S.K. Trading Corporation vs Union Of India And Ors.
2001 Latest Caselaw 1975 Del

JUDGMENT

V.S. Aggarwal, J.

1. M/s. S.K. Trading Corporation, hereinafter referred to as the plaintiff/petitioner has filed the present suit for permanent injunction seeking to restrain the defendants (Union of Indian and Anr.) from demanding a sum of Rs. 6,75,725/- which in fact it a wrong calculation towards the penalty imposed against the plaintiff on account of short shipment during the year 1994 under PP/PT and NQ/NT quota.

2. The facts alleged are that the plaintiff firm deals in export of ready-made garments to United States of America under registration with the Director General of Foreign Trade, Asaf Ali Road, New Delhi. The plaintiff was allotted Past Performance entitlement/past performance transfer (or short PPE/PPT) and Non Quota Entitlement/Transfer Quota under the country/category USA during the year 1994. The plaintiff firm utilised the quota and its over all utilisation was 77.97% in PP/PT and 80% in Non quota entitlement/transfer quota system which was in terms of the agreement. Later on due to short shipment the Apparel Export Promotion Council forfeited an amount of Rs. 9,57,013 by way of issuing a speaking order. The plaintiff/petitioner preferred an appeal against the said order before the Office of the Textile Commissioner, Mumbai as per the provisions of the Garments Export Policy. The said appeal was disposed of by the Office of the Textile Commissioner dated 9th February, 1998. It was directed that proportionate relief based on overall performance should be given.

3. Plaintiff contends that subsequently he was delivered a letter thereby requiring the plaintiff to remit a sum of Rs. 6,75,725/- against the penalty imposed as per the order of the Office of the Textile Commissioner. The plaintiff aggrieved with the said calculation gave a representation vide the letter of 21st March, 1998 addressed to the Joint Director with the request to re-check at their end and issue requisition based on calculation. As per the petitioner/plaintiff the actual forfeiture which should have been as per the order of the commissioner would be Rs. 2,10,434/-. The said representation was duly received by the respondent. The plaintiff gave another representation to the Office of the Textile Commissioner but without doing anything, the plaintiff received a 15 days notice dated 16th May, 1998. The plaintiff thereupon preferred an appeal before the Second Appellate Committee, Govt. of India. It was finally disposed of on 16th July, 1999. But the plaintiff received another demand notice again demanding Rs. 6,75,725/-. The said demand is stated to be illegal and contrary to the order passed by the Textile Commissioner, Mumbai. Hence the present suit.

4. During the pendency of the present suit IA 8710/99 had been filed seeking and interim injunction to restrain the defendants from demanding a sum of Rs. 6,75,725/- which is a wrong calculation because according to the petitioner the correctly calculated amount has to be Rs. 2,10,434/-

5. In the written statement filed the civil suit has been contested by the Apparel Export Promotion Council. It has been pleaded that plaintiff has been false facts and even concealed material facts. When the plaintiff had preferred an appeal he himself has admitted before the Textile Commissioner that forfeiture amount is Rs. 6,75,725/-. This fact has been concealed from the court. The same amount is being demanded. It is denied that the defendant is demanding an amount in excess or that calculation made is not correct. By the present order IA 8710/99 is proposed to be disposed.

6. The main argument urged at the bar on behalf of the plaintiff/petitioner was that against the demand of defendant No. 3, Apparel Export Promotion Council of Rs. 9,57,013/-, the plaintiff had preferred an appeal before the office of the Textile Commissioner. The said appeal was disposed of by the Office of the Textile Commissioner on 9th February, 1998 and defendant No. 3 was directed to give proportionate relief based on overall performance. He contended that the overall performance was found to be 75% and above in respect of the amount forfeited towards short shipment. But in this regard it is unnecessary for this court for purposes of the present order go to into the details of the same. This is for the reason that the defendants learned counsel has drawn the attention of the court towards the calculation of the plaintiff given to the Textile Commissioner dt. 28th August, 1997. Therein regarding the forfeiture of Rs. 9,57,013/- the defendant while challenging the same stated that the total amount of Rs. 6,75,725/- is the actual forfeiture amount. Once the defendant had admitted and told the Textile Commissioner that as per his own calculation Rs. 6,75,725/- is due indeed it looks inappropriate in a suit for permanent injunction to lay such a claim. Now it is being asserted that lesser amount in fact is due.

7. Grant of an injunction or an ex injunction is an equitable relief. A litigant who approaches the court is bound to produce all the documents written by him relevant to the litigation. When he withholds a document in order to gain an advantage on the order side it must be taken to be playing a fraud on the court (S.P. Naidu v. Jagannath and Ors. .) Identical is the position herein. The plaintiff as already referred to above did not refer to the said documents which was in his own writing to the Commissioner at the time when he filed the suit. Consequently he is disentitled to claim an interim relief.

8. There is another way of looking at the same controversy. The same being that the plaintiff knows a specific amount that is being forfeited. In other words adequate monetary compensation can always be claimed. The result would be that for purposes of the present order it can safely be stated that it cannot

be termed that if the injunction order is refused, the plaintiff cannot be compensated in terms of the money.

9. As an offshoot of these reasons it must be held that the plaintiff is not entitled to ad interim injunction. The application referred to above is dismissed.

10. List before the Joint Registrar for admission/denial of documents on 22nd March, 2002.