M/S Sawhney Export House vs Union Of India
2010 Latest Caselaw 331 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 W.P.(C) 1531/1996

                                           Reserved on : 11th January 2010
                                           Decision on : 21st January 2010

       M/S SAWHNEY EXPORT HOUSE             ..... Petitioner
                        Mr. T.S. Sawhney, Petitioner in person.

                        versus


       UNION OF INDIA                      ..... Respondent
                     Through Mr. Ravinder Aggarwal, Advocate


       CORAM:
       HON'BLE DR. JUSTICE S. MURALIDHAR

       1. Whether reporters of local paper may be allowed
          to see the judgment?                                             No

       2. To be referred to the report or not?                         Yes

       3. Whether the judgment should be referred in the digest? Yes


                                 JUDGMENT

21.01.2010

S. Muralidhar, J.

1. This is a writ petition seeking a direction to the Respondents to disburse

the 45 per cent premium in lieu of the replenishment licences (REP) and

to release the Cash Compensatory Support (CCS) against export

documents received by them. The Petitioner also seeks compensation for

non-release of the incentives in terms of the prevalent import-export

policy consequent upon which the Petitioner alleges that he suffered in his

export business.

2. The Petitioner Sawhney Export House is a partnership firm engaged in

the business of ready-garments and handicrafts. Shri T.S. Sawhney who

appears in person and argued this petition, is the Power of Attorney

Holder of the Petitioner.

3. In terms of the Import Export Policy of 1988, the Chief Controller of

Import & Export (CCI&E) announced a scheme giving CCS and REP

licences to registered exporters against export performance. The Petitioner

is stated to be a regular exporter registered with the Apparel Export

Promotion Council (AEPC) and other Export Promotion Councils. The

Petitioner submitted applications for grant of CCS, REP licences and

traditional licences against the export of his ready-made garments, textile

products and handicrafts.

4. The Petitioner has in para 8 of the petition listed out the applications

submitted (along with the reference numbers and dates) for grant of REP

licence (also known as Exim scrips). According to the Petitioner, the total

value of the exports against which it was seeking REP licences was

Rs.59,96,911/-. It is stated that when the exim scrips were introduced in

July 1991, the premium was around 45 per cent. This was factored by the

exporters in fixing their export prices. On 16th March 1992 the Reserve

Bank of India (RBI) announced its decision to purchase exim scrips at a

premium of 20 per cent. The lowering of the premium was largely on

account of the fact that a large number of import items were placed in the

open general licence list. The other problem faced by the exporters was

that there was a considerable time gap in the licencing authorities issuing

exim scrips/REP licences. The exporters were required to submit the

applications to the licencing authorities by 31st May 1992. It was urged by

the exporters that this period should be extended up to 31st October 1992.

5. According to the Petitioner against the application made by it for

issuance of REP licences against the exports made between April-June

1990 January-March 1992, neither CCS was disbursed nor the REP

licences issued. The Petitioner has quantified the total loss suffered by it

at Rs.96,60,122.50p., and has given a break-up of the calculation in para 8

(ix) of the petition. This includes the disbursement of premium at 45% on

the REP licences, interest @ 24% on the said amount, the disbursement of

CCS claims as well as interest thereon. It is stated that a writ petition was

filed (W.P.No.4741 of 1995) which was dismissed as withdrawn with

permission to the Petitioner to challenge the orders passed by the

Respondents rejecting the claim of the Petitioner.

6. Rule was issued in the present petition on 19th April 1996. This petition

was earlier being heard along with Writ Petition (Civil) No.123 of 1996.

That petition was disposed of on 13th May 2009. The prayer in that writ

petition was for a direction to the Respondents to disburse the 45%

premium in lieu of the REP licences, to release the CCS to which the

Petitioner was entitled, to pay compensation/damages on account of non-

release of incentives, the costs and expenses of the writ petition and the

refund of cost imposed by the National Consumer Disputes and Redressal

Commission (NCDRC). This Court noted that the Petitioner had filed a

claim petition before the NCDRC for a sum of Rs.1.27 crores. The

NCDRC rejected the said claim petition on the ground that the Petitioner

was not a consumer as the Respondent was not providing any services for

consideration and that there was no deficiency in the service on the part of

the Controller of Exports and Imports. Costs of Rs.10,000/- were imposed

on the Petitioner.

7. As regards the prayer for payment of 45% premium in lieu of the REP

licences, this Court noticed that the Petitioner had not specifically averred

that the rejection of the Petitioner's applications or failure to collect the

licences after surrendering tokens was unjustified. As regards some of the

applications, the relevant files were not traceable. The Petitioner had not

placed on record any letter or correspondence with the Respondents in

regard to the said licences. Further the applications pertained for the

period April-June 1990 and April-June 1991 whereas the writ petition was

filed only in 1996. As regards the claim for damages, this Court held that

no material had been enclosed with the pleadings to justify the claims.

Moreover, the contentinon that if the licences had been issued they would

have earned 45% premium in the open market as well as the claim for

interest at 24% per annum with quarterly rests were held to be

"presumptuous" and "not based on material evidence on record". The

Petitioner was given liberty to file a civil suit and if required to move an

application under Section 14 of the Limitation Act, 1963 for exclusion of

the period during which the writ petition remained pending.

8. Likewise it was held that the claims for CCS as well as additional CCS

were also not supported by definite particulars. Therefore this Court was

unable to grant any relief in that respect as well. It was left open to the

Petitioner to approach the office of the Director General of Foreign Trade,

along with relevant documents in support of his claim, with the

representation/letter for payment and disposal of his application for CCS

claims in the SPS Scheme where the files/details were not available. It

was clarified that this direction was only in respect of those claims where

the files were not traceable. In case the Petitioner was aggrieved by the

order passed by the Respondents, the Petitioner would be entitled to

ventilate his grievance in accordance with law.

9. This Court finds on a comparison of the pleadings in W.P.(C). 123 of

1996 and the present petition that they are nearly identical. Although the

present petition pertain to another set of transactions, the prayers are

similar to the ones in W.P.(C).123 of 1996. Likewise even for the CCS

scheme, while the pleadings and documents are different, the grounds on

which the claims are made are identical.

10. In the considered view of this Court, the view already expressed by

the learned Single Judge of this Court while disposing of Writ Petition

(Civil) No.123 of 1996 should govern the present case as well. This court

finds that the Writ Petition (Civil) No.2152 of 1996 was also filed by the

Petitioner claiming disbursement of 45% premium, the release of CCS

together with interest. That writ petition also came to be disposed of by an

order dated 13th May 2009 on more or less identical grounds.

11. Learned counsel for the Respondents has raised objections concerning

maintainability of the present petition under Article 226 for recovery of

the amount from the Government. He relies on the decision in Suganmal

v. State of Madhya Pradesh AIR 1965 SC 1740. Further it is pointed out

that the petition talks of export transactions of 1986 whereas the Petitioner

has approached this court only in 1996. It is submitted that the petition is

barred by laches. It is further submitted that the question whether the

Petitioner has complied with the conditions of the policy, whether he

applied in time for grant of REP licences and CCS, whether he removed

the objections pointed out by the Respondents within the time prescribed,

are all disputed questions of fact. The Petitioner, however, contests these

submissions by pointing out that all documentary proof had already been

placed on record which could easily be verified by the Respondents.

12. Having considered the above submissions, this Court is of the view

that the opinion already expressed in the order dated 13th May 2009

passed by this Court in Writ Petition (Civil) No. 123 of 1996 should

govern the present proceedings as well. Therefore, this court does not find

a case having been made out for grant of the prayer for disbursement of

45% payment of premium on the REP licences together with the interest

at 24% thereon. As regards the prayer for compensation/damages it would

be open to the Petitioner to initiate appropriate civil proceedings if so

advised. As regards the claims for which records are not traceable in the

office of the Respondents, it is open to the Petitioner to make a detailed

representation to them enclosing the documents. The Respondents will

then examine the claim of the Petitioner and pass a speaking order within

six months of such representation being made. All pleadings and

documents including the question of delay and laches, failure to rectify

and remove objections etc., will be examined by the Respondents. In case

the Petitioner is aggrieved by the order to be passed by the Respondents, it

will be entitled to ventilate its grievance in accordance with law.

13. The petition is disposed of with no order as to costs.

S. MURALIDHAR, J.

st 21 JANUARY, 2010 ak