Delhi High Court
M/S Masumi Overseas Pvt. Ltd. ... vs Directorate General Of Foreign ... on 15 April, 2015
Author: Rajiv Shakdher
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2946/2015
M/S MASUMI OVERSEAS PVT. LTD.
THROUGH MD ..... Petitioner
Through: Mr. Balbir Singh and Mr. Sameer
Jain, Adv.
versus
DIRECTORATE GENERAL OF FOREIGN
TRADE THROUGH DIRECTOR GENERAL ..... Respondent
Through: Mr. Vineet Malhotra and
Mr. Shubhendu Kaushik, Advs.
Mr. Ravi Sikri, Sr. Adv. with
Ms.Sumedha Dang, Adv. for STC.
Mr. S.P. Roy, Jt. DGFT.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 15.04.2015
CM No.5829/2015
1. It is the contention of the learned counsel for the petitioner that the
petitioner has been put on the Denied Entity List (in short DEL) without
being heard. It is also stated that a concern can be put on DEL if, it falls
within the ambit of Rule 7 of the Foreign Trade (Regulation) Rules, 1993 (in
short 1993 Rules). It is submitted by the learned counsel that the petitioner
does not fall within any of the circumstances elucidated in Rule 7 of 1993
Rules.
2. Furthermore, the learned counsel for the petitioner has drawn my
attention to the responses received from the office of the Director General of
Foreign Trade (in short DGFT) against applications filed under Right to
Information Act, 2005 (in short RTI Act). It is the contention of the learned
counsel for the petitioner that, internally, DGFT has taken a view that a
concern cannot be put on DEL merely on the say so of a contracting party,
such as, the State Trading Corporation of India (in short STC).
3. Learned counsel for the petitioner says that along with the petitioner,
there were five other entities which had been put on DEL, and that, one of
these entities, M/s. Ganesh Benzoplast Ltd., has been removed from DEL.
For this purpose, he has referred me to pages 105 to 109 of the paper book.
4. It is further contended by the learned counsel for the petitioner that
insofar as the contractual disputes of the petitioner with STC are concerned,
proceedings are pending.
5. It is stated by the learned counsel that in a suit filed by the STC in the
Bombay High Court, an application under Section 8 of the Arbitration &
Conciliation Act, 1996 (in short the Act) was filed, which was, however,
rejected by the Single Judge of the Bombay High Court, vide order dated
13.1.2014. This order was passed in the Notice of Motion taken out by the
petitioner in suit No.1885/2011. For this purpose, the learned counsel has
referred me to page 66 of the paper book.
6. Counsel for the petitioner says that, being aggrieved, the petitioner
preferred an appeal and, the Division Bench, pursuant thereto, vide order
dated 25.2.2014, has ordered that STC's suit shall not proceed based on the
statement made on behalf of the petitioner that it will not proceed with the
arbitration proceedings.
7. Resultantly, it is the submission of the learned counsel for the
petitioner that the suit and the arbitration proceedings are, at the moment,
pending, to await, the outcome of the appeal pending before the Bombay
High Court.
7. It is also disclosed by the learned counsel for the petitioner that a
complaint was filed by the STC with the CBI and, consequent thereto, an
FIR No.RC BA1/2012/A0012, dated 24.2.2012 was registered. According
to the learned counsel for the petitioner, the matter is still at the stage of
investigation.
8. Learned counsel for the petitioner submits that due to the aforesaid
circumstances, the petitioner is not able to export jewellery and claim
resultant benefits.
9. It is the submission of the learned counsel for the petitioner that the
petitioner has in its hand, two export orders amounting in all to USD 180
million. For this purpose, the learned counsel has referred me to Annexure
A23; pages 198 and 199 of the paper book.
10. In these circumstances, Mr Malhotra has been asked as to whether the
respondent would have any objection if exports are made and, without
prejudice to its rights and contention attendant documents, qua benefits that
may accrue to the petitioner are received, pending final result in the writ
petition.
11. While Mr. Malhotra contests the submission made on behalf of the
petitioner on merits, he submits; in all fairness, that as long as the proceeds
of exports are kept in a designated account, to be utilized subject to further
orders of this court, the respondent would have no difficulty. The learned
counsel says that the arrangement envisaged cannot effect the interest of
either party.
13. Accordingly, it is directed that the petitioner will be entitled to make
exports with reference to the two orders adverted to above. The proceeds
derived from exports will be kept in a designated account, the details of
which will be filed with this court and copy of the same will be served on
the counsel for respondent Nos.1 and 2.
14. The petitioner will, however, note that there shall be no withdrawal of
any amount from the said account, till such time, the orders are passed by
this court in that behalf.
15. The application is disposed of.
CM No.6034/2015
16. Respondent No.1, will be free to proceed with the adjudication of the
show cause notice subject to the petitioner being given further four weeks to
file a reply. It is, however, made clear that orders, if any, passed will not be
given effect to till further orders of this Court. The application is,
accordingly, disposed of.
W.P.(C) 2946/2015
17. Learned counsel for the respondent says that a counter affidavit is
filed. The same is, however, not on record. The Registry will have the
same placed on record.
18. Mr. Singh says that he will file an application for amendment of the
writ petition to assail the show cause notice dated 27.3.2015. Liberty is
given for that purpose. Let the needful be done at the earliest though, not
later than four weeks from today.
19. Renotify on 29.9.2015.
20. Dasti.
RAJIV SHAKDHER, J
APRIL 15, 2015
s.pal
