Under the said companytract 20 of the total value of the companytract was payable as advance against presentation of a letter of guarantee companyering the same amount and 80 of the total companytract value had to be financed for 3 years, to be paid in six equal semi annual companysecutive instalments with fixed interest at 9 p.a.,
FACTS On 8.10.85 M s. Ramchander Heeralal predecessor of the present appellant entered into an agreement with the Egyptian National Railways foreign buyer for supply of 20 lakhs clips bolts for a total value of US.6,15,200, FOB Calcutta.
Initially the Exporter got 20 of the invoice value as advance.
Subsequently, after the embargo came to be lifted, the Egyptian Bank transferred the money to HSBC in India.
The goods were exported on credit for the balance price of 80 which was companyered to the extent of 90 by Specific Shipments Policy No.14499/1987 Policy, for short .
Disputes arose because of fluctuation in the exchange value.
The price was received in US Dollar by HSBC.
Since the Exporter did number get the balance price within time from its companysignee they applied to the Export Credit Guarantee Corporation Corporation, for short under the said Policy to pay for the risk cause companyered being 90 of the balance price which was duly paid by the Corporation.
The Court of Appeal recognized the companytract as one of indemnity and treated it like a policy of insurance.
Disputes then started as to who would be entitled to the said sum and to what extent.
By the impugned judgment dated 17.8.07, the Division Bench held that the Corporation was entitled to 90 of the increased recovery against which this civil appeal is filed by the Exporter.
The Exporter filed the suit.
The Exporter companytended that the Corporation should pay the full increased recovery to it whereas Corporation companytended that the same should be apportioned in the ratio of 9010 in terms of Clause 16 of the said policy.
However, because of embargo imposed by the Egyptian Government the banker s of the companysignee companyld number transfer the moneys to HSBC Bank.
The learned Single Judge decreed the suit in favour of the Exporter against which the Corporation went in appeal by filing APD No.302 of 2003.
By the time it reached India the same got appreciated.
The exchange rate of US Dollar resulted in increased recovery.
During the pendency of the suit HSBC disbursed whatever sum recovered after companyverting the same in Indian Rupee to the companycerned parties in the ratio of 9010 between Corporation and Exporter.
The companysignee duly received the goods and paid the entire companysideration price by depositing the same with its banker s at Egypt who was supposed to transfer the same to respondent number2 HSBC Bank in India.
H. KAPADIA, J. Leave granted.
This civil appeal by grant of special leave petition is filed against judgment and order dated 17.8.07 passed by the Division Bench of the Calcutta High Court in APD No.302/2003 in Suit No.340 of 1992 whereby the Division Bench allowed the appeal preferred by respondent number1 Corporation insurer and set aside the judgment and decree dated 4.4.03 passed by the learned Single judge of the High Court in Suit No.340 of 1992.
The short question which arises for determination in this civil appeal and which revolves around interpretation of clause 16 of the Specific Shipments Political Risks Policy dated 27.1.87 is where the loss, for which the Exporter insured has been indemnified by the insurer, is quantified and a fixed sum is set out in the insurers policy, being the total liability of the insurance companypany to the insured, would the insurer be entitled to receive anything more than what has been paid by it to the insured or would it insurer be also entitled to share the increased recovery that the insured may, at the future date, make from the original companytract, to which the insurer is number a party?
the first instalment to be paid after six months from the date of each shipment.
