Calicut Fibre Industries v. Secretary Government Of India Ministry Of Foreign Trade And Supplies
1973-01-24
K.SADASIVAN, P.GOVINDAN NAIR
body1973
DigiLaw.ai
JUDGMENT P. Govindan Nair, J. 1. The question is whether the liability undertaken by the petitioner under Ext. P-2 bond admittedly executed by him can be enforced either against the petitioner or the guarantor, the Union Bank of India, Calicut, the 4th respondent. Ext. P-13 issued to the petitioner demanded compliance with Ext. P-2 and it is Ext. P-13 that is sought to be set aside by this petition for the issuance of a writ under Article 226 of the Constitution of India. It is necessary to state a few facts for understanding the contentions of the petitioner. The petitioner was desirous of importing a particular kind of machinery apparently for the purpose of manufacturing coir products. A licence had to be obtained under the Imports and Exports (Control) Act, 1947 (hereinafter called the Act) for the import of such machinery. The petitioner applied for such a licence and it was issued to the petitioner and a copy of that licence has been produced along with the affidavit in support of this petition marked Ext. P-1. One of the conditions of the licence was mentioned in Ext. P-1 as "This licence will be subject to the conditions in force relating to the goods covered by the licence, as described in the relevant Import Trade Control Policy Book or any amendment thereof made up to, and including, the date of issue of the licence, unless otherwise specified." Pursuant to this condition it was demanded that the petitioner should execute a bond. A bond was executed by the petitioner and a copy of that bond is Ext. P-2. By the terms of this bond, the petitioner undertook to export "Bristly Mattress Fibre" of the value of Rs. 1,14,390 to foreign countries excluding Nepal, Tibet, Sikkim, Bhutan and former Portuguese possession in India. The export had to be made within three years of the date of import of the machinery or within such time as may be allowed by the Deputy Chief Controller and proof of such export was to be made available to the said Deputy Chief Controller. The bond itself, it was stated, will remain in full force and effect, for a period of four years from the date of importation of the said imported goods. It is agreed that it may be taken that the goods were imported on 24th June 1965, the date on which the bond Ext.
The bond itself, it was stated, will remain in full force and effect, for a period of four years from the date of importation of the said imported goods. It is agreed that it may be taken that the goods were imported on 24th June 1965, the date on which the bond Ext. P-2 was executed. It is therefore clear that the bond will remain in force only up to and inclusive of 23rd of June, 1969. It is also admitted that the petitioner did not export the Bristly Mattress Fibre within the time stipulated in Ext. P-2 bond. He did not do so even within the extended time that had been allowed to him by the. Deputy Chief Controller by Exts. R-4 and R-5, i.e. before 31st December 1969. There was some correspondence between the Deputy Chief Controller and the petitioner which it is unnecessary to refer to. 2. The contentions raised by counsel on behalf of the petitioner are four: (1) The authorities functioning under the Act are not empowered under the provisions of the Act to demand or get executed a bond in terms as those contained in Ext. P-2 as the Act and the orders passed under that Act do not provide for control regulation or restrictions regarding export, (2) that Article 14 of the Constitution has been violated, (3) that the conditions imposed under the bond Ext. P-2 are violative of the fundamental rights guaranteed by Article 19 (1) of the Constitution in that they impose unreasonable restrictions in the right to carry on any trade or business and (4) that in any view of the matter the bond having ceased to be in existence from 23rd June 1969, no demand can be made against the petitioner or his guarantor after 23rd June 1969. 3. We shall consider these contentions seriatim. Regarding the first point, reliance has been placed on a decision of the Bombay High Court in M/s Poineer Scrap Traders and Exporters v. Lt.Col. O.G. Eapen and another (A.I.R.1963 Bom. 50) wherein a somewhat similar though not identical question arose for consideration. The bone of contention was that a provision in a bond similar to Ext.
Regarding the first point, reliance has been placed on a decision of the Bombay High Court in M/s Poineer Scrap Traders and Exporters v. Lt.Col. O.G. Eapen and another (A.I.R.1963 Bom. 50) wherein a somewhat similar though not identical question arose for consideration. The bone of contention was that a provision in a bond similar to Ext. P-2 which stated that "to entitle the exporter to ship material under the licence, he would have to supply certain quantities of heavy melting scrap to the furnace owner nominated by the Iron and Steel Controller" was beyond the scope and effect of the Import Control Act. This contention was accepted by the Bombay High Court. It was accepted by the Bombay High Court because the condition imposed was that the licensee should obtain iron ore and supply the same to the persons named by the Iron and Steel Controller. This direction, the Court held had nothing to do either with the import or export regarding which some restrictions, regulations and control could be imposed under section 3 (1) of the Act. The decision as such will not apply to the facts of this case because we find it difficult to say that the control or regulation in this case does not relate to export. The machinery has been imported for manufacture, we conceive, of articles including "Bristly Mattress Fibre" which according to the terms of the bond Ext. P-2 the petitioner was bound to export for the value of Rs. 1,14,390. The regulation was thus regarding the export of goods. And if such regulation or restriction or control for that matter, was imposed by a bond executed in regard to the obtaining of a licence for import of the machinery which enabled such goods being manufactured the taking of the bond will fall within the purview of section 3 (1) of the Act. We may refer to section 3 (1) of the Act: "3. Powers to prohibit or restrict imports and exports.
