อันนี้เป็นคำแปลภาษาอังกฤษของแบบฟอร์มศาลของใบแต่งทนายความ
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(Translation)
Appointment of Lawyer Case No. Black _____/25___
The Civil Court
_________________
Civil Case
Plaintiff
Between
Defendants
We __________________________ by our authorized representative, _________________________, the Plaintiff hereby appoint ____________________ as our lawyer in this case with authority to proceed in the manner which would result in disposal of our right as well such as compromising, exercising the right to appeal to the Appeal Court or the Supreme Court or to request for re-trial.
We shall be responsible for the actions to be taken by ___________________ in accordance with the law.
___________________ Person appointing a lawyer
( )
The genuine signature of the person
appointing a lawyer is hereby certified.
Signed
( )
Lawyer
วันพฤหัสบดีที่ ๒๔ กรกฎาคม พ.ศ. ๒๕๕๑
แบบฟอร์มหนังสือมอบอำนาจให้ฟ้องร้องคดีภาษาอังกฤษและภาษาไทย
อันนี้เป็นแบบฟอร์มหนังสือมอบอำนาจให้ฟ้องร้องและดำเนินคดีทั่วไป ทั้งภาษาไทยและคำแปลภาษาอังกฤษ อนึ่งมีข้อสังเกตุนิดหนึ่งคำแปลภาษาอังกฤษทางกฎหมายเค้าจะเรียกว่ามันว่า Power of Attorney แต่ผมเห็นหลายคนแปลโดยใช้ภาษาทั่วไปว่า Letter of Power ซึ่งอ่านแล้วก็เข้าใจได้ว่าหมายความถึงอะไร แต่ไม่ใช่ภาษาที่นักกฎหมายเค้าใช้กันครับ
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หนังสือมอบอำนาจ
วันที่ _____________________
ขอประกาศให้ทราบทั่วกันโดยหนังสือนี้ว่า ____________________________ ซึ่งเป็นบริษัทที่ก่อตั้งขึ้นโดยชอบและจดทะเบียนตลอดจนดำรงอยู่ตามกฎหมายบริษัท ซึ่งเป็นกฎหมายฉบับหนึ่งของ ______________________ปัจจุบันมีสำนักงานสาขากรุงเทพมหานคร ตั้งอยู่เลขที่ ____________________ ___________________________________ โดย _________________________ ผู้รับมอบอำนาจของบริษัทซึ่งมีอำนาจแต่งตั้งผู้รับมอบอำนาจช่วงได้ ขอแต่งตั้งให้ ______________________ เป็นผู้รับมอบอำนาจที่แท้จริงและชอบด้วยกฎหมายของบริษัท มีอำนาจทำการในนามและแทนบริษัท โดยให้มีอำนาจกระทำและปฏิบัติกิจการและสิ่งต่อไปนี้หรือสิ่งใดสิ่งหนึ่งตามที่บุคคลดังกล่าวจะเห็นสมควรเพื่อประโยชน์ของบริษัท กล่าวคือ:
ข้อ 1. มีอำนาจบอกกล่าว ทวงถาม เรียกร้อง ยื่นคำร้องทุกข์ ยื่นฟ้อง หรือดำเนินคดีแพ่ง คดีอาญา คดีล้มละลาย และ/หรือ คดีปกครองกับ_______________________ และ/หรือ บริษัท __________________________ (ต่อไปนี้เรียกว่า “ “) ต่อพนักงานเจ้าหน้าที่และศาลที่มีอำนาจ โดยให้มีอำนาจดำเนินการตั้งแต่เริ่มต้นฟ้องคดีตลอดไปจนคดีถึงที่สุด ตลอดจนให้มีอำนาจดำเนินกระบวนพิจารณาคดีไปในทางจำหน่ายสิทธิ ถอนคำฟ้อง ประนีประนอมยอมความ ตกลงระงับคดี หรือการดำเนินกระบวนพิจารณาคดีใด ๆ ทั้งปวง สละสิทธิ หรือการใช้สิทธิในการอุทธรณ์ หรือฎีกาต่อศาลอุทธรณ์และ/หรือศาลฎีกา หรือขอให้พิจารณาคดีใหม่ รวมทั้งให้มีอำนาจกระทำการใด ๆ ตามที่จำเป็นและสมควรเกี่ยวเนื่องกับวัตถุประสงค์ดังกล่าวข้างต้นในนามของบริษัท
ข้อ 2. ใช้สิทธิตามกฎหมายในการดำเนินคดีทุกชนิดและการดำเนินการทางกฎหมายจนกระทั่งถึงที่สุด รวมทั้งให้มีอำนาจในการบังคับคดีตามคำพิพากษา และการดำเนินกระบวนการต่าง ๆ ตามที่บัญญัติไว้ในกฎหมายของประเทศไทยไม่ว่าจะโดยอายัด หรือยึดเงิน หรือสินค้า หรือทรัพย์สิน หรือประการอื่น ๆ เพื่อให้ได้รับชำระเงิน หรือการชำระหนี้จนเป็นที่พอใจ
ข้อ 3. ยื่นคำร้องขอเฉลี่ยทรัพย์ในคดีที่ทรัพย์สินถูกยึดหรืออายัดโดยเจ้าพนักงานบังคับคดี หรือในการขายทอดตลาด หรือในการจำหน่ายทรัพย์สินตามที่บัญญัติไว้ในประมวลกฎหมายแพ่งและพาณิชย์ หรือประมวลกฎหมายวิธีพิจารณาความแพ่ง
ข้อ 4. ยื่นคำร้องขอให้ปล่อยทรัพย์สินที่ถูกยึด หรืออายัด
ข้อ 5. ยื่นขอ หรือร่วมกับบุคคลอื่นยื่นขอให้ลูกหนี้เลิกกิจการหรือให้เป็นบุคคลล้มละลายต่อศาลในประเทศไทย และเพื่อวัตถุประสงค์แห่งการดังกล่าวให้ลงนามในนามของบริษัทในคำร้องและเอกสารอื่นทั้งปวงอันจำเป็น และให้คำสาบานเพื่อรับรองคำให้การเป็นลายลักษณ์อักษรทั้งปวงซึ่งอาจ
จำเป็นต้องทำขึ้น และให้ออกเสียงลงคะแนนในการประชุมเจ้าหนี้ทุกครั้งในนามของบริษัท
ข้อ 6. รับเงินและเอกสารจาก_______________________________ หรือผู้แทนของลูกหนี้หรือศาล หรือเจ้าพนักงานศาลหรือกรมบังคับคดี
ข้อ 7. แต่งตั้งหรือถอดถอนทนายความคนหนึ่งหรือหลายคนเพื่อการดำเนินคดีใด ๆ ในศาล และให้ทนายความคนหนึ่งหรือหลายคนดังกล่าวมีอำนาจเช่นเดียวกับที่ระบุในข้อต่าง ๆ ข้างต้น
ข้อ 8. นอกจากที่ระบุไว้ข้างต้น ผู้รับมอบอำนาจที่ระบุชื่อข้างต้นมีอำนาจแต่งตั้งผู้รับมอบอำนาจช่วง โดยทำตราสารแยกต่างหากอีกหนึ่งฉบับลงนามโดยผู้รับมอบอำนาจคนใดคนหนึ่งในสองคน และให้ผู้รับมอบอำนาจช่วงมีอำนาจที่จะกระทำการอย่างใดอย่างหนึ่งหรือทั้งหมดตามที่ระบุไว้ข้างต้นในนามของบริษัทจนเสร็จสมบูรณ์
โดยหนังสือนี้บริษัทขอให้สัตยาบันและรับรอง และตกลงที่จะให้สัตยาบันและรับรองการกระทำทั้งปวงซึ่งผู้รับมอบอำนาจของบริษัทจะได้กระทำหรือมุ่งหมายที่จะกระทำต่อไป
เพื่อเป็นหลักฐานในการนี้ บริษัทจึงได้ลงนามในตราสารฉบับนี้เมื่อวันที่ _________________
______________________________
โดย_______________________________
(ชื่อ)
ตำแหน่ง
พยาน
( )
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POWER OF ATTORNEY
DATE:
KNOW ALL MEN BY THESE PRESENTS that we, ,
a corporation duly organized and existing in accordance with the law of
with its principal office located at
represented by Mr. ______________________, its _________________________, do hereby appoint and/or , to be our true and lawful attorneys in our name to jointly and/or severally do and perform the following acts and things or as any of them as he or they shall in our interests think proper, that is to say:
1. To have the powers to notify, claim, file suit, proceed with the civil, criminal, bankruptcy and/or administrative proceedings against __________________ and/or ______________ (hereinafter called the “Debtor”) with the appropriate authorities and the Courts and to carry to completion, dispose of any legal proceedings, withdraw the complaint, compromise and settle any suit or legal proceeding, to waive or to use the right in an appeal to the Court of Appeal and/or the Supreme Court or to re-consider the case, and to do any and all acts and things necessary and appropriate relating to the aforesaid purposes on our behalf.
2. To exercise all of our rights in all kinds of suits, actions and legal or equitable proceedings against the Debtor until completion including execution of judgment and to resort to any other procedure allowed by the law of Thailand whether by restraint or attachment of money or goods or property or otherwise for obtaining payment or satisfaction thereof.
3. To file a motion for an order to have a share in the attached or seized property of the Debtor by the executing officer or in the proceeds of the auction sale or the disposal of the property as provided in the Civil and Commercial Code or Civil Procedure Code of Thailand.
4. To file a motion for the release of the attached or seized property.
5. To apply for or joint with others in applying for the winding-up of or declaration of bankruptcy or rehabilitation against the Debtor by a competent Court in Thailand and for that purpose to sign on our behalf all necessary Petitions and other documents which may be requisite and to swear all affidavits which may be necessary and to vote on our behalf at all meetings of creditors.
6. To receive any money and documents from the Debtor or its representative or the Court or the Court officers or the Execution Department.
7. To appoint or remove a lawyer or lawyers to carry any legal proceeding in the court and the said lawyer or lawyers shall have the powers in the aforesaid Clause 1.
8. In addition to the foregoing the Attorneys above named may, be separate instrument executed by any two of them, appoint a substitute to do any or all of the above mentioned acts and things on our behalf until completion hereof.
And we hereby ratify and confirm and agree to ratify and confirm all that our Attorneys shall do or purport to do hereinafter.
IN WITNESS WHEREOF we have caused this instrument to be executed and the corporate seal affixed on the above mentioned place and date.
By:
(Name) Mr. _________________________
(Position)President and Managing Director
Witness:
( )
I hereby certify that the above named corporation, is a juristic person duly organized and existing under the laws of _______________ and that the signature above is of the authorized director who is duly authorized to sign such Power of Attorney on behalf of the corporation.
DATED at on day of
2002.
(Name)
A Notary Public in and for the
Province of ,
Residing in
Reg. No.
My Commission Expires
, 2002
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หนังสือมอบอำนาจ
วันที่ _____________________
ขอประกาศให้ทราบทั่วกันโดยหนังสือนี้ว่า ____________________________ ซึ่งเป็นบริษัทที่ก่อตั้งขึ้นโดยชอบและจดทะเบียนตลอดจนดำรงอยู่ตามกฎหมายบริษัท ซึ่งเป็นกฎหมายฉบับหนึ่งของ ______________________ปัจจุบันมีสำนักงานสาขากรุงเทพมหานคร ตั้งอยู่เลขที่ ____________________ ___________________________________ โดย _________________________ ผู้รับมอบอำนาจของบริษัทซึ่งมีอำนาจแต่งตั้งผู้รับมอบอำนาจช่วงได้ ขอแต่งตั้งให้ ______________________ เป็นผู้รับมอบอำนาจที่แท้จริงและชอบด้วยกฎหมายของบริษัท มีอำนาจทำการในนามและแทนบริษัท โดยให้มีอำนาจกระทำและปฏิบัติกิจการและสิ่งต่อไปนี้หรือสิ่งใดสิ่งหนึ่งตามที่บุคคลดังกล่าวจะเห็นสมควรเพื่อประโยชน์ของบริษัท กล่าวคือ:
ข้อ 1. มีอำนาจบอกกล่าว ทวงถาม เรียกร้อง ยื่นคำร้องทุกข์ ยื่นฟ้อง หรือดำเนินคดีแพ่ง คดีอาญา คดีล้มละลาย และ/หรือ คดีปกครองกับ_______________________ และ/หรือ บริษัท __________________________ (ต่อไปนี้เรียกว่า “ “) ต่อพนักงานเจ้าหน้าที่และศาลที่มีอำนาจ โดยให้มีอำนาจดำเนินการตั้งแต่เริ่มต้นฟ้องคดีตลอดไปจนคดีถึงที่สุด ตลอดจนให้มีอำนาจดำเนินกระบวนพิจารณาคดีไปในทางจำหน่ายสิทธิ ถอนคำฟ้อง ประนีประนอมยอมความ ตกลงระงับคดี หรือการดำเนินกระบวนพิจารณาคดีใด ๆ ทั้งปวง สละสิทธิ หรือการใช้สิทธิในการอุทธรณ์ หรือฎีกาต่อศาลอุทธรณ์และ/หรือศาลฎีกา หรือขอให้พิจารณาคดีใหม่ รวมทั้งให้มีอำนาจกระทำการใด ๆ ตามที่จำเป็นและสมควรเกี่ยวเนื่องกับวัตถุประสงค์ดังกล่าวข้างต้นในนามของบริษัท
ข้อ 2. ใช้สิทธิตามกฎหมายในการดำเนินคดีทุกชนิดและการดำเนินการทางกฎหมายจนกระทั่งถึงที่สุด รวมทั้งให้มีอำนาจในการบังคับคดีตามคำพิพากษา และการดำเนินกระบวนการต่าง ๆ ตามที่บัญญัติไว้ในกฎหมายของประเทศไทยไม่ว่าจะโดยอายัด หรือยึดเงิน หรือสินค้า หรือทรัพย์สิน หรือประการอื่น ๆ เพื่อให้ได้รับชำระเงิน หรือการชำระหนี้จนเป็นที่พอใจ
ข้อ 3. ยื่นคำร้องขอเฉลี่ยทรัพย์ในคดีที่ทรัพย์สินถูกยึดหรืออายัดโดยเจ้าพนักงานบังคับคดี หรือในการขายทอดตลาด หรือในการจำหน่ายทรัพย์สินตามที่บัญญัติไว้ในประมวลกฎหมายแพ่งและพาณิชย์ หรือประมวลกฎหมายวิธีพิจารณาความแพ่ง
ข้อ 4. ยื่นคำร้องขอให้ปล่อยทรัพย์สินที่ถูกยึด หรืออายัด
ข้อ 5. ยื่นขอ หรือร่วมกับบุคคลอื่นยื่นขอให้ลูกหนี้เลิกกิจการหรือให้เป็นบุคคลล้มละลายต่อศาลในประเทศไทย และเพื่อวัตถุประสงค์แห่งการดังกล่าวให้ลงนามในนามของบริษัทในคำร้องและเอกสารอื่นทั้งปวงอันจำเป็น และให้คำสาบานเพื่อรับรองคำให้การเป็นลายลักษณ์อักษรทั้งปวงซึ่งอาจ
จำเป็นต้องทำขึ้น และให้ออกเสียงลงคะแนนในการประชุมเจ้าหนี้ทุกครั้งในนามของบริษัท
ข้อ 6. รับเงินและเอกสารจาก_______________________________ หรือผู้แทนของลูกหนี้หรือศาล หรือเจ้าพนักงานศาลหรือกรมบังคับคดี
ข้อ 7. แต่งตั้งหรือถอดถอนทนายความคนหนึ่งหรือหลายคนเพื่อการดำเนินคดีใด ๆ ในศาล และให้ทนายความคนหนึ่งหรือหลายคนดังกล่าวมีอำนาจเช่นเดียวกับที่ระบุในข้อต่าง ๆ ข้างต้น
ข้อ 8. นอกจากที่ระบุไว้ข้างต้น ผู้รับมอบอำนาจที่ระบุชื่อข้างต้นมีอำนาจแต่งตั้งผู้รับมอบอำนาจช่วง โดยทำตราสารแยกต่างหากอีกหนึ่งฉบับลงนามโดยผู้รับมอบอำนาจคนใดคนหนึ่งในสองคน และให้ผู้รับมอบอำนาจช่วงมีอำนาจที่จะกระทำการอย่างใดอย่างหนึ่งหรือทั้งหมดตามที่ระบุไว้ข้างต้นในนามของบริษัทจนเสร็จสมบูรณ์
โดยหนังสือนี้บริษัทขอให้สัตยาบันและรับรอง และตกลงที่จะให้สัตยาบันและรับรองการกระทำทั้งปวงซึ่งผู้รับมอบอำนาจของบริษัทจะได้กระทำหรือมุ่งหมายที่จะกระทำต่อไป
เพื่อเป็นหลักฐานในการนี้ บริษัทจึงได้ลงนามในตราสารฉบับนี้เมื่อวันที่ _________________
______________________________
โดย_______________________________
(ชื่อ)
ตำแหน่ง
พยาน
( )
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POWER OF ATTORNEY
DATE:
KNOW ALL MEN BY THESE PRESENTS that we, ,
a corporation duly organized and existing in accordance with the law of
with its principal office located at
represented by Mr. ______________________, its _________________________, do hereby appoint and/or , to be our true and lawful attorneys in our name to jointly and/or severally do and perform the following acts and things or as any of them as he or they shall in our interests think proper, that is to say:
1. To have the powers to notify, claim, file suit, proceed with the civil, criminal, bankruptcy and/or administrative proceedings against __________________ and/or ______________ (hereinafter called the “Debtor”) with the appropriate authorities and the Courts and to carry to completion, dispose of any legal proceedings, withdraw the complaint, compromise and settle any suit or legal proceeding, to waive or to use the right in an appeal to the Court of Appeal and/or the Supreme Court or to re-consider the case, and to do any and all acts and things necessary and appropriate relating to the aforesaid purposes on our behalf.
2. To exercise all of our rights in all kinds of suits, actions and legal or equitable proceedings against the Debtor until completion including execution of judgment and to resort to any other procedure allowed by the law of Thailand whether by restraint or attachment of money or goods or property or otherwise for obtaining payment or satisfaction thereof.
3. To file a motion for an order to have a share in the attached or seized property of the Debtor by the executing officer or in the proceeds of the auction sale or the disposal of the property as provided in the Civil and Commercial Code or Civil Procedure Code of Thailand.
4. To file a motion for the release of the attached or seized property.
5. To apply for or joint with others in applying for the winding-up of or declaration of bankruptcy or rehabilitation against the Debtor by a competent Court in Thailand and for that purpose to sign on our behalf all necessary Petitions and other documents which may be requisite and to swear all affidavits which may be necessary and to vote on our behalf at all meetings of creditors.
6. To receive any money and documents from the Debtor or its representative or the Court or the Court officers or the Execution Department.
7. To appoint or remove a lawyer or lawyers to carry any legal proceeding in the court and the said lawyer or lawyers shall have the powers in the aforesaid Clause 1.
8. In addition to the foregoing the Attorneys above named may, be separate instrument executed by any two of them, appoint a substitute to do any or all of the above mentioned acts and things on our behalf until completion hereof.
And we hereby ratify and confirm and agree to ratify and confirm all that our Attorneys shall do or purport to do hereinafter.
IN WITNESS WHEREOF we have caused this instrument to be executed and the corporate seal affixed on the above mentioned place and date.
By:
(Name) Mr. _________________________
(Position)President and Managing Director
Witness:
( )
I hereby certify that the above named corporation, is a juristic person duly organized and existing under the laws of _______________ and that the signature above is of the authorized director who is duly authorized to sign such Power of Attorney on behalf of the corporation.
DATED at on day of
2002.
(Name)
A Notary Public in and for the
Province of ,
Residing in
Reg. No.
My Commission Expires
, 2002
วันอังคารที่ ๑๕ กรกฎาคม พ.ศ. ๒๕๕๑
FDA's notifications on Alcoholic Beverages
อันนี้เป็นคำแปลภาษาอังกฤษของประกาศของคณะกรรมการอาหารและยาที่ควบคุมโฆษณาเครื่องดื่มแอลกอฮอล์ 2 ฉบับ ในขณะที่ออกประกาศนี้ยังไม่มีกฎหมายที่ควบคุมเรื่องการโฆษณาแอลกอฮอล์อย่างชัดเจน
อย่างไรก็ตามในปัจจุบันมีกฎหมายที่ควบคุมเครื่องดื่มแอลกอฮอล์แล้วคือ พรบ.ควบคุมเครื่องดื่มแอลกอฮอล์ พ.ศ.2551 ซึ่งในพรบ.ฉบับนั้นได้มีการบัญญัติเรื่องการควบคุมการโฆษณาเครื่องดื่มแอลกอฮอล์ไว้อย่างเข้มงวดและครอบคลุมมากกว่า
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(Translation)
Notification of the Food and Drug Administration
To Specify Alcoholic Beverages as Controlled Goods
_______________
Alcoholic beverages are food under the Food Act 1979, however, the control of alcoholic beverage advertisements only restricts in relation to the advertisement of the benefit, the quality or nutrition whereby it does not control other forms of advertisements, which induce and suggest wrong values to youth, that are contrary to the social and moral policy and national tradition. Thus, in order to protect consumers, it is deemed expedient to make alcoholic beverages label control products
By virtue of section 30 of the Consumer Protection Act 1979 as amended by the Consumer Protection Act (No 2) 1998 the Food and Drug Administration Secretary General with the approval of the Food Committee as authorised representative of the Consumer Protection Board under the Notification of the Consumer Protection Board On Authorisation of Officers To Provide Consumer Protection Under the Food Act 1979 dated 29 June 2006 hereby notifies the following
1. Alcoholic beverages shall be label control products
2. In this notification an “alcoholic beverage” means liquid for human consumption containing more than 5 ml ethanol per 1 litre liquid or more than 0.5 degree, i.e. beer, wine, spirit or other named liquid, including substance or alcoholic drinks containing more than 5 ml ethanol per 1 litre liquid, excluding drugs under the Drugs law
3. The label of an alcoholic beverage shall be in accordance with the notification of the Ministry of Public Health on Liquor
4. This notification shall come into force on the day following the day it is published in the Royal Gazette.
Issued 17 October 2006
Manit Arunakul
Deputy Secretary-General
Acting Secretary General
**************************************************
(Translation)
Food and Drug Administration Order
No 504/2549
On Prohibition On The Advertisement of Alcoholic Beverages
_______________
It is considered expedient to control the advertising of alcoholic beverages more appropriately and efficiently for protection of consumers, especially children and youth
By virtue of section 24 of the Consumer Protection Act 1979 the Food and Drug Administration Secretary General by the approval of the Food Committee as the authorised representative of the Consumer Protection Board under the Notification of the Consumer Protection Board On Authorisation of Officers To Provide Consumer Protection Under the Food Act 1979 dated 29 June 2006 hereby orders the following
1. This order prohibits the advertising of alcoholic beverages under the Notification of the Food and Drug Administration To Specify Alcoholic Beverages as Controlled Goods dated 17 October 2006 in all advertising materials and any other means except
1.1 Print advertising outside Thailand not intending for sale and distribution specifically in the Kingdom
1.2 Live broadcast from abroad via radio or television not intending specifically to broadcast in Thailand, not including advertisements between such broadcast
2. This order shall become effective 45 days after the day it is published in the Royal Gazette.
Issued 18 October 2006
Manit Arunakul
Deputy Secretary-General
Acting Secretary General
อย่างไรก็ตามในปัจจุบันมีกฎหมายที่ควบคุมเครื่องดื่มแอลกอฮอล์แล้วคือ พรบ.ควบคุมเครื่องดื่มแอลกอฮอล์ พ.ศ.2551 ซึ่งในพรบ.ฉบับนั้นได้มีการบัญญัติเรื่องการควบคุมการโฆษณาเครื่องดื่มแอลกอฮอล์ไว้อย่างเข้มงวดและครอบคลุมมากกว่า
----------------------------------------------------------
(Translation)
Notification of the Food and Drug Administration
To Specify Alcoholic Beverages as Controlled Goods
_______________
Alcoholic beverages are food under the Food Act 1979, however, the control of alcoholic beverage advertisements only restricts in relation to the advertisement of the benefit, the quality or nutrition whereby it does not control other forms of advertisements, which induce and suggest wrong values to youth, that are contrary to the social and moral policy and national tradition. Thus, in order to protect consumers, it is deemed expedient to make alcoholic beverages label control products
By virtue of section 30 of the Consumer Protection Act 1979 as amended by the Consumer Protection Act (No 2) 1998 the Food and Drug Administration Secretary General with the approval of the Food Committee as authorised representative of the Consumer Protection Board under the Notification of the Consumer Protection Board On Authorisation of Officers To Provide Consumer Protection Under the Food Act 1979 dated 29 June 2006 hereby notifies the following
1. Alcoholic beverages shall be label control products
2. In this notification an “alcoholic beverage” means liquid for human consumption containing more than 5 ml ethanol per 1 litre liquid or more than 0.5 degree, i.e. beer, wine, spirit or other named liquid, including substance or alcoholic drinks containing more than 5 ml ethanol per 1 litre liquid, excluding drugs under the Drugs law
3. The label of an alcoholic beverage shall be in accordance with the notification of the Ministry of Public Health on Liquor
4. This notification shall come into force on the day following the day it is published in the Royal Gazette.
Issued 17 October 2006
Manit Arunakul
Deputy Secretary-General
Acting Secretary General
**************************************************
(Translation)
Food and Drug Administration Order
No 504/2549
On Prohibition On The Advertisement of Alcoholic Beverages
_______________
It is considered expedient to control the advertising of alcoholic beverages more appropriately and efficiently for protection of consumers, especially children and youth
By virtue of section 24 of the Consumer Protection Act 1979 the Food and Drug Administration Secretary General by the approval of the Food Committee as the authorised representative of the Consumer Protection Board under the Notification of the Consumer Protection Board On Authorisation of Officers To Provide Consumer Protection Under the Food Act 1979 dated 29 June 2006 hereby orders the following
1. This order prohibits the advertising of alcoholic beverages under the Notification of the Food and Drug Administration To Specify Alcoholic Beverages as Controlled Goods dated 17 October 2006 in all advertising materials and any other means except
1.1 Print advertising outside Thailand not intending for sale and distribution specifically in the Kingdom
1.2 Live broadcast from abroad via radio or television not intending specifically to broadcast in Thailand, not including advertisements between such broadcast
2. This order shall become effective 45 days after the day it is published in the Royal Gazette.
Issued 18 October 2006
Manit Arunakul
Deputy Secretary-General
Acting Secretary General
วันอังคารที่ ๘ กรกฎาคม พ.ศ. ๒๕๕๑
ตัวอย่างคำแปลวัตถุประสงค์ของบริษัท
เป็นตัวอย่างคำแปลภาษาอังกฤษของวัตถุที่ประสงค์บริษัท (Company Business Objectives)
บริษัท A
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(Translation)
1) To establish industrial factory to manufacture and assembly tractor motor vehicle, electric and oil-combustion engine, water pumps, construction and soil work mechanical machine, carpenter and blacksmith tools and equipment, agricultural tools and equipment, water gauge including all spares and parts of all type of machinery.
2) To operate business of contracting for the construction, design and calculating for construction drawing as well as bidding for construction contract, including trading construction material, construction equipment and tools.
3) To undertake land, water and air transportation.
4) To trade, exchange, lease, lease out, hire-purchase, mortgage immovable property and other associated right, including movable property mentioned in clause 1 and office equipment.
