Ai Champdany Industries Limited & ... vs Union Of India & Ors
2023 Latest Caselaw 1364 Cal

                     IN THE HIGH COURT AT CALCUTTA
                                   Civil Appellate Jurisdiction
                                      APPELLATE SIDE



Present:

The Hon'ble Justice Tapabrata Chakraborty
                 &
The Hon'ble Justice Partha Sarathi Chatterjee

                                        FMA 385 of 2020
                                               with
                         IA No.: CAN 1 of 2018 (Old No.: CAN 1916 of 2018)

                            AI Champdany Industries Limited & Anr.
                                           versus
                                    Union of India & Ors.



For the Appellants             :         Mr. Joydip Kar, Sr. Adv.,
                                         Mr. Sabyasachi Chaudhury,
                                         Mr. Siddhartha Banerjee,
                                         Mr. Abhijit Guha Roy,
                                         Mr. Deborshi Das,
                                         Mr. Shounak Mukhopadhyay.

For the Union of India         :         Mr. Indrajeet Dasgupta,
                                         Mr. Dibashis Basu,
                                         Ms. Rima Biswas,
                                         Mr. Arun Bandyopadhyay.

For the Respondent No.2        :         Mr. Saikat Chatterjee,
                                         Mr. Rahul Karmakar,
                                         Mr. Surya Prasad Chattopadhyay.


For the Respondent No.4        :         Mr. Suddhasatva Banerjee,
                                         Mr. Cedric Fernandez,
                                         Mr. Rajdeep Mantha.



Hearing is concluded on        :         1st February, 2023.
                                     2



Judgment On              :    23rd February, 2023.



Tapabrata Chakraborty, J.

1. The present appeal has been preferred by AI Champdany

Industries Limited (hereinafter referred to as the Company) and its

functionary challenging an order dated 31st January, 2018 passed in a

writ petition being W.P. 2319 (W) of 2016 refusing to interfere with the

orders dated 8th July, 2015 and 19th /20th November, 2015 passed by

the Under Secretary to the Government of India, Ministry of Textiles

pursuant to the order dated 6th May, 2015 passed in a writ petition being

W.P. 5365 (W) of 2010.

2. The appellants preferred the writ petition being W.P. 2319 (W) of

2016 stating inter alia that the respondent no.1 (hereinafter referred to

as UOI) with effect from 8th February, 1989 introduced the External

Market Assistance Scheme (hereinafter referred to as 'the EMA scheme')

with the basic object of boosting exports of jute goods from India. Under

the EMA Scheme, market assistance is provided at a specified rate on

export of specified jute products. The EMA scheme since its inception

has got extension and has undergone modification from time to time and

was valid till 31st March, 2007. By a notification dated 25th September,

1998, food grade jute products (FGJP) were brought under the purview of

the EMA scheme and it was, inter alia, specified that the exporters in

order to claim the EMA scheme would have to submit pre-shipment

certificates to the respondent no.2 (hereinafter referred to as NJB) along

with diverse documents specified therein. Such pre-shipment certificates

would have to be signed by duly constituted authority of respondent no.3

(hereinafter referred to as IJIRA) and/or their licensee being the

respondent no. 4 (hereinafter referred to as SGS) for the said purpose.

On the basis of such EMA scheme the Company submitted its claim with

the NJB and the goods which were manufactured and exported by the

Company were inspected either by the SGS or by IJIRA and after such

inspection of the products, payment was also received by the Company

in respect of such claim but all on a sudden vide letter dated 12th

December, 2007 issued by the Central Government to NJB it was inter

alia indicated that FGJP certificates issued by SGS do not conform to the

procedure laid down in the EMA Scheme, therefore, the claim made on

the basis of the certificate issued by SGS would not be entertained.

