TMI Blog2006 (1) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... red into between MV Ltd. and the Petitioners. The company agreed to guarantee the due and complete payment performance of the said agreement by MV Ltd. The guarantee was to be governed by and construed in accordance with the Laws of Malaysia. The guarantee was to stand discharged only upon the fulfilment of all the terms and conditions of the agreement. 2. The said agreement dated 20-9-2002 was entered into between Petitioner No. 1 and MV Ltd. clauses 1.1, 1.5 and 3 whereof read as under : "1.0 Principal matters 1.1 Parties agree to form a JMT to share market information, and to jointly discuss and develop marketing strategies, to jointly market and trade the Products, including making joint pricing decisions and also its logistics arrangements and other administrative arrangements related thereto. Where appropriate and as mutually agreed, the Parties shall also jointly develop sourcing strategies and plans for the Products. 1.2 ................................ 1.3 ................................ 1.4 ................................ 1.5 For the sales of the Products to countries other than India, both Parties shall have the option to proceed under this JMTA arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following amount. Invoice No. Amount Due Due Date 9306030024 USD 2,055,000.00 10-11-2003 9306030016 USD 2,051,422.80 12-11-2003 9306030025 USD 2,067,581.52 4-12-2003 9306030241 USD 1,793,326.63 8-1-2004 9306030261 USD 1,480,500.00 20-1-2004 9306030281 USD 1,444,457.58 8-2-2004 Total USD 10,892,288.53 We seek your kind consideration to extend the time towards the payment of the above invoices until 30-9-2004." Petitioner No. 2 at the foot of the letter endorsed that it acknowledged and agreed to the same. The account was thus stated and settled between the parties to the agreement dated 20-9-2002, Petitioner No. 2 (the assignee of Petitioner No. 1) and MV Singapore. 5. It is important to note that the letter dated 10/11-6-2004 was signed inter alia by one Ajay Mittal, the Chairman of MVL. It is also important to note that Mega Visa Solutions (Singapore) Pte. Ltd. (hereinafter referred to as the "Mega Visa Singapore") is also a signatory to this document. 6. Mr. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout exception, referred clearly to the said agreement and/or the letter dated 10/11-6-2004. Not once did MV Ltd. or Mega Visa Singapore deny their liability. They in fact, clearly admitted their liability and the fact that the same was under the said agreement dated 20-9-2002. 11. Two further references should put the point beyond the pale of controversy : ( a )( i )The Petitioner s Advocate s notices dated 2-11-2004 and 8-11-2004 demanding payment expressly stated that the dues were "....under a Joint Marketing and Trading Agreement dated 20-9-2002 ("the JMTA")". The letter dated 8-11-2004 was copied to the said Ajay Mittal as well as his wife, both of whom are Directors not only of MV Ltd. but also of the Respondent Company. ( ii )Mega Visa Singapore, by a letter dated 17-11-2004 in reply to the said letter dated 8-11-2004 did not dispute that the amounts were payable under the said agreement. They merely expressed their inability to make full payment at that stage. ( b )( i )Ultimately, a statutory notice dated 16-11-2004 was addressed by the Petitioner s Advocate to the company as well as to MV Ltd. and Mega Visa Singapore and the Directors viz., Ajay Mittal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is pertinent to note that in its affidavit in reply the company has gone to the extent of denying even knowledge of the letter dated 10/11-6-2004. A case which Mr. Chagla, with his characteristic restraint, refrained from advancing. 18. MV Ltd., the principal debtor is a subsidiary of the Respondent Company, the guarantor. The correspondence was addressed to two of the directors of the company. There is not even a suggestion that there are any other directors though that may have made little difference in the facts of this case. 19. Even after the statutory notice was addressed to the company itself, it raised no objection to and expressed no surprise about the variation. Indeed, as noted above, MV Ltd. and the company replied by a common notice addressed by their Advocates. Surely, if the Company had not consented to the variation, some element of surprise or objection thereto would have been expressed. There was none. In these circumstances, a conclusion that the company had consented to MV Ltd. having granted time for payment by letter dated 10/11-6-2004 is irresistible. 20. Mr. Chagla submitted that there was no pleading regarding the case of consent. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liefs they had prayed for. 24. In The Parchim, 1918 AC 157, the Privy Council held, at page 161, as under: "No doubt the municipal law with reference to which the parties enter into the particular transaction is material in considering their intention as to the passing of the property; and if it appears that they contracted with reference to municipal law other than English, and it be further proved that the municipal law is different in any material respect from the English law, this will of course be taken into account in determining their intention. But having regard to the presumption that unless the contrary be proved the general law of a foreign country is the same as the English law, the mere fact that the contract was entered into with reference to the law of another country will be immaterial . Having regard to the history of English mercantile law, the presumption referred to is itself quite reasonable." [Emphasis supplied] The observations that follow do not either dilute or qualify the ratio in the sentence emphasised. They merely provide the rationale for the presumption. Nor do I read the ratio of this judgment as being confined to cases in England alone. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Germany. In the absence of that proof it must be assumed to be similar to the law of England , but even if one makes to him the very largest concession he can expect or demand, and assumes, what is extremely unlikely, that the law of Germany, and the State policy of Germany upon which the law is founded, does not in any way or to any extent prohibit trading with Germany s enemies, I think the above cited authorities clearly establish that, even if it were so, a British subject, once war breaks out, is bound not to trade with Great Britain s German enemies, the contracts binding him to do so become as to him illegal and void, and that the Courts of this country will not enforce them." [Emphasis supplied] Lord Parker of Waddington also in his concurring judgment held as follows : "The only substantial difference between this case and that of Ertel Bieber Co. v. Rio Tinto Co., which Your Lordships have just decided, is that the contract to which this case related, and under which ore was sold by the respondents to the appellants to be delivered over a series of years, was a contract in the German language and was entered into in Germany, so that it is argued that it must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eading shall contain a statement in concise form of material facts relied on by a party but not the evidence nor the law of which a court may take judicial notice. But the rule against pleading law is restricted to that law only of which a court is bound to take judicial notice. As the court does not take judicial notice of foreign law, it should be pleaded like any other fact, if a party wants to rely on the same ( see Mogha s Law of Pleadings, 13th Edn., p.22). In Guaranty Trust Co. of New York v. Hannay Co. it was held that : "Foreign law is a question of fact to an English court ... the opinion of an expert on the fact, to be treated with respect, but not necessarily conclusive." In Beatty v. Beatty it was held that the American law in English courts must be proved by the evidence of experts in that law. In Lazard Bros. and Co. v. Midland Bank Ltd. Their Lordships of the Privy Council observed that what the Russian Soviet law is, is a question of fact, of which the English Court cannot take judicial cognizance, even though the foreign law has already been proved before it in another case. The court must act upon the evidence before it in that actual case. The sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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