5) To engage in purchasing, registering and acquiring by other means for right in patent, industrial design, copyright, trademark, undisclosed invention or the like for the benefit of the company.
6) To take on loan with or without collateral, to guarantee and provide collateral in various type of undertaking including guarantee in accordance with immigration law.
7) To engage in business of being a broker, agency, commission agency on behalf of other for undertaking all type of commercial or business transaction (except for insurance business, association member recruitment, and security trading).
8) To make an investment by becoming a limited liability partners in other partnership or becoming a shareholder in other registered ordinary partnership or company limited notwithstanding the fact that said partnership or company’s business objectives might be inconsistent.
9) To manufacture, assembly, repair, modify, order, commercially import and export gun, bullet, explosive including weaponry and armament as well as all types of tools and equipment concerning military and police operation.
10) To engage in business of lathing metal work-pieces, assembling metal structure, finishing metal work and trading products made of iron and other metal.
11) To manufacture and assembly all types of truck motor vehicle.
12) The company has right to issue its shares and sell them at the price higher than their par value.
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บริษัท B
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(Translation)
1) To operate business of manufacturing gas stoves’ igniter and their relevant products.
2) To purchase and import raw material for using in company’s enterprise.
3) To conduct search, research, compilation of data, summary and statistical report and any data relevant to industrial and commercial activities for the purpose of company’s interest.
4) To purchase, sell, lease, hire-purchase, lease out, exchange, mortgage or otherwise acquire machinery, land and other immovable property for using in company’s enterprise.
5) To purchase, sell, lease, lease out, exchange, pledge or accept pledging or otherwise acquire mechanical tools, apparatus, equipment, fitting, accessories and parts that of beneficial to company’s enterprise.
6) To borrow money and issue commercial bill and other instrument of debt and obligation from time to time in order to achieve company’s legal business objectives; and mortgage, pledge or create charge on the company’s property, right, privilege and assets in whole or partial including unpaid amount of share; in order to secure the performance of said debt
7) To become a limited liability partners in other partnership, and to become a shareholder in any other limited company both in Thailand or abroad regardless of any inconsistency of this company’s and said partnership or company’s business objectives.
8) To contact with governmental sector, governmental department and relevant official for acquiring and registering.
9) To guarantee loan, liability and contractual performance of natural person or juristic person, including guarantee immigrating or emigrating persons in accordance with immigration law and revenue law and other law, provided that such guaranteeing is not commercially done.
10) To issue company’s shares and sell them at the price higher than their par value
*************************************************************************
บริษัท C
---------------------------------------------------------------------
(1) To engage in business of providing electronic mail (e-mail) security system namely the system for filtering against Spam and Malicious Software such as computer virus and Worm etc that may be attached to the e-mail.
(2) To purchase, sell, import for domestic distribution, and export for foreign distribution all type of airplanes’ spare parts including general equipment associated with said goods. As well as, to distribute and exchange airplanes.
(3) To trade and import tools and equipment for telecommunication and microwave, television receiver/transmitter, radio receiver/transmitter, phonograph disk player, tape recorder, recording tape, telephone set, computer set, telephone box station, musical instrument, camera, motion picture recorder, and motion picture projector including equipment and spare parts as associated to said goods.
(4) To trade arm, weaponry, armament, battling supporter, training tool, communication tool, and uniform and clothing of all kind and quality used in military, police, and civil government service, as well as general government service such as all kind and quality of ammunition, gunpowder, holster, gun girdle, warship, cargo ship, airplane, tanker, helicopter, rocket, bayonet, pocket knife, cargo vehicle, barbwire, oil paints, chemicals used for manufacture of ammunition, gunpowder, rocket, all type of uniforms, shoes, tent, blanket, water bottle, electronic appliance including their associated equipment and spare parts.
(5) To trade bicycle, motorcycle, car, truck, tractor, and other vehicles including their spare parts, components, and equipment.
(6) To trade electrical appliance, transformer, light bulb, cables, equipment, and spare parts of said appliance.
(7) To procure, purchase, sell, and install all type of alarming equipment and/or equipment associated to all type of alarming system, which were used in connection with telecommunication, satellite, and frequency communication.
(8) To operate business of contracting for the construction of dwelling house, commercial building, office building, highway, bridge, and all types of public works.
(9) To trade construction material, construction equipment and tools such as boulder, sand, soil, pebble, steel bar, tile etc.
(10) To trade timber products, logs, planks, plywood, wood scraps.
(11) To trade mineral or all ore of metal in all types such as tin, antimony, silver etc.
(12) To trade and produce all categories of fresh foods, seafood, dried foods, and instant foods.
(13) To trade plastic goods or the like, both in form of raw material or finished plastic products.
(14) To trade alcoholic and non-alcoholic beverage such as aerated water, fruit juice, beer, brandy, gin, rum, wine, or other type of liquor etc.
(15) To trade chemicals for agricultural and industrial usage.
(16) To trade medical supplies, medicines, chemicals for medical and pharmaceutical usage, cosmetics, including tools and equipment for medical and pharmaceutical usage.
(17) To trade steel bar, cement, petroleum, textiles, water pipe, and oil pipe.
(18) To trade, lease, lease out, hire-purchase, pledge, accept pledging, mortgage and other movable property.
(19) To trade clothing, ornamentation, including all sporting equipment.
(20) To trade household furnishing and decoration, including those used for furnishing and decorating all type of buildings.
(21) To receive or submit a bid for purpose of selling and purchasing goods as specified in the company’s business objective, including the bidding with all public or private organization for obtaining mineral lease, undertaking construction or other public works.
(22) To trade gasoline and gas.
(23) To trade instrument of weighing, a weight, measure or glassware.
(24) To trade gold, copper alloy, silver, gem and other jewel.
(25) To trade papers, stationary, forms, books, educational instrument, and office tools and equipment.
(26) To trade, lease, lease out, hire-purchase, pledge, accept pledging for the following goods i.e. cooling appliance, refrigerator, air conditioner, electric fan, air purifier, washing machine, vacuum cleaner, cooking or grilling appliance, including their supporting tools and spare parts.
(27) To trade rice and its products, corn, jute, cotton, cassava, vegetables, fruits, all type of farm plants, sugar, herbs, spices, consumers goods, fertilizer, flowers, orchids, plywood, rattan work, basketwork, glassware, pottery, sculpture, leather, local handicraft, antiques, ancient articles, artifacts and souvenirs.
(28) To engage in business of being a broker, agency, commission agency on behalf of natural person or juristic person, domestic and abroad, for all type of business transaction (except for insurance business, association member recruitment, and security trading).
(29) To engage in tourism service, including selling domestic and foreign trips airplane ticket of all airlines in the world, and to provide booking service or arrange for the booking of said airplane ticket.
(30) To lease out car and all other type of vehicles.
(31) To engage in business of hotel, motel, bungalow, residence, bar, restaurant, nightclub, and all other places of entertainment.
(32) To prepare documentation and proceed on custom formality required for importing and exporting goods, this include the undertaking of goods packaging for abroad transportation either by land, sea or air.
(33) To be a consultant that provide advice on how to solve managerial problems and improve managerial systems in fields of industry, agriculture and commerce that include production, marketing and industrial technique.
(34) To buy, sell, lease, lease out, hire-purchase, sell with right of redemption, mortgage, exchange or procure in order to acquire land and other immovable property for use in its business operation. This includes the operation of estate development business in order to offer residential house, commercial building, shopping mall or all other building for sale.
(35) To borrow money and mortgage, pledge or create charge on the company’s property in whole or partial in order to secure the performance of said debt.
(36) To contact with government sector, local government, local government office, officer or any other authority in order to obtain right, title, license, concession or any other privilege that are required by law for the operation of its business objectives.
(37) To issue its letter of guarantee for debts of natural person or juristic person, including guarantee in accordance with immigration law and revenue code for the debt arisen against relevant person or in connection with the operation of the company.
(38) To procure, purchase and sell radar, sonar, telecommunication and satellite including their spare parts. To install, service, repair and upgrade all said equipment.
(39) To operate its business under joint venture contract between the company and any public or private sectors in any type of undertaking such as frequency communication.
(40) To open bank account, deposit money with, withdraw or overdraw money from any banks.
(41) To become a limited liability partners in other partnership, and to become a shareholder in any other limited company both in Thailand or abroad regardless of said partnership or company’s business objectives.
(42) To set up its branch or office of representative in Thailand or anywhere on this world.
(43) The company has right to issue its shares and sell them at the price higher than their par value.
บริษัท A
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(Translation)
1) To establish industrial factory to manufacture and assembly tractor motor vehicle, electric and oil-combustion engine, water pumps, construction and soil work mechanical machine, carpenter and blacksmith tools and equipment, agricultural tools and equipment, water gauge including all spares and parts of all type of machinery.
2) To operate business of contracting for the construction, design and calculating for construction drawing as well as bidding for construction contract, including trading construction material, construction equipment and tools.
3) To undertake land, water and air transportation.
4) To trade, exchange, lease, lease out, hire-purchase, mortgage immovable property and other associated right, including movable property mentioned in clause 1 and office equipment.
5) To engage in purchasing, registering and acquiring by other means for right in patent, industrial design, copyright, trademark, undisclosed invention or the like for the benefit of the company.
6) To take on loan with or without collateral, to guarantee and provide collateral in various type of undertaking including guarantee in accordance with immigration law.
7) To engage in business of being a broker, agency, commission agency on behalf of other for undertaking all type of commercial or business transaction (except for insurance business, association member recruitment, and security trading).
8) To make an investment by becoming a limited liability partners in other partnership or becoming a shareholder in other registered ordinary partnership or company limited notwithstanding the fact that said partnership or company’s business objectives might be inconsistent.
9) To manufacture, assembly, repair, modify, order, commercially import and export gun, bullet, explosive including weaponry and armament as well as all types of tools and equipment concerning military and police operation.
10) To engage in business of lathing metal work-pieces, assembling metal structure, finishing metal work and trading products made of iron and other metal.
11) To manufacture and assembly all types of truck motor vehicle.
12) The company has right to issue its shares and sell them at the price higher than their par value.
*********************************************************************
บริษัท B
---------------------------------------------------------------------
(Translation)
1) To operate business of manufacturing gas stoves’ igniter and their relevant products.
2) To purchase and import raw material for using in company’s enterprise.
3) To conduct search, research, compilation of data, summary and statistical report and any data relevant to industrial and commercial activities for the purpose of company’s interest.
4) To purchase, sell, lease, hire-purchase, lease out, exchange, mortgage or otherwise acquire machinery, land and other immovable property for using in company’s enterprise.
5) To purchase, sell, lease, lease out, exchange, pledge or accept pledging or otherwise acquire mechanical tools, apparatus, equipment, fitting, accessories and parts that of beneficial to company’s enterprise.
6) To borrow money and issue commercial bill and other instrument of debt and obligation from time to time in order to achieve company’s legal business objectives; and mortgage, pledge or create charge on the company’s property, right, privilege and assets in whole or partial including unpaid amount of share; in order to secure the performance of said debt
7) To become a limited liability partners in other partnership, and to become a shareholder in any other limited company both in Thailand or abroad regardless of any inconsistency of this company’s and said partnership or company’s business objectives.
8) To contact with governmental sector, governmental department and relevant official for acquiring and registering.
9) To guarantee loan, liability and contractual performance of natural person or juristic person, including guarantee immigrating or emigrating persons in accordance with immigration law and revenue law and other law, provided that such guaranteeing is not commercially done.
10) To issue company’s shares and sell them at the price higher than their par value
*************************************************************************
บริษัท C
---------------------------------------------------------------------
(1) To engage in business of providing electronic mail (e-mail) security system namely the system for filtering against Spam and Malicious Software such as computer virus and Worm etc that may be attached to the e-mail.
(2) To purchase, sell, import for domestic distribution, and export for foreign distribution all type of airplanes’ spare parts including general equipment associated with said goods. As well as, to distribute and exchange airplanes.
(3) To trade and import tools and equipment for telecommunication and microwave, television receiver/transmitter, radio receiver/transmitter, phonograph disk player, tape recorder, recording tape, telephone set, computer set, telephone box station, musical instrument, camera, motion picture recorder, and motion picture projector including equipment and spare parts as associated to said goods.
(4) To trade arm, weaponry, armament, battling supporter, training tool, communication tool, and uniform and clothing of all kind and quality used in military, police, and civil government service, as well as general government service such as all kind and quality of ammunition, gunpowder, holster, gun girdle, warship, cargo ship, airplane, tanker, helicopter, rocket, bayonet, pocket knife, cargo vehicle, barbwire, oil paints, chemicals used for manufacture of ammunition, gunpowder, rocket, all type of uniforms, shoes, tent, blanket, water bottle, electronic appliance including their associated equipment and spare parts.
(5) To trade bicycle, motorcycle, car, truck, tractor, and other vehicles including their spare parts, components, and equipment.
(6) To trade electrical appliance, transformer, light bulb, cables, equipment, and spare parts of said appliance.
(7) To procure, purchase, sell, and install all type of alarming equipment and/or equipment associated to all type of alarming system, which were used in connection with telecommunication, satellite, and frequency communication.
(8) To operate business of contracting for the construction of dwelling house, commercial building, office building, highway, bridge, and all types of public works.
(9) To trade construction material, construction equipment and tools such as boulder, sand, soil, pebble, steel bar, tile etc.
(10) To trade timber products, logs, planks, plywood, wood scraps.
(11) To trade mineral or all ore of metal in all types such as tin, antimony, silver etc.
(12) To trade and produce all categories of fresh foods, seafood, dried foods, and instant foods.
(13) To trade plastic goods or the like, both in form of raw material or finished plastic products.
(14) To trade alcoholic and non-alcoholic beverage such as aerated water, fruit juice, beer, brandy, gin, rum, wine, or other type of liquor etc.
(15) To trade chemicals for agricultural and industrial usage.
(16) To trade medical supplies, medicines, chemicals for medical and pharmaceutical usage, cosmetics, including tools and equipment for medical and pharmaceutical usage.
(17) To trade steel bar, cement, petroleum, textiles, water pipe, and oil pipe.
(18) To trade, lease, lease out, hire-purchase, pledge, accept pledging, mortgage and other movable property.
(19) To trade clothing, ornamentation, including all sporting equipment.
(20) To trade household furnishing and decoration, including those used for furnishing and decorating all type of buildings.
(21) To receive or submit a bid for purpose of selling and purchasing goods as specified in the company’s business objective, including the bidding with all public or private organization for obtaining mineral lease, undertaking construction or other public works.
(22) To trade gasoline and gas.
(23) To trade instrument of weighing, a weight, measure or glassware.
(24) To trade gold, copper alloy, silver, gem and other jewel.
(25) To trade papers, stationary, forms, books, educational instrument, and office tools and equipment.
(26) To trade, lease, lease out, hire-purchase, pledge, accept pledging for the following goods i.e. cooling appliance, refrigerator, air conditioner, electric fan, air purifier, washing machine, vacuum cleaner, cooking or grilling appliance, including their supporting tools and spare parts.
(27) To trade rice and its products, corn, jute, cotton, cassava, vegetables, fruits, all type of farm plants, sugar, herbs, spices, consumers goods, fertilizer, flowers, orchids, plywood, rattan work, basketwork, glassware, pottery, sculpture, leather, local handicraft, antiques, ancient articles, artifacts and souvenirs.
(28) To engage in business of being a broker, agency, commission agency on behalf of natural person or juristic person, domestic and abroad, for all type of business transaction (except for insurance business, association member recruitment, and security trading).
(29) To engage in tourism service, including selling domestic and foreign trips airplane ticket of all airlines in the world, and to provide booking service or arrange for the booking of said airplane ticket.
(30) To lease out car and all other type of vehicles.
(31) To engage in business of hotel, motel, bungalow, residence, bar, restaurant, nightclub, and all other places of entertainment.
(32) To prepare documentation and proceed on custom formality required for importing and exporting goods, this include the undertaking of goods packaging for abroad transportation either by land, sea or air.
(33) To be a consultant that provide advice on how to solve managerial problems and improve managerial systems in fields of industry, agriculture and commerce that include production, marketing and industrial technique.
(34) To buy, sell, lease, lease out, hire-purchase, sell with right of redemption, mortgage, exchange or procure in order to acquire land and other immovable property for use in its business operation. This includes the operation of estate development business in order to offer residential house, commercial building, shopping mall or all other building for sale.
(35) To borrow money and mortgage, pledge or create charge on the company’s property in whole or partial in order to secure the performance of said debt.
(36) To contact with government sector, local government, local government office, officer or any other authority in order to obtain right, title, license, concession or any other privilege that are required by law for the operation of its business objectives.
(37) To issue its letter of guarantee for debts of natural person or juristic person, including guarantee in accordance with immigration law and revenue code for the debt arisen against relevant person or in connection with the operation of the company.
(38) To procure, purchase and sell radar, sonar, telecommunication and satellite including their spare parts. To install, service, repair and upgrade all said equipment.
(39) To operate its business under joint venture contract between the company and any public or private sectors in any type of undertaking such as frequency communication.
(40) To open bank account, deposit money with, withdraw or overdraw money from any banks.
(41) To become a limited liability partners in other partnership, and to become a shareholder in any other limited company both in Thailand or abroad regardless of said partnership or company’s business objectives.
(42) To set up its branch or office of representative in Thailand or anywhere on this world.
(43) The company has right to issue its shares and sell them at the price higher than their par value.
Alcoholic Beverage Control Act
อันนี้เป็นคำถามที่ ลูกความถามหัวหน้าผมมา
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Dear Khun M,
Referring to our telecon., please find copy of “Alcohol Beverage Control Act B.E. 2551” in Thai and english version in the files attached as discussed.
Section 30 (5) and Section 32 are concern with Our 2 up-comming activities;
1. We will organized “Degustation” activities during “Thaifex 2008” (www.worldoffoodasia.com) where there will be an Italian Pavilion showcasing Italian alimentary products (food and wine) from 15 participating italian companies from Italy (21-25 May 2008 at IMPACT).
2. We had already received advertisement confirmations from 2 italian wine producers in our “Alimenta” in-house magazine. This magazine will be distributed both in Thailand and Italy. We plan to print this magazine in late April 2008.
We would like to ask your kind sugguestion whether there will be any effect toward these 2 activities. We are at your complete disposal for any additional information or clarification you may required.
Thank you for your kind attention and looking forward to hearing from you.
***************************************************************************
อันนี้เป็นคำตอบที่ผมตอบหัวหน้าไป
-------------------------------------------------------------------------
Memo
Re Alcoholic Beverage Control Act BE 2551.
To Khun MM
From T
Date March 24, 2008
---------------------
Reference is made to client's email dated 21 March 08, seeking our advice on the affect of the above mentioned Act to 2 up-coming activities of theirs.
1) Under new Alcoholic Beverage Control Act BE 2551 section 30(5), nobody is allowed to give out alcoholic beverage as a free sample or with the purpose of inviting the public to consume such alcoholic beverage. Apparently, none of the 15 “Degustation” participating Italian Company is allowed to give out free sample of its wine or inviting the audience to taste its wine, otherwise they will commit an offence under the above mentioned Act.
2) Under section 32, nobody is allowed to directly or indirectly advertises alcoholic beverage or displays its name or marks in manner that claiming qualities of such alcoholic beverage or inviting any other to give it a drink.
Also under section 32, any advertisement or public relation made by all kinds of alcoholic beverage manufacturer must be of limited only to furnishing informative news and social-constructive knowledge. No image of alcoholic beverage products or their packaging shall be appeared in such advertisement or public relation with the exception only to the appearance of the symbolic image of alcohol beverage or the symbol of said alcoholic beverage manufacturer according to the prescription in the Ministerial Regulations.
In order to avoid committing an offence under section 32, an ads in the magazine must not cause an urge to it’s viewer to give the advertised-wine a try. This seem to give a little frustration, but that is function of this act to extinguish (or control) any further urge on alcoholic beverage. Also, no image of wine products or their packaging could be appeared in the ads except their symbolic image or symbol of manufacturer.
Just for your information, after the above mention Act has come into force for about 1 month, due to the drop in sale volume there is a movement from alcoholic beverage industries to propose an amendment to said Act to the Government. Some even says that the sale of alcoholic beverage has dropped over 50 percents after the enactment.
TWS
-------------------------------------------------------------------
Dear Khun M,
Referring to our telecon., please find copy of “Alcohol Beverage Control Act B.E. 2551” in Thai and english version in the files attached as discussed.
Section 30 (5) and Section 32 are concern with Our 2 up-comming activities;
1. We will organized “Degustation” activities during “Thaifex 2008” (www.worldoffoodasia.com) where there will be an Italian Pavilion showcasing Italian alimentary products (food and wine) from 15 participating italian companies from Italy (21-25 May 2008 at IMPACT).
2. We had already received advertisement confirmations from 2 italian wine producers in our “Alimenta” in-house magazine. This magazine will be distributed both in Thailand and Italy. We plan to print this magazine in late April 2008.
We would like to ask your kind sugguestion whether there will be any effect toward these 2 activities. We are at your complete disposal for any additional information or clarification you may required.
Thank you for your kind attention and looking forward to hearing from you.
***************************************************************************
อันนี้เป็นคำตอบที่ผมตอบหัวหน้าไป
-------------------------------------------------------------------------
Memo
Re Alcoholic Beverage Control Act BE 2551.
To Khun MM
From T
Date March 24, 2008
---------------------
Reference is made to client's email dated 21 March 08, seeking our advice on the affect of the above mentioned Act to 2 up-coming activities of theirs.
1) Under new Alcoholic Beverage Control Act BE 2551 section 30(5), nobody is allowed to give out alcoholic beverage as a free sample or with the purpose of inviting the public to consume such alcoholic beverage. Apparently, none of the 15 “Degustation” participating Italian Company is allowed to give out free sample of its wine or inviting the audience to taste its wine, otherwise they will commit an offence under the above mentioned Act.
2) Under section 32, nobody is allowed to directly or indirectly advertises alcoholic beverage or displays its name or marks in manner that claiming qualities of such alcoholic beverage or inviting any other to give it a drink.
Also under section 32, any advertisement or public relation made by all kinds of alcoholic beverage manufacturer must be of limited only to furnishing informative news and social-constructive knowledge. No image of alcoholic beverage products or their packaging shall be appeared in such advertisement or public relation with the exception only to the appearance of the symbolic image of alcohol beverage or the symbol of said alcoholic beverage manufacturer according to the prescription in the Ministerial Regulations.
In order to avoid committing an offence under section 32, an ads in the magazine must not cause an urge to it’s viewer to give the advertised-wine a try. This seem to give a little frustration, but that is function of this act to extinguish (or control) any further urge on alcoholic beverage. Also, no image of wine products or their packaging could be appeared in the ads except their symbolic image or symbol of manufacturer.
Just for your information, after the above mention Act has come into force for about 1 month, due to the drop in sale volume there is a movement from alcoholic beverage industries to propose an amendment to said Act to the Government. Some even says that the sale of alcoholic beverage has dropped over 50 percents after the enactment.
TWS
วันจันทร์ที่ ๗ กรกฎาคม พ.ศ. ๒๕๕๑
Relevant law on Import of Beauty Equipment
Memo
Re Import of Beauty Equipment under Medical Device Act BE 2551.
To Khun MM
From T
Date May 30, 2008
-------------------------------------------------------------------------
Reference is made to your instruction regarding laws and regulations that might control the import of Our Client's Beauty Equipment.
The relevant laws is Medical Device Act BE 2551 as attached hereto, in which the definition of medical device in section 4 is prescribed broadly to cover all device used in public health profession. However not all medical devices are restricted on importing. Section 6(1) stipulate that the Ministry of Public Health vest with the power to prescribe what type of medical device require license before importing, also in section 6(2) the Ministry may prescribe types of medical device that require the submission of details before importing.
Under section 6(1), Medical device that required license before importing are Condom, Examination glove, Surgical glove, Sterile hypodermic, Syringes for single use, Sterile single use Syringes for insulin, HIV test kit for diagnostic use. All of which seem to have nothing to do with our Beauty Equipment.
Under section 6(2), 19 and notification of the Ministry of Public Health (No. 19) regarding medical device relating to physiotherapy, any medical device that fall within the following category require the issuance of receipt by Thailand Food and Drug Administration (“FDA”) to evidence that the importer has submit details of said device to FDA before importing.
1 Machine or equipment that offer treatment by superficial heat which are
1.1 paraffin wax unit
1.2 hot pack, hydrocollator pack
1.3 electric heating pad
1.4 steam bath cabinet
1.5 moist air heat therapy unit
2 Machine or equipment that offer treatment by cryotherapy which are
2.1 cold pack
2.2 controller cold compression unit
3 Machine or equipment that offer treatment by hydrotherapy
4 Machine or equipment that offer treatment by direct electric current which are
4.1 galvanic or direct current
4.2 interrupted direct current
5 Machine or equipment that offer treatment by electric current with frequency lower that 2000 Hz which are
5.1 sinusoidal current
5.2 diadynaminc current
5.3 faradic current
5.4 high voltage current
5.5 transcutaneus electrical nerve stimulation – TENS
6 Machine or equipment that offer treatment by electric current with frequency between 2000-6000 Hz which are
6.1 Machine or equipment that offer treatment by interferential current
6.2 Machine or equipment that offer treatment by russian current
7 Machine or equipment that offer treatment by electric wave or electromagnetic wave with frequency more that 6000 Hz which are
7.1 Machine or equipment that offer treatment by shortwave diathermy
7.2 Machine or equipment that offer treatment by microwave diathermy
8 Machine or equipment that offer treatment by static current
9 Machine or equipment that offer treatment magnetotherapy
10 Machine or equipment that offer treatment by non-ionized radiation therapy) which are
10.1 Machine or equipment that offer treatment by ultraviolet
10.2 Machine or equipment that offer treatment by infrared
10.3 Machine or equipment that offer treatment by low power laser
11 Machine or equipment that offer treatment by mechanotherapy which are
11.1 massager
11.2 vibrator
11.3 pressure-applying Machine
11.4 electric traction machine
11.5 ultrasound
12 Machine or equipment that offer treatment by exercises therapy
If the Our client's Beauty Equipment is considered as any of the above machine of equipment, the importer must submit details with FDA before importing, otherwise such importer is subject to imprisonment not exceeding 1 year or fine not exceeding one hundred thousand or both according to section 87 of Medical Act BE 2551. In case that the importer is uncertain whether his device require submission of details or not, he could sending letter to FDA seeking for written confirmation.
Please be kindly informed.
TWS
Re Import of Beauty Equipment under Medical Device Act BE 2551.
To Khun MM
From T
Date May 30, 2008
-------------------------------------------------------------------------
Reference is made to your instruction regarding laws and regulations that might control the import of Our Client's Beauty Equipment.
The relevant laws is Medical Device Act BE 2551 as attached hereto, in which the definition of medical device in section 4 is prescribed broadly to cover all device used in public health profession. However not all medical devices are restricted on importing. Section 6(1) stipulate that the Ministry of Public Health vest with the power to prescribe what type of medical device require license before importing, also in section 6(2) the Ministry may prescribe types of medical device that require the submission of details before importing.
Under section 6(1), Medical device that required license before importing are Condom, Examination glove, Surgical glove, Sterile hypodermic, Syringes for single use, Sterile single use Syringes for insulin, HIV test kit for diagnostic use. All of which seem to have nothing to do with our Beauty Equipment.