Challenging the said notification, the appellants earlier preferred a writ

petition being W.P. 5365 (W) of 2010. Upon contested hearing the said

writ petition was disposed of by a judgment and order dated 6th May,

2015 observing inter alia that the notification/order dated 12th

December, 2007 has been arbitrarily, erroneously, whimsically, given

with retrospective effect by the authority without any valid reason. By

the said order the Secretary, Ministry of Textiles and his delegate were

directed to consider the writ petitioners/appellants' claim, in accordance

with law and in the light of the observations made in the judgment. As

directed, an opportunity of hearing was granted and an order was passed

on 8th July, 2015 rejecting the appellants' claim. Pointing out the

infirmities in the said order, the appellants submitted a representation

dated 30th July, 2015 to review the earlier decision but such prayer was

denied by an order dated 19th/20th November, 2015.

3. The said writ petition was disposed of by an order dated 31st

January, 2018 observing inter alia that 'in the situation, while the suit is

pending for adjudication upon evidence of the parties, any observation or

decision about the impugned report, as revisited, may cause prejudice to

either of the parties. Therefore, refraining myself from entering into merits

and keeping liberty of the parties in tact and keeping all points pertaining

to the report of EMA claims dated 8th July, 2015, as was assailed in the

writ petition, open for raising in the civil suit (supra), if so requires, the writ

petition being held not maintainable, is disposed of without going into

merits'.

4. Mr. Kar, learned advocate, assisted by Mr. Chaudhury, learned

advocate appearing for the appellants submits that the learned Judge

erred in law in refusing the appellants' prayer on the ground of

availability of alternative efficacious remedy by reason of filing of prior

suit, failing to appreciate that the subject matter of the writ petition was

the orders dated 8th July, 2015 and 19th/20th November, 2015 rejecting

the appellants' claim and that the said orders are not and could not be

the subject matter of the civil suit, which was filed in the year 2010.

5. He contends that the learned Judge failed to appreciate that

when the order passed in purported compliance of the order of the

Hon'ble High Court is a reproduction of the grounds from a notification

which has already been quashed, the same amounts to procedural

irregularity. The learned Judge disposed of the matter abruptly without

dealing with the contentions as urged by the appellants on merits.

6. Mr. Kar argues that notwithstanding the pendency of the suit in

2010, the order dated 6th May, 2015 was passed observing that the

notification dated 12th December, 2007 was arbitrary and illegal and in

view thereof, the orders dated 8th July, 2015 and 19th/20th November,

2015 impugned in the second writ petition did not and could not have

any connection with the pending suit.

7. According to him, the suit being CS No.293 of 2010 was filed

without prejudice to the pending writ petition being WP No.5365 (W) of

2010. The appellants were constrained to prefer the suit during the

pendency of the writ petition to prevent their claim from being barred by

limitation and the fact of pendency of the writ petition was averred in

paragraph 33 of the plaint. The cause of action of the instant writ

petition cannot be said to be the same or even continuing, as because

the order which was assailed in the earlier writ petition, was quashed by

this Court, and after revisiting the issue a fresh cause of action arose

when the part claim of the appellants was considered favourably,

denying the rest for no fault on their part. The order dated 8th July, 2015

was not even born at the stage of the first writ petition. In support of his

arguments, Mr. Chaudhury has placed reliance upon the judgments

delivered in the cases of S.J.S. Business Enterprises (P) Ltd. -vs- State of

Bihar and Others, reported in (2004) 7 SCC 166 and National Insurance

Company Limited & Ors. -vs- Sujit Kumar Banerjee, reported in 2016 0

Supreme(Cal) 353 and Bengal Waterproof Limited -vs- Bombay Waterproof

Manufacturing Company and Another, reported in (1997) 1 SCC 99.

