produced by the Com- plainant before this Hon'ble Commission, However, to eliminate the possibility as to whether, in addition to the letter given to the Bank bearing reference No. 2775, another letter having reference No. 2776 of the same date was also given to the Bank, a thorough search was made of the records of the Bank at the Napean Sea Road and other connected branches including the head office. The search has revealed that the Bank has not received the letter bearing reference No. 2776 of 26th August, 1991, the contents of INDIANBANKv. SATYAM FIBRES(!) PVf. LID. [S.SAGHIRAHMAD,J.] which are as the purported copy produced by the Complainant A before this Hon'ble Commission. What was given by the Com- plainant to the Bank as a coveriug letter was a letter bearing reference No. 2775, a copy of which is annexed hereto .and marked as Annexure I and the original of which shall be produced at the time of hearing. Affidavit of the then manager of the said branch confirming that the said letter dated 26th August, 1991 annexed as Exhibit 'A" to the Complaint was not received by the Bank is annexed hereto and marked Annexure "II'. 5. A perusal of this letter shows that the material instructions in relation to co-acceptance by the French Bank are absent in this C letter. The-Opposite Party is advised to state that considering the fact that a letter dated 26th August, 1991, bearing REF : SF : E : 2775 was given as a covering letter to the Bank, it is inconceivable that a second letter also as a covering letter would be given to the Bank. The letter of 26th August, 1991 stated that it is" …… enclosing fresh set of drafts ….. ". There are some other discrepancies between D this letter and the letter produced by the Complainant, as hereafter set out. 6. The opposite party further submit that the xerox copy of the purported letter produced before this Hon'ble Commission by the Complainant purports to bear an initial on the right-hand side of the letter. The Opposite Party submits that this initial is not of any of the officials of the Napean Sea Road Branch of the Bank at the relevant time. The Opposite Party is, therefore, advised to submit that this letter is a forgery created by the Complainant for the purpose of the present case." 37. The respondent filed a reply to the Review Application in para- graph 4 by which he stated as under : (a) The complainant by its letter dated 26th August 1991 bearing G reference No. SF : E : 2775 forwarded to the opponent fresh set of Drafts with a request to present t..\e said documents to the buyer (viz. M/s. STE Kolori) through M/s. Societe Lyon- naise De Banque, Lyon, France. The copy of the said lelter which is on the file of the Complainant is annexed hereto and marked Exhibit 'A'. (b) The said letter dated 26th August 1991 bearing Reference No. EF : E : 2775 though delivered to the Opponent, the carbon copy of the said letter available with the Complainant, does not bear any acknowledgement of receipt. The said letter is also meniioned in the Outward Register maintained by the Complainant Hereto annexed and marked Exhibit 'B' is a copy of the relevant page of the Outward Register of the Complainant. The Complainant craves leave to refer to and rely upon the Outward Register maintained by it for the relevant period when produced. c (c) After the delivery of the said letter dated 26th August 1991 bearing Reference No. SF : E : 2775 Complainant noticed that the said letter did not request the Opponent to have the said Bills of Exchange co-accepted by the Foreign Bank viz. Societe Lyonnaise De Banque, Lyon, France. In the cir- cumstances, the Complainant immediately addressed another letter to the Opponent also dated 26th August 1991 bearing Reference No. SF : E : 2775 wherein they gave specific instructions to the Opponent to have to the said Bills of Exchange accepted by the buyer viz. Mis. STE Kolori and co-accepted by the Foreign Bank viz. Societe Lyonnaise De Banque. The said letter has been annexed as Exhibit 'A' to the plaint and has also been annexed hereto as Exhibit 'C'. The said letter was delivered to the Opponent and the same bears the intials of the person who received the said letter in the Opponent Bank. The said letter also bears the rubber · stamp of the Opponent. (d) The said letter dated 26th August 1991 bearing Reference No. SF : E : 2775 is also mentioned in the Outward Register maintained by the Complainant. Exhibit 'B' hereto which is the relevant page of the Outward Register not only shows the entry of the said letter bearing Reference No. SF : F : 2775 but also the entry of the aforesaid letter bearing SF : E : 2776. (e) From the aforesaid it is evident that there were two letters both dated 26th August, 1991 which were addressed by the Complainant to the