Under section 6(2), 19 and notification of the Ministry of Public Health (No. 19) regarding medical device relating to physiotherapy, any medical device that fall within the following category require the issuance of receipt by Thailand Food and Drug Administration (“FDA”) to evidence that the importer has submit details of said device to FDA before importing.
1 Machine or equipment that offer treatment by superficial heat which are
1.1 paraffin wax unit
1.2 hot pack, hydrocollator pack
1.3 electric heating pad
1.4 steam bath cabinet
1.5 moist air heat therapy unit
2 Machine or equipment that offer treatment by cryotherapy which are
2.1 cold pack
2.2 controller cold compression unit
3 Machine or equipment that offer treatment by hydrotherapy
4 Machine or equipment that offer treatment by direct electric current which are
4.1 galvanic or direct current
4.2 interrupted direct current
5 Machine or equipment that offer treatment by electric current with frequency lower that 2000 Hz which are
5.1 sinusoidal current
5.2 diadynaminc current
5.3 faradic current
5.4 high voltage current
5.5 transcutaneus electrical nerve stimulation – TENS
6 Machine or equipment that offer treatment by electric current with frequency between 2000-6000 Hz which are
6.1 Machine or equipment that offer treatment by interferential current
6.2 Machine or equipment that offer treatment by russian current
7 Machine or equipment that offer treatment by electric wave or electromagnetic wave with frequency more that 6000 Hz which are
7.1 Machine or equipment that offer treatment by shortwave diathermy
7.2 Machine or equipment that offer treatment by microwave diathermy
8 Machine or equipment that offer treatment by static current
9 Machine or equipment that offer treatment magnetotherapy
10 Machine or equipment that offer treatment by non-ionized radiation therapy) which are
10.1 Machine or equipment that offer treatment by ultraviolet
10.2 Machine or equipment that offer treatment by infrared
10.3 Machine or equipment that offer treatment by low power laser
11 Machine or equipment that offer treatment by mechanotherapy which are
11.1 massager
11.2 vibrator
11.3 pressure-applying Machine
11.4 electric traction machine
11.5 ultrasound
12 Machine or equipment that offer treatment by exercises therapy
If the Our client's Beauty Equipment is considered as any of the above machine of equipment, the importer must submit details with FDA before importing, otherwise such importer is subject to imprisonment not exceeding 1 year or fine not exceeding one hundred thousand or both according to section 87 of Medical Act BE 2551. In case that the importer is uncertain whether his device require submission of details or not, he could sending letter to FDA seeking for written confirmation.
Please be kindly informed.
TWS
การขุดดินและถมดิน
บันทึก
เรื่อง การแจ้งการขุดดินและถมดิน และความผิดที่เกิดขึ้นจากการไม่ได้แจ้ง
ตาม พรบ. การขุดและถมที่ พ.ศ.2543 (“พรบ.”) และการขนดิน
เรียน คุณ
จาก
วันที่ 7 กันยายน พ.ศ. 2549
-------------------------------------------------
ท้องที่ซึ่งอยู่ภายใต้บังคับของ พรบ. คือ 1)เทศบาล 2)กทม. 3)เมืองพัทยา 4)องค์กรปกครองส่วนท้องถิ่น 5)พื้นที่ตามกฎหมายควบคุมอาคาร 6)เขตผังเมืองรวม ฯลฯ (ตามมาตรา 3)
“เจ้าพนักงานท้องถิ่น”ตามกฎหมายนี้ได้แก่ 1)นายกเทศมนตรี 2)ผู้ว่ากทม. 3)นายกเมืองพัทยา 4)ประธาน อบต. 5)หัวหน้าผู้บริหารองค์กรปกครองส่วนท้องถิ่น 6)นายก อบจ. (ตามมาตรา 4)
การขุดดินที่ลึกกว่า 3 เมตร หรือมีพื้นที่เกินกว่าหนึ่งหมื่นตารางเมตร จะต้องแจ้งต่อเจ้าพนักงานส่วนท้องถิ่นพร้อมเอกสารประกอบ โดยเจ้าพนักงานส่วนท้องถิ่นจะต้องออกใบรับแจ้งให้ภายใน 7 วันนับแต่ได้รับแจ้ง และเมื่อได้รับใบรับแจ้งแล้วจึงจะสามารถขุดดินได้ (มาตรา 17)
การถมดินที่มีพื้นที่เกินกว่าสองพันตารางเมตร ต้องจัดให้มีการระบายน้ำและแจ้งต่อเจ้าพนักงานส่วนท้องถิ่น โดยเจ้าพนักงานส่วนท้องถิ่นจะต้องออกใบรับแจ้งให้ภายใน 7 วันนับแต่ได้รับแจ้ง และเมื่อได้รับใบรับแจ้งแล้วจึงจะสามารถขุดดินได้ (มาตรา 26)
ในกรณีที่ได้ทำการขุดดินหรือถมดินโดยไม่ได้รับใบรับแจ้งมีความผิดจำคุกไม่เกินหนึ่งปีหรือปรับไม่เกินห้าหมื่นบาทหรือทั้งจำทั้งปรับ (มาตรา 35)
ในกรณีที่นิติบุคคลเป็นผู้กระทำความผิด กรรมการ ผู้จัดการ หรือบุคคลใดที่รับผิดชอบในการกระทำนั้นจะต้องรับผิดด้วย (มาตรา 43)
ความผิดตามพรบนี้ (ยกเว้นมาตรา 35 วรรคสอง) เป็นความผิดที่สามารถเปรียบเทียบปรับได้ โดยเจ้าพนักงานท้องถิ่นเป็นผู้มีอำนาจเปรียบเทียบปรับผู้ต้องหา และเมื่อได้ชำระเงินตามที่เปรียบเทียบแล้วให้ถือว่าคดีเป็นอันเลิกกันตามประมวลกฎหมายวิธีพิจารณาความอาญา
โดยเมื่อคดีอาญาเลิกกันแล้ว สิทธิในการนำคดีอาญามาฟ้องก็ถือว่าระงับไป ดังนั้นเจ้าพนักงานตำรวจจึงไม่มีอำนาจในการสอบสวน อัยการไม่มีอำนาจฟ้อง ศาลไม่มีอำนาจพิจารณา ในทำนองเดียวกันกับการถอนคำร้องทุกข์ (มาตรา 39(3) ของประมวลกฎหมายวิธีพิจารณาความอาญา)
สำหรับการขนดินนั้น ไม่จำเป็นต้องขออนุญาต แต่ในการแจ้งขุดดินนั้น ผู้แจ้งจะต้องระบุรายละเอียด ถึงวิธีการขนดินด้วย (มาตรา 17(4))
อย่างไรก็ตามในกรณีที่สิ่งที่ขนนั้นเป็นแร่ตามนิยามในมาตรา 4 พรบ แร่ พ.ศ.2510 แล้ว ก็จะต้องขออนุญาตขนแร่ต่อเจ้าพนักงานอุตสาหกรรมประจำท้องที่ก่อนตามมาตรา 108 ของ พรบ แร่ พ.ศ. 2510
จึงรายงานมาเพื่อทราบ
เรื่อง การแจ้งการขุดดินและถมดิน และความผิดที่เกิดขึ้นจากการไม่ได้แจ้ง
ตาม พรบ. การขุดและถมที่ พ.ศ.2543 (“พรบ.”) และการขนดิน
เรียน คุณ
จาก
วันที่ 7 กันยายน พ.ศ. 2549
-------------------------------------------------
ท้องที่ซึ่งอยู่ภายใต้บังคับของ พรบ. คือ 1)เทศบาล 2)กทม. 3)เมืองพัทยา 4)องค์กรปกครองส่วนท้องถิ่น 5)พื้นที่ตามกฎหมายควบคุมอาคาร 6)เขตผังเมืองรวม ฯลฯ (ตามมาตรา 3)
“เจ้าพนักงานท้องถิ่น”ตามกฎหมายนี้ได้แก่ 1)นายกเทศมนตรี 2)ผู้ว่ากทม. 3)นายกเมืองพัทยา 4)ประธาน อบต. 5)หัวหน้าผู้บริหารองค์กรปกครองส่วนท้องถิ่น 6)นายก อบจ. (ตามมาตรา 4)
การขุดดินที่ลึกกว่า 3 เมตร หรือมีพื้นที่เกินกว่าหนึ่งหมื่นตารางเมตร จะต้องแจ้งต่อเจ้าพนักงานส่วนท้องถิ่นพร้อมเอกสารประกอบ โดยเจ้าพนักงานส่วนท้องถิ่นจะต้องออกใบรับแจ้งให้ภายใน 7 วันนับแต่ได้รับแจ้ง และเมื่อได้รับใบรับแจ้งแล้วจึงจะสามารถขุดดินได้ (มาตรา 17)
การถมดินที่มีพื้นที่เกินกว่าสองพันตารางเมตร ต้องจัดให้มีการระบายน้ำและแจ้งต่อเจ้าพนักงานส่วนท้องถิ่น โดยเจ้าพนักงานส่วนท้องถิ่นจะต้องออกใบรับแจ้งให้ภายใน 7 วันนับแต่ได้รับแจ้ง และเมื่อได้รับใบรับแจ้งแล้วจึงจะสามารถขุดดินได้ (มาตรา 26)
ในกรณีที่ได้ทำการขุดดินหรือถมดินโดยไม่ได้รับใบรับแจ้งมีความผิดจำคุกไม่เกินหนึ่งปีหรือปรับไม่เกินห้าหมื่นบาทหรือทั้งจำทั้งปรับ (มาตรา 35)
ในกรณีที่นิติบุคคลเป็นผู้กระทำความผิด กรรมการ ผู้จัดการ หรือบุคคลใดที่รับผิดชอบในการกระทำนั้นจะต้องรับผิดด้วย (มาตรา 43)
ความผิดตามพรบนี้ (ยกเว้นมาตรา 35 วรรคสอง) เป็นความผิดที่สามารถเปรียบเทียบปรับได้ โดยเจ้าพนักงานท้องถิ่นเป็นผู้มีอำนาจเปรียบเทียบปรับผู้ต้องหา และเมื่อได้ชำระเงินตามที่เปรียบเทียบแล้วให้ถือว่าคดีเป็นอันเลิกกันตามประมวลกฎหมายวิธีพิจารณาความอาญา
โดยเมื่อคดีอาญาเลิกกันแล้ว สิทธิในการนำคดีอาญามาฟ้องก็ถือว่าระงับไป ดังนั้นเจ้าพนักงานตำรวจจึงไม่มีอำนาจในการสอบสวน อัยการไม่มีอำนาจฟ้อง ศาลไม่มีอำนาจพิจารณา ในทำนองเดียวกันกับการถอนคำร้องทุกข์ (มาตรา 39(3) ของประมวลกฎหมายวิธีพิจารณาความอาญา)
สำหรับการขนดินนั้น ไม่จำเป็นต้องขออนุญาต แต่ในการแจ้งขุดดินนั้น ผู้แจ้งจะต้องระบุรายละเอียด ถึงวิธีการขนดินด้วย (มาตรา 17(4))
อย่างไรก็ตามในกรณีที่สิ่งที่ขนนั้นเป็นแร่ตามนิยามในมาตรา 4 พรบ แร่ พ.ศ.2510 แล้ว ก็จะต้องขออนุญาตขนแร่ต่อเจ้าพนักงานอุตสาหกรรมประจำท้องที่ก่อนตามมาตรา 108 ของ พรบ แร่ พ.ศ. 2510
จึงรายงานมาเพื่อทราบ
หารือกรมที่ดิน - กรรมสิทธิในคอนโดของคนต่างด้าว
อันนี้เป็นหนังสือมอบอำนาจให้ทำยื่นหนังสือหารือกับกรมที่ดิน และตัวหนังสือหารือที่ได้ยื่นกับกรมที่ดิน ประเด็นจะเป็นเกี่ยวกับเรื่องหลักฐานการนำเงินเข้าประเทศไทยของคนต่างด้าวเพื่อให้มีสิทธิในการถือกรรมสิทธิในคอนโดตามพรบ.อาคารชุดฯ ลูกความให้ถามว่าถ้าเราไม่มีหลักฐานตามที่กฎหมายกำหนดแต่เรามีหลักฐานอย่างอื่นจะใช้แทนได้หรือไม่ ซึ่งจากหนังสือหารือฉบับนี้กรมที่ดินก็ได้มีแนวปฏิบัติใหม่เกี่ยวกับเรื่องหลักฐานที่ยืดหยุ่นมากขึ้น
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หนังสือมอบอำนาจ
เขียนที่ บริษัท จำกัด (มหาชน)
วันที่ พฤศจิกายน 2548
โดยหนังสือฉบับนี้ข้าพเจ้า บริษัท 000 จำกัด (มหาชน) (.”บริษัท”)โดยนายพส และ………กรรมการผู้มีอำนาจ สำนักงานใหญ่อยู่เลขที่ ซอย ถนน แขวง เขต กรุงเทพมหานคร ขอมอบอำนาจให้นายธผ และ/หรือนายทสุอายุ , ปี อยู่บ้านเลขที่ อาคารชั้น ถนนแขวง เขต กรุงเทพมหานคร เป็นผู้มีอำนาจกระทำการแทนตามกฎหมาย โดยให้มีอำนาจดำเนินการอย่างหนึ่งอย่างใดหรือหลายอย่างในนามของข้าพเจ้าดังต่อไปนี้
ข้อ 1. ให้มีอำนาจในการดำเนินการจัดเตรียมเอกสารต่างและลงนามในหนังสือหารือเรื่องหลักฐานการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักรที่ต้องนำมาแสดงเพื่อขอให้ได้มาซึ่งกรรมสิทธิในห้องชุดของคนต่างด้าว ตาม พ.ร.บ. อาคารชุด พ.ศ.2522 ต่อกรมที่ดิน ธนาคารแห่งประเทศไทย และหน่วยงานราชการอื่นๆ ที่เกี่ยวข้อง
ข้อ 2. ให้มีอำนาจให้ถ้อยคำต่างๆต่อพนักงานเจ้าหน้าที่ ลงลายมือชื่อในเอกสารต่างๆ และรับรองเอกสารต่างๆ ที่เกี่ยวข้องกับเรื่องดังกล่าวข้างต้น รวมทั้งกระทำการทั้งหลายที่จำเป็นเพื่อการดังกล่าวเกี่ยวกับการหารือและตอบข้อหารือแก่บริษัทในเรื่องดังกล่าวข้างต้นแทนบริษัทจนเสร็จการ
ให้ผู้รับมอบอำนาจดังกล่าวมีอำนาจโดยเต็มที่ในการกระทำ และการปฏิบัติการทุกอย่างตามที่จำเป็น และเหมาะสมที่จะกระทำเกี่ยวกับการดังกล่าวข้างต้นเพื่อให้บรรลุเจตนารมณ์ และวัตถุประสงค์ทั้งหมดดังเช่นที่สามารถกระทำได้ ข้าพเจ้าขอยืนยันและให้สัตยาบันไว้ ณ ที่นี้ในบรรดาการทั้งหลายที่ผู้รับมอบอำนาจได้กระทำไปโดยชอบด้วยกฎหมาย โดยอาศัยอำนาจตามหนังสือมอบอำนาจฉบับนี้ ให้มีผลผูกพันข้าพเจ้าเสมือนหนึ่งข้าพเจ้าได้กระทำด้วยตนเองทุกประการ
เพื่อเป็นหลักฐาน จึงได้ลงลายมือชื่อไว้ในหนังสือมอบอำนาจนี้เป็นสำคัญต่อหน้าพยาน
ลงชื่อ ผู้มอบอำนาจ
()
ลงชื่อ ผู้รับมอบอำนาจ
(นาย ธผ)
ลงชื่อ ผู้รับมอบอำนาจ
(นาย ทส)
ลงชื่อ พยาน
()
ลงชื่อ พยาน
()
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วันที่ 21 ธันวาคม พ.ศ. 2548
เรื่อง ขอหารือเรื่องหลักฐานการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักรที่ต้องนำมาแสดง เพื่อขอได้มาซึ่งกรรมสิทธิ์ในห้องชุดของคนต่างด้าว ตาม พ.ร.บ. อาคารชุด พ.ศ.2522
เรียน อธิบดีกรมที่ดิน
อ้างถึง ระเบียบกรมที่ดินว่าด้วยการถือกรรมสิทธิ์ในห้องชุดของคนต่างด้าวและนิติบุคคลที่กฎหมายถือว่าเป็นคนต่างด้าว พ.ศ.2547
สิ่งที่แนบมาด้วย
(1) หนังสือมอบอำนาจ
(2) หนังสือรับรองบริษัท จำกัด (มหาชน)
(3) สำเนาหนังสือสัญญาจะซื้อจะขายห้องชุดของลูกค้าบางราย จำนวน 3 ชุด
(4) สำเนาหลักฐานการชำระเงินมัดจำด้วยเงินสดของลูกค้าบางราย จำนวน 1 ชุด
(5) สำเนาหลักฐานการชำระเงินมัดจำด้วยบัตรเครดิตของลูกค้าบางราย จำนวน 3 ชุด
(6) สำเนาหลักฐานการชำระเงินมัดจำด้วยเช็คของลูกค้าบางราย จำนวน 3 ชุด
ด้วยบริษัท จำกัด (มหาชน) (“บริษัท”) เป็นบริษัทที่จดทะเบียนอยู่ในตลาดหลักทรัพย์แห่งประเทศไทย และได้ดำเนินการก่อสร้างอาคารชุดภายใต้ชื่อโครงการ “” ซึ่งตั้งอยู่ที่ ตำบล อำเภอ จังหวัด และได้ทำสัญญาจะซื้อจะขายห้องชุดกับผู้จะซื้อ(“ลูกค้า”) ซึ่งเป็นคนต่างด้าวในโครงการดังกล่าว และตามสัญญาจะซื้อจะขายห้องชุดนั้นได้กำหนดให้คนต่างด้าวซึ่งเป็นผู้จะซื้อห้องชุดชำระเงินมัดจำเป็นจำนวนร้อยละ 25 ของราคาห้องชุดที่ตกลงจะซื้อขายทั้งหมด และการจ่ายเงินชำระค่าห้องชุดอาจแบ่งชำระเป็นงวดๆ แตกต่างกันไปในลูกค้าแต่ละราย ปรากฎตามรายละเอียดในสัญญาจะซื้อจะขายห้องชุดของลูกค้าบางราย ที่ได้แนบท้ายหนังสือหารือฉบับนี้
ลูกค้าของบริษัทเป็นบุคคลต่างด้าวที่ไม่มีภูมิลำเนาอยู่ในประเทศไทย และเงินที่ลูกค้านำมาชำระเป็นเงินมัดจำนั้นก็เป็นเงินของลูกค้าที่ได้นำเข้ามาในราชอาณาจักรโดยไม่ได้มีการโอนเงินมาจากต่างประเทศซึ่งเป็นภูมิลำเนาของลูกค้า และในการชำระเงินมัดจำที่ได้มีการแบ่งชำระเป็นงวดๆนั้น ลูกค้าได้จ่ายในรูปเงินสด บัตรเครดิต และเช็ค ตามรายละเอียดหลักฐานการรับเงินของบริษัทที่ออกให้กับลูกค้าบางราย ที่ได้แนบมาพร้อมกับหนังสือหารือฉบับนี้
เมื่อบริษัทก่อสร้างอาคารชุดใกล้จะแล้วเสร็จและกำลังดำเนินการจัดเตรียมเอกสารต่างๆ เรื่องการโอนกรรมสิทธิในห้องชุดให้แก่ลูกค้าซึ่งเป็นคนต่างด้าว และในการติดต่อกับเจ้าพนักงานที่ดินจังหวัด สาขา เจ้าพนักงานที่ดินแจ้งต่อบริษัทว่าไม่สามารถดำเนินการจดทะเบียนโอนกรรมสิทธิ์ห้องชุดให้แก่ลูกค้าได้ เนื่องจากลูกค้าของบริษัทไม่มีหลักฐานการนำเงินเข้ามาในราชอาณาจักรตามระเบียบของกรมที่ดินว่าด้วยการถือกรรมสิทธิ์ในห้องชุดของคนต่างด้าวและนิติบุคคลซึ่งกฎหมายถือว่าเป็นคนต่างด้าว
เพื่อให้ลูกค้าต่างด้าวของบริษัทสามารถรับโอนกรรมสิทธิ์ในห้องชุดได้ บริษัทจึงขอหารือต่อกรมที่ดินตามประเด็นดังต่อไปนี้
1) หลักฐานการชำระเงินมัดจำเป็นเงินสด จะสามารถใช้เป็นหลักฐานการนำเงินเข้ามาในราชอาณาจักรได้หรือไม่
2) หลักฐานการชำระเงินมัดจำโดยใช้บัตรเครดิตหรือเช็คจะสามารถใช้เป็นหลักฐานการนำเงินเข้ามาในราชอาณาจักรได้หรือไม่
3) ถ้าลูกค้าคนต่างด้าวมีหนังสือจากธนาคารในต่างประเทศที่ลูกค้าคนต่างด้าวนั้นฝากเงินอยู่ว่าได้มีการถอนเงินจากธนาคารในต่างประเทศเพื่อนำมาชำระค่าห้องชุดในประเทศไทย ดังนี้แล้วหนังสือจากธนาคารในต่างประเทศนั้นเมื่อนำมาใช้ประกอบกับหลักฐานตามข้อ 1) และข้อ 2) จะสามารถใช้เป็นหลักฐานว่ามีการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักรได้หรือไม่
4) ถ้าหลักฐานตามข้อ 1) ถึง ข้อ 3) ไม่สามารถใช้เป็นหลักฐานการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักร กรมที่ดินจะกรุณาให้คำแนะนำและแจ้งแนวทางปฏิบัติแก่บริษัทซึ่งเป็นบริษัทที่จดทะเบียนในตลาดหลักทรัพย์แห่งประเทศไทย เพื่อให้บริษัทสามารถดำเนินการโอนกรรมสิทธิ์ในห้องชุดให้แก่ลูกค้าต่างด้าวได้
บริษัทจึงขอหารือเพื่อให้กรมที่ดินมีหนังสือตอบข้อหารือข้างต้นเป็นลายลักษณ์อักษร เพื่อเป็นประโยชน์แก่บริษัทและลูกค้าเพื่อนำไปเป็นแนวทางในการทำนิติกรรมของห้องชุดดังกล่าวข้างต้นต่อไป และขอขอบคุณสำหรับความอนุเคราะห์จากท่านในเรื่องดังกล่าวข้างต้น จะเป็นพระคุณยิ่ง
ขอแสดงความนับถือ
ลงชื่อ ผู้รับมอบอำนาจ
(นายทส)
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หนังสือมอบอำนาจ
เขียนที่ บริษัท จำกัด (มหาชน)
วันที่ พฤศจิกายน 2548
โดยหนังสือฉบับนี้ข้าพเจ้า บริษัท 000 จำกัด (มหาชน) (.”บริษัท”)โดยนายพส และ………กรรมการผู้มีอำนาจ สำนักงานใหญ่อยู่เลขที่ ซอย ถนน แขวง เขต กรุงเทพมหานคร ขอมอบอำนาจให้นายธผ และ/หรือนายทสุอายุ , ปี อยู่บ้านเลขที่ อาคารชั้น ถนนแขวง เขต กรุงเทพมหานคร เป็นผู้มีอำนาจกระทำการแทนตามกฎหมาย โดยให้มีอำนาจดำเนินการอย่างหนึ่งอย่างใดหรือหลายอย่างในนามของข้าพเจ้าดังต่อไปนี้
ข้อ 1. ให้มีอำนาจในการดำเนินการจัดเตรียมเอกสารต่างและลงนามในหนังสือหารือเรื่องหลักฐานการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักรที่ต้องนำมาแสดงเพื่อขอให้ได้มาซึ่งกรรมสิทธิในห้องชุดของคนต่างด้าว ตาม พ.ร.บ. อาคารชุด พ.ศ.2522 ต่อกรมที่ดิน ธนาคารแห่งประเทศไทย และหน่วยงานราชการอื่นๆ ที่เกี่ยวข้อง
ข้อ 2. ให้มีอำนาจให้ถ้อยคำต่างๆต่อพนักงานเจ้าหน้าที่ ลงลายมือชื่อในเอกสารต่างๆ และรับรองเอกสารต่างๆ ที่เกี่ยวข้องกับเรื่องดังกล่าวข้างต้น รวมทั้งกระทำการทั้งหลายที่จำเป็นเพื่อการดังกล่าวเกี่ยวกับการหารือและตอบข้อหารือแก่บริษัทในเรื่องดังกล่าวข้างต้นแทนบริษัทจนเสร็จการ
ให้ผู้รับมอบอำนาจดังกล่าวมีอำนาจโดยเต็มที่ในการกระทำ และการปฏิบัติการทุกอย่างตามที่จำเป็น และเหมาะสมที่จะกระทำเกี่ยวกับการดังกล่าวข้างต้นเพื่อให้บรรลุเจตนารมณ์ และวัตถุประสงค์ทั้งหมดดังเช่นที่สามารถกระทำได้ ข้าพเจ้าขอยืนยันและให้สัตยาบันไว้ ณ ที่นี้ในบรรดาการทั้งหลายที่ผู้รับมอบอำนาจได้กระทำไปโดยชอบด้วยกฎหมาย โดยอาศัยอำนาจตามหนังสือมอบอำนาจฉบับนี้ ให้มีผลผูกพันข้าพเจ้าเสมือนหนึ่งข้าพเจ้าได้กระทำด้วยตนเองทุกประการ
เพื่อเป็นหลักฐาน จึงได้ลงลายมือชื่อไว้ในหนังสือมอบอำนาจนี้เป็นสำคัญต่อหน้าพยาน
ลงชื่อ ผู้มอบอำนาจ
()
ลงชื่อ ผู้รับมอบอำนาจ
(นาย ธผ)
ลงชื่อ ผู้รับมอบอำนาจ
(นาย ทส)
ลงชื่อ พยาน
()
ลงชื่อ พยาน
()
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วันที่ 21 ธันวาคม พ.ศ. 2548
เรื่อง ขอหารือเรื่องหลักฐานการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักรที่ต้องนำมาแสดง เพื่อขอได้มาซึ่งกรรมสิทธิ์ในห้องชุดของคนต่างด้าว ตาม พ.ร.บ. อาคารชุด พ.ศ.2522
เรียน อธิบดีกรมที่ดิน
อ้างถึง ระเบียบกรมที่ดินว่าด้วยการถือกรรมสิทธิ์ในห้องชุดของคนต่างด้าวและนิติบุคคลที่กฎหมายถือว่าเป็นคนต่างด้าว พ.ศ.2547
สิ่งที่แนบมาด้วย
(1) หนังสือมอบอำนาจ
(2) หนังสือรับรองบริษัท จำกัด (มหาชน)
(3) สำเนาหนังสือสัญญาจะซื้อจะขายห้องชุดของลูกค้าบางราย จำนวน 3 ชุด
(4) สำเนาหลักฐานการชำระเงินมัดจำด้วยเงินสดของลูกค้าบางราย จำนวน 1 ชุด
(5) สำเนาหลักฐานการชำระเงินมัดจำด้วยบัตรเครดิตของลูกค้าบางราย จำนวน 3 ชุด
(6) สำเนาหลักฐานการชำระเงินมัดจำด้วยเช็คของลูกค้าบางราย จำนวน 3 ชุด
ด้วยบริษัท จำกัด (มหาชน) (“บริษัท”) เป็นบริษัทที่จดทะเบียนอยู่ในตลาดหลักทรัพย์แห่งประเทศไทย และได้ดำเนินการก่อสร้างอาคารชุดภายใต้ชื่อโครงการ “” ซึ่งตั้งอยู่ที่ ตำบล อำเภอ จังหวัด และได้ทำสัญญาจะซื้อจะขายห้องชุดกับผู้จะซื้อ(“ลูกค้า”) ซึ่งเป็นคนต่างด้าวในโครงการดังกล่าว และตามสัญญาจะซื้อจะขายห้องชุดนั้นได้กำหนดให้คนต่างด้าวซึ่งเป็นผู้จะซื้อห้องชุดชำระเงินมัดจำเป็นจำนวนร้อยละ 25 ของราคาห้องชุดที่ตกลงจะซื้อขายทั้งหมด และการจ่ายเงินชำระค่าห้องชุดอาจแบ่งชำระเป็นงวดๆ แตกต่างกันไปในลูกค้าแต่ละราย ปรากฎตามรายละเอียดในสัญญาจะซื้อจะขายห้องชุดของลูกค้าบางราย ที่ได้แนบท้ายหนังสือหารือฉบับนี้
ลูกค้าของบริษัทเป็นบุคคลต่างด้าวที่ไม่มีภูมิลำเนาอยู่ในประเทศไทย และเงินที่ลูกค้านำมาชำระเป็นเงินมัดจำนั้นก็เป็นเงินของลูกค้าที่ได้นำเข้ามาในราชอาณาจักรโดยไม่ได้มีการโอนเงินมาจากต่างประเทศซึ่งเป็นภูมิลำเนาของลูกค้า และในการชำระเงินมัดจำที่ได้มีการแบ่งชำระเป็นงวดๆนั้น ลูกค้าได้จ่ายในรูปเงินสด บัตรเครดิต และเช็ค ตามรายละเอียดหลักฐานการรับเงินของบริษัทที่ออกให้กับลูกค้าบางราย ที่ได้แนบมาพร้อมกับหนังสือหารือฉบับนี้
เมื่อบริษัทก่อสร้างอาคารชุดใกล้จะแล้วเสร็จและกำลังดำเนินการจัดเตรียมเอกสารต่างๆ เรื่องการโอนกรรมสิทธิในห้องชุดให้แก่ลูกค้าซึ่งเป็นคนต่างด้าว และในการติดต่อกับเจ้าพนักงานที่ดินจังหวัด สาขา เจ้าพนักงานที่ดินแจ้งต่อบริษัทว่าไม่สามารถดำเนินการจดทะเบียนโอนกรรมสิทธิ์ห้องชุดให้แก่ลูกค้าได้ เนื่องจากลูกค้าของบริษัทไม่มีหลักฐานการนำเงินเข้ามาในราชอาณาจักรตามระเบียบของกรมที่ดินว่าด้วยการถือกรรมสิทธิ์ในห้องชุดของคนต่างด้าวและนิติบุคคลซึ่งกฎหมายถือว่าเป็นคนต่างด้าว
เพื่อให้ลูกค้าต่างด้าวของบริษัทสามารถรับโอนกรรมสิทธิ์ในห้องชุดได้ บริษัทจึงขอหารือต่อกรมที่ดินตามประเด็นดังต่อไปนี้
1) หลักฐานการชำระเงินมัดจำเป็นเงินสด จะสามารถใช้เป็นหลักฐานการนำเงินเข้ามาในราชอาณาจักรได้หรือไม่
2) หลักฐานการชำระเงินมัดจำโดยใช้บัตรเครดิตหรือเช็คจะสามารถใช้เป็นหลักฐานการนำเงินเข้ามาในราชอาณาจักรได้หรือไม่
3) ถ้าลูกค้าคนต่างด้าวมีหนังสือจากธนาคารในต่างประเทศที่ลูกค้าคนต่างด้าวนั้นฝากเงินอยู่ว่าได้มีการถอนเงินจากธนาคารในต่างประเทศเพื่อนำมาชำระค่าห้องชุดในประเทศไทย ดังนี้แล้วหนังสือจากธนาคารในต่างประเทศนั้นเมื่อนำมาใช้ประกอบกับหลักฐานตามข้อ 1) และข้อ 2) จะสามารถใช้เป็นหลักฐานว่ามีการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักรได้หรือไม่
4) ถ้าหลักฐานตามข้อ 1) ถึง ข้อ 3) ไม่สามารถใช้เป็นหลักฐานการนำเงินตราต่างประเทศเข้ามาในราชอาณาจักร กรมที่ดินจะกรุณาให้คำแนะนำและแจ้งแนวทางปฏิบัติแก่บริษัทซึ่งเป็นบริษัทที่จดทะเบียนในตลาดหลักทรัพย์แห่งประเทศไทย เพื่อให้บริษัทสามารถดำเนินการโอนกรรมสิทธิ์ในห้องชุดให้แก่ลูกค้าต่างด้าวได้
บริษัทจึงขอหารือเพื่อให้กรมที่ดินมีหนังสือตอบข้อหารือข้างต้นเป็นลายลักษณ์อักษร เพื่อเป็นประโยชน์แก่บริษัทและลูกค้าเพื่อนำไปเป็นแนวทางในการทำนิติกรรมของห้องชุดดังกล่าวข้างต้นต่อไป และขอขอบคุณสำหรับความอนุเคราะห์จากท่านในเรื่องดังกล่าวข้างต้น จะเป็นพระคุณยิ่ง
ขอแสดงความนับถือ
ลงชื่อ ผู้รับมอบอำนาจ
(นายทส)
หมายแจ้งคำสั่งศาล และความเห็นเจ้าพนักงานพิทักษ์ทรัพย์
อันนี้เห็นหมายส่งคำสั่งศาล และความเห็นของเจ้าพนักงานพิทักษ์ทรัพย์เกี่ยวกับคำขอรับชำระหนี้ ต้องขอโทษด้วยครับ ผมไม่มีภาษาไทยให้ดูเปรียบเทียบ มีแต่ภาษาอังกฤษ
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(Translation)
Summon Notifying Court Order
(Garuda Emblem)
No. 00/2548 Legal Execution Department, Bangkhunnon Sub-District
Red Case No. 00/2543 Bangkok Noi District, Bangkok 10700
Bankruptcy Court
28 February 2005
0000 plc. Petitioning Creditor
Bankruptcy Case between
0000 Thani Co.,Ltd. et al Debtor
Summon to 0000, Creditor No.30 by Mr. AAAA BBBB as attorney in fact.