8. Mr. Kar contends that the certification issue was never

remanded by the order dated 6th May, 2015. A perusal of the said order

would reveal that the Hon'ble Court arrived at a categoric finding that

the notification dated 12th December, 2007 had been issued arbitrarily

and as the conditions of the EMA scheme stood satisfied, the certificates

issued ought to have been accepted. The only issue thus remanded was

to ascertain as to whether the quantum of dues payable to the appellants

was Rs.10,97,86,570/-. The relief thus claimed through the second writ

petition was a consequential relief of a monetary claim which was

illegally turned down by the impugned order dated 8th July, 2015. A writ

petition involving such consequential relief of monetary claim is

maintainable moreso when the amount has been withheld on the sole

ground of certification though such issue has already been finally

decided. The order dated 6th May, 2015 has reached its finality since no

appeal has been preferred against the same by the respondents.

9. Per contra, Mr. Dasgupta, learned advocate appearing for UOI

submits that the writ petition was preferred inter alia praying for

issuance of necessary direction upon the respondents 'to forthwith

release the pending claim of EMA of the petitioners in terms of annexure

"P11" hereto'. The said annexure would reveal that the claim was of

Rs.10,97,86,570/-. The same amount has also been claimed by the

appellants in the Civil Suit No.293 of 2010. In view thereof, the learned

Single Judge rightly observed that the second writ petition is barred

since alternative remedy has already been availed by the appellants by

filing a civil suit on similar cause of action. A prayer for issuance of a

writ of mandamus directing the appropriate authority to refund money is

not ordinarily maintainable, moreso when a suit is pending before the

competent civil forum seeking a decree for recovery of the self-same

amount. In support of such contention reliance has been placed upon a

judgment delivered in the case of Suganmal -vs- State of Madhya

Pradesh, reported in AIR 1965 SC 1740.

10. Drawing our attention to the documents annexed at pages 97

and 105 of the stay application, Mr. Dasgupta submits that the

Company last received payment on 24th June, 2005 and the outstanding

amount of Rs.10,97,86,570/- pertains to a period from April, 2002 till

March, 2007 and as such the appellants' claim is also barred by

limitation. The suit has been filed by the appellants more than three

years thereafter.

11. According to Mr. Dasgupta, the EMA claims are subject to the

guidelines of the Ministry of Textiles and the procedure enumerated in

the minutes of the meeting dated 19th September, 1998 which clearly

specified that for disbursement of the amount claimed 'certificates will be

signed by both by SGS & IJIRA'. Indisputably, the appellants were not

having certification from IJIRA and as such payment was rightly

withheld. The discrepancies and the irregularities, as pointed out in

paragraph 10 of the order dated 8th July, 2015 involves disputed

questions of facts which can only be decided upon leading evidence.

12. He further argues that it is the specific stand of SGS that the

EMA scheme was a scheme to govern only the dealings by and between

the jute mills/exporters including the appellants and IJIRA and that SGS

had no obligation towards IJIRA or jute mills/exporters under the EMA

scheme. In support of such contention he has drawn our attention to

the averments made in the affidavit-in-opposition filed by SGS in the writ

petition.

13. He contends that the judgment in the case of Suganmal (supra)

was a judgment delivered by five Hon'ble Judges. In the case of National

Insurance Company Limited & Others (supra) only a part of paragraph 6

of the judgment delivered in the case of Suganmal (supra) was merely

quoted but the ratio was not discussed in detail and the same was not

distinguished with reasons though the practice for such discussion has

now crystallized into a rule of law. In support of such contention

reliance has been placed upon judgments delivered in the cases of Union

of India and Another -vs- K.S. Subramaniam, reported in (1976) 3 SCC

677 and Harminder Kar and Others -vs- Union of India and Others,

reported in (2009) 13 SCC 90.

14. Mr. Banerjee, learned advocate appearing for SGS submits that

SGS had no obligation towards IJIRA or jute mills/exporters under the

EMA scheme. It is true that a Memorandum of Understanding

(hereinafter referred to as MOU) was entered into by and between SGS

and IJIRA on 16th October, 1998. However, the said MOU did not

restrain SGS from carrying out tests if jute mills/exporters directly

approached it for obtaining test certificates. There existed a clear

distinction between the procedure to be followed in respect of EMA

scheme and the consignments which have the contractual obligation

between the buyer and the exporter for inspection and certification by

SGS.