Opponent. INDIANBANKv. SA1YAM FIBRES(!) PVT. LID. [S. SAGHIRAHMAD,J.] The Complainant says that pursuant to the filing of the A original complaint, the Complainant's Advocates gave inspec- tion of the documents, referred to and relied upon by the Complainant, to the Opponents Advocate. The said inspec- tion was taken on 14th October, 1992 and at the said time the carbon copy of the letter dated 26th August, 1991 bearing B Reference No. SF: E: 2776 was inspected by the Opponent's Advocate. The carbon copy of the said letter which was shown bore not only the initials of the person who received the said letter in the Opponents bank, but also bore the rubber stamp of the Opponents bank. The fact of the inspection having been taken has been recorded by the Opponents Advocates in the c letter by the dated 16th October, 1992 which is annexed hereto and marked Exhibit 'D'. (g) The Complainant states that after the said Review Applica- tion was served upon the Complainant, the Complainants D Advocate addressed a letter dated 28th December, 1993 to the Opponents Advocates pointing out that the said Review Application was totally false an<l misconceived inasmuch as the said letter dated 2oth AugHst, 1991 bearing Reference No. SF : E : 2776 was not a fabricated letter and bore the rubber stamp of the Opponent as also the initials of the person who E received the same in the Opponent Bank. The Complainants Advocates by the said letter also requested for inspection of the letter dated 26th August, 1991 bearing Reference No. SF : E : 2775 and the Inward Register maintained by the Op- ponent Bank. Hereto annexed and marked Exhibit 'E' is a F copy of the said Complainant's Advocates letter dated 28th December, 1993. (h) The Opponent by their Advocates' letter dated 20 December, 1993 appointed time for inspectian of the said letter. The G Opponent Advocates by the said letter also stated that their client had not entered the said letter bearing Reference No. SF : E : 2775 in their Inward Register as the Inward Register was formerly only maintained in respect of registered letters which were entered therein. Hereto annexed and marked Exhibit 'F' is a copy of the said dated 29th December, 1993. H c (i) Pursuant to the appointment fixed in that regard the Com- plainant and their Advocates attended the Office of the Opponents Advocates on 3rd January, 1994 and took inspec- tion on the said letter dated SF : E : 2775. The Complainant at the said time also gave inspection of the carbon copies of the letters bearing Reference No. SF : E : 2775 and SF : E : 2776 available on the file of the Complainant. Inspection of the Outward Register of the Complainant was also given to the Opponent and its Advocates. The giving and taking of the said inspection was recorded by the Opponents Advocates in their letter dated 4th January, 1994 (Exh. 'D' hereto) and also by the Complainant in their Advocates letter also dated 4th January, 1994. Hereto annexed and marked Exhibit 'G' is a copy of the aforesaid letter dated 4th January, 1994. 38. Other relevant paras of the respondent's reply are paragraph 7 to 15. 39. The Respondent's denial that it had fabricated the letter No. 2776 is also contained in various other paras of its reply. 40. The appellant filed a rejoinder affidavit before the Commission. Paras 3, 7, 12, 15, 21 are quoted below : "3. It is only after having perused the Reply of the Complainant that the Opposite Party has further realised that the Complainant has played a calculated fraud with an intention to secure an order from this Hon'ble Commission. The Complainant has all along played a fraud on this Hon'ble Commission in making it believe that the Bills of Exchange have been forwarded by the alleged letter dated 26th August, 1991 bearing No. 2776 annexed as Exhibit "A" to the Complaint. Having now read the tenor of the Reply of the the Complainant, the Opposite party has realised that the Complainant has with mischievous and malafide intent in its plead- ings before this Hon'ble Commission cleverly avoided making reference to two different letters said to have been delivered to the Opposite Party and the aforesaid fact is clear and evident by the language of the pleadings. The Opposite Party further submits that after going through the said reply of the complaint to the Review petition it has become very clear that the Complainant has INDIANBANKv. SATYAM FlBRES(l) PVT. LID. [S.SAGHIRAHMAD,J.] deliberately played a fraud and now put forward a false case in A the said reply to further perpetrate the said fraud. That Opposite Party submits that the letter bearing No. 2775 dated 26th August, 1991 and the said letter bearing No. 2776 dated 26th August, 1991, both purport to enclose therewith set of Bills of Exchange. It is an admitted