Delhi High Court
M/S. Sawhney Export House vs Union Of India & Others on 13 May, 2009
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 2152/1996
% Date of Decision : 13th May, 2009.
M/S. SAWHNEY EXPORT HOUSE ..... Petitioner.
Through Mr. Gajendra, Advocate.
VERSUS
U.O.I. & ORS. ..... Respondents
Through Mr. Dalip Mehra & Mr.Rajiv Ranjan
Mishra, advocates.
CORAM :
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported
in the Digest?
SANJIV KHANNA, J.: (O R A L)
Petitioner, M/s.Sawhney Export House had filed the present
Writ Petition 1996 for issue of Writ of Mandamus to the
respondent-Union of India to disburse/pay 45% premium for failure to
issue replenishment licences and to release Cash Compensatory
support (CCS, for short) and Additional CCS benefits against export
documents. The petitioner has also claimed compensation/damages
WPC NO.2152/1996 Page 1
for non-release of incentives in terms of the Import and Export Policy.
The third prayer made in the Writ Petition is for issue of Writ of
Certiorari to quash Orders, mentioned in para 8 of the Writ Petition,
rejecting the petitioner's claim for issue of replenishment licences,
CCS and Additional CCS benefits.
2. Replenishment licences, CCS or Additional CCS are payable as
per the Export Import Policy and other policies/guidelines prevalent
from time to time. In para 8.1, the petitioner has given details of his
claim in respect of 12 applications made by him for issue of
replenishment licences. As per the petition itself, applications at serial
numbers 2, 3, 4,5, 6,7 and 8 have been rejected with the appeal
clause or the case closed for failure on the part of the petitioner to
respond and furnish documents. Petitioner has not stated that he had
filed any appeal against the orders which were passed rejecting the
application for issue of replenishment licences with the appeal clause.
In the Writ Petition, the petitioner has also not stated and given
details why the respondents should not have closed the case for
failure to submit documents. Petitioner in the rejoinder has stated that
he had in some cases furnished details and removed deficiencies in
other cases which were closed. However, copies of the said letters
WPC NO.2152/1996 Page 2
have not been enclosed with the rejoinder also. List of applications at
serial numbers 2 to 8 show that these relate to the period between
October-December, 1987 till October-December, 1989. Without any
firm evidence in support of the petitioner that he had furnished
documents and removed the deficiencies, I do not think any Writ or
direction can be issued in favour of the petitioner.
3. Claim at serial no.1 has been rejected as per the Writ Petition
itself. Petitioner has also enclosed letter dated 25/28th August, 1989
rejecting his application and the petitioner claims that he hadz filed
first appeal. Petitioner thereafter filed a review application which was
dismissed. The period in question relates to October-December,
1987. The respondents in their counter affidavit have stated that they
have not been able to trace out the file and the decision made by the
First Appellate Authority. The petitioner has not placed on record any
letter or correspondence to show that he had protested against
non-adjudication and failure to take up the First Appeal from 1989
onwards till 1996 when the Writ Petition was filed.
4. With regard to the application at serial no.9, the petitioner has
admitted that his application was rejected and he was asked to file
first appeal. The respondents in their counter affidavit have stated
WPC NO.2152/1996 Page 3
that the file of the First Appeal is not traceable but have pointed out
that as per the petitioner, the First Appeal was rejected and
thereupon the petitioner had filed Second Appeal in 1994. The
petitioner has not filed any correspondence or details with regard to
Second Appeal.
5. With regard to application at serial nos. 10 and 11, respondents
in their counter affidavit have stated that the applications were
rejected as the petitioner did not reply to objections and remove
deficiencies. It is further stated that the replenishment licences
themselves were withdrawn w.e.f. 3rd June, 1995 and therefore no
replenishment licences can be issued. With regard to claim no.12, the
respondents have stated that the Appellate Authority had passed the
Order and the case was being processed in consultation with
Reserve Bank of India. During the course of argument, learned
counsel for the petitioner could not state whether replenishment
licence was issued.
6. It may be noted that replenishment licences are no longer being
issued. Presently, most of the goods are under open category for
which no licence is required. Moreover, the petitioner's claim for
damages that if the licences had been issued, they would have
WPC NO.2152/1996 Page 4
earned 45% premium in the open market and their claim for interest
@ 24% p.a. quarterly rests, is presumptuous and is not based on
material or evidence on record. No material has been enclosed with
pleadings to justify the said statement and claim for
compensation/damages. As a Writ Court, it is not possible to
adjudicate the petitioner's claim for damages/compensation even if it
is presumed that in some cases appeals were not processed and
adjudicated upon. In these circumstances, no finding or order can be
passed awarding damages and compensation in the present Writ
Petition. However, it is open to the petitioner to file a civil suit or other
proceedings, if advised and establish their claim for damages. If
required, the petitioner can move an application under Section 14 of
the Limitation Act, 1963, for exclusion of period during which the writ
petition has remained pending.
7. With regard to the claim for CCS, the petitioner in the Writ
Petition states that three claims were rejected. Respondents, have
stated that the CCS claims were rejected in view of para 309(3)(IV) of
the Export Import Policy. The said Clause reads as under:-
"Para 309(3)(IV) the application received
after a period of 24 months from the last
month of the export period will be summarily
rejected as time barred."
WPC NO.2152/1996 Page 5
8. It is also pointed out that in respect of application no.1 for CCS
claim, the petitioner had filed First Appeal but the same was rejected.
In respect of application no.2, again the petitioner had filed a First
Appeal which was rejected. Similarly, in the case of third application,
the First Appeal was rejected.
9. With regard to the applications for Additional CCS, the
petitioner himself has stated that his second application was rejected
with the appeal clause. It is not stated whether the petitioner had filed
any appeal or not. With regard to the first application, the petitioner
has stated that he had filed a Second Appeal on 3rd December, 1991
almost five years before the Writ Petition was filed. The claims pertain
to the period January-March, 1989. Respondents in their reply have
stated that they are not able to trace out the relevant file. The
petitioner has not filed on record any letter/correspondence after
1991 till 1996 in respect of the said appeal. Even in the rejoinder
affidavit, it is not stated that steps have been taken by him from 1991
onwards. It is not possible for this Court to examine whether the
Second Appeal was decided or not. It will be open to the petitioner to
approach the Office of Director General of Foreign Trade. Director
General of Foreign Trade will examine the said request and the
WPC NO.2152/1996 Page 6
documents and if the submission of the petitioner is found to be
correct then a suitable order will be passed. In case the petitioner is
aggrieved by any Order passed by the respondent, he will be entitled
to redress his grievance in accordance with law.
Writ Petition is accordingly disposed of. No costs.
SANJIV KHANNA, J.
MAY 13, 2009
P
WPC NO.2152/1996 Page 7