15. Drawing our attention to a representation dated 31st January,

2005, annexed at page 485 of the stay application, Mr. Karmakar,

learned advocate appearing for the respondent no.2 submits that the

benefits of EMA scheme were being syphoned off in an unscrupulous

manner by the appellants without obtaining proper certification from the

appropriate authorities. Upon receipt of such complaint, the matter was

enquired into and thereafter the notification dated 12th December, 2007

was issued observing inter alia that EMA claims have been disbursed

based on certification from SGS only and without following due

procedure as prescribed and as such 'there is a necessity to look into

these cases from recovery point of view separately'.

16. According to Mr. Karmakar, the Hon'ble Judge while deciding

the first writ petition on 6th May, 2015 did not set aside the notification

dated 12th December, 2007 but disposed of the writ petition relegating

the matter to the Secretary, Ministry of Textile and his delegate for

consideration of the writ petitioners' claim, in accordance with law and

in the light of the observations made in the judgment since in view of the

Court, justice would be sub-served if such procedure is adopted.

17. He contends that the cause of action involves a bundle of facts

and the averments made in the writ petition coupled with those made in

the plaint reflects a single story. The Court by the earlier order dated 6th

May, 2015 did not stop the investigation but relegated the matter for

further consideration in accordance with law and such remand is not

conclusive between the parties and the issues can be reopened at the

time of final determination of the dispute. The enquiry initiated was

thus not stalled or set aside. The issues agitated in the first writ petition

were identical to the questions involved in the suit and the appellants

cannot pursue two parallel remedies. Such clinching facts do not

warrant exercise of discretionary jurisdiction. In support of such

arguments reliance has been placed upon the judgments delivered in the

cases of Jai Singh -vs- Union of India and Others, reported in (1977) 1

SCC 1, Satya Pal Anand -vs- State of Madhya Pradesh and Others,

reported in (2016) 10 SCC 767, Kasturchand -vs- Qazi Syed Saifuddin,

reported in 1983 SCC OnLine Bom 140 and S.P. Chengalvaraya Naidu

(Dead) By Lrs. -vs- Jagannath (Dead) By Lrs. and Others, reported in

(1994) 1 SCC 1.

18. He argues that the authorities have acted in strict consonance

with the directions issued by the learned Single Judge in the earlier writ

petition and considered the appellants' grievances, upon granting an

opportunity of hearing and there is no error in such decision making

process warranting interference in exercise of the jurisdiction of judicial

review. Considering the materials on record, the Hon'ble Judge arrived

at a finding and there is no justification in entering a different finding

without any further material before this appellate Court. In support of

such contention reliance has been placed upon the judgments delivered

in the cases of Bachan Singh -vs- Union of India and Others, reported in

(2008) 9 SCC 161, Management of Narendra & Company Private Limited -

vs- Workmen of Narendra & Company, reported in (2016) 3 SCC 340 and

Dr. Utpal Sharma -vs- Akshay Pant and Others, reported in 2019 (1) CHN

328.

19. Mr. Kar, in reply, submits that the subject matter of the first

writ petition was a notification dated 12th December, 2007 whereas the

subject matter of the second writ petition are the orders dated 8th July,

2015 and 19th/20th November, 2015. The orders impugned in the

second writ petition were not even born at the time of preference of the

first writ petition and the civil suit and as such the learned Judge erred

in law in arriving at a finding that the cause of action was same and

identical.

20. By the order impugned in the present appeal, the writ petition

was disposed of observing that 'in the situation, while the suit is pending

for adjudication upon evidence of the parties, any observation or decision

about the impugned report, as revisited, may cause prejudice to either of

the parties. Therefore, refraining myself from entering into merits and

keeping liberty of the parties in tact and keeping all points pertaining to

the report of EMA claims dated 8th July, 2015, as was assailed in the writ

petition, open for raising in the civil suit (supra), if so requires, the writ

petition being held not maintainable, is disposed of without going into

merits'.