position that only one set of Bills were forwarded for the purpose of forwarding the same to the foreign party for its accep- tance. The fact that both letters set out that Bills of Exchanges are forwarded therewith itself indicates that they were not meant for substitution. Even the language of both letters belies the false case of substitution now put up by the Complainant. It is thus clear that the Complainant has misguided this Hon'ble Commission by rely- ing upon a letter bearing ref. No. 2776 dated 26th August, 1991 purporting to suggest that by the said letter, the said Bills of Exchange were forwarded for the purpose of acceptance, whereas in fact the said letter bearing No. 2776 dated 26th August, 1991 was never received by the Opposite party. 7. With reference to paragraph 4(c) of the said Reply, the Opposite Party denies that after delivery of the said letter dated 26th August, 1991 bearing No. 2775 the Complainant noticed that the said letter c did not contain a request to the Opposite party to have the said Bills of Exchange co-accepted by the foreign Bank and therefore E addressed another letter to the Opposite party also dated 26th August, 1991 bearing No. 2776 wherein the complainant give specific instructions to the Opposite Party to have the said Bills of Exchange accepted by the Buyer and co-accepted by the foreign Bank. The Opposite Party says and submits that the alleged letter F dated 26th August, 1991 bearing No. 2776 is not a genuine letter. The Opposite Party craves leave to refer to the Outward Register allegedly maintained by the Complainant, when produced. The Opposite Party submits that the Outward Register maintained by ' the Complainant does not appear to be a genuine Outward Register as the same has entries containing references to letters G of a later date bearing outward numbers of an earlier date. The Opposite Party says and submits that no reliance can be placed upon the said alleged Outward Register alleged to have been maintained by the Complainant. The Opposite Party says and submits that the alleged initials of the person who received he said H c letter is not initialled by any officer/staff member of Indian Bank working in its Nepean Seas Road Branch at the relevant time. The Opposite Party says that prior to the filing of the Review Applica- tion the Opposite Party obtained verification from the officers and staff members attached to the Nepean Sea Road Branch of the Opposite Party who certified and stated that the alleged initial on the alleged office copy of the Complainant is not their initial. The Opposite Party states and submits that the mere fact that a rubber stamp appears on the alleged letter cannot be itself confer any authenticity. It is pertinent to note that the Complainant has obtained an alleged acknowledgement on the. office copy of the alleged letter dated 26th Aug., 1991 bearing reference No. 2776 when, in fact no such letter was delivered by the Complainant to the Opposite Party. It is further pertinent to note that the Com- plainant did not think it fit or necessary to obtain any acknow- ledgement on office copy of letter dated 26th August, 1991 bearing No. 2775 when the original documents i.e. the Bills of Exchange were delivered to the Opposite Party therewith but the com- plainant has allegedly obtained an acknowledgement on the alleged letter dated 26th August, 1991 bearing No. 2776. Copy of Statement signed by the Officers and staff members at the Nepean Sea Road Branch of the Opposite Party certifying that the alleged initials on the alleged acknowledgement does not belong to any of them is hereto annexed and marked Annex 111". 12. With reference to paragraph 7 of the said Reply, the Opposite Party denies the contention of the Complainant that the letter dated 26th August, 1991 bearing No. 2775 was not disclosed by the Complainant before this Hon'ble Commission as the said letter was substituted by the alleged letter dated 26th August, 1991 bearing No. 2776, as alleged or at all. The Opposite Party submits that it is for the first time that the Complainant has pleaded substitution. This plea of substitution has been pleaded only after the fraud has been detected by the Opposite Party and brought to the notice of this Hon'ble Commission. If the plea of substitution , is to be believed, the Complainant would have withdrawn the letter dated 26th August, 1991 bearing No. 2775 at that point of time itself since the Complainant had taken no acknowledgement for the same. The Opposite Party denies the contention of the Com- INDIAN BANK v. SA1YAM FIBRES (I) rvr. LID. [S. SAGHIRAHMAD,J.) plainant that the nondisclosure was not with a 'iew to suppressing A information, as alleged or otherwise. The Opposite Party further denies the contention of the Complainant that the nondisclosure was inadvertent as alleged or at all. The Opposite Party states that the second letter dated 26th August, 1991 bearing No. 2776 was never delivered by the Complainant to the Opposite Party. 