Shri Sukesh Mahajan vs Union Of India (Uoi) And Ors.
2003 Latest Caselaw 1356 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. The petitioner who is a proprietor of Mahajan & Co. a sole proprietorship concern is involved in the export of garments. The petitioner obtained a revalidated quota for export of garments for the year 1994. The question involved in the present petition relates to the forfeiture of the amount of Rs. 74,111/- on account of the non-fulfilment of its export obligation under the policy. The original forfeiture amount was Rs. 1,26,556/-.

2. The petitioner claimed that on 23.12.1994 a theft took place in his factory premises as a result of which the entire quota could not be shipped before the due date, i.e. 31.12.1994. The petitioner was aggrieved by the Speaking Order passed by the AEPC whereby the forfeiture was made. He filed an appeal before the Textile Commissioner before which he sought the invocation of the force majeure condition as spelt out under paragraph 15 of the Notification dated 4.9.1993 under the Garment Export Entitlement Policy. The petitioner sought the invocation of the force majeure condition on two grounds, i.e., because of theft in the factory and some labour problems. However, the first appellate order records that no documentary evidence had been given regarding the theft as well as the labour problem and, accordingly, the question of invocation of the force majeure condition was not established. Since, there was an overall utilisation of 84.8% (i.e. above 75%) proportionate benefit was granted and the forfeiture amount was reduced to Rs. 74,111/-.

3. Still being aggrieved, the petitioner filed a second appeal before the Second Appellate Committee in which he took the ground of theft and filed certain documents in support thereof. The Second Appellate Committee rejected the appeal on the sole ground that the papers filed by the petitioner in the absence of a proper FIR could not be relied upon. The material portion of the order of the Second Appellate Committee is as under:-

"The 2nd Appellate Committee heard the party (Shri T.N. Mahajan, Partner) and the Counsel Shri M. Singh on 5th September, 2000. As the party sought time to furnish copy of proper FIR, it was given time and the case was taken up again in its meeting on 7th November, 2000. Shri N. Singh, Counsel was present but he could not give any copy of proper FIR lodged with the police. He however, requested that the copy of the application made to the police be taken as the copy of the FIR. This argument of the Counsel cannot be taken as valid. The party has given a photocopy of a note which states that the stolen property has not been found. This type of report can only be given if there is a registeration of proper FIR. The papers given by the firm therefore, cannot be relied upon.

The 2nd Appellate therefore, feels that the appellant has not produced any evidence despite opportunities given to them to prove that there was a theft in their premises and that very theft resulted into non-fulfillment of export obligation. The 2nd Appellate Committee therefore, rejected the appeal of the firm."

4. Learned counsel for the petitioner has pointed out that the theft allegedly took place on 23.12.1994 at the premises. The petitioner filed a written complaint with the SHO of the concerned police station on 23.12.1994 itself and requested the said SHO to lodge an FIR and take necessary steps to recover the stolen merchandise and apprehend the culprits. Instead of recording a formal FIR the police only recorded the same in the daily diary under No. 16A dated 23.12.1994 of the Police Station Kirti Nagar, Delhi. Thereafter, there is a report of the action taken by the police on the said complaint. Subsequently, a letter was received by the petitioner from the SHO of the concerned police station dated 5.5.1996 with regard to the daily diary No. 16A dated 23.12.96 informing the petitioner that despite the best efforts no clue leading to the apprehending of the criminal(s) and recovery of stolen property could be found and as such, the case was closed and would be reopened as and when any clue comes to the notice of the police. The Second Appellate Committee did not consider these documents sufficient to establish that there was a theft in the premises of the petitioner and observed that there should have been a proper FIR lodged in respect thereof. This is not a correct way of looking at things. It is to be seen that the petitioner did all that was necessary for him to do as soon as the theft was noticed. The petitioner lodged the complaint in writing with the SHO of the concerned police station with the request that a FIR be recorded. If the FIR was not recorded, it was not because of any shortcoming on the part of the petitioner. The fact that the police was unable to apprehend the criminal(s) or to recover the stolen property does not mean, ipso facto, that there was no theft. If the petitioner is able to establish that the goods were procured and were placed in his factory and went missing thereafter on the basis of the records available, it was incumbent upon the Second Appellate Committee to examine the same and not to throw out such documents merely on the ground that no FIR had been lodged. In this view of the matter, the case is remanded to the Second Appellate Committee for consideration on merits on the basis of the documents that have already been submitted by the petitioner.

5. It must be noted that Mr Rawal who appeared for respondent No.3 raised two preliminary objections. One with regard to the delay and the other with regard to the concealment of facts. He submitted that the order of the Second Appellate Committee is dated 30.11.2000 whereas the writ petition was filed on 25.2.2002 and, on this ground alone, the writ petition ought to be thrown out. In this respect, learned counsel for the petitioner has pointed out the averments made in paragraph 6 of the petition which indicate that although the order was passed on 30.11.2000 the same came to the knowledge of the petitioner only on 12.2.2002, as no communication of the same had been sent to the petitioner. In response, apart from there being a bland denial, there is nothing stated in the counter affidavit to indicate the communication of the order to the petitioner. In this view of the matter, it does appear that the delay is explained. As regards second preliminary objection with regard to the concealment of facts, the learned counsel appearing for the respondent has submitted that the letter dated 19.2.2002 which is at page 82 of the paper book has been concealed by the petitioner. The letter indicates that the petitioner is willing to pay the forfeited amount of Rs. 74,111/- by way of five installments and that this was in settlement of disputes between the parties. The learned counsel for the respondent submits that, having settled the matter, the petitioner concealed this fact and filed this writ petition and the petitioner had also deposited one installment pursuant to the said letter dated 19.2.2002. Thus, on this ground alone the writ petition was liable to be dismissed. In reply to this objection, the learned counsel for the petitioner submitted that there was no concealment on the part of the petitioner inasmuch as the letter of 19.2.2002 had been written in the context of the earlier letter of 14.2.2002 which was written without prejudice to the rights and contentions of the petitioner with respect to the liability to pay the forfeited amount. Both the letters dated 14.2.2002 and 19.2.2002 issued by the petitioner requesting for installments as well as reply of the respondents were placed along with the writ petition and as such there was no willful suppression or concealment of any fact. I am in agreement with the submissions of the learned counsel for the petitioner that there was no willful concealment or suppression of facts and on this ground also the writ petition was not be liable to be dismissed.

6. Accordingly, in view of the foregoing the matter is remanded to the Second Appellate Committee as indicated above. The writ petition is allowed to the extent aforesaid. There will be no order as to costs.

5. dusty to both the parties.