Where in this case, the Central Bankruptcy Court has issued order granting application for repayment of debt. The details appear in copy of documents attached hereto.
For that reason, please be notified accordingly; and it shall deem, upon receiving this order, that you have duly notified. You could inspect the said order with Official Receiver, Bankruptcy Division 4, Legal Executing Department, Ministry of Justice.
Since some original documents were submitted with your application If you desire to retrieve them back, please contact official after the elapse of 2 months from the date of receiving hereof.
Please Contact Ms. T T (sinature)
Tel 0-2881-4921 Ms P Kt
On behalf of Official Receiver
Central Bankruptcy Court 000/2543 T Jor.30
No 00/2548
Receipt
Date
I, AAAA BBBB, Creditor No.30, by Mr. 0000 0000 acting as attorney in fact, hereby receive summon of Official Receiver stating that I had acknowledged the Court Order Re: 0000 Thani Co.,Ltd. et al Debtor on date……………………………………………..time ………………………..…..o’clock.
00, 00th Floor, SS Road, …………………… Received by
T Subdistrict …………………… Served by Received by
S, Bangkok
Ms P K
**************************************************************
(Translation)
(Garuda Emblem)
Comment of Official Receiver Bankruptcy Division 4
On Application for Repayment Legal Execution Department
Of Creditor No. 30
Date…………………….
Red Case No 000/2543
Central Bankruptcy Court
0000 Plc. Petitioning Creditor
Between
0000 Thani Co.,Ltd. No 1,
Mr. 0000 or Mr.0000 No 2 Debtor
Case Of 00000 Creditor
The Official Receiver had already examined evidences relevant to application for repayment, and found that 0000 as Creditor No 30 has applied for repayment from assets of Mr. 0000 or 0000 Debtor No 2 on cause of indebtedness arisen from loan agreement and guarantee agreement in totaling amount of Baht 733,009,233.75. The details appeared in the application and its attachments as submitted by the Creditor.
The Official Receiver had granted all creditors and debtor a chance to examine the applications pursuant to section 104 of Bankruptcy Act BE 2483. It appeared that the Debtor No. 2 had objected this Creditor’s application. The Official Receiver then had inquired evidences relating thereto from both Creditor and Debtor.
The fact is established that 0000 Creditor No 30 is juristic person that was duly registered under law of the Federal Republic of German; its objective is to conduct business of commercial banking by accepting of deposits and granting of credits. The detail is appeared in 0000’s affidavit and its license to conduct business of commercial banking together with their translations, exhibit 5 page 4, exhibit 18/2 and exhibit 18/3.
In submitting this application for repayment, Creditor No. 30 represented by Mr. PEB, its managing director, has appointed Mr SW as attorney in fact and empowered him to delegate other to act in his stead. Mr SW has delegated Mr PR to proceed, in his stead, in submitting application for repayment. The detail appeared in exhibit 2 page 1, exhibit 10 page 36-38 and exhibit 18/1.
PFContainer Co., Ltd. (“the Company”) is limited company duly established under Civil and Commercial Code. The Company’s name in English is “HSFIBRE CONTAINER CO., LTD.”. Its objective is to operate business of importing products and raw material in category of all papered products including machinery utilized in manufacturing papered boxes. Its purpose is to produce paper and papered boxes to be distributing in both domestic and foreign markets. The Company shall be lawfully bound when its 2 directors jointly affix their signatures and stamp Company’s seal in cognizance thereof. The detail is appeared in the Company’s affidavit, exhibit 18/4.
Mr. V or ST, Debtor No 2 was directors and shareholder of the Company. The detail appeared in certified, by Registrar of Partnership and Company, copy of list of shareholder, exhibit 18/5.
The Company indebted toward Creditor No 30 on cause of indebtedness arising under 2 loan agreements as follows.
Clause 1 For the first loan agreement, the Company has signed it with Creditor No 30 on 14 June 1999 borrowing money of Deutsche Mark (“DM”)40,625,750. The Creditor No 30 has subsequently signed said loan agreement on 19 June 1999. The terms and condition on withdrawing the principal amount, as agreed therein by the Company, stating that the principal amount shall be delivered by Creditor No 30 to Sulzer-Escher Wyss GmbH, a company situated in Ravensburg, the Republic of German for settling 85 percent of the price of machinery goods that the Company had purchased from Sulzer-Escher Wyss GmbH. In taking of such principal amount, Sulzer-Escher Wyss GmbH shall deliver, 5 days in advance, payment certificate to Creditor No 30 informing the amount desired to take. After receiving such payment certificate, Creditor No 30 shall then deliver such principal amount.
The principal amount repayment, as agreed by the Company, shall be made in 20 equal installments, which shall become due for payment in every six months. The first installment shall be made within 6 months after the machinery so purchased were made ready for operation, however it shall be no later than 30 April 1991 and the next installment shall be made every six months following the due date of the prior installment. The final installment shall be however made on 31 October 2000. The Creditor No 30 shall deliver, by registered airmail, the Company the schedule of principal repayment and such schedule shall be considered as part of this agreement.
As for interest repayment in “Plafond C” facility, the Company agree to repay it in floating rate as fixed, from time to time, by Ausfuhrkredit-Gesellschaft mbH (AKA). Plafond C facility means loan directly granted to purchaser with collateral furnished. The interest repayment shall be made on every 31 March and 30 September of every year until the due date of the first installment of principal repayment; after such due date, the interest repayment shall be made simultaneously with principal repayment as above scheduled. Pursuant to clause 16.1 of the loan agreement, if the Company fail to make repayment of any installments of principal, interest or fee within time specified therefor or when any event of default occurred; it shall deem that such principal, interest, fee including any amount payable to the Creditor No 30 altogether become immediately due for payment. Interest for default, in rate of those interest specified in agreement plus 2 percent per annum, shall be demanded upon principal and other amount that debtor fail to repay within time specified, including interest that become due.
The Debtor No 2, Mr LT and Mr.ST, had enter guarantee agreement on 14 June 1989 binding themselves toward the Creditor No 30 as guarantor for securing the repayment in 75 percent of all principal amount including interest, fee and any expenses incurred under the agreement.
It has been agreed upon the Creditor No 30, the Company and Mr L T and Mr.ST the Debtor No 2 that this loan agreement shall be governed by the law of the Federal Republic of German. The detail appeared in the first loan agreement together with its translation, exhibit 18/6.
On 24 July 1989, Bangkok Metropolitan Bank Plc had issued irrevocable standby letter of credit No BMB 002/89 securing toward the Creditor No 30 the repayment in 25 percent of all principal amount including interest, fee and any expenses incurred under the agreement. The detail appeared in standby letter of credit together with its translation, exhibit 18/7.
The Creditor No 30 had consequently delivered the Company the schedule of repayment dated 17 July 1991. The detail appeared in the schedule of repayment together with its translation, exhibit 18/8.
After such loan agreement had been executed, the parties has made amendment and supplement thereto in totaling of 5 times. Mr LT, Mr.ST, the Debtor No 2 and Bangkok Metropolitan Bank Plc had agreed to be bound by terms and condition of every amendment and supplement. The main points thereof are summarized as follow;
1. The increase of credit amount from 40,625,750 DM to 55,075,750 DM (the first agreement for amendment and supplement loan agreement was signed on 10 and 15 December 1989.)
2. During the fifth agreement for amendment and supplement, the remaining principal indebtedness of 19,276,512.48 DM has been extended and re-scheduled timeframe and re-calculated the amount for the 14th to 20th installment as follow;
1) The 17th installment of DM 3,212,752.07, on 29 September 1999.
2) The 18th installment of DM 3,212,752.07, on 29 March 2000.
3) The 19th installment of DM 3,212,752.07, on 29 September 2000.
4) The 20th installment of DM 3,212,752.13, on 29 March 2001.
5) The 14th installment of DM 3,212,752.07, on 29 September 2001.
6) The 15th installment of DM 3,212,752.07, on 29 March 2002.
Amounting to 19,276,512.48 DM (the fifth agreement for amendment and supplement loan agreement was signed on 5 and 6 October 1998.)
3. Interest of floating rate had been amended to of fixed rate. For the 17th –20th installment, the interest shall be fixed at 5.7 percent per annum; and for 14th –15th installment, the interest shall be fixed at 6.25 percent per annum. The interest repayment shall be made simultaneously with the repayment of principal scheduled. (The third agreement for amendment and supplement loan agreement was signed on 30 June and 2 August 1993 and the fifth agreement for amendment and supplement loan agreement.)
4. The Company was bound to pay the Creditor No 30 the loan managing fee of 100,000 DM within 1 month from the signing date of the fifth agreement for amendment and supplement loan agreement which shall due on 6 December 1998. (The fifth agreement for amendment and supplement loan agreement.)
Any other terms and condition shall remain the same as specified in the original loan agreement. The detail appeared in those 5 agreements for amendment and supplement loan agreement with their translations, exhibit 18/9-18/13.
The Company has completely withdrew and received from the Creditor No 30 the principal amount of DM 55,075,749.85. The detail appeared in money receipt summary and those 20 payment certificates together with their translations, exhibit 18/14-18/15
The Company has repaid 13 installments from the first to the 13th amounting to DM 35,799,237.52. However, when the 17th installment become due for payment on 29 September 1999, the Company fails to repay such installment. On 29 September 1999 the Company still indebted toward the Creditor No 30 in amount of DM 19,276,512.48. The Company has then issued letter of acknowledgement of claim therefor. The detail appeared in letter of acknowledgement of claim dated 25 February 1998 and 28 September 1998 together with their translations, exhibit 18/16-18/17.
After those 5 agreements (for amendment and supplement loan agreement) has been concluded (The fifth agreement for amendment and supplement loan agreement was executed on 5 and 6 October 1998), the Company however bear indebtedness toward the Creditor No 30 in amount of 19,276,512.48 DM and loan managing fee of 100,000 DM.
Clause 2 For the second loan agreement, the Company has signed it with Creditor No 30 on 10 February 1995 borrowing money of DM 16,011,450. The Creditor No 30 has subsequently signed said loan agreement on 20 February 1995. The terms and condition on withdrawing the principal amount, as agreed therein by the Company, stating that the principal amount shall be delivered by Creditor No 30 to Voith Sulzer Papiermaschinen GmbH, a company situated in Ravensburg, the Republic of German for settling 85 percent of the price of machinery goods that the Company had purchased from Voith Sulzer Papiermaschinen GmbH. In taking of such principal amount, Voith Sulzer Papiermaschinen GmbH shall deliver, 5 days in advance, payment certificate to Creditor No 30 informing the amount desired to take. After receiving such payment certificate, Creditor No 30 shall then deliver such principal amount.
The principal amount repayment, as agreed by the Company, shall be made in 14 equal installments, which shall become due for payment in every six months. The first installment shall be made within 6 months after the machinery so purchased were made ready for operation, however it shall be no later than 30 April 1996 and the next installment shall be made every six months following the due date of the prior installment. The final installment shall be however made on 31 October 2000. The Creditor No 30 shall deliver, by registered airmail, the Company the schedule of principal repayment; and such schedule shall be considered as part of this agreement.
As for interest repayment, the Company agree to repay it in floating rate equal to Inter Bank interest rate in the Federal Republic of German (FIBOR) for period of 6 months plus 0.75 percent per annum. The interest repayment shall be made on every 31 May and 30 December of every year until the due date of the first installment of principal repayment; after such due date, the interest repayment shall be made simultaneously with principal repayment as above scheduled. Pursuant to clause 16.2 of the loan agreement, if the Company fail to make repayment of any installment principal, interest or fee within time specified therefor or when any event of default occurred; it shall deem that such principal, interest, fee including any amount payable to the Creditor No 30 altogether become immediately due for payment. Interest for default, in rate of discount interest as fixed, from time to time, by Central Bank of German plus 4 percent per annum shall be demanded upon principal and other amount that debtor fail to repay within time specified, including interest that become due for payment.
By statute come into force on 9 June 1998, the discount rate of the Central Bank of German had been repealed; and replaced from 1 January 1999 onward by base rate of the European Bank. The Central Bank of German shall publish, from time to time, such base rate in the Royal Gazette (Bundesanzeiger).
In securing the repayment of such loan, on 10 February 1995 Mr LT and Mr.ST, the Debtor No 2 agreed to bind themselves as joint debtor with the Company for making repayment of principal including interest, fee and all expenses incurred.
It has been agreed upon the Creditor No 30, the Company and Mr LT and Mr.ST the Debtor No 2 that this loan agreement shall be governed by the law of the Federal Republic of German. The detail appeared in the second loan agreement together with its translation, exhibit 18/18.
The Creditor No 30 had consequently delivered the Company the schedule of repayment dated 6 March 1997. The detail appeared in the schedule of repayment together with its translation, exhibit 18/19.
After such loan agreement had been executed, the parties has made amendment and supplement thereto in totaling of 5 times. Mr LT, Mr.ST, the Debtor No 2 and Bangkok Metropolitan Bank Plc agree to be bound by terms and condition of every amendment and supplement. The main points thereof are summarized as follow;
1. The increase of loan amount from DM 16,011,450 to DM 22,100,000 (the first agreement for amendment and supplement loan agreement was signed on 15 and 20 November 1995.)
2. In the fifth agreement for amendment and supplement, there was the remaining principal indebtedness of DM 20,521,428.57. The 2nd and 4th installment had been extended and the 5th to 14th installment had been re-scheduled and re-calculated as follow;
1) The 5th installment of DM 1,710,119.05, on 30 June 1999.
2) The 6th installment of DM 1,710,119.05, on 30 November 1999.
3) The 7th installment of DM 1,710,119.05, on 30 June 2000.
4) The 8th installment of DM 1,710,119.05, on 30 November 2000.
5) The 9th installment of DM 1,710,119.05, on 30 June 2001.
6) The 10th installment of DM 1,710,119.05, on 30 November 2001.
7) The 11th installment of DM 1,710,119.05, on 30 June 2002.
8) The 12th installment of DM 1,710,119.05, on 30 November 2002.
9) The 13th installment of DM 1,710,119.05, on 30 June 2003.
10) The 14th installment of DM 1,710,119.05, on 30 November 2003.
11) The 2nd installment of DM 1,710,119.02, on 30 June 2004.
12) The 4th installment of DM 1,710,119.05, on 30 November 2004.
Amounting to DM 20,521,428.57 (the forth agreement for amendment and supplement loan agreement was signed on 5 and 6 October 1998.)
3. The Company was bound to pay the Creditor No 30 the fee of DM 100,000 for managing loan agreement within 1 month from the signing date of the fifth agreement for amendment and supplement loan agreement which shall due on 6 December 1998. (The fifth agreement for amendment and supplement loan agreement.)
Any other terms and condition shall remain the same as specified in the original loan agreement. The detail appeared in those 5 agreements for amendment and supplement loan agreement with their translations, exhibit 18/20-18/24.
The Company has completely withdrew and received from the Creditor No 30 the principal amount of DM 21,100,00. The detail appeared in money receipt summary and those 6 payment certificates together with their translations, exhibit 18/26-18/27.
The Company had repaid the Creditor No 30 for 1 installment amounting to DM 1,578,571.52. Consequently, when the 5th installment become due for payment on 30 June 1999, the Company fails to repay such installment. The Company still indebted toward the Creditor No 30 in amount of DM 20,521,428.57. The Company has then issued letter of acknowledgement of claim therefor. The detail appeared in letter of acknowledgement of claim dated 28 September 1998 together with its translation, exhibit 18/17.
After those 5 agreements for amendment and supplement loan agreement has been concluded (The fifth agreement for amendment and supplement loan agreement was executed on 5 and 6 October 1998), the Company still however indebted toward the Creditor No 30 in amount of DM 20,521,428.57 and loan managing fee of DM 100,000.
The Creditor No 30, on 17 November 1999, has sent the Company a written notice for terminating both loan agreement and demanding all principal repayment thereunder. Subject to clause 16.1 and 16.2 of the first and second loan agreements respectively, if the Company is in default for any installments, the Creditor is then entitled to call all undue debt to become immediately due for repayment. All principal repayment was demanded by such notice to be made within 30 December 1999. The detail appeared written notice with its translation, exhibit 18/28. The Company has received the notice, but somehow fail to comply thereto.
On 21 March 2000, the Creditor No 30 has consequently sent written notice to Mr LT and Mr.ST the Debtor No 2 and Bangkok Metropolitan Bank Plc, both in capacity as the Company’s guarantor for demanding principal repayment under both loan agreement. The principal repayment was demanded by such notice to be made within 15 days upon receipt thereof. The detail appeared written notice with its translation, exhibit 18/29.
Mr LT and Mr.ST the Debtor No 2 and Bangkok Metropolitan Bank Plc both had received such written notice. Bangkok Metropolitan Bank had repaid the Creditor No 30 in 25 percent of the principal amount under the first loan agreement including outstanding interest and fee calculated up to 21 March 2000 amounting to DM 5,004,442.14. However the Debtor No 2 fail to made repayment anyhow.
On 20 October 2000, the Central Bankruptcy Court has ordered the Debtor No 2 under absolute receivership, and on such date the Debtor No 2 bear indebtedness toward the Creditor No 30 as calculated by the Creditor No 30 as follow;
1) Guaranty debt under the first loan agreement in amount of DM 15,668,834.33; the detail appeared in debt summary under the first loan agreement, exhibit 18/30.
2) Guaranty debt under the second loan agreement in amount of DM 22,183,632.44; the detail appeared in debt summary under the second loan agreement, exhibit 18/30.
Totaling amount of indebtedness was DM 37,852,466.77.
The Creditor No 30 referred exchange rate of 11 October 2000 as the date of notifying Order of Debtor No 2’s absolute receivership by Court to Official Receiver. Such referred date however is not the true date. On 11 October, 1 DM equal 19.3649 Baht as appeared in Bank Of Thailand’s announcement, exhibit 18/31 page 3; so, guaranty debt calculated in Baht currency shall be Baht 733,099,233.754. (Calculated from multiplying all guaranty debt of DM 37,852,466.77 by exchange rate of 19.3649 Baht per DM)
The Debtor submitted, within time specified by law, objection against the application for repayment, detail as follow;
Clause 1. The Debtor object that the Creditor No 30 did not has power to submit application for repayment. Since the said Creditor posses juristic personality under law of the Federal Republic of German and posses no branch in Thailand, the Creditor then posses no juristic personality under Civil and Commercial Code or any other law of Thailand. Also, both loan agreements are governed by the law of the Federal Republic of German not the law of Thailand. This Creditor was then not entitled to submit application for repayment.
Clause 2. The Debtor No 2 further object that the Creditor No 30 exercise its right dishonestly by using the exchange rate of 11 October 2000 not of the 20 October 2000’s which is the real date of absolute receivership. The exchange rate, on 11 October 2000 and 20 October 2000, were Baht 19.3649 and 18.8953 per DM respectively. The exchange rate of 20 October 2000 appeared in Bank Of Thailand’s announcement, exhibit 6 page 5. The conversion by 11 October 2000’s rate will amount to Baht 733,009,233.75, whilst by 20 October 2000’s rate will amount to only Baht 715,233,715.36. The result of the former rate will be higher than of latter rate to the difference up to Baht 17,775,518.39. The Creditor No 2 was thus not required to repay this difference amount somehow.
Clause 3. The Debtor No 2 object that this Creditor demand interests for default upon interest, such interest thus prohibited by law. In other word, besides demanding for normal default interest paid on principal of both loans agreements, the Creditor also demand default interest upon unpaid interest. That is the bearing of interest upon interest that the Creditor No 30 was not entitled to.
The detail appeared Debtor No 2 ‘s objection against application for repayment, exhibit 6 and 13.
The Debtor No 2 did not object the presentation by copies of documents, and did not suspect the authenticity of the submitted copies of documents including any other facts and laws so stated by the Creditor No 30. After weighting all relevant evidences, it is believed that there was real cause of indebtedness. The said debt occurred before the date of issuance of Court order for absolute receivership, are not bared by prescription and are not prohibited from claiming for repayment pursuant to section 94(1) of Bankruptcy Act BE 2483. This case then has disputing issues pending for decision as only
1. The Creditor No 30, as foreign creditor, has power to submit application for repayment or not.
2. The Creditor No 30 has right to use exchange rate of 11 October 2000 instead of exchange rate of 20 October 2000 or not.
3. The Creditor No 30 has right to demand default interest upon unpaid interest or not.
Clause 1. For the first issue, the Creditor No 30, as foreign creditor, has power to submit application for repayment or not. The Official Receiver is of opinion that the Creditor No 30 has power in submitting the application in this case, notwithstanding the facts that it was domiciled outside the Kingdom of Thailand. Since section 178 of Bankruptcy Act BE 2483 stating that foreign creditors domiciled outside the Kingdom may submit application for repayment upon proving that the creditors in Thailand are similarly entitled to claim for repayment in bankruptcy action under the law and before the court of the creditors’ country of nationality. And such foreign creditors must also report the amount of asset or distribution that they have receive or are entitled to receive from the same debtor’s estate located outside the Kingdom if any; If so, they must agree to deliver the asset of distributor from the debtor’s said estate to be added to the debtor’s estate in the Kingdom. In this case, it shall be under the law of the Federal Republic of German. It was found that creditors of Thai national are similarly entitled to claim for repayment of debt in bankruptcy action before the court of the Federal Republic of German as creditors of German national. The detail appeared in letter of lawyer from the Federal Republic of German acknowledging the right of creditor in the Kingdom pursuant to section 178 of Bankruptcy Act BE 2483, exhibit 18/32
Moreover, the Creditor No 30 also report that they have not received or are not entitled to receive the amount of asset or distribution from the Debtor No 2 ‘s estate located in the Federal Republic of German, they then have to submitted this application for repayment. The detail appeared in Creditor No 30’s affidavit affirming facts and opinion and other documents, exhibit 10. By these reasons, the Creditor No 30 has right to submit application for repayment in this case.