15. With reference to paragraph 10 of the said Reply, the Opposite Party states that itis pertinent to note that despite the Complainant having accepted the fact that letter dated 26th August, 1991 bear- ing No. 2775 was addressed to the Opposite Party and the Opposite Party would act on the instructions contained therein, the Com- plainant ought to have drawn reference to the letter No. 2775, if assuming without admitting that the alleged letter No. 2776 was in fact delivered. The Opposite Party states that, it is admitted by the Complainant that the two letters both dated 26th August, 1991 bearing Nos. 2775 and 2776 are materially different from each other. The Opposite Party states that the Complainant has not D explained in any part of its reply as to what warranted the submis- sion of the alleged letter dated 26th August, 1991 bearing No. 2776 on the same date after submission of a letter on the same subject, also dated 26th August, 1991 bearing No. 2775 without providing for any reference to the earlier letter or without making any E mention about the submission of the earlier letter to the Opposite Party. The Opposite Party submits that the absence of continuity or reference to the earlier letter cannot be termed as an offiission, as alleged, by the Complainant, particularly who, according to the Complainant itself the second letter is intended to be a substitution of the contents of the earlier letter. p 21. With reference to paragraph 21 to 24 of the said Reply, it is pertinent to note that the Complainant says that the Complainant was willing to have the goods delivered to the Buyer not only after acceptance of the Bills of Exchange by the Buyer but also co-ac- G ceptance by the foreign bank. The Complainant has, till date not brought to the notice of the Opposite Party and/or this Hon'ble Commission the basis of the aforesaid statement, as to whether there is any agreement between the Complainant and the foreign Buyer, or the Complainant and the foreign bank for co~acceptance. There is no documentary or any evidence brought in by the H c complainant to show any alleged contract for co-acceptance. In the absence of the foreign Buyer and/or the foreign bank being party to the present proceedings, the statement of the Complainant that the Complainant was willing to sell the goods only if there was co-acceptance, is not sustainable and cannot be believed. The Opposite Party says and submits that the history of the present transaction between the complainant and the foreign buyer indi- cates that the goods were already shipped in june, 1990 prior to the forwarding of the said Bills of the Exchange for acceptance in August, 1991. The Opposite Party denies that the Opposite Party has been negligent in exercising its duty to inform the foreign bank that the Bills of Exchange are to be accepted as per tenor of the instrument. The opposite party denies that the Complainant is entitled to sue the Opposite Party and recover from the Opposite Party the amount of Bills of Exchange With interest, as alleged or otherWise. The Opposite Party says that the only claim which the Complainant has is against the foreign buyer and/or the foreign bank and not against the Opposite Party. It is foreign pertinent to note that the Complainant sates that there is no privily of contract between the foreign bank and the Complainant. If the aforesaid statement is to be believed, then the question of the foreign bank being required lo co-accept the Bills of Exchange cannot and does not arise.n 41. We have also gone through other affidavits an documents, ftled either in this Court or before the Commission, which have been brought on record here. 42. We must say immediately that the circumstances, in the instant case, are glaring and the intrinsic evidence available on the record is clinching, so much so, that no other inference is possible except to hold that the letter No. 2776 of 26th August, 1991 was forged by the respondent in order to obtain a decree from the Commission for a huge amount of G French Francs 4,10,000 it will appear that – (i) The respondent does not deny that it had sent and issued letter No. 2775 dated 26th August, 1991 to the appellant; (ii) The respondent does not deny that this letter does not contain any direction to the appellant to obtain co-acceptance from INDIANBANKv. SA1YAMF1BRES(I) PVf.LID. (S. SAGHIRAHMAD,J.J the French Bank; (iii) The respondent says that it had issued letter No. 2776 dated 26th August 1991 in substitution of the earlier letter No. 2775 of the even date; (iv) The fact