We may refer to section 3 (1) of the Act: "3. Powers to prohibit or restrict imports and exports. (1) The Central Government may, by order published in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling, in all cases, or in specified classes of cases and subject to such excepions, if any, as may be made by or under the order; (a) the import, export, carriage coast-wise or shipment as ships' stores of goods of any specified description; (b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried." 4. Clause 5 (1) (iii) of the Imports (Control) Order, 1955 provided: "5. Conditions of licence.(1) The licensing authority issuing a licence under this Order may issue the same subject to one or more of the conditions stated below: (i) * * * (ii) * * * (iii) that the applicant for a licence shall execute a bond for complying with the terms subject to which a licence may be granted." 5. On a reading of the above provisions it is clear that a condition such as the one incorporated in Ext. P-2 can be insisted upon according to the provisions of the Act and the Control Order. The first submission of counsel for the petitioner therefore cannot be accepted. 6. We do not think that Article 14 of the Constitution is violated because the discrimination alleged in ground (g) of the grounds in paragraph 8 of the petition is no discrimination at all. The distinction made is on the basis of a reasonable classification which is related to the object sought to be achieved. We negative this contention also. 7. It has been stated in the petition that despite the best efforts of the petitioner he has not been able to find out a purchaser abroad for the articles that he manufactured and that some order that he obtained from U.K. could not be fulfilled because of what the petitioner hints is the unreasonable attitude of the customs authorities in demanding duty on the market rate and not on the contract rate as per the contract entered into by the petitioner with the foreign firm.
These according to him are grounds sufficient to violate the guarantee under Article 19 (1)(g) of the Constitution. When once the petitioner had entered into a contract which has been insisted upon by virtue of the provisions in a statute, the only question that can arise is whether such conditions which are imposed under the statute would be violative of the guarantee under this Article and not whether in a particular case the imposition of such conditions have resulted in hardship. We have to look at the question in the abstract and consider whether restrictions or conditions imposed in terms that are contained in Ext. P-2 bond would be unreasonable restrictions in the interest of the general public. No doubt when once it is postulated that there had been restrictions imposed it is on the State that imposed the restrictions to make out they are reasonable restrictions in the interest of the general public under Article 19 (6) of the Constitution. When we consider the very purpose of the Act which appears to be to restrict the import into this country, the motive behind being evidently the conservation of the foreign exchange involved in importing of goods manufactured in countries outside India, it is understandable that the loss of foreign exchange resulting from the grant of licence for importing of machinery manufactured abroad should be attempted to be covered by plausible conditions imposed as terms of the import. Therefore, we conceive that when goods are allowed to be imported under the Act it is permissible to impose restrictions regarding the manner in which the goods manufactured by the machinery imported should be utilised. For instance it may be said that a certain percentage of the goods manufactured should not be sold locally but must be exported in order that there may be a consequent earning or accumulation of foreign exchange. It is also conceivable that in the interest of the economy of the country it may said that the goods manufactured should not be exported.
It is also conceivable that in the interest of the economy of the country it may said that the goods manufactured should not be exported. These conditions are in the nature of restrictions that can be imposed in the general interest of the country and therefore the general interest of the public and the policy of the import having been laid down in what is called the "read book'' which has been applied in the matter of the particular import with which we are concerned, it is clear that the restrictions are in the interest of the general public. The only question is whether they are resasonale or not. When the Act itself has prohibited the import of goods without a licence and as long as the provisions of the Act stood it cannot be said that the conditions imposed by the licence are violative of Article 19 (1) (g) of the Constitution. We are not asked in this case to consider the question whether the insistence that there should be a licence of import provided by the Act itself is violative of Article 19 (1) (g). No such contention has been raised in this petition and no arguments have been advanced on that basis. We are not satisfied that by the imposition of the conditions in the bond in accordance with the provisions in the Act and he rules enabling such conditions being imposed there has been any violation of Article 19 (1) (g) of the Constitution. 8. The only remaining question is whether the bond can be enforced against the petitioner and/or the 4th respondent, the Union Bank. It is submitted that no demand can be made against the petitioner after 23rd June 1969, the date on which the bond ceased to exist. This contention cannot be accepted. If a liability had accrued under the bond before it ceased to exist the liability does not vanish by the expiry of the term of the bond. The question therefore is whether a liability had accrued as far as the petitioner was concerned under the bond before 23rd June 1969. We think a liability had accrued for, the petitioner had not complied with his obligation to export the goods within the time stipulated in the bond Ext. P-2.
The question therefore is whether a liability had accrued as far as the petitioner was concerned under the bond before 23rd June 1969. We think a liability had accrued for, the petitioner had not complied with his obligation to export the goods within the time stipulated in the bond Ext. P-2. Such further time as may be permitted under the bond by the Deputy Chief Controller must necessarily be time that is limited to the date of expiry of the bond. It was pointed out that time was actually extended beyond the date of expiry of the 3ond, that is, beyond 23rd June 1969. This can have no effect because the bond Ext. P-2 is in accordance with the provisions of Article 299 of the Constitution and any alteration of the terms of that bond will have also necessarily to be in compliance with Article 299 of the Constitution. The extension of the time beyond 23rd June 1969 said to have been done by the Deputy Chief Controller of Exports by exchange by correspondence will not have the effect of altering the terms of the bond and therefore the bond will have to be enforced according to its terms. It is thus clear that a liability had arisen before the expiry of the bond and that liability will subsist even after the date of expiry of the bond. 9. Dealing now with the question of liability of the guarantor, it is clear that the guarantor will be liable only strictly in accordance with the terms and letter of his guarantee. It is unnecessary to refer to more decisions than the decision of the Supreme Court in State of Maharashtra v. Dr. M. N. Kaul and another (A.I.R 1967 S.C. 1634) for the proposition. The bank as a guarantor will therefore be liable only till 23rd June 1969 as has been clearly stated in the bond Ext. P-2. In this case also there has been a demand for extension of the period of liability and acceptance of that by the bank by exchange of correspondence. Such agreements cannot have the effect of altering the terms of Ext. P-2 for the reasons that we have stated in