Clause 2. For the second issue, the Creditor No 30 has right to use 11 October 2000’s exchange rate instead than of 20 October 2000’s or not. The Official Receiver was of opinion it did not have that right. Since section 98 of Bankruptcy Act BE 2483 require the use of exchange rate on the day of issuing order of receivership. Notwithstanding that the Creditor No 30 had referred 11 October 2000 as the date of notifying Court order of absolute receivership, but as from the Official Receiver’s inquiry had found 20 October 2000 as the true date of absolute receivership. The detail appeared in report on inquiry for date of absolute receivership, exhibit 17. So, the conversion into Baht must use exchange rate on 20 October 2000. The Creditor No 30 has no right to use exchange rate on 11 October 2000 as earlier used.
Clause 3. For the third issue, the Creditor No 30 has right to demand default interest upon unpaid interest or not. The Official Receiver is of opinion that the applicable law, as agreed upon the creditor and the debtor, is the law of the Federal Republic of German. So the law of the Federal Republic of German shall decide the legality of the demanding of interest upon unpaid interest.
For this decision, the Creditor No 30 had submitted law on interest for loan of money of the Federal Republic of German with its translation. Pursuant to section 608 of German Civil Code, it merely states that interest shall be as those specified unless the provision of law otherwise provided. The detail appeared in exhibit 18/33. However, as from further inquiry of Official Receiver found section 289 specifically state that default interest shall not be paid upon interest. The detail appeared in exhibit 18/34. Section 289 thereof shall be considered as “the provision of law” prohibits, as pursuant to section 608 thereof, the demand of interest. By this reason, the demanding of default interest upon unpaid interest shall not be legitimate under the law of the Federal Republic of German and thus prohibiting from demanding this amount of damages that was similarly calculated as demanding default interest upon unpaid interest.
By above mentioned reasons, the Official Receiver is of opinion to grant the Creditor No 30 repayment from assets of Mr. Viboon or Suthas Techaviboon, Debtor No 2 pursuant to section 130(7) of Bankruptcy Act BE 2483. The exchange rate, for conversion of debt into Baht under both loan agreements, shall be the exchange rate in announcement of Bank of Thailand on 20 October 2000, which is the date of absolute receivership. The exchange rate on such date was DM per 18.8953 Baht, the detail appeared exhibit 6 page 5. For the grant of repayment, the details are as follow;
For the first loan agreement, the repayment was granted to the amount that the Debtor No 2, as guarantor, obliged to repay; that is 75 percent of any outstanding amount. In this case, the Debtor No 2 was required to make repayment in amount of Baht 273,176,614.697. [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 14,457,384.36 (this equal 75 percent of principal amount of DM 19,276,512.48)], together with loan managing fee that guarantor bound to repay in amount of Baht 1,417,147.50 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 75,000 (this equal 75 percent of loan managing fee of DM 100,000)]. And the interest repayments were granted as follow;
1. Normal interest of 5.70 percent per annum upon the principal amount of Baht 182,117,743.415 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 9,638,256.255 (this equal 75 percent of amount due for the 17th to 20th altogether of DM 12,851,008.34)]. According to the 5th agreement for amendment, the interest was fixed at 5.70 percent per annum.)] Such interest was calculated from 29 September 1999 (original due date for the 17th installment) up to 29 December 1999 (the final date prior the calling of all undue installments to become immediately due for repayment), altogether computing to 91 days.
2. Normal interest of 6.25 percent per annum upon the principal amount of Baht 91,058,871.282 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 4,819,128.105 (this equal 75 percent of amount due for the 14th to 15th altogether of DM 6,425,504.14)]. According to the 5th agreement for amendment, the interest was fixed at 6.25 percent per annum.)] Such interest was calculated from 29 September 1999 (original due date for the 17th installment) up to 29 December 1999 (the final date prior the calling of all undue installments to become immediately due for repayment), altogether computing to 91 days.
3. Default interest of 7.70 percent per annum (result from 5.70 plus 2.00 percent pursuant to clause 13.1 of the loan agreement) upon the principal amount of Baht 182,117,743.415 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 9,638,256.26). Such interest was calculated from 30 December 1999 (The date that event of default occurred: the Creditor demand all undue installment to become immediately due and the debtor however fail to make repayment thereto.) up to 11 October 2000 (the last date that the Creditor No 30 demand interest for default according to application for repayment), altogether computing to 286 days.
4. Default interest of 8.25 percent per annum (result from 6.25 plus 2.00 percent pursuant to clause 13.1 of the loan agreement) upon the principal amount of Baht 91,058,571.282 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 4,819,128.05). Such interest was calculated from 30 December 1999 (The date that event of default occurred: the Creditor demand all undue installment to become immediately due and the debtor however fail to make repayment thereto.) up to 11 October 2000 (the last date that the Creditor No 30 demand interest for default according to application for repayment), altogether computing to 286 days.
Default interest shall not be demanded upon unpaid interest per the reason earlier decided, and the calculating of interest, both of normal and of default, shall be made by computing the number of days that had really elapsed, and in such computing 360 days is regarded as one year. This is pursuant to the first loan agreement, exhibit 18/6.
For the second loan agreement, the repayment was granted to the amount of Baht 385,758,549.258 (Calculated from multiplying exchange rate of Baht 18.8953 per DM by outstanding principal amount of DM 20,521,428.57), together with loan managing fee of Baht 1,889,530 (Calculated from multiplying exchange rate of Baht 18.8953 per DM by loan managing fee of DM 100,000). And the interests repayment were granted as follow;
1. Normal interest of 3.468 percent per annum (calculated from FIBOR rate, at that time, for 6 months of 2.718 plus 0.75 percent per annum, as presented by the Creditor and Debtor did not object; as appear in summary of indebtedness under the second loan agreement, exhibit 18/31) upon the principal outstanding principal of Baht 387,758,549.258 (or DM 18.8953 X 20,521,428.57), pursuant to clause 16.2 of the agreement stating if the Company is in default for any installments, the Creditor is then entitled to call all undue debt to become immediately due for repayment. Such interest was calculated from 30 June 1999 (original due date for the 5th installment) up to 29 December 1999 (the final date prior the calling of all undue installments to become immediately due for repayment), altogether computing to 182 days.
2. Default interest of Base Rate (as appeared in Central Bank of Europe’s announcement on interest, exhibit 18/25) plus 4.00 percent per annum, as pursuant to clause 13.1 of the loan agreement, upon the principal amount of Baht 387,758,549.258 (or DM 18.8953 X 20,521,428.57). Such interest was calculated from 30 December 1999 (The date that event of default occurred: the Creditor demand all undue installment to become immediately due and the debtor however fail to make repayment thereto.) up to 11 October 2000 (the last date that the Creditor No 30 demand interest for default according to application for repayment, prior to absolute receivership).
The Official Receiver dismiss the repayment of default interest upon principal amount of DM 411,802.81, calculated from 30 June 1999 up to 17 August 1999 computing to 48 days, amounting to DM 3,568.96 as appeared in summary of indebtedness under the second loan agreement, exhibit 18/31. Since the Creditor No 30 had not reported and presented evidence expressly show the cause of such principal, then this principal amount of DM 411,802 was not somehow related to the principal amount under the loan agreement. Also there was no evidence to support the existing of such principal amount.
Default interest shall not be demanded upon unpaid interest per the reason earlier decided, and the calculating of interest, both of normal and of default, shall be made by computing the number of days that had really elapsed, and in such computing 360 days is regarded as one year. This is pursuant to the second loan agreement, exhibit 18/6.
In summary, the Official Receiver grant the Creditor No 30 the repayment according to both mentioned loan agreements, by method of calculating earlier outlined, from the asset of Mr. Viboon or Suthas Techaviboon, Debtor No 2 pursuant to section 130(7) of Bankruptcy Act BE 2483. However, under placed condition that to what extent the Creditor No 30 has received repayment from the Company, as principal debtor, and/or Mr LT and/or Mr.ST, as joint guarantors, the Creditor No 30’s right to receive repayment under this case shall be reduced to such extent.
(signature) Ms T T
(signature) Mr S M
Official Receiver
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(Translation)
Summon Notifying Court Order
(Garuda Emblem)
No. 00/2548 Legal Execution Department, Bangkhunnon Sub-District
Red Case No. 00/2543 Bangkok Noi District, Bangkok 10700
Bankruptcy Court
28 February 2005
0000 plc. Petitioning Creditor
Bankruptcy Case between
0000 Thani Co.,Ltd. et al Debtor
Summon to 0000, Creditor No.30 by Mr. AAAA BBBB as attorney in fact.
Where in this case, the Central Bankruptcy Court has issued order granting application for repayment of debt. The details appear in copy of documents attached hereto.
For that reason, please be notified accordingly; and it shall deem, upon receiving this order, that you have duly notified. You could inspect the said order with Official Receiver, Bankruptcy Division 4, Legal Executing Department, Ministry of Justice.
Since some original documents were submitted with your application If you desire to retrieve them back, please contact official after the elapse of 2 months from the date of receiving hereof.
Please Contact Ms. T T (sinature)
Tel 0-2881-4921 Ms P Kt
On behalf of Official Receiver
Central Bankruptcy Court 000/2543 T Jor.30
No 00/2548
Receipt
Date
I, AAAA BBBB, Creditor No.30, by Mr. 0000 0000 acting as attorney in fact, hereby receive summon of Official Receiver stating that I had acknowledged the Court Order Re: 0000 Thani Co.,Ltd. et al Debtor on date……………………………………………..time ………………………..…..o’clock.
00, 00th Floor, SS Road, …………………… Received by
T Subdistrict …………………… Served by Received by
S, Bangkok
Ms P K
**************************************************************
(Translation)
(Garuda Emblem)
Comment of Official Receiver Bankruptcy Division 4
On Application for Repayment Legal Execution Department
Of Creditor No. 30
Date…………………….
Red Case No 000/2543
Central Bankruptcy Court
0000 Plc. Petitioning Creditor
Between
0000 Thani Co.,Ltd. No 1,
Mr. 0000 or Mr.0000 No 2 Debtor
Case Of 00000 Creditor
The Official Receiver had already examined evidences relevant to application for repayment, and found that 0000 as Creditor No 30 has applied for repayment from assets of Mr. 0000 or 0000 Debtor No 2 on cause of indebtedness arisen from loan agreement and guarantee agreement in totaling amount of Baht 733,009,233.75. The details appeared in the application and its attachments as submitted by the Creditor.
The Official Receiver had granted all creditors and debtor a chance to examine the applications pursuant to section 104 of Bankruptcy Act BE 2483. It appeared that the Debtor No. 2 had objected this Creditor’s application. The Official Receiver then had inquired evidences relating thereto from both Creditor and Debtor.
The fact is established that 0000 Creditor No 30 is juristic person that was duly registered under law of the Federal Republic of German; its objective is to conduct business of commercial banking by accepting of deposits and granting of credits. The detail is appeared in 0000’s affidavit and its license to conduct business of commercial banking together with their translations, exhibit 5 page 4, exhibit 18/2 and exhibit 18/3.
In submitting this application for repayment, Creditor No. 30 represented by Mr. PEB, its managing director, has appointed Mr SW as attorney in fact and empowered him to delegate other to act in his stead. Mr SW has delegated Mr PR to proceed, in his stead, in submitting application for repayment. The detail appeared in exhibit 2 page 1, exhibit 10 page 36-38 and exhibit 18/1.
PFContainer Co., Ltd. (“the Company”) is limited company duly established under Civil and Commercial Code. The Company’s name in English is “HSFIBRE CONTAINER CO., LTD.”. Its objective is to operate business of importing products and raw material in category of all papered products including machinery utilized in manufacturing papered boxes. Its purpose is to produce paper and papered boxes to be distributing in both domestic and foreign markets. The Company shall be lawfully bound when its 2 directors jointly affix their signatures and stamp Company’s seal in cognizance thereof. The detail is appeared in the Company’s affidavit, exhibit 18/4.
Mr. V or ST, Debtor No 2 was directors and shareholder of the Company. The detail appeared in certified, by Registrar of Partnership and Company, copy of list of shareholder, exhibit 18/5.
The Company indebted toward Creditor No 30 on cause of indebtedness arising under 2 loan agreements as follows.
Clause 1 For the first loan agreement, the Company has signed it with Creditor No 30 on 14 June 1999 borrowing money of Deutsche Mark (“DM”)40,625,750. The Creditor No 30 has subsequently signed said loan agreement on 19 June 1999. The terms and condition on withdrawing the principal amount, as agreed therein by the Company, stating that the principal amount shall be delivered by Creditor No 30 to Sulzer-Escher Wyss GmbH, a company situated in Ravensburg, the Republic of German for settling 85 percent of the price of machinery goods that the Company had purchased from Sulzer-Escher Wyss GmbH. In taking of such principal amount, Sulzer-Escher Wyss GmbH shall deliver, 5 days in advance, payment certificate to Creditor No 30 informing the amount desired to take. After receiving such payment certificate, Creditor No 30 shall then deliver such principal amount.
The principal amount repayment, as agreed by the Company, shall be made in 20 equal installments, which shall become due for payment in every six months. The first installment shall be made within 6 months after the machinery so purchased were made ready for operation, however it shall be no later than 30 April 1991 and the next installment shall be made every six months following the due date of the prior installment. The final installment shall be however made on 31 October 2000. The Creditor No 30 shall deliver, by registered airmail, the Company the schedule of principal repayment and such schedule shall be considered as part of this agreement.
As for interest repayment in “Plafond C” facility, the Company agree to repay it in floating rate as fixed, from time to time, by Ausfuhrkredit-Gesellschaft mbH (AKA). Plafond C facility means loan directly granted to purchaser with collateral furnished. The interest repayment shall be made on every 31 March and 30 September of every year until the due date of the first installment of principal repayment; after such due date, the interest repayment shall be made simultaneously with principal repayment as above scheduled. Pursuant to clause 16.1 of the loan agreement, if the Company fail to make repayment of any installments of principal, interest or fee within time specified therefor or when any event of default occurred; it shall deem that such principal, interest, fee including any amount payable to the Creditor No 30 altogether become immediately due for payment. Interest for default, in rate of those interest specified in agreement plus 2 percent per annum, shall be demanded upon principal and other amount that debtor fail to repay within time specified, including interest that become due.
The Debtor No 2, Mr LT and Mr.ST, had enter guarantee agreement on 14 June 1989 binding themselves toward the Creditor No 30 as guarantor for securing the repayment in 75 percent of all principal amount including interest, fee and any expenses incurred under the agreement.
It has been agreed upon the Creditor No 30, the Company and Mr L T and Mr.ST the Debtor No 2 that this loan agreement shall be governed by the law of the Federal Republic of German. The detail appeared in the first loan agreement together with its translation, exhibit 18/6.
On 24 July 1989, Bangkok Metropolitan Bank Plc had issued irrevocable standby letter of credit No BMB 002/89 securing toward the Creditor No 30 the repayment in 25 percent of all principal amount including interest, fee and any expenses incurred under the agreement. The detail appeared in standby letter of credit together with its translation, exhibit 18/7.
The Creditor No 30 had consequently delivered the Company the schedule of repayment dated 17 July 1991. The detail appeared in the schedule of repayment together with its translation, exhibit 18/8.
After such loan agreement had been executed, the parties has made amendment and supplement thereto in totaling of 5 times. Mr LT, Mr.ST, the Debtor No 2 and Bangkok Metropolitan Bank Plc had agreed to be bound by terms and condition of every amendment and supplement. The main points thereof are summarized as follow;
1. The increase of credit amount from 40,625,750 DM to 55,075,750 DM (the first agreement for amendment and supplement loan agreement was signed on 10 and 15 December 1989.)
2. During the fifth agreement for amendment and supplement, the remaining principal indebtedness of 19,276,512.48 DM has been extended and re-scheduled timeframe and re-calculated the amount for the 14th to 20th installment as follow;
1) The 17th installment of DM 3,212,752.07, on 29 September 1999.
2) The 18th installment of DM 3,212,752.07, on 29 March 2000.
3) The 19th installment of DM 3,212,752.07, on 29 September 2000.
4) The 20th installment of DM 3,212,752.13, on 29 March 2001.
5) The 14th installment of DM 3,212,752.07, on 29 September 2001.
6) The 15th installment of DM 3,212,752.07, on 29 March 2002.
Amounting to 19,276,512.48 DM (the fifth agreement for amendment and supplement loan agreement was signed on 5 and 6 October 1998.)
3. Interest of floating rate had been amended to of fixed rate. For the 17th –20th installment, the interest shall be fixed at 5.7 percent per annum; and for 14th –15th installment, the interest shall be fixed at 6.25 percent per annum. The interest repayment shall be made simultaneously with the repayment of principal scheduled. (The third agreement for amendment and supplement loan agreement was signed on 30 June and 2 August 1993 and the fifth agreement for amendment and supplement loan agreement.)
4. The Company was bound to pay the Creditor No 30 the loan managing fee of 100,000 DM within 1 month from the signing date of the fifth agreement for amendment and supplement loan agreement which shall due on 6 December 1998. (The fifth agreement for amendment and supplement loan agreement.)
Any other terms and condition shall remain the same as specified in the original loan agreement. The detail appeared in those 5 agreements for amendment and supplement loan agreement with their translations, exhibit 18/9-18/13.
The Company has completely withdrew and received from the Creditor No 30 the principal amount of DM 55,075,749.85. The detail appeared in money receipt summary and those 20 payment certificates together with their translations, exhibit 18/14-18/15
The Company has repaid 13 installments from the first to the 13th amounting to DM 35,799,237.52. However, when the 17th installment become due for payment on 29 September 1999, the Company fails to repay such installment. On 29 September 1999 the Company still indebted toward the Creditor No 30 in amount of DM 19,276,512.48. The Company has then issued letter of acknowledgement of claim therefor. The detail appeared in letter of acknowledgement of claim dated 25 February 1998 and 28 September 1998 together with their translations, exhibit 18/16-18/17.
After those 5 agreements (for amendment and supplement loan agreement) has been concluded (The fifth agreement for amendment and supplement loan agreement was executed on 5 and 6 October 1998), the Company however bear indebtedness toward the Creditor No 30 in amount of 19,276,512.48 DM and loan managing fee of 100,000 DM.
Clause 2 For the second loan agreement, the Company has signed it with Creditor No 30 on 10 February 1995 borrowing money of DM 16,011,450. The Creditor No 30 has subsequently signed said loan agreement on 20 February 1995. The terms and condition on withdrawing the principal amount, as agreed therein by the Company, stating that the principal amount shall be delivered by Creditor No 30 to Voith Sulzer Papiermaschinen GmbH, a company situated in Ravensburg, the Republic of German for settling 85 percent of the price of machinery goods that the Company had purchased from Voith Sulzer Papiermaschinen GmbH. In taking of such principal amount, Voith Sulzer Papiermaschinen GmbH shall deliver, 5 days in advance, payment certificate to Creditor No 30 informing the amount desired to take. After receiving such payment certificate, Creditor No 30 shall then deliver such principal amount.
The principal amount repayment, as agreed by the Company, shall be made in 14 equal installments, which shall become due for payment in every six months. The first installment shall be made within 6 months after the machinery so purchased were made ready for operation, however it shall be no later than 30 April 1996 and the next installment shall be made every six months following the due date of the prior installment. The final installment shall be however made on 31 October 2000. The Creditor No 30 shall deliver, by registered airmail, the Company the schedule of principal repayment; and such schedule shall be considered as part of this agreement.
As for interest repayment, the Company agree to repay it in floating rate equal to Inter Bank interest rate in the Federal Republic of German (FIBOR) for period of 6 months plus 0.75 percent per annum. The interest repayment shall be made on every 31 May and 30 December of every year until the due date of the first installment of principal repayment; after such due date, the interest repayment shall be made simultaneously with principal repayment as above scheduled. Pursuant to clause 16.2 of the loan agreement, if the Company fail to make repayment of any installment principal, interest or fee within time specified therefor or when any event of default occurred; it shall deem that such principal, interest, fee including any amount payable to the Creditor No 30 altogether become immediately due for payment. Interest for default, in rate of discount interest as fixed, from time to time, by Central Bank of German plus 4 percent per annum shall be demanded upon principal and other amount that debtor fail to repay within time specified, including interest that become due for payment.
By statute come into force on 9 June 1998, the discount rate of the Central Bank of German had been repealed; and replaced from 1 January 1999 onward by base rate of the European Bank. The Central Bank of German shall publish, from time to time, such base rate in the Royal Gazette (Bundesanzeiger).
In securing the repayment of such loan, on 10 February 1995 Mr LT and Mr.ST, the Debtor No 2 agreed to bind themselves as joint debtor with the Company for making repayment of principal including interest, fee and all expenses incurred.
It has been agreed upon the Creditor No 30, the Company and Mr LT and Mr.ST the Debtor No 2 that this loan agreement shall be governed by the law of the Federal Republic of German. The detail appeared in the second loan agreement together with its translation, exhibit 18/18.
The Creditor No 30 had consequently delivered the Company the schedule of repayment dated 6 March 1997. The detail appeared in the schedule of repayment together with its translation, exhibit 18/19.
After such loan agreement had been executed, the parties has made amendment and supplement thereto in totaling of 5 times. Mr LT, Mr.ST, the Debtor No 2 and Bangkok Metropolitan Bank Plc agree to be bound by terms and condition of every amendment and supplement. The main points thereof are summarized as follow;
1. The increase of loan amount from DM 16,011,450 to DM 22,100,000 (the first agreement for amendment and supplement loan agreement was signed on 15 and 20 November 1995.)
2. In the fifth agreement for amendment and supplement, there was the remaining principal indebtedness of DM 20,521,428.57. The 2nd and 4th installment had been extended and the 5th to 14th installment had been re-scheduled and re-calculated as follow;
1) The 5th installment of DM 1,710,119.05, on 30 June 1999.
2) The 6th installment of DM 1,710,119.05, on 30 November 1999.
3) The 7th installment of DM 1,710,119.05, on 30 June 2000.
4) The 8th installment of DM 1,710,119.05, on 30 November 2000.
5) The 9th installment of DM 1,710,119.05, on 30 June 2001.
6) The 10th installment of DM 1,710,119.05, on 30 November 2001.
7) The 11th installment of DM 1,710,119.05, on 30 June 2002.
8) The 12th installment of DM 1,710,119.05, on 30 November 2002.
9) The 13th installment of DM 1,710,119.05, on 30 June 2003.
10) The 14th installment of DM 1,710,119.05, on 30 November 2003.
11) The 2nd installment of DM 1,710,119.02, on 30 June 2004.
12) The 4th installment of DM 1,710,119.05, on 30 November 2004.
Amounting to DM 20,521,428.57 (the forth agreement for amendment and supplement loan agreement was signed on 5 and 6 October 1998.)
3. The Company was bound to pay the Creditor No 30 the fee of DM 100,000 for managing loan agreement within 1 month from the signing date of the fifth agreement for amendment and supplement loan agreement which shall due on 6 December 1998. (The fifth agreement for amendment and supplement loan agreement.)
Any other terms and condition shall remain the same as specified in the original loan agreement. The detail appeared in those 5 agreements for amendment and supplement loan agreement with their translations, exhibit 18/20-18/24.
The Company has completely withdrew and received from the Creditor No 30 the principal amount of DM 21,100,00. The detail appeared in money receipt summary and those 6 payment certificates together with their translations, exhibit 18/26-18/27.
The Company had repaid the Creditor No 30 for 1 installment amounting to DM 1,578,571.52. Consequently, when the 5th installment become due for payment on 30 June 1999, the Company fails to repay such installment. The Company still indebted toward the Creditor No 30 in amount of DM 20,521,428.57. The Company has then issued letter of acknowledgement of claim therefor. The detail appeared in letter of acknowledgement of claim dated 28 September 1998 together with its translation, exhibit 18/17.
After those 5 agreements for amendment and supplement loan agreement has been concluded (The fifth agreement for amendment and supplement loan agreement was executed on 5 and 6 October 1998), the Company still however indebted toward the Creditor No 30 in amount of DM 20,521,428.57 and loan managing fee of DM 100,000.
The Creditor No 30, on 17 November 1999, has sent the Company a written notice for terminating both loan agreement and demanding all principal repayment thereunder. Subject to clause 16.1 and 16.2 of the first and second loan agreements respectively, if the Company is in default for any installments, the Creditor is then entitled to call all undue debt to become immediately due for repayment. All principal repayment was demanded by such notice to be made within 30 December 1999. The detail appeared written notice with its translation, exhibit 18/28. The Company has received the notice, but somehow fail to comply thereto.
On 21 March 2000, the Creditor No 30 has consequently sent written notice to Mr LT and Mr.ST the Debtor No 2 and Bangkok Metropolitan Bank Plc, both in capacity as the Company’s guarantor for demanding principal repayment under both loan agreement. The principal repayment was demanded by such notice to be made within 15 days upon receipt thereof. The detail appeared written notice with its translation, exhibit 18/29.
Mr LT and Mr.ST the Debtor No 2 and Bangkok Metropolitan Bank Plc both had received such written notice. Bangkok Metropolitan Bank had repaid the Creditor No 30 in 25 percent of the principal amount under the first loan agreement including outstanding interest and fee calculated up to 21 March 2000 amounting to DM 5,004,442.14. However the Debtor No 2 fail to made repayment anyhow.
On 20 October 2000, the Central Bankruptcy Court has ordered the Debtor No 2 under absolute receivership, and on such date the Debtor No 2 bear indebtedness toward the Creditor No 30 as calculated by the Creditor No 30 as follow;
1) Guaranty debt under the first loan agreement in amount of DM 15,668,834.33; the detail appeared in debt summary under the first loan agreement, exhibit 18/30.
2) Guaranty debt under the second loan agreement in amount of DM 22,183,632.44; the detail appeared in debt summary under the second loan agreement, exhibit 18/30.
Totaling amount of indebtedness was DM 37,852,466.77.
The Creditor No 30 referred exchange rate of 11 October 2000 as the date of notifying Order of Debtor No 2’s absolute receivership by Court to Official Receiver. Such referred date however is not the true date. On 11 October, 1 DM equal 19.3649 Baht as appeared in Bank Of Thailand’s announcement, exhibit 18/31 page 3; so, guaranty debt calculated in Baht currency shall be Baht 733,099,233.754. (Calculated from multiplying all guaranty debt of DM 37,852,466.77 by exchange rate of 19.3649 Baht per DM)
The Debtor submitted, within time specified by law, objection against the application for repayment, detail as follow;
Clause 1. The Debtor object that the Creditor No 30 did not has power to submit application for repayment. Since the said Creditor posses juristic personality under law of the Federal Republic of German and posses no branch in Thailand, the Creditor then posses no juristic personality under Civil and Commercial Code or any other law of Thailand. Also, both loan agreements are governed by the law of the Federal Republic of German not the law of Thailand. This Creditor was then not entitled to submit application for repayment.