21. A perusal of the order impugned reveals that the Court did not

go into the merits of the claim, instead disposed of the writ petition as

not maintainable since, according to the learned Single Judge, the

second writ petition has been preferred on the self-same cause of action

which was involved in the suit. Both in the writ petition as well as in the

suit, the appellants had claimed disbursement of an amount of

Rs.10,97,86,570/-. The notification dated 12th December, 2007 was

issued referring to a letter dated 19th November, 2007 issued by the

Secretary, NJB and after conducting an enquiry. From the contents of

the same it would be explicit that the amount was withheld on the

ground of lack of certification and it was also observed that there is a

necessity to look into those cases from recovery point of view. The order

impugned in the second writ petition would reveal that apart from the

issue of certification there were other irregularities.

22. The facts which have a direct bearing on the lis give rise to the

cause of action. What is to be seen is whether a particular fact is of

substance and can be said to be material, integral or essential part of the

lis between the parties. To determine the cause of action, the facts need

to be considered together and not in isolation. A particular fact cannot

be taken up and highlighted. Improper certification and other

irregularities are the ultimate reasons towards non-disbursement of

Rs.10,97,86,570/-, as claimed in the suit and the writ petition. The said

reasons are inextricably connected with the web of facts involved in the

lis. In view thereof, we are unable to accept the contention of Mr. Kar

that the cause of action involved in the writ petition is different from the

cause of action involved in the second writ petition and that the claim for

disbursement is a consequential relief since the issue of certification has

already been decided in favour of the appellants in the earlier writ

petition.

23. As per the provisions of Order 2 Rule 2 CPC every suit shall

include the whole of the claim which the plaintiff is entitled to make in

respect of the cause of action. Once the petitioner/plaintiff approach a

Court of law for getting any redress basing his case on an existing cause

of action, he must include in the suit the whole claim pertaining to that

cause of action. On the date the suit was filed, the whole claim on the

basis of the existing cause of action was a claim for disbursement of an

amount of Rs.10,97,86,570/-. On the date of filing of the second writ

petition also the claim pertaining to the cause of action existing on that

date was also a claim for an amount of Rs.10,97,86,570/- and that as

such we do not find any error with the observation that 'this parallel

proceeding before the writ court upon hearing the point of maintainable is

held as barred'. Both the notification dated 12th December, 2007 as well

as the order dated 8th July, 2015 debars the entitlement of the

appellants. In the second order apart from certification various other

irregularities have been point out. The reasons towards withholding of

the claim may be different but the claim is identical. The orders dated

12th December, 2007, 8th July, 2015 and 19th/20th November, 2015 are

incidental to the cause of action and as such the second writ petition has

rightly been held to be barred.

24. It is well known that a decision is an authority for what it

decides and not what can logically be deduced therefrom. Even a slight

distinction in fact or an additional fact may make a lot of difference in

decision making process. There is no dispute as regards the proposition

of law laid down in the judgments cited by the respective parties but the

application of such proposition is certainly dependent on the specific

facts and circumstances of the respective cases. Judgment is a precedent

for the issue of law that is raised and decided and not observations made

in the facts of any particular case. Plentitude of pronouncements leaves

cleavage in the opinions formed in the respective cases.

25. The learned Single Judge, upon dealing with all the judgments

cited and considering the arguments advanced, has arrived at specific

findings and we do not find any error, least to say any patent error of law

in the order impugned. The scope of judicial review is very narrow and

limited and such jurisdiction should be exercised sparingly and only in

appropriate cases where the judicial conscience of the Court dictates.

The impugned judgment does not suffer from any jurisdictional error or

any substantial failure of justice or any manifest injustice warranting

interference of this Court.

26. For the reasons discussed above, the appeal and the connected

application are dismissed.

27. There shall, however, be no order as to costs.

28. Urgent Photostat copy of this judgment, if applied for, shall be

granted to the parties as expeditiously as possible, upon compliance of

all formalities.

(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)