this letter was sent in substitution of leller No. 2775 B dated 26th August, 1991 is not mentioned in the letter itself; (v) The respondent does not say that the letter No. 2775 dated 26th August, 1991 should be treated as cancelled; (vi) The respondent had corresponded with the appellant and had even given a notice dated 26.3.92 through its counsel to the appellant claiming the amounts due under the Bill of Ex- change on the ground of negligence but nowhere does the respondent says that the letter No. 2776 dated 26th August, 1991 was in substitution of letter No. 2775 of that date; (vii) Even in the original complaint filed before the Commission, the respondent does not say anywhere that they had issued letter No. 2776 of 26th August, 1991 in substitution of the letter No. 2775 of that date. (viii) The plea that letter No. 2776 was issued in substitution of letter No. 2775 was asserted by the respondent for the first time in Review proceedings when the appellant filed this letter before the Commission. The respondent's silence till that stage, therefore, becomes eloquent indicating that this c letter was not in existence till then; (ix) What was the mode of payment agreed upon between the Respondent and the buyer in France has not been indicated. Nor has any correspondence, or for that matter, any agree- ment in writing between.the respondent and the buyer, been filed or brought on record to indicate the terms of contract G or agreement or, at least, to indicate the mode of payment. Had there been a clause for co-acceptance by the French Bank in the mode of payment agreed upon between the parties, the respondent certainly would have filed that docu- ment to bring home its point that co-acceptance being an H c essential ingredient of the mode of payment, was specifically mentioned by it in its "Collection Order" to the appellant. (x) The respondent had already come to know that the buyer was under liquidation as the liquidator himself had written to the respondent to file its claim in respect of the goods supplied by it to the Buyer. (xi) There was some correspondence with French Bank and the French Bank wrote to the appellant, which was also brought to the notice of the respondent, that co-acceptance by a French Bank was not permitted under French Law and that, if insistence for co-acceptance by the French Bank meant furnishing of bank guarantee, the French Bank would have refused lo furnish that guarantee even if it was required of it in the letter accompanying the Bills of Exchange. (This asser- tion by the French Bank is in consonance with the Preamble of ICC Rules which says that "These provisions apply to all Collections …… unless contrary to the provisions of a national, state or local law and/or regulation which cannot be departed from.") It was; thus, apparent to the respondent that there was little hope that the entire amount covering the goods supplied by it to the French Buyer would be paid and, therefore, it acted in a dexterous and sophisticated manner to fasten the liability on the appellant by branding it as negligent in not writing specifically to the French Buyer for co-acceptance in spite of its letter No. 2776 of 26.8.91 and to support this plea by evidence, it forged the letter in question forgetting that there existed another letter No. 2775 of that date in which the requirement of co-acceptance by French Bank was not indi- cated. Indeed, the Persian saying that "DAROGH GO RA HAFIZA NA BASHAD" {A LIAR HAS NO MEMORY) is still the time tested truth. In the face of overwhelming evidence, the entry in the respondent's record indicating that letter No. 2776 was issued cannot be accepted. Significantly, the copy of the disputed letter bears an endorsement of H "Receipt and Rubber Stamp" allegedly of the appellant but the copy of the INDIANBANKv. SAITAMABRES(I) PVT.LID. fS.SAGHIRAHMAD,J.) admitted letter No. 2775 does not bear any endorsement of receipt which A spear.s volumes of the dexterous manner in which the respondent had acted. 43. In view of the above, and if the letter No. 2776 (forged by the respondent) is excluded from the evidence, there remains only the letter No. 2775 of 26.8.1991 in which it was not indicated by the respondent to B the appellant to write to the French Bank to deliver the documents only on co-acceptance by it. The appellant, in the circumstances, was justified in not to mentioning co-acceptance by the French Bank. The case of the . respondent being false and based on fabricated evidence has to be dis- missed. The appeals are consequently allowed, and both the judgments of the Commission, namely judgments dated 16.11.1993 and 13.12.1994 are set aside and the Original Complaint of the respondent is dismissed with costs quantified at Rs. 25,000. v.s.s. Appeals allowed. D