Clause 2. The Debtor No 2 further object that the Creditor No 30 exercise its right dishonestly by using the exchange rate of 11 October 2000 not of the 20 October 2000’s which is the real date of absolute receivership. The exchange rate, on 11 October 2000 and 20 October 2000, were Baht 19.3649 and 18.8953 per DM respectively. The exchange rate of 20 October 2000 appeared in Bank Of Thailand’s announcement, exhibit 6 page 5. The conversion by 11 October 2000’s rate will amount to Baht 733,009,233.75, whilst by 20 October 2000’s rate will amount to only Baht 715,233,715.36. The result of the former rate will be higher than of latter rate to the difference up to Baht 17,775,518.39. The Creditor No 2 was thus not required to repay this difference amount somehow.
Clause 3. The Debtor No 2 object that this Creditor demand interests for default upon interest, such interest thus prohibited by law. In other word, besides demanding for normal default interest paid on principal of both loans agreements, the Creditor also demand default interest upon unpaid interest. That is the bearing of interest upon interest that the Creditor No 30 was not entitled to.
The detail appeared Debtor No 2 ‘s objection against application for repayment, exhibit 6 and 13.
The Debtor No 2 did not object the presentation by copies of documents, and did not suspect the authenticity of the submitted copies of documents including any other facts and laws so stated by the Creditor No 30. After weighting all relevant evidences, it is believed that there was real cause of indebtedness. The said debt occurred before the date of issuance of Court order for absolute receivership, are not bared by prescription and are not prohibited from claiming for repayment pursuant to section 94(1) of Bankruptcy Act BE 2483. This case then has disputing issues pending for decision as only
1. The Creditor No 30, as foreign creditor, has power to submit application for repayment or not.
2. The Creditor No 30 has right to use exchange rate of 11 October 2000 instead of exchange rate of 20 October 2000 or not.
3. The Creditor No 30 has right to demand default interest upon unpaid interest or not.
Clause 1. For the first issue, the Creditor No 30, as foreign creditor, has power to submit application for repayment or not. The Official Receiver is of opinion that the Creditor No 30 has power in submitting the application in this case, notwithstanding the facts that it was domiciled outside the Kingdom of Thailand. Since section 178 of Bankruptcy Act BE 2483 stating that foreign creditors domiciled outside the Kingdom may submit application for repayment upon proving that the creditors in Thailand are similarly entitled to claim for repayment in bankruptcy action under the law and before the court of the creditors’ country of nationality. And such foreign creditors must also report the amount of asset or distribution that they have receive or are entitled to receive from the same debtor’s estate located outside the Kingdom if any; If so, they must agree to deliver the asset of distributor from the debtor’s said estate to be added to the debtor’s estate in the Kingdom. In this case, it shall be under the law of the Federal Republic of German. It was found that creditors of Thai national are similarly entitled to claim for repayment of debt in bankruptcy action before the court of the Federal Republic of German as creditors of German national. The detail appeared in letter of lawyer from the Federal Republic of German acknowledging the right of creditor in the Kingdom pursuant to section 178 of Bankruptcy Act BE 2483, exhibit 18/32
Moreover, the Creditor No 30 also report that they have not received or are not entitled to receive the amount of asset or distribution from the Debtor No 2 ‘s estate located in the Federal Republic of German, they then have to submitted this application for repayment. The detail appeared in Creditor No 30’s affidavit affirming facts and opinion and other documents, exhibit 10. By these reasons, the Creditor No 30 has right to submit application for repayment in this case.
Clause 2. For the second issue, the Creditor No 30 has right to use 11 October 2000’s exchange rate instead than of 20 October 2000’s or not. The Official Receiver was of opinion it did not have that right. Since section 98 of Bankruptcy Act BE 2483 require the use of exchange rate on the day of issuing order of receivership. Notwithstanding that the Creditor No 30 had referred 11 October 2000 as the date of notifying Court order of absolute receivership, but as from the Official Receiver’s inquiry had found 20 October 2000 as the true date of absolute receivership. The detail appeared in report on inquiry for date of absolute receivership, exhibit 17. So, the conversion into Baht must use exchange rate on 20 October 2000. The Creditor No 30 has no right to use exchange rate on 11 October 2000 as earlier used.
Clause 3. For the third issue, the Creditor No 30 has right to demand default interest upon unpaid interest or not. The Official Receiver is of opinion that the applicable law, as agreed upon the creditor and the debtor, is the law of the Federal Republic of German. So the law of the Federal Republic of German shall decide the legality of the demanding of interest upon unpaid interest.
For this decision, the Creditor No 30 had submitted law on interest for loan of money of the Federal Republic of German with its translation. Pursuant to section 608 of German Civil Code, it merely states that interest shall be as those specified unless the provision of law otherwise provided. The detail appeared in exhibit 18/33. However, as from further inquiry of Official Receiver found section 289 specifically state that default interest shall not be paid upon interest. The detail appeared in exhibit 18/34. Section 289 thereof shall be considered as “the provision of law” prohibits, as pursuant to section 608 thereof, the demand of interest. By this reason, the demanding of default interest upon unpaid interest shall not be legitimate under the law of the Federal Republic of German and thus prohibiting from demanding this amount of damages that was similarly calculated as demanding default interest upon unpaid interest.
By above mentioned reasons, the Official Receiver is of opinion to grant the Creditor No 30 repayment from assets of Mr. Viboon or Suthas Techaviboon, Debtor No 2 pursuant to section 130(7) of Bankruptcy Act BE 2483. The exchange rate, for conversion of debt into Baht under both loan agreements, shall be the exchange rate in announcement of Bank of Thailand on 20 October 2000, which is the date of absolute receivership. The exchange rate on such date was DM per 18.8953 Baht, the detail appeared exhibit 6 page 5. For the grant of repayment, the details are as follow;
For the first loan agreement, the repayment was granted to the amount that the Debtor No 2, as guarantor, obliged to repay; that is 75 percent of any outstanding amount. In this case, the Debtor No 2 was required to make repayment in amount of Baht 273,176,614.697. [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 14,457,384.36 (this equal 75 percent of principal amount of DM 19,276,512.48)], together with loan managing fee that guarantor bound to repay in amount of Baht 1,417,147.50 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 75,000 (this equal 75 percent of loan managing fee of DM 100,000)]. And the interest repayments were granted as follow;
1. Normal interest of 5.70 percent per annum upon the principal amount of Baht 182,117,743.415 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 9,638,256.255 (this equal 75 percent of amount due for the 17th to 20th altogether of DM 12,851,008.34)]. According to the 5th agreement for amendment, the interest was fixed at 5.70 percent per annum.)] Such interest was calculated from 29 September 1999 (original due date for the 17th installment) up to 29 December 1999 (the final date prior the calling of all undue installments to become immediately due for repayment), altogether computing to 91 days.
2. Normal interest of 6.25 percent per annum upon the principal amount of Baht 91,058,871.282 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 4,819,128.105 (this equal 75 percent of amount due for the 14th to 15th altogether of DM 6,425,504.14)]. According to the 5th agreement for amendment, the interest was fixed at 6.25 percent per annum.)] Such interest was calculated from 29 September 1999 (original due date for the 17th installment) up to 29 December 1999 (the final date prior the calling of all undue installments to become immediately due for repayment), altogether computing to 91 days.
3. Default interest of 7.70 percent per annum (result from 5.70 plus 2.00 percent pursuant to clause 13.1 of the loan agreement) upon the principal amount of Baht 182,117,743.415 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 9,638,256.26). Such interest was calculated from 30 December 1999 (The date that event of default occurred: the Creditor demand all undue installment to become immediately due and the debtor however fail to make repayment thereto.) up to 11 October 2000 (the last date that the Creditor No 30 demand interest for default according to application for repayment), altogether computing to 286 days.
4. Default interest of 8.25 percent per annum (result from 6.25 plus 2.00 percent pursuant to clause 13.1 of the loan agreement) upon the principal amount of Baht 91,058,571.282 [Calculated from multiplying exchange rate of Baht 18.8953 per DM by amount of DM 4,819,128.05). Such interest was calculated from 30 December 1999 (The date that event of default occurred: the Creditor demand all undue installment to become immediately due and the debtor however fail to make repayment thereto.) up to 11 October 2000 (the last date that the Creditor No 30 demand interest for default according to application for repayment), altogether computing to 286 days.
Default interest shall not be demanded upon unpaid interest per the reason earlier decided, and the calculating of interest, both of normal and of default, shall be made by computing the number of days that had really elapsed, and in such computing 360 days is regarded as one year. This is pursuant to the first loan agreement, exhibit 18/6.
For the second loan agreement, the repayment was granted to the amount of Baht 385,758,549.258 (Calculated from multiplying exchange rate of Baht 18.8953 per DM by outstanding principal amount of DM 20,521,428.57), together with loan managing fee of Baht 1,889,530 (Calculated from multiplying exchange rate of Baht 18.8953 per DM by loan managing fee of DM 100,000). And the interests repayment were granted as follow;
1. Normal interest of 3.468 percent per annum (calculated from FIBOR rate, at that time, for 6 months of 2.718 plus 0.75 percent per annum, as presented by the Creditor and Debtor did not object; as appear in summary of indebtedness under the second loan agreement, exhibit 18/31) upon the principal outstanding principal of Baht 387,758,549.258 (or DM 18.8953 X 20,521,428.57), pursuant to clause 16.2 of the agreement stating if the Company is in default for any installments, the Creditor is then entitled to call all undue debt to become immediately due for repayment. Such interest was calculated from 30 June 1999 (original due date for the 5th installment) up to 29 December 1999 (the final date prior the calling of all undue installments to become immediately due for repayment), altogether computing to 182 days.
2. Default interest of Base Rate (as appeared in Central Bank of Europe’s announcement on interest, exhibit 18/25) plus 4.00 percent per annum, as pursuant to clause 13.1 of the loan agreement, upon the principal amount of Baht 387,758,549.258 (or DM 18.8953 X 20,521,428.57). Such interest was calculated from 30 December 1999 (The date that event of default occurred: the Creditor demand all undue installment to become immediately due and the debtor however fail to make repayment thereto.) up to 11 October 2000 (the last date that the Creditor No 30 demand interest for default according to application for repayment, prior to absolute receivership).
The Official Receiver dismiss the repayment of default interest upon principal amount of DM 411,802.81, calculated from 30 June 1999 up to 17 August 1999 computing to 48 days, amounting to DM 3,568.96 as appeared in summary of indebtedness under the second loan agreement, exhibit 18/31. Since the Creditor No 30 had not reported and presented evidence expressly show the cause of such principal, then this principal amount of DM 411,802 was not somehow related to the principal amount under the loan agreement. Also there was no evidence to support the existing of such principal amount.
Default interest shall not be demanded upon unpaid interest per the reason earlier decided, and the calculating of interest, both of normal and of default, shall be made by computing the number of days that had really elapsed, and in such computing 360 days is regarded as one year. This is pursuant to the second loan agreement, exhibit 18/6.
In summary, the Official Receiver grant the Creditor No 30 the repayment according to both mentioned loan agreements, by method of calculating earlier outlined, from the asset of Mr. Viboon or Suthas Techaviboon, Debtor No 2 pursuant to section 130(7) of Bankruptcy Act BE 2483. However, under placed condition that to what extent the Creditor No 30 has received repayment from the Company, as principal debtor, and/or Mr LT and/or Mr.ST, as joint guarantors, the Creditor No 30’s right to receive repayment under this case shall be reduced to such extent.
(signature) Ms T T
(signature) Mr S M
Official Receiver
คำพิพากษาศาลทรัพย์สินทางปัญญาฯ
อันนี้เป็นคำแปลคำพิพาษาศาลทรัพย์สินฯ ที่เราต้องแปลให้ลูกความต่างชาติอ่าน เพื่อให้เค้าตัดสินใจว่าจะอุทธรณ์ฏีกาต่อไปดีหรือไม่ เผอิญผมไม่มีตัวภาษาไทย จึงลงแต่ตัวภาษาอังกฤษให้ดูเป็นแนวทางการแปล
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(Translation)
(31) Of Court use
Judgment Garuda Emblem
Case Black no. Gor Kor 000/2546
Case Red no. Gor Kor 000/2548
In the Name of His Majesty the King
Central Intellectual Property and International Trade Court
On this 16th September 2005
Civil Action
0000 limited company plaintiff
Versus
0000 limited company the 1st
0000 limited company the 2nd
0000 Shipping limited company the 3rd defendant
Matter of Carriage of goods by sea, Insurance, Subrogation
The plaintiff filed complaint stating that the plaintiff himself, the 1st and the 2nd defendant are juristic person in type of limited company. The plaintiff is registered at Australia with the objective of undertaking non-life insurance business. The 1st and the 2nd defendants are registered at Bangkok Partnership and Company Registration Office, and are local agents that enter into contract of carriage of goods by sea for foreign carrier. The 3rd defendant, the carrier, is foreign juristic person that is domiciled abroad. The plaintiff had insured against loss for 2 shipments of electronic equipment in category of adapter and current switching that Delta Electronics (Thailand) limited public company, the assured, had sold to Dell Computer (China) limited company. For the first shipment, goods in quantity of 5,280 pieces were insured for the coverage of US$ 148,117.06. The assured hired the 1st defendant, acting as local agent of foreign carrier named Sea Navigator, to transport the goods from Bangkok to Xia Men, People Republic of China. The 1st defendant hired the 2nd defendant, acting as local agent of the 3rd defendant, to transport such goods. Sea Navigator subsequently transshipped goods into another vessel named Blue Diamond at Hong Kong. When the vessel arrived at Xia Men, People Republic of China it was found that goods in quantity of 1,216 pieces were soaked and damaged, thereby were unable to be further used or sold. The plaintiff, as insurer, was liable for the damages of US$ 47,436.06. For the second shipment, goods in quantity of 5,464 pieces were insured for the coverage of US$ 145,594.48. The assured hired the 1st defendant, acting as local agent of Sea Navigator the foreign carrier, to transport the goods from Bangkok to Xia Men, People Republic of China. The 1st defendant hired the 2nd defendant, the local agent of the 3rd defendant, to transport such goods. When the vessel arrived at Xia Men, People Republic of China, it was found that the container was leaked, and some water seeped into container and damaged goods in quantity of 2,044 pieces. Such damaged goods were unable to be further used or sold. The plaintiff was liable for damages of US$ 78,987.89. The assured demanded all three defendants to make compensation for those 2 shipments, however they failed to comply. So the assured claimed damages from the plaintiff as the insurer. Since the damages was covered under the insurance policy, the plaintiff compensated the assured and was subrogated to right against all three defendants. The plaintiff called the three defendants to make repayment, they however failed to comply. The plaintiff move this court to adjudge the three defendants, jointly or severally, pay him for compensation in 2 shipments equal to Baht 5,330,033.73 together with interest up to the filing date equal to Baht 62,426, and for interest of 7.5 per annum accruing on such principal amount after the filing date until payment is made in full.
The 1st defendant filed answer defending that the plaintiff had no power to file the complaint, since the power of attorney is incorrect and unlawful, because it was not executed by the plaintiff’s authorized director and was not sworn before notary public. The 1st defendant is merely agent of the shipper that is Delta Electronics (Thailand) public limited company, and did not undertake, in its usual course of business, the carriage of goods by sea for remuneration. The 1st defendant was not a sub-carrier or involved as carrier at any part of carriage, and did not act or sign in capacity of agent of the 3rd defendant. The 1st defendant issued to the shipper a House Bill of Lading to evidence that he received goods for, as agent of the shipper, further arrangement of carriage. The 1st defendant did not undertake the stuffing of goods into container, but the shipper himself did it at his own expense. If the damage occurred, it was caused by nature of the goods or by force majeure, because goods were stored in close-sealed and impermeable container. If the damage occurred during the course of carriage, it occurred while the goods were beyond the 1st defendant’s supervision. Pursuant to section 49(2) of Carriage of Goods by Sea Act B.E. 2534, the consignee has to advise any defect or damage of goods while taking delivery or within 15 days thereafter, but the consignee failed to do so. If the damage was under the responsibility of the carrier, the carrier liability was limited to not exceeding Baht 30 per kilogram for the net weight of goods. The goods in question weighted 9,244.4 kilogram, the carrier’s liability was limited to not exceeding Baht 277,332. The plaintiff was not subrogated to the assured’s right to file this complaint. The 1st defendant pray for dismissal of complaint.
The 2nd defendant filed answer defending that the 2nd defendant was the ship agent, which was considered as the work contractor of the 3rd defendant. The 2nd defendant was not the carrier or actual carrier, and was not remunerated by freight charge, but by commission fee. Bill of lading is merely evidence of contract on carriage of goods by sea, it is however not the contract itself. The 2nd defendant was not the agent in entering into the contract with the shipper. The dispute in this action is not governed by section 824 of Civil and Commercial Code, but is governed by Carriage of Goods by Sea Act B.E. 2534. Thus the plaintiff must, pursuant to section 3 of Civil Procedure Code, directly claim against carrier or actual carrier who is the principal that has domicile abroad. Section 43 of Carriage of Goods by Sea Act B.E. 2534 does not prescribe that the agent shall be liable toward the injured. The plaintiff failed to present any evidence of subrogation. The goods in question were not damaged during the carriage, so the loss was not covered by the insurance policy between the plaintiff and the shipper. The ownership of the goods in question had already been transferred to the buyer upon the goods were shipped on board. So it was not the seller but the buyer that was entitled to demand damages from the plaintiff. In undertaking those 2 shipments of goods, the 3rd defendant used container that was in good condition in compliance with international standard, and the owner of the goods took delivery and handed over container without any objection. If the plaintiff did suffer damage, it should not exceed Baht 200,000. Because the goods were not completely damaged, and the plaintiff failed to sell the salvage thereof, in order to reduce amount of damages. The 2nd defendant pray for dismissal of complaint.
The 3rd defendant was in default of answer and appearance. The plaintiff filed motion moving the court to give default judgment in favor of the plaintiff.
On trial process, the plaintiff produced evidence that he is juristic person in type of limited company, and registered at Australia with the business objective of undertaking non-life insurance as detailed in copy of affidavit accompanied by its translation, the exhibit marked as Jor 1. The plaintiff, by power of attorney, appointed and authorized Ms Suphannee Juthidumrongphan to be his branch manager in Thailand, and empowered her to file complaint and initiate legal action on behalf of the plaintiff. Also the power of attorney was sworn before Australian notary public as detailed in copy thereof accompanied by its translation, the exhibit marked as Jor 2. The plaintiff was granted license from Department of Insurance, Ministry of Commerce to undertake non-life insurance business in Thailand detailed in copy of license thereof, the exhibit marked as Jor 3. The 1st and the 2nd defendant are juristic person in type of limited company, and are registered at Bangkok Partnership and Company Registration Office detailed in copies of affidavit; the exhibits marked as Jor 4 and Jor 5 respectively. The 2nd defendant was acting as local agent of the 3rd defendant, which is a company that is registered and domiciled abroad, for entering into contract of carriage of goods by sea within 2 years before filing this complaint. The plaintiff insured against loss for 2 shipments of electronic equipment, in category of adapter and current switching, that Delta Electronics (Thailand) public limited company, as the assured, had sold to Dell Computer (China) limited company. The plaintiff was obliged to compensate the assured, if the goods suffer damage irrespective of part of carriage, however the first US$ 500 of the damages could be deducted by the plaintiff. The coverage amount is 115 percent of the price of goods. The 15 percent surplus was freight charge and other expenses detailed in certificate of open policy by sea; the exhibit marked as Jor 6 and Jor 17. The first shipment of goods was in quantity of 5,280 pieces. The goods was packed in cartons and then placed on 15 pallets detailed in copy of invoices and copy of packing list accompanied by their translations; exhibits marked as Jor 7 and Jor 8 respectively. The plaintiff insured against loss for the coverage of US$ 148,117.06. The assured hired the 1st defendant, as local agent of Sea Navigator vessel the foreign carrier, to transport the goods from Bangkok to Xie Men, People Republic of China. Upon fully and orderly receiving of goods, the 1st defendant issued bill of lading to the shipper, specifying that the issuance was for the carrier, not that on behalf of the shipper, detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 9. Such bill of lading specified the condition of carriage as port to door service, which mean the 1st defendant have to transport goods from Bangkok to consignee’s warehouse in Xia Men, People Republic of China. If the stored goods suffer damage before the container is unstuffed for delivery to the consignee, the 1st defendant is then liable for damages toward the shipper. The 1st defendant subsequently hired the 2nd defendant, acting as local agent of the 3rd defendant, to transport such goods. Upon fully and orderly receiving of goods, the 2nd defendant issued bill of lading to the 1st defendant detailed in copy thereof accompanied by its translation; exhibit marked as Jor 10. Sea Navigator subsequently transshipped goods into vessel named Blue Diamond at Hong Kong. When the vessel arrived at Xia Men, People Republic of China on August 8th, 2002 it was found that the goods had already been soaked before unstuffing container, detailed in copy of report on unstuffing container number CAXU 6166224 accompanied by its translation; exhibit marked as Jor 27. Xia Men Bax Global Warehousing limited company as the consignee later informed the 3rd defendant such report, detailed in copy of letter informing damage; exhibit marked as Jor 11. The plaintiff hired Mclalence Hong Kong limited company to make survey of damaged goods, whose finding show that 5 pallets of goods was damaged, detailed in survey report of container and photography accompanied by its translation; exhibit marked as Jor 12. The goods were sent back to the shipper’s factory. The plaintiff hired Mclalence (Thailand) limited company to make in-depth survey and evaluation of damage. Such company interviewed person, who supervised the stuffing of goods into container. The testimony was given that the container is checked to ensure its good condition before each shipment. The cartons of goods are checked, and they must be replaced if found that they are torn. The stuffing of goods into container is always made indoors. If it is raining or cloudy the goods shall not be stuffed into container. The stuffing of goods into container always observe this standard. So the goods shall never be moisten or soaked while being stuffed into the container. Details appear in a testimony of Mr. AAAA BBBB, exhibit marked as Jor 13. Mclalence (Thailand) limited company and shipper’s engineer also jointly made survey, and found that goods of 4 pallets were soaked. Metal part of goods got rusted. The carton has apparent sign of being soaked. Details appear in preliminary survey report made by Mclalence (Thailand) limited company accompanied by its translation, exhibit marked as Jor 14. Another goods of 5 pallets were subsequently sent back. Damaged goods were totaling to 1,216 pieces. Damaged goods were partially sampled for performance inspection, and found that some pieces did not pass the standard. After considering goods condition, the shipper was of opinion that they could not be delivered to customer, because moist may cause the goods get rusted and also shorten its life span. Mclalence (Thailand) limited company thus sought advice from Forensic Services (Malaysia) limited company, who is foreign expert. Such company advised that since the shipper uses high standard of inspection, it is acceptable to reject such goods, detailed in copy of opinion concerning wet damage accompanied by its translation, exhibit marked as Jor 29. Mclalence (Thailand) limited company advised the plaintiff to pay damages only for the first 4 pallets of goods, since the last 5 pallets of damaged goods were likely to be caused by the consignee himself in keeping delivered goods. Damages covered by policy is in the amount of US$47,936.06. The surveyor gave opinion that goods were soaked while they were being transshipped at Hong Kong. Details appear in preliminary and final report on examination of damage accompanied by their translation; exhibit marked as Jor 14 and Jor 15 respectively. All damaged goods had to be destroyed, because they were specifically manufactured for Dell Computer (China) limited company. In destruction of salvage, Mclalence (Thailand) limited company examined and confirmed that salvage was from damaged goods, and also sent his representative to witness. Photography was taken while conducting destruction of salvage, however such photography was lost. The plaintiff deducted the first US$500 of damages, so the balance of damages under plaintiff’s responsible is US$ 47,436.06. The second shipment of goods was in quantity of 5,464 pieces. The goods was packed in cartons and then placed on 17 pallets detailed in copy of invoices and copy of packing list accompanied by their translations; exhibits marked as Jor 18 and Jor 19 respectively. The plaintiff insured against loss for the coverage of US$ 145,594.48. The assured hired the 1st defendant, as local agent of vessel named Courier, to transport goods from Bangkok to Xie Men, People Republic of China. The 1st defendant issued bill of lading to the shipper, specifying that the 1st defendant issue for the carrier, detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 20. Such bill of lading specified the condition of carriage as port to door service. The 1st defendant subsequently hired the 2nd defendant, local agent of the 3rd defendant, to transport such goods. The 2nd defendant issued bill of lading in name of the 3rd defendant to the 1st defendant detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 21. When the vessel arrived at Xia Men, People Republic of China, it was found that the goods had already been soaked before unstuffing container, detailed in copy of report on unstuffing container of serial number KHLU 5213500 accompanied by its translation and copy of photography of container; exhibit marked as Jor 28 and Jor 30 respectively. Xia Men Bax Global Warehousing limited company as the consignee later informed the 3rd defendant such report, detailed in copy of letter informing damage; exhibit marked as Jor 22. The plaintiff hired Mclalence Hong Kong limited company to make survey of damaged goods, whose finding in detail appeared in survey report on container and photography with its translation; exhibit marked as Jor 23. The goods were sent back to the shipper’s factory. The plaintiff hired Mclalence (Thailand) limited company to make survey and evaluation of damage. Such company interview person, who supervised the stuffing of goods into container, and was confirmed that goods were in good order and not wet, while being stuffed into container. Also Mclalence (Thailand) limited company made survey, and found that goods of 9 pallets were soaked in quantity of 2,044 pieces. The surveyor gave opinion that the goods got soaked because container was leak, allowing water seeped into container, detailed in preliminary and final report on examination of damage accompanied by their translation; exhibit marked as Jor 24 and Jor 25 respectively. In survey jointly made between surveyor and shipper’s QC engineer, it was found the cartons were torn and stained by water, some goods got rusted. An internal examination found that inner cover got rusted and electronic equipment were corroded with rust up to their legs. There was white stain, like salt stain, on the equipment. A test of electrical performance by sampling found exploding of 2 pieces of defect, which exceed customer-specified standard. Details appear in analysis report; exhibit marked as Jor 32. The shipper rejected all goods that were sent back, since they were not in reliable condition. For pieces that could not be tested, since lack of testing instrument, a consequent test found that they got rusted. Mclalence (Thailand) limited company thus sought advice from Forensic Services (Malaysia) limited company, such company advised that goods exposed to water for certain period then were significantly defective, so manufacturer could not accept. Details appear in copy of opinion concerning wet damage accompanied by its translation, exhibit marked as Jor 29. The shipper sent claim letter to the 1st defendant claiming damages in total amount of US$ 79,487.89, and also sent its copy to Mclalence (Thailand) limited company. Details appear in copy of claim letter accompanied by its translation; exhibit marked as Jor 31. The salvage of goods had to be destroyed, because they were specifically manufactured for Dell Computer (China) limited company, so they were not compatible to other computer or equipment, and were unable to be sold to other person. Photography was taken while destroying salvage, however camera and photography were lost. The plaintiff deduct the first US$500 of damages, and the balance of damages under plaintiff’s responsible is US$ 78,987.89. The assured demanded all three defendants to make compensation for those 2 shipments, however they failed to comply. So the assured claimed damages from the plaintiff as the insurer. Since the damages are covered by the policy, the plaintiff compensated the assured, detailed in receipt and letter of subrogation; exhibit marked as Jor 16 and Jor 26. The plaintiff was then subrogated to the assured’s right against all three defendants, for the first shipment in amount of Baht 1,999,904.29 and the second shipment in amount of Baht 3,333,129.44. Totaling of Baht 5,333,033.73 together with interest of 7.5 per annum from 9 July 2003, that the plaintiff made payment, until payment is made to the plaintiff in full. Before filing this complaint, the plaintiff commissioned his lawyer to sent claim letter to all three defendants, they however failed to comply.
The 1st defendant produced evidence that, concerning the carriage of goods, he was merely the agent of the shipper in arranging ship agent and carrier, and in managing logistic matters detailed in the affidavit; exhibit marked as Lor 1 and Lor 22. The 1st defendant did not undertake carriage of goods by sea for remuneration in its usual course of business, and he was not sub-carrier or involved as carrier at any part of carriage. The 1st defendant did not act or sign in capacity of agent of the 3rd defendant. The shipper had sold goods to Dell Computer (China) limited company in 2 shipments, detailed in invoice and packing list, exhibit marked as Jor 5 to Jor 10 and Jor 11 to Jor 17 for the first and second shipment respectively. The shipper contacted and hired the 1st defendant to be his agent in arranging vessel and reserving container, on 23 July BE 2545 for the first shipment and on 21 August BE2545 for the second shipment. The 1st defendant arranged the 2nd defendant as ship agent for both shipments. And the 1st defendant sent fax informing the shipper to prepare and hand over goods of 2 shipments to agent of the 2nd defendant for further carriage. Details appeared in the copies of such faxes; exhibit marked as Lor 18 and Lor 19. The shipper handed over goods to the 1st defendant accompanied by their particular shipment detailed in exhibits marked as Lor 20 and Lor 21. The 1st defendant issued to the shipper a house bill of lading to be evidence that the 1st defendant received and kept goods on behalf of the shipper. Details appear in bill of lading; exhibit marked as Jor 9 and Jor 10. Since carriage of goods in this action was in condition of CY/CY, the shipper stuffed goods into container by himself. The 1st defendant subsequently handed over goods to the 2nd defendant as ship agent. The 2nd defendant issued to the 1st defendant a bill of lading, specifying the 1st defendant as a shipper, Bax Global Warehousing limited company in People Republic of Chinas as consignee and the 3rd defendant as a carrier, detailed bill of lading; exhibit marked as Jor 10 and Jor 21. The bill of lading marked as Jor 9 and Jor 10, as issued by the 1st defendant to the shipper, was non-negotiable and not specifying price of goods. So such bills of lading were not evidence and contract of carriage of goods by sea, but merely evidence that goods were received by the 1st defendant in capacity of agent of shipper for further arrangement of carriage. The 1st defendant was not the agent of the 3rd defendant, but the 2nd defendant was. The 1st defendant paid the 2nd defendant for freight charge, detailed in receipt/tax invoice; exhibit marked as Lor 23 and Lor 24. If the damages occurred and the carrier was liable therefor. The carrier’s liability is limited to not exceeding Baht 30 per kilogram for the net weight of goods. Goods in this action weighted 9,244.4 kilogram, the carrier’s liability is limited to not exceeding Baht 277,332 pursuant to section 58 of Carriage of Goods by Sea Act BE 2534. The plaintiff was not subrogated to right to file complaint. The damage is not stemmed from negligence or fault of the carrier.
The 2nd defendant produced evidence that he received his remuneration by commission fee, not by freight charge. The 2nd defendant’s objective does not include undertaking of carriage of goods by sea, also he is not multimodal carrier that shall be liable in this action. The shipper contacted its agent that is the 1st defendant, then the 1st defendant contacted the 2nd defendant that is the agent of the 3rd defendant. The transportation was made in 2 shipments. Upon shipping goods on board, the 2nd defendant issued bill of lading, exhibit marked as Jor 10 and Jor 21, on behalf of agent of the 3rd defendant as the carrier. Such 2 shipments were under condition of CY/CY that the shipper has to receive container in good condition and undertake the stuffing by himself at his factory. When the 2nd defendant was contacted for reserving vessel, he contacted R.S. Container Depot limited company, which was entrusted by the 3rd defendant to keep container. For the first shipment of goods in question, the shipper received from R.S. Container Depot limited company container in good condition on 27 July 2002, detailed in letter re container condition assurance dated 29 August 2002; exhibit marked as Lor 25. The goods were subsequently stuffed in container on 29 July 2002. Container were handed over by shipper for shipping on board at Uni Thai Port on 30 July 2002 and were shipped on board on 31 July 2002 detailed in document showing dispute of loading container; exhibit marked as Lor 3. The first shipment was carried out by Sea Navigator vessel. Goods were transshipped into Blue Diamond vessel at Hong Kong. For the second shipment of goods in question, the shipper received from R.S. Container Depot limited company container in good condition on 24 August 2002. The goods were subsequently stuffed in container on 26 August 2002. Container were handed over by shipper for shipping on board at Uni Thai Port on 27 August 2002 and were shipped on board on 28 August 2002, for carriage by Courier vessel, and transshipped into Silver Ocean vessel at Hong Kong, detailed in document showing dispute of loading container; exhibit marked as Lor 3. In the second shipment, Uni Thai Port made survey that container was in good order before lifting on board. Such survey specifying that container KHLU 5213500 order 42 was in orderly fashion and stored in hold of vessel that shall not be exposed to rain, detailed in survey report of Uni Thai Port; exhibit marked as Lor 26 and Lor 27. However, according to daily rain report of department of meteorology, Bang Bor station, Samutphrakarn province, there was raining at shipper’s company during the time of stuffing goods into container. On 29 July 2002 stuffing, there was raining in quantity of 5 millimeter; and on 26 August 2002 stuffing for the second shipment, there was raining in quantity of 0.5 millimeter. When there is raining, ambient air will has hign humidity. In the second shipment, particular in “OUTTURN LIST FOR CONTAINER”, exhibit marked as Lor 28, read “NIL” that was navigation term means that container was in good order and damaged free. So the 2nd defendant is not liable toward the plaintiff. If the shipper suffered damage, it should not exceed Baht 200,000. Because all the salvage of goods were destroyed, if the salvage were sold then amount of damages should be reduced. Furthermore the bill of lading issued by the 2nd defendant specified clause to exempt the 2nd defendant’s liability. The 2nd defendant shall not be liable for damage occurred during carriage, because he is merely carrier’s agent, detailed in copy of back-side of bill of lading accompanied by its translation; exhibit marked as Lor 29.
After considering evidences taken, the facts, as not argued by parties, was established that the plaintiff insured against loss of goods in question that Delta Electronics (Thailand) public company as the assured had sold to Dell Computer (China) limited company for 2 shipment. Details appeared in certificate of open policy by sea; exhibit marked as Jor 6 and Jor 17. The assured hired the 1st defendant to transport goods from Bangkok to Xia Men, People Republic of China. When the 1st defendant received goods, stuffed in container by the shipper, the 1st defendant issued bill of lading to the shipper. The 1st defendant then hired the 2nd defendant to transport goods. When the goods were transported to place of destination, if was found that some goods, of each shipment, suffered damage.
The first issue to be decided is whether the plaintiff had right to file the complaint. For this issue, the 1st defendant defended that power of attorney was not executed by the plaintiff’s authorized director and was not sworn before notary public. So the power of attorney was incorrect and unlawful. The plaintiff present witness statement of Ms Vasana Sae-Ung, the plaintiff’s employer in compensation section, and present the copy of the plaintiff’s limited company affidavit accompanied by its translation; exhibit marked as Jor 1, and copy of power of attorney accompanied by its translation; exhibit marked as Jor 2. Altogether showing that the plaintiff appointed and authorized Ms Suphannee Juthidumrongphan to be his branch manager in Thailand, and empowered her to manage and initiate legal action in name of the plaintiff. The power of attorney was sworn before Australian notary public. It was found that such affidavit and power of attorney were supporting documents that the plaintiff presented to Department of Insurance, Ministry of Commerce in applying for license to undertake non-life insurance business in Thailand. And such copies of documents were certified their correctness by insurance official rank 6. So it is believable the documents were examined by relevant official and were true and correct ones. Those document clearly specify that Ms Suphannee Juthidumrongphan was entrusted by the plaintiff to manage and initiate legal action in the name of the plaintiff, and those exhibit marked Lor 1 and Lor 2 bear the signature of Mr M I Thorborn, an Australian notary public. The 1st defendant failed to disprove the plaintiff’s evidence on this issue, so facts was established that the power of attorney was lawful. The plaintiff had power to file the complaint.
The next issue to be decided is whether goods suffered damage while they were under supervision of the carrier. Since goods in question were transported under term of CY/CY, which mean carrier shall receive container, already stuffed with goods by shipper, and load container on board then transport to place of destination. So Delta Electronics (Thailand) limited company, the shipper, had duty to stuff goods into container by himself. The issue is whether goods initially suffered damage at the stage of being stuffed into container by the shipper. The plaintiff present witness statement of Mr AAAA BBBB, the shipper’s supervisor in shipping section, that the stuffing of goods into container always observe the same standard. That is the container shall be checked before goods were stuffed therein, if found any problems new container shall be required. In preparing goods according to packing list, goods’ carton shall be checked first, if found that a carton is torn, goods shall be re-carton. The stuffing of goods into container shall be made in-door, under roof. If it is raining or cloudy, goods shall not be stuffed in to container. So the goods shall never be moisten or soaked before or during stuffing into container. After examining photograph of stuffing place of the shipper as appeared in survey report, exhibit marked as Jor 14 picture no 7 to 10, it was found that the stuffing place is building that has roof. The building has a gate that the container’s door could extrude into. Even there was some clearance between the container and such gate, there however existed only about 50 centimeter for each side. On the top side, there was plastic roof that could cover the clearance and prevent rain exposure. Although some rain mist could go through side clearance, as cross-examined by the 1st defendant’s lawyer, but it is believed that it must be in very small amount. After considering characteristic of damage for 2 shipment of goods in question, as appeared in survey report in Jor 12 and Jor 23, it was expressly seen that good in question for 2 shipment were soaked in manner like they were being immersed in water for certain period of time, that caused thick-papered cartons being distorted from their original shape. Such characteristic can not be caused from merely rain mist or lack of dryer, as contended by the 1st and 2nd defendant. And although the 2nd defendant adduced daily rain report of Department of Meteorology, exhibit marked as Lor 4, that there was raining in area that the shipper’s factory located on the date of stuffing goods into container. However, apart from the uncertainty of whether it rained at the shipper factory, such exhibit was merely e-mail correspondence that no relevant agency certified its true and correctness. Also content contained therein did not indicate that to what amount is considered as heavy rain. Rain in amount of 5 and 0.5 millimeter may be in very slight, since that exhibit indicate on particular of raining in May 2003 as high as to 26.3 millimeter. Thus it was decided that the exhibit marked as Lor 4 was unreliable. The plaintiff’s evidence out-proves than the defendants’ evidence, so it was decided that goods in question of 2 shipments were in orderly fashion upon being stuffed into container. The 2nd defendant present evidence of the orderly receiving of container of goods in question, by assuring the container condition for the first shipment and by orderly lifted container into vessel for the second shipment. Details appeared in letter re container condition assurance and container survey by port, exhibit marked as Lor 25 and Lor 27 respectively. The facts was established that the shipper orderly handed over container to the carrier. When the first shipment of goods in question arrived at port of destination in Xia Men, People Republic of China on 8 August 2002, it was found that goods had been soaked before unstuffing the container, detailed in copy of unstuffing report of container number CAXU 6166224 accompanied by its translation, exhibit marked as Jor 27. When the second shipment of goods in question arrived at port of destination in Xia Men, People Republic of China 9 September 2002, it was found that goods had been soaked before unstuffing the container, detailed in copy of unstuffing report of container number KHLU 5213500 accompanied by its translation and copy of photography of container, exhibit marked as Jor 28 and Jor 30 respectively. Such copy of unstuffing reports, exhibit marked as Jor 27 and Jor 28, were made by China Ocean Shipping Tally limited company, the person who was entrusted to release container at port of destination. Mr CCCC DDDD, the 2nd defendant’s employee, also testified and submit exhibit marked as Lor 28 that China Ocean Shipping Tally limited company was agent of the carrier at port of destination. So it was believed by the testimony of the 2nd defendant’s witness that China Ocean Shipping Tally limited company was agent of carrier who had duty to release container at port of destination. Such copy of unstuffing reports, exhibit marked as Jor 27 and Jor 28, indicated that they were made by China Ocean Shipping Tally limited company at Xia Men branch, that branch name was identical to name of city of destination, and such report also specified container serial number identical to as indicated in bills of lading, exhibit marked as Jor 9, Jor 10, Jor 20 and Jor 21. Such unstuffing reports were clearly remarked that the goods had been soaked before unstuffing container. Even such exhibits were made in Chinese language, but the 1st and 2nd defendants failed to disprove the correctness of the plaintiff’s translation. The fact was established by the plaintiff’s evidence that goods in question suffered damage before unstuffing container. Even for the second shipment, the 2nd defendant adduced exhibit marked as Lor 28, referred in English as “OUTTURN LIST OF CONTAINER”, however the 2nd defendant failed to present the exact fact as supported by such exhibit. The 2nd defendant’s witness groundlessly testified that “NIL” was indicated in the exhibit, and under navigation term it mean container was in good order and damage free. However exhibit as Lor 29 provided no details of container serial number, so whether it included container serial number KHLU 5213500, that stuffed with goods in question, was unknown. The 2nd defendant’s evidence failed to disprove the plaintiff’s evidence. And bills of lading exhibit Jor 9 and Jor 10, which issued to shipper by the 1st defendant, indicated term of transportation as “PORT TO DOOR SERVICE”, which means the 1st defendant have to transport goods from Bangkok to consignee’s warehouse in Xia Men, People Republic of China. If the stuffed goods suffer damage before the container was unstuffed for delivery to the consignee, the 1st defendant is then liable for damages toward the shipper as earlier decided. The fact was established that goods in question suffered damage while they were under supervision of the carrier.
The next issue to be decided is whether all three defendants were liable for damage of goods in question. The 1st defendant contended that he does not undertake, in its usual course of business, the carriage of goods by sea for remuneration. Also the 1st defendant is not a sub-carrier or involved as carrier at any part of carriage, and he does not act or sign in capacity of agent of the 3rd defendant, but he is agent of the shipper. The 1st defendant issued to the shipper a House Bill of Lading to evidence that he received goods for, as agent of the shipper, further arrangement of carriage. However after considering bill of lading, exhibit marked as Jor 9 and Jor 20, it was found that both documents’ heading clearly state the 1st defendant’s name as issuer and Dell Computer (China) as consignee. Those bills of lading provided no particular concerning the receiving of goods from the shipper, but all particulars concerning carriage was fully provided i.e. consignee, vessel, place of loading, place of destination, goods description, and terms of transportation and service. Lastly the 1st defendant stamped his seal in the blank for issuer, stated therein that he issued as agent of carrier, contrary to his contention as agent of shipper. And even the 1st defendant stated that he was agent of carrier, there was however no other carrier’s name provided in those headings except only the 1st defendant’s name. So the bills of lading were personally issued by the 1st defendant in his name, and both bills of lading were evidence of contract of carriage of good by sea between the 1st defendant and the shipper. Ms Viraporn Supaso, the 1st defendant’s employee, give testimony against cross-examination admitting that the 1st defendant charged freight to the shipper in amount that was higher than amount that the 1st defendant paid to the 2nd defendant, detail in receipts; exhibit marked as Lor 23 and Lor 24. Altogether show that the 1st defendant undertakes the carriage of goods by sea for remuneration in its usual course of business, so he is carrier in the sense of section 3 of Carriage of Goods by Sea Act BE 2534. The 1st defendant as the carrier was liable for damage of goods occurred during his supervision of goods, pursuant to section 39. For contention that the consignee failed to advise any defective or damage of goods while taking delivery or within 15 days thereafter pursuant to section 49(2) of Carriage of Goods by Sea Act B.E. 2534, it was decided that such contention was irrelevant since the defective or damage had clearly appeared before taking delivery, details in copy report on unstuffing container; exhibit marked as Jor 27 and Jor 28.
For the 2nd and 3rd defendants’ liability, the 2nd defendant testified that he was ship agent, so he was considered the word contractor of the 3rd defendant. This fact was consistently revealed in both the plaintiff’s complaint and the 1st defendant’s trial. Especially in bills of lading issued by the 2nd defendant, exhibit marked as Jor 10 and Jor 21, expressly specify that the issuance is made in capacity of agent of the 3rd defendant, the carrier. And the witness statement of Ms Viraporn, the 1st defendant’s witness, stating that the 1st defendant made contact with the 2nd defendant as ship agent in arranging vessel. So the 3rd defendant was not contracting party with the shipper in contract of carriage of goods by sea, but the 3rd defendant was entrusted the shipper to transport under such contract. The 3rd defendant is thus the actual carrier in the sense of section 3 of Carriage of Goods by Sea Act BE 2534. Since the 3rd defendant was entrusted by the 1st defendant to carry out a through transportation of goods in question, the 3rd defendant was then liable, as joint debtor with the 1st defendant, for damage occurred while goods was under his supervision, pursuant to section 45 and 44. The 2nd defendant was merely agent of the 3rd defendant, thus was not carrier or actual carrier that was jointly liable for damage of goods in question. Even the 2nd defendants as agent entered into contract on behalf the 3rd defendant as principal who was foreign juristic person and was domiciled abroad. However the 2nd defendant did not enter into contract with the shipper directly, but the 1st defendant. The 3rd defendant’s liability toward the shipper is prescribed by provision of law, that is not the liability toward the shipper under the contract. So such liability could not be stretchy construed to include the 2nd defendant that was agent of the actual carrier. It is decided that the 2nd defendant shall not be personally liable toward the shipper or the plaintiff pursuant to section 824 of Civil and Commercial Code.
The final issue to be decided is how much the 1st and 3rd defendants are liable for damages toward the plaintiff. The plaintiff adduced the amount of damages as determined in final survey report, exhibit marked as Jor 15 and Jor 25. The plaintiff had paid the assured for such amount of damages, and adduced the subrogation over the three defendants. For first shipment there was Baht 1,999,904.29 of damages, for the second shipment there was Baht 3,333,129.44, detailed letters of subrogation, exhibit marked as Jor 16 and Jor 26, the totaling was of Baht 5,333,033.73 together with interest. However the carrier’s liability, pursuant to the first paragraph of section 58 of Carriage of Goods by Sea Act BE 2534, is limited to Baht 10,000 per shipping unit or Baht 30 per kilogram for the net weight of goods, whichever is greater. Since there appear no event that make liability limitation unenforceable as pursuant to section 60, the 1st and 3rd defendants’ liability shall be limited by provision of law. Even goods in question were transported by container system for one container in each shipment, but in such transportation specified the quantity and kinds of packages in bills of lading, exhibits marked as Jor 9, Jor 10, Jor 20 and Jor 21. So the quantity of goods in question was 105 cartons and 122 cartons, totaling in 227 shipping units. Pursuant to section 59(1) the carrier’s liability shall be limited to Baht 2,270,000 that is the greater amount . For the contention of the plaintiff that goods were in quantity of 5,280 pieces and 5,464 pieces, it is decided that those were details of goods that could not be considered as shipping units.
The court hereby adjudge the 1st and 3rd defendant to jointly or severally pay the plaintiff in amount of Baht 2,270,000 together with the interest of 7.5 per annum outstanding on such principal amount from 9 July 2003 until payment is made in full. The plaintiff’s cost shall be jointly or severally paid by the 1st and 3rd defendant, lawyer’s fee is determined at Baht 20,000 and for court fee at amount of claim won by the plaintiff. The plaintiff’s complaint against the 2nd defendant shall be dismissed, and any costs arisen thereby shall be borne by each party.
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(Translation)
(31) Of Court use
Judgment Garuda Emblem
Case Black no. Gor Kor 000/2546
Case Red no. Gor Kor 000/2548
In the Name of His Majesty the King
Central Intellectual Property and International Trade Court
On this 16th September 2005
Civil Action
0000 limited company plaintiff
Versus
0000 limited company the 1st
0000 limited company the 2nd
0000 Shipping limited company the 3rd defendant
Matter of Carriage of goods by sea, Insurance, Subrogation
The plaintiff filed complaint stating that the plaintiff himself, the 1st and the 2nd defendant are juristic person in type of limited company. The plaintiff is registered at Australia with the objective of undertaking non-life insurance business. The 1st and the 2nd defendants are registered at Bangkok Partnership and Company Registration Office, and are local agents that enter into contract of carriage of goods by sea for foreign carrier. The 3rd defendant, the carrier, is foreign juristic person that is domiciled abroad. The plaintiff had insured against loss for 2 shipments of electronic equipment in category of adapter and current switching that Delta Electronics (Thailand) limited public company, the assured, had sold to Dell Computer (China) limited company. For the first shipment, goods in quantity of 5,280 pieces were insured for the coverage of US$ 148,117.06. The assured hired the 1st defendant, acting as local agent of foreign carrier named Sea Navigator, to transport the goods from Bangkok to Xia Men, People Republic of China. The 1st defendant hired the 2nd defendant, acting as local agent of the 3rd defendant, to transport such goods. Sea Navigator subsequently transshipped goods into another vessel named Blue Diamond at Hong Kong. When the vessel arrived at Xia Men, People Republic of China it was found that goods in quantity of 1,216 pieces were soaked and damaged, thereby were unable to be further used or sold. The plaintiff, as insurer, was liable for the damages of US$ 47,436.06. For the second shipment, goods in quantity of 5,464 pieces were insured for the coverage of US$ 145,594.48. The assured hired the 1st defendant, acting as local agent of Sea Navigator the foreign carrier, to transport the goods from Bangkok to Xia Men, People Republic of China. The 1st defendant hired the 2nd defendant, the local agent of the 3rd defendant, to transport such goods. When the vessel arrived at Xia Men, People Republic of China, it was found that the container was leaked, and some water seeped into container and damaged goods in quantity of 2,044 pieces. Such damaged goods were unable to be further used or sold. The plaintiff was liable for damages of US$ 78,987.89. The assured demanded all three defendants to make compensation for those 2 shipments, however they failed to comply. So the assured claimed damages from the plaintiff as the insurer. Since the damages was covered under the insurance policy, the plaintiff compensated the assured and was subrogated to right against all three defendants. The plaintiff called the three defendants to make repayment, they however failed to comply. The plaintiff move this court to adjudge the three defendants, jointly or severally, pay him for compensation in 2 shipments equal to Baht 5,330,033.73 together with interest up to the filing date equal to Baht 62,426, and for interest of 7.5 per annum accruing on such principal amount after the filing date until payment is made in full.
The 1st defendant filed answer defending that the plaintiff had no power to file the complaint, since the power of attorney is incorrect and unlawful, because it was not executed by the plaintiff’s authorized director and was not sworn before notary public. The 1st defendant is merely agent of the shipper that is Delta Electronics (Thailand) public limited company, and did not undertake, in its usual course of business, the carriage of goods by sea for remuneration. The 1st defendant was not a sub-carrier or involved as carrier at any part of carriage, and did not act or sign in capacity of agent of the 3rd defendant. The 1st defendant issued to the shipper a House Bill of Lading to evidence that he received goods for, as agent of the shipper, further arrangement of carriage. The 1st defendant did not undertake the stuffing of goods into container, but the shipper himself did it at his own expense. If the damage occurred, it was caused by nature of the goods or by force majeure, because goods were stored in close-sealed and impermeable container. If the damage occurred during the course of carriage, it occurred while the goods were beyond the 1st defendant’s supervision. Pursuant to section 49(2) of Carriage of Goods by Sea Act B.E. 2534, the consignee has to advise any defect or damage of goods while taking delivery or within 15 days thereafter, but the consignee failed to do so. If the damage was under the responsibility of the carrier, the carrier liability was limited to not exceeding Baht 30 per kilogram for the net weight of goods. The goods in question weighted 9,244.4 kilogram, the carrier’s liability was limited to not exceeding Baht 277,332. The plaintiff was not subrogated to the assured’s right to file this complaint. The 1st defendant pray for dismissal of complaint.
The 2nd defendant filed answer defending that the 2nd defendant was the ship agent, which was considered as the work contractor of the 3rd defendant. The 2nd defendant was not the carrier or actual carrier, and was not remunerated by freight charge, but by commission fee. Bill of lading is merely evidence of contract on carriage of goods by sea, it is however not the contract itself. The 2nd defendant was not the agent in entering into the contract with the shipper. The dispute in this action is not governed by section 824 of Civil and Commercial Code, but is governed by Carriage of Goods by Sea Act B.E. 2534. Thus the plaintiff must, pursuant to section 3 of Civil Procedure Code, directly claim against carrier or actual carrier who is the principal that has domicile abroad. Section 43 of Carriage of Goods by Sea Act B.E. 2534 does not prescribe that the agent shall be liable toward the injured. The plaintiff failed to present any evidence of subrogation. The goods in question were not damaged during the carriage, so the loss was not covered by the insurance policy between the plaintiff and the shipper. The ownership of the goods in question had already been transferred to the buyer upon the goods were shipped on board. So it was not the seller but the buyer that was entitled to demand damages from the plaintiff. In undertaking those 2 shipments of goods, the 3rd defendant used container that was in good condition in compliance with international standard, and the owner of the goods took delivery and handed over container without any objection. If the plaintiff did suffer damage, it should not exceed Baht 200,000. Because the goods were not completely damaged, and the plaintiff failed to sell the salvage thereof, in order to reduce amount of damages. The 2nd defendant pray for dismissal of complaint.
The 3rd defendant was in default of answer and appearance. The plaintiff filed motion moving the court to give default judgment in favor of the plaintiff.
On trial process, the plaintiff produced evidence that he is juristic person in type of limited company, and registered at Australia with the business objective of undertaking non-life insurance as detailed in copy of affidavit accompanied by its translation, the exhibit marked as Jor 1. The plaintiff, by power of attorney, appointed and authorized Ms Suphannee Juthidumrongphan to be his branch manager in Thailand, and empowered her to file complaint and initiate legal action on behalf of the plaintiff. Also the power of attorney was sworn before Australian notary public as detailed in copy thereof accompanied by its translation, the exhibit marked as Jor 2. The plaintiff was granted license from Department of Insurance, Ministry of Commerce to undertake non-life insurance business in Thailand detailed in copy of license thereof, the exhibit marked as Jor 3. The 1st and the 2nd defendant are juristic person in type of limited company, and are registered at Bangkok Partnership and Company Registration Office detailed in copies of affidavit; the exhibits marked as Jor 4 and Jor 5 respectively. The 2nd defendant was acting as local agent of the 3rd defendant, which is a company that is registered and domiciled abroad, for entering into contract of carriage of goods by sea within 2 years before filing this complaint. The plaintiff insured against loss for 2 shipments of electronic equipment, in category of adapter and current switching, that Delta Electronics (Thailand) public limited company, as the assured, had sold to Dell Computer (China) limited company. The plaintiff was obliged to compensate the assured, if the goods suffer damage irrespective of part of carriage, however the first US$ 500 of the damages could be deducted by the plaintiff. The coverage amount is 115 percent of the price of goods. The 15 percent surplus was freight charge and other expenses detailed in certificate of open policy by sea; the exhibit marked as Jor 6 and Jor 17. The first shipment of goods was in quantity of 5,280 pieces. The goods was packed in cartons and then placed on 15 pallets detailed in copy of invoices and copy of packing list accompanied by their translations; exhibits marked as Jor 7 and Jor 8 respectively. The plaintiff insured against loss for the coverage of US$ 148,117.06. The assured hired the 1st defendant, as local agent of Sea Navigator vessel the foreign carrier, to transport the goods from Bangkok to Xie Men, People Republic of China. Upon fully and orderly receiving of goods, the 1st defendant issued bill of lading to the shipper, specifying that the issuance was for the carrier, not that on behalf of the shipper, detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 9. Such bill of lading specified the condition of carriage as port to door service, which mean the 1st defendant have to transport goods from Bangkok to consignee’s warehouse in Xia Men, People Republic of China. If the stored goods suffer damage before the container is unstuffed for delivery to the consignee, the 1st defendant is then liable for damages toward the shipper. The 1st defendant subsequently hired the 2nd defendant, acting as local agent of the 3rd defendant, to transport such goods. Upon fully and orderly receiving of goods, the 2nd defendant issued bill of lading to the 1st defendant detailed in copy thereof accompanied by its translation; exhibit marked as Jor 10. Sea Navigator subsequently transshipped goods into vessel named Blue Diamond at Hong Kong. When the vessel arrived at Xia Men, People Republic of China on August 8th, 2002 it was found that the goods had already been soaked before unstuffing container, detailed in copy of report on unstuffing container number CAXU 6166224 accompanied by its translation; exhibit marked as Jor 27. Xia Men Bax Global Warehousing limited company as the consignee later informed the 3rd defendant such report, detailed in copy of letter informing damage; exhibit marked as Jor 11. The plaintiff hired Mclalence Hong Kong limited company to make survey of damaged goods, whose finding show that 5 pallets of goods was damaged, detailed in survey report of container and photography accompanied by its translation; exhibit marked as Jor 12. The goods were sent back to the shipper’s factory. The plaintiff hired Mclalence (Thailand) limited company to make in-depth survey and evaluation of damage. Such company interviewed person, who supervised the stuffing of goods into container. The testimony was given that the container is checked to ensure its good condition before each shipment. The cartons of goods are checked, and they must be replaced if found that they are torn. The stuffing of goods into container is always made indoors. If it is raining or cloudy the goods shall not be stuffed into container. The stuffing of goods into container always observe this standard. So the goods shall never be moisten or soaked while being stuffed into the container. Details appear in a testimony of Mr. AAAA BBBB, exhibit marked as Jor 13. Mclalence (Thailand) limited company and shipper’s engineer also jointly made survey, and found that goods of 4 pallets were soaked. Metal part of goods got rusted. The carton has apparent sign of being soaked. Details appear in preliminary survey report made by Mclalence (Thailand) limited company accompanied by its translation, exhibit marked as Jor 14. Another goods of 5 pallets were subsequently sent back. Damaged goods were totaling to 1,216 pieces. Damaged goods were partially sampled for performance inspection, and found that some pieces did not pass the standard. After considering goods condition, the shipper was of opinion that they could not be delivered to customer, because moist may cause the goods get rusted and also shorten its life span. Mclalence (Thailand) limited company thus sought advice from Forensic Services (Malaysia) limited company, who is foreign expert. Such company advised that since the shipper uses high standard of inspection, it is acceptable to reject such goods, detailed in copy of opinion concerning wet damage accompanied by its translation, exhibit marked as Jor 29. Mclalence (Thailand) limited company advised the plaintiff to pay damages only for the first 4 pallets of goods, since the last 5 pallets of damaged goods were likely to be caused by the consignee himself in keeping delivered goods. Damages covered by policy is in the amount of US$47,936.06. The surveyor gave opinion that goods were soaked while they were being transshipped at Hong Kong. Details appear in preliminary and final report on examination of damage accompanied by their translation; exhibit marked as Jor 14 and Jor 15 respectively. All damaged goods had to be destroyed, because they were specifically manufactured for Dell Computer (China) limited company. In destruction of salvage, Mclalence (Thailand) limited company examined and confirmed that salvage was from damaged goods, and also sent his representative to witness. Photography was taken while conducting destruction of salvage, however such photography was lost. The plaintiff deducted the first US$500 of damages, so the balance of damages under plaintiff’s responsible is US$ 47,436.06. The second shipment of goods was in quantity of 5,464 pieces. The goods was packed in cartons and then placed on 17 pallets detailed in copy of invoices and copy of packing list accompanied by their translations; exhibits marked as Jor 18 and Jor 19 respectively. The plaintiff insured against loss for the coverage of US$ 145,594.48. The assured hired the 1st defendant, as local agent of vessel named Courier, to transport goods from Bangkok to Xie Men, People Republic of China. The 1st defendant issued bill of lading to the shipper, specifying that the 1st defendant issue for the carrier, detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 20. Such bill of lading specified the condition of carriage as port to door service. The 1st defendant subsequently hired the 2nd defendant, local agent of the 3rd defendant, to transport such goods. The 2nd defendant issued bill of lading in name of the 3rd defendant to the 1st defendant detailed in copy of bill of lading accompanied by its translation; exhibit marked as Jor 21. When the vessel arrived at Xia Men, People Republic of China, it was found that the goods had already been soaked before unstuffing container, detailed in copy of report on unstuffing container of serial number KHLU 5213500 accompanied by its translation and copy of photography of container; exhibit marked as Jor 28 and Jor 30 respectively. Xia Men Bax Global Warehousing limited company as the consignee later informed the 3rd defendant such report, detailed in copy of letter informing damage; exhibit marked as Jor 22. The plaintiff hired Mclalence Hong Kong limited company to make survey of damaged goods, whose finding in detail appeared in survey report on container and photography with its translation; exhibit marked as Jor 23. The goods were sent back to the shipper’s factory. The plaintiff hired Mclalence (Thailand) limited company to make survey and evaluation of damage. Such company interview person, who supervised the stuffing of goods into container, and was confirmed that goods were in good order and not wet, while being stuffed into container. Also Mclalence (Thailand) limited company made survey, and found that goods of 9 pallets were soaked in quantity of 2,044 pieces. The surveyor gave opinion that the goods got soaked because container was leak, allowing water seeped into container, detailed in preliminary and final report on examination of damage accompanied by their translation; exhibit marked as Jor 24 and Jor 25 respectively. In survey jointly made between surveyor and shipper’s QC engineer, it was found the cartons were torn and stained by water, some goods got rusted. An internal examination found that inner cover got rusted and electronic equipment were corroded with rust up to their legs. There was white stain, like salt stain, on the equipment. A test of electrical performance by sampling found exploding of 2 pieces of defect, which exceed customer-specified standard. Details appear in analysis report; exhibit marked as Jor 32. The shipper rejected all goods that were sent back, since they were not in reliable condition. For pieces that could not be tested, since lack of testing instrument, a consequent test found that they got rusted. Mclalence (Thailand) limited company thus sought advice from Forensic Services (Malaysia) limited company, such company advised that goods exposed to water for certain period then were significantly defective, so manufacturer could not accept. Details appear in copy of opinion concerning wet damage accompanied by its translation, exhibit marked as Jor 29. The shipper sent claim letter to the 1st defendant claiming damages in total amount of US$ 79,487.89, and also sent its copy to Mclalence (Thailand) limited company. Details appear in copy of claim letter accompanied by its translation; exhibit marked as Jor 31. The salvage of goods had to be destroyed, because they were specifically manufactured for Dell Computer (China) limited company, so they were not compatible to other computer or equipment, and were unable to be sold to other person. Photography was taken while destroying salvage, however camera and photography were lost. The plaintiff deduct the first US$500 of damages, and the balance of damages under plaintiff’s responsible is US$ 78,987.89. The assured demanded all three defendants to make compensation for those 2 shipments, however they failed to comply. So the assured claimed damages from the plaintiff as the insurer. Since the damages are covered by the policy, the plaintiff compensated the assured, detailed in receipt and letter of subrogation; exhibit marked as Jor 16 and Jor 26. The plaintiff was then subrogated to the assured’s right against all three defendants, for the first shipment in amount of Baht 1,999,904.29 and the second shipment in amount of Baht 3,333,129.44. Totaling of Baht 5,333,033.73 together with interest of 7.5 per annum from 9 July 2003, that the plaintiff made payment, until payment is made to the plaintiff in full. Before filing this complaint, the plaintiff commissioned his lawyer to sent claim letter to all three defendants, they however failed to comply.
The 1st defendant produced evidence that, concerning the carriage of goods, he was merely the agent of the shipper in arranging ship agent and carrier, and in managing logistic matters detailed in the affidavit; exhibit marked as Lor 1 and Lor 22. The 1st defendant did not undertake carriage of goods by sea for remuneration in its usual course of business, and he was not sub-carrier or involved as carrier at any part of carriage. The 1st defendant did not act or sign in capacity of agent of the 3rd defendant. The shipper had sold goods to Dell Computer (China) limited company in 2 shipments, detailed in invoice and packing list, exhibit marked as Jor 5 to Jor 10 and Jor 11 to Jor 17 for the first and second shipment respectively. The shipper contacted and hired the 1st defendant to be his agent in arranging vessel and reserving container, on 23 July BE 2545 for the first shipment and on 21 August BE2545 for the second shipment. The 1st defendant arranged the 2nd defendant as ship agent for both shipments. And the 1st defendant sent fax informing the shipper to prepare and hand over goods of 2 shipments to agent of the 2nd defendant for further carriage. Details appeared in the copies of such faxes; exhibit marked as Lor 18 and Lor 19. The shipper handed over goods to the 1st defendant accompanied by their particular shipment detailed in exhibits marked as Lor 20 and Lor 21. The 1st defendant issued to the shipper a house bill of lading to be evidence that the 1st defendant received and kept goods on behalf of the shipper. Details appear in bill of lading; exhibit marked as Jor 9 and Jor 10. Since carriage of goods in this action was in condition of CY/CY, the shipper stuffed goods into container by himself. The 1st defendant subsequently handed over goods to the 2nd defendant as ship agent. The 2nd defendant issued to the 1st defendant a bill of lading, specifying the 1st defendant as a shipper, Bax Global Warehousing limited company in People Republic of Chinas as consignee and the 3rd defendant as a carrier, detailed bill of lading; exhibit marked as Jor 10 and Jor 21. The bill of lading marked as Jor 9 and Jor 10, as issued by the 1st defendant to the shipper, was non-negotiable and not specifying price of goods. So such bills of lading were not evidence and contract of carriage of goods by sea, but merely evidence that goods were received by the 1st defendant in capacity of agent of shipper for further arrangement of carriage. The 1st defendant was not the agent of the 3rd defendant, but the 2nd defendant was. The 1st defendant paid the 2nd defendant for freight charge, detailed in receipt/tax invoice; exhibit marked as Lor 23 and Lor 24. If the damages occurred and the carrier was liable therefor. The carrier’s liability is limited to not exceeding Baht 30 per kilogram for the net weight of goods. Goods in this action weighted 9,244.4 kilogram, the carrier’s liability is limited to not exceeding Baht 277,332 pursuant to section 58 of Carriage of Goods by Sea Act BE 2534. The plaintiff was not subrogated to right to file complaint. The damage is not stemmed from negligence or fault of the carrier.
The 2nd defendant produced evidence that he received his remuneration by commission fee, not by freight charge. The 2nd defendant’s objective does not include undertaking of carriage of goods by sea, also he is not multimodal carrier that shall be liable in this action. The shipper contacted its agent that is the 1st defendant, then the 1st defendant contacted the 2nd defendant that is the agent of the 3rd defendant. The transportation was made in 2 shipments. Upon shipping goods on board, the 2nd defendant issued bill of lading, exhibit marked as Jor 10 and Jor 21, on behalf of agent of the 3rd defendant as the carrier. Such 2 shipments were under condition of CY/CY that the shipper has to receive container in good condition and undertake the stuffing by himself at his factory. When the 2nd defendant was contacted for reserving vessel, he contacted R.S. Container Depot limited company, which was entrusted by the 3rd defendant to keep container. For the first shipment of goods in question, the shipper received from R.S. Container Depot limited company container in good condition on 27 July 2002, detailed in letter re container condition assurance dated 29 August 2002; exhibit marked as Lor 25. The goods were subsequently stuffed in container on 29 July 2002. Container were handed over by shipper for shipping on board at Uni Thai Port on 30 July 2002 and were shipped on board on 31 July 2002 detailed in document showing dispute of loading container; exhibit marked as Lor 3. The first shipment was carried out by Sea Navigator vessel. Goods were transshipped into Blue Diamond vessel at Hong Kong. For the second shipment of goods in question, the shipper received from R.S. Container Depot limited company container in good condition on 24 August 2002. The goods were subsequently stuffed in container on 26 August 2002. Container were handed over by shipper for shipping on board at Uni Thai Port on 27 August 2002 and were shipped on board on 28 August 2002, for carriage by Courier vessel, and transshipped into Silver Ocean vessel at Hong Kong, detailed in document showing dispute of loading container; exhibit marked as Lor 3. In the second shipment, Uni Thai Port made survey that container was in good order before lifting on board. Such survey specifying that container KHLU 5213500 order 42 was in orderly fashion and stored in hold of vessel that shall not be exposed to rain, detailed in survey report of Uni Thai Port; exhibit marked as Lor 26 and Lor 27. However, according to daily rain report of department of meteorology, Bang Bor station, Samutphrakarn province, there was raining at shipper’s company during the time of stuffing goods into container. On 29 July 2002 stuffing, there was raining in quantity of 5 millimeter; and on 26 August 2002 stuffing for the second shipment, there was raining in quantity of 0.5 millimeter. When there is raining, ambient air will has hign humidity. In the second shipment, particular in “OUTTURN LIST FOR CONTAINER”, exhibit marked as Lor 28, read “NIL” that was navigation term means that container was in good order and damaged free. So the 2nd defendant is not liable toward the plaintiff. If the shipper suffered damage, it should not exceed Baht 200,000. Because all the salvage of goods were destroyed, if the salvage were sold then amount of damages should be reduced. Furthermore the bill of lading issued by the 2nd defendant specified clause to exempt the 2nd defendant’s liability. The 2nd defendant shall not be liable for damage occurred during carriage, because he is merely carrier’s agent, detailed in copy of back-side of bill of lading accompanied by its translation; exhibit marked as Lor 29.
After considering evidences taken, the facts, as not argued by parties, was established that the plaintiff insured against loss of goods in question that Delta Electronics (Thailand) public company as the assured had sold to Dell Computer (China) limited company for 2 shipment. Details appeared in certificate of open policy by sea; exhibit marked as Jor 6 and Jor 17. The assured hired the 1st defendant to transport goods from Bangkok to Xia Men, People Republic of China. When the 1st defendant received goods, stuffed in container by the shipper, the 1st defendant issued bill of lading to the shipper. The 1st defendant then hired the 2nd defendant to transport goods. When the goods were transported to place of destination, if was found that some goods, of each shipment, suffered damage.
The first issue to be decided is whether the plaintiff had right to file the complaint. For this issue, the 1st defendant defended that power of attorney was not executed by the plaintiff’s authorized director and was not sworn before notary public. So the power of attorney was incorrect and unlawful. The plaintiff present witness statement of Ms Vasana Sae-Ung, the plaintiff’s employer in compensation section, and present the copy of the plaintiff’s limited company affidavit accompanied by its translation; exhibit marked as Jor 1, and copy of power of attorney accompanied by its translation; exhibit marked as Jor 2. Altogether showing that the plaintiff appointed and authorized Ms Suphannee Juthidumrongphan to be his branch manager in Thailand, and empowered her to manage and initiate legal action in name of the plaintiff. The power of attorney was sworn before Australian notary public. It was found that such affidavit and power of attorney were supporting documents that the plaintiff presented to Department of Insurance, Ministry of Commerce in applying for license to undertake non-life insurance business in Thailand. And such copies of documents were certified their correctness by insurance official rank 6. So it is believable the documents were examined by relevant official and were true and correct ones. Those document clearly specify that Ms Suphannee Juthidumrongphan was entrusted by the plaintiff to manage and initiate legal action in the name of the plaintiff, and those exhibit marked Lor 1 and Lor 2 bear the signature of Mr M I Thorborn, an Australian notary public. The 1st defendant failed to disprove the plaintiff’s evidence on this issue, so facts was established that the power of attorney was lawful. The plaintiff had power to file the complaint.
The next issue to be decided is whether goods suffered damage while they were under supervision of the carrier. Since goods in question were transported under term of CY/CY, which mean carrier shall receive container, already stuffed with goods by shipper, and load container on board then transport to place of destination. So Delta Electronics (Thailand) limited company, the shipper, had duty to stuff goods into container by himself. The issue is whether goods initially suffered damage at the stage of being stuffed into container by the shipper. The plaintiff present witness statement of Mr AAAA BBBB, the shipper’s supervisor in shipping section, that the stuffing of goods into container always observe the same standard. That is the container shall be checked before goods were stuffed therein, if found any problems new container shall be required. In preparing goods according to packing list, goods’ carton shall be checked first, if found that a carton is torn, goods shall be re-carton. The stuffing of goods into container shall be made in-door, under roof. If it is raining or cloudy, goods shall not be stuffed in to container. So the goods shall never be moisten or soaked before or during stuffing into container. After examining photograph of stuffing place of the shipper as appeared in survey report, exhibit marked as Jor 14 picture no 7 to 10, it was found that the stuffing place is building that has roof. The building has a gate that the container’s door could extrude into. Even there was some clearance between the container and such gate, there however existed only about 50 centimeter for each side. On the top side, there was plastic roof that could cover the clearance and prevent rain exposure. Although some rain mist could go through side clearance, as cross-examined by the 1st defendant’s lawyer, but it is believed that it must be in very small amount. After considering characteristic of damage for 2 shipment of goods in question, as appeared in survey report in Jor 12 and Jor 23, it was expressly seen that good in question for 2 shipment were soaked in manner like they were being immersed in water for certain period of time, that caused thick-papered cartons being distorted from their original shape. Such characteristic can not be caused from merely rain mist or lack of dryer, as contended by the 1st and 2nd defendant. And although the 2nd defendant adduced daily rain report of Department of Meteorology, exhibit marked as Lor 4, that there was raining in area that the shipper’s factory located on the date of stuffing goods into container. However, apart from the uncertainty of whether it rained at the shipper factory, such exhibit was merely e-mail correspondence that no relevant agency certified its true and correctness. Also content contained therein did not indicate that to what amount is considered as heavy rain. Rain in amount of 5 and 0.5 millimeter may be in very slight, since that exhibit indicate on particular of raining in May 2003 as high as to 26.3 millimeter. Thus it was decided that the exhibit marked as Lor 4 was unreliable. The plaintiff’s evidence out-proves than the defendants’ evidence, so it was decided that goods in question of 2 shipments were in orderly fashion upon being stuffed into container. The 2nd defendant present evidence of the orderly receiving of container of goods in question, by assuring the container condition for the first shipment and by orderly lifted container into vessel for the second shipment. Details appeared in letter re container condition assurance and container survey by port, exhibit marked as Lor 25 and Lor 27 respectively. The facts was established that the shipper orderly handed over container to the carrier. When the first shipment of goods in question arrived at port of destination in Xia Men, People Republic of China on 8 August 2002, it was found that goods had been soaked before unstuffing the container, detailed in copy of unstuffing report of container number CAXU 6166224 accompanied by its translation, exhibit marked as Jor 27. When the second shipment of goods in question arrived at port of destination in Xia Men, People Republic of China 9 September 2002, it was found that goods had been soaked before unstuffing the container, detailed in copy of unstuffing report of container number KHLU 5213500 accompanied by its translation and copy of photography of container, exhibit marked as Jor 28 and Jor 30 respectively. Such copy of unstuffing reports, exhibit marked as Jor 27 and Jor 28, were made by China Ocean Shipping Tally limited company, the person who was entrusted to release container at port of destination. Mr CCCC DDDD, the 2nd defendant’s employee, also testified and submit exhibit marked as Lor 28 that China Ocean Shipping Tally limited company was agent of the carrier at port of destination. So it was believed by the testimony of the 2nd defendant’s witness that China Ocean Shipping Tally limited company was agent of carrier who had duty to release container at port of destination. Such copy of unstuffing reports, exhibit marked as Jor 27 and Jor 28, indicated that they were made by China Ocean Shipping Tally limited company at Xia Men branch, that branch name was identical to name of city of destination, and such report also specified container serial number identical to as indicated in bills of lading, exhibit marked as Jor 9, Jor 10, Jor 20 and Jor 21. Such unstuffing reports were clearly remarked that the goods had been soaked before unstuffing container. Even such exhibits were made in Chinese language, but the 1st and 2nd defendants failed to disprove the correctness of the plaintiff’s translation. The fact was established by the plaintiff’s evidence that goods in question suffered damage before unstuffing container. Even for the second shipment, the 2nd defendant adduced exhibit marked as Lor 28, referred in English as “OUTTURN LIST OF CONTAINER”, however the 2nd defendant failed to present the exact fact as supported by such exhibit. The 2nd defendant’s witness groundlessly testified that “NIL” was indicated in the exhibit, and under navigation term it mean container was in good order and damage free. However exhibit as Lor 29 provided no details of container serial number, so whether it included container serial number KHLU 5213500, that stuffed with goods in question, was unknown. The 2nd defendant’s evidence failed to disprove the plaintiff’s evidence. And bills of lading exhibit Jor 9 and Jor 10, which issued to shipper by the 1st defendant, indicated term of transportation as “PORT TO DOOR SERVICE”, which means the 1st defendant have to transport goods from Bangkok to consignee’s warehouse in Xia Men, People Republic of China. If the stuffed goods suffer damage before the container was unstuffed for delivery to the consignee, the 1st defendant is then liable for damages toward the shipper as earlier decided. The fact was established that goods in question suffered damage while they were under supervision of the carrier.
The next issue to be decided is whether all three defendants were liable for damage of goods in question. The 1st defendant contended that he does not undertake, in its usual course of business, the carriage of goods by sea for remuneration. Also the 1st defendant is not a sub-carrier or involved as carrier at any part of carriage, and he does not act or sign in capacity of agent of the 3rd defendant, but he is agent of the shipper. The 1st defendant issued to the shipper a House Bill of Lading to evidence that he received goods for, as agent of the shipper, further arrangement of carriage. However after considering bill of lading, exhibit marked as Jor 9 and Jor 20, it was found that both documents’ heading clearly state the 1st defendant’s name as issuer and Dell Computer (China) as consignee. Those bills of lading provided no particular concerning the receiving of goods from the shipper, but all particulars concerning carriage was fully provided i.e. consignee, vessel, place of loading, place of destination, goods description, and terms of transportation and service. Lastly the 1st defendant stamped his seal in the blank for issuer, stated therein that he issued as agent of carrier, contrary to his contention as agent of shipper. And even the 1st defendant stated that he was agent of carrier, there was however no other carrier’s name provided in those headings except only the 1st defendant’s name. So the bills of lading were personally issued by the 1st defendant in his name, and both bills of lading were evidence of contract of carriage of good by sea between the 1st defendant and the shipper. Ms Viraporn Supaso, the 1st defendant’s employee, give testimony against cross-examination admitting that the 1st defendant charged freight to the shipper in amount that was higher than amount that the 1st defendant paid to the 2nd defendant, detail in receipts; exhibit marked as Lor 23 and Lor 24. Altogether show that the 1st defendant undertakes the carriage of goods by sea for remuneration in its usual course of business, so he is carrier in the sense of section 3 of Carriage of Goods by Sea Act BE 2534. The 1st defendant as the carrier was liable for damage of goods occurred during his supervision of goods, pursuant to section 39. For contention that the consignee failed to advise any defective or damage of goods while taking delivery or within 15 days thereafter pursuant to section 49(2) of Carriage of Goods by Sea Act B.E. 2534, it was decided that such contention was irrelevant since the defective or damage had clearly appeared before taking delivery, details in copy report on unstuffing container; exhibit marked as Jor 27 and Jor 28.
For the 2nd and 3rd defendants’ liability, the 2nd defendant testified that he was ship agent, so he was considered the word contractor of the 3rd defendant. This fact was consistently revealed in both the plaintiff’s complaint and the 1st defendant’s trial. Especially in bills of lading issued by the 2nd defendant, exhibit marked as Jor 10 and Jor 21, expressly specify that the issuance is made in capacity of agent of the 3rd defendant, the carrier. And the witness statement of Ms Viraporn, the 1st defendant’s witness, stating that the 1st defendant made contact with the 2nd defendant as ship agent in arranging vessel. So the 3rd defendant was not contracting party with the shipper in contract of carriage of goods by sea, but the 3rd defendant was entrusted the shipper to transport under such contract. The 3rd defendant is thus the actual carrier in the sense of section 3 of Carriage of Goods by Sea Act BE 2534. Since the 3rd defendant was entrusted by the 1st defendant to carry out a through transportation of goods in question, the 3rd defendant was then liable, as joint debtor with the 1st defendant, for damage occurred while goods was under his supervision, pursuant to section 45 and 44. The 2nd defendant was merely agent of the 3rd defendant, thus was not carrier or actual carrier that was jointly liable for damage of goods in question. Even the 2nd defendants as agent entered into contract on behalf the 3rd defendant as principal who was foreign juristic person and was domiciled abroad. However the 2nd defendant did not enter into contract with the shipper directly, but the 1st defendant. The 3rd defendant’s liability toward the shipper is prescribed by provision of law, that is not the liability toward the shipper under the contract. So such liability could not be stretchy construed to include the 2nd defendant that was agent of the actual carrier. It is decided that the 2nd defendant shall not be personally liable toward the shipper or the plaintiff pursuant to section 824 of Civil and Commercial Code.
The final issue to be decided is how much the 1st and 3rd defendants are liable for damages toward the plaintiff. The plaintiff adduced the amount of damages as determined in final survey report, exhibit marked as Jor 15 and Jor 25. The plaintiff had paid the assured for such amount of damages, and adduced the subrogation over the three defendants. For first shipment there was Baht 1,999,904.29 of damages, for the second shipment there was Baht 3,333,129.44, detailed letters of subrogation, exhibit marked as Jor 16 and Jor 26, the totaling was of Baht 5,333,033.73 together with interest. However the carrier’s liability, pursuant to the first paragraph of section 58 of Carriage of Goods by Sea Act BE 2534, is limited to Baht 10,000 per shipping unit or Baht 30 per kilogram for the net weight of goods, whichever is greater. Since there appear no event that make liability limitation unenforceable as pursuant to section 60, the 1st and 3rd defendants’ liability shall be limited by provision of law. Even goods in question were transported by container system for one container in each shipment, but in such transportation specified the quantity and kinds of packages in bills of lading, exhibits marked as Jor 9, Jor 10, Jor 20 and Jor 21. So the quantity of goods in question was 105 cartons and 122 cartons, totaling in 227 shipping units. Pursuant to section 59(1) the carrier’s liability shall be limited to Baht 2,270,000 that is the greater amount . For the contention of the plaintiff that goods were in quantity of 5,280 pieces and 5,464 pieces, it is decided that those were details of goods that could not be considered as shipping units.
The court hereby adjudge the 1st and 3rd defendant to jointly or severally pay the plaintiff in amount of Baht 2,270,000 together with the interest of 7.5 per annum outstanding on such principal amount from 9 July 2003 until payment is made in full. The plaintiff’s cost shall be jointly or severally paid by the 1st and 3rd defendant, lawyer’s fee is determined at Baht 20,000 and for court fee at amount of claim won by the plaintiff. The plaintiff’s complaint against the 2nd defendant shall be dismissed, and any costs arisen thereby shall be borne by each party.
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