M/S Prem G.S. International vs Union Of India
2010 Latest Caselaw 350 Del

   IN THE HIGH COURT OF DELHI AT NEW DELHI

                             W.P.(C) 4594/1994

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

      M/S PREM G.S. INTERNATIONAL                  ..... Petitioner
                Mr. T.S. Sawhney, Petitioner in person.

                    versus

      UNION OF INDIA & ANR.                ..... Respondents
               Through Mr. Rajesh Rawal, Advocate for R-2.


       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. The prayer in this writ petition is for a mandamus to the

Respondents "to pay a sum of Rs.29,32,660/- to the Petitioner with

interest @ 24% p.a. with quarterly rest till final realization of

money".

2. Pursuant to the notification dated 31st August 1990 issued by the

Joint Secretary to the Government of India, Ministry of Textiles

regarding a scheme for export of the garments from India during the

year 1991 the Petitioner was granted export licence (VISA) for

export of 6000 dresses to M/s Ivory International, Miami, USA. Due

to the change of fabric from cotton to rayon, the Petitioner applied for

grant of extension of time to execute the order after depositing 30%

bank guarantee with the Apparel Export Promotion Council (AEPC).

Extension up to 10th May 1991 was granted by the AEPC. The goods

were to be shipped from Madras.

3. According to the Petitioner in the meantime the Government

granted General Extension to the validity of the certified Shipping

Bills up to 31st May 1991. Accordingly the Petitioner's Clearing

Agent submitted documents to the office of the AEPC at Madras for

grant of extension of the validity of the Shipping Bills pending 6000

dresses up to 31st May 1991. However, it was refused by order on the

ground that the confirmation of the submission of the 30% bank

guarantee sent by the AEPC, Delhi had to be made available to the

Madras office. Since the instructions were unable to be sent by the

AEPC, Delhi to its Madras office, the Petitioner was denied the right

to ship the garments against the licence granted by the AEPC.

Ultimately AEPC forfeited 40% bank guarantee amount.

4. The Petitioner filed a complaint before the National Consumer

Disputes Redressal Commission (NCDRC) against the Respondents

challenging the forfeiture of 40% of the bank guarantee amount since

the failure to export was for no fault of the Petitioner. According to

the Petitioner, the Respondent submitted falsely before the NCDRC

that the Petitioner had failed to execute the export orders within the

extended time of 31st May 1991.

5. The Petitioner refers to Writ Petition (Civil) No. 1941 of 1994

filed by him in respect of 3000 dresses meant for export to the USA

in respect of which also 40% bank guarantee was forfeited. By an

order dated 5th October 2006, the learned Single Judge of this Court

held categorically that the AEPC was in error in not endorsing the

shipping documents because of which the extension till 31st May

1991 was not granted to the Petitioner. Therefore, the Petitioner

could not be penalized for it. It was held that once a policy was

applicable to a particular individual and the benefits of such policy

are wrongly denied, then such person cannot be made to suffer for no

fault of his. It was held that the non-release of the quota by the

Petitioner could be attributed to the non-grant of time extension to

which the Petitioner was otherwise entitled.

6. The precise prayer, therefore, in the present writ petition stems

from the aforementioned claim which in para 10 has been split up as

Rs.22,820.75/- towards the refund of EMD, Rs.1,80,092.72 towards

interest at 24% thereon; Rs.15,810/- towards refund of balance EMD

and Rs.46,367.13 towards interest at 24% thereon till 15th May 1994.

In addition the Petitioner had claimed Rs.94,762.52 regarding refund

of EMD for surrender of quota and a further sum of Rs.2,11,652.52

towards interest thereon. The Petitioner thereafter claims the refund

towards loss against invoice No.698 which might be ex parte and has

computed it in US $ to be Rs.16,64,000/-. He has claimed a duty

drawback at 8% on the said amount as well as 30% exim scrip on the

invoice value, 30% premium value thereon to be Rs.1,49,760/-. It

also claimed compensation on the basis of the aggregate gross

benefits.

7. The Petitioner places reliance on the decisions in Old Village

Industries Ltd. v. Union of India AIR 1993 Delhi 321; Gajanan

Visheshwar v. Union of India 1994 (54) ECR 533 (SC) and Union

of India v. Metal Distributors Ltd. 1993 (45) ECR 343 (Bomb).

8. The learned counsel for the Respondent No.2 AEPC points out that

the present claim is not maintainable in a petition under Article 226

of the Constitution. He refers to the decision of the Supreme Court in

Union of India v. Orient Enterprises 1998 (99) ELT 193 (SC)

wherein it was held by the Supreme Court that in view of the law laid

down in the earlier decision in Suganmal v. State of Madhya

Pradesh AIR 1965 SC 1740 such a petition under Article 226 for

payment of a claim of money with interest was not maintainable.

9. This Court finds that in a similar petition and arising out similar

facts in relation to the export of 3000 dresses to the US, the

Petitioner's Writ Petition (Civil) No.1941 of 1994 was allowed

directing the Respondents to release the forfeited bank guarantee

amount together with interest at 12%. That order was not appealed

against and attained finality.

10. The stand of the Respondents as regards the present claim cannot

be any different. As already held by a learned Single Judge of this

Court in the said decision, the non-utilisation of the quota in the

present case is attributable to the failure of the AEPC to inform its

office in Madras of the submission of the bank guarantee by the

Petitioner for extension of the time for making the export. The

Petitioner cannot be made to suffer for the fault of the AEPC.

11. The Petitioner has pointed out that the APEC had issued an

instruction to the Indian Bank dated 15th December 1994 that the

Petitioner had made a payment of Rs.1,25,039/- plus Rs.4,62,678/- as

penalty and therefore the bank guarantee executed to that extent

should be discharged. The petitioner points out that as a result,

Rs.1,25,039/- was already refunded to it pursuant to the order passed

by this Court on 5th October 2006. Consequently a sum of

Rs.46,627/- is therefore still payable to him and forms part of the

claim in the present case. In the amended writ petition, the Petitioner

does seem to have made a claim for this amount of EMD. There is no

satisfactory reply by the Respondents to this part of the claim.

12. As regards the other sums of EMD which are claimed by the

Petitioner, they pertain to transactions that took place in 1989 long

before the writ petition was filed. There is a claim of Rs.22,820.75

for a transaction of 1st January 1985, a claim of Rs.15,810/- for which

the Petitioner claims to have submitted proof of shipment dated 21st

August 1989, claims of Rs.34,737/- and Rs.60,025/- for which the

Petitioner claims to have surrendered his quota by letter dated 20 th

September 1989. These are of course disputed by the counsel for the

Respondents. This court finds that apart from the claims being

belated, the entitlement of the Petitioner to such claims is a disputed

question of fact which cannot possibly be examined in the present

writ petition.

13. The Petitioner's claim for damages and compensation is also

vague. The pleadings in this regard are inadequate. Such claim also

cannot be examined in a petition under Article 226 of the

Constitution. No case has been made out for entertaining the claim of

the Petitioner for Rs.5,000/- being the costs imposed upon him by the

NCDRC.

14. The writ petition is accordingly disposed of by directing that the

Petitioner will be refunded the balance of the forfeited EMD in the

sum of Rs.46,627/- together with interest at 12 per cent per annum

from the date of such forfeiture till the date of payment within four

weeks from today.

S. MURALIDHAR, J.

st 21 JANUARY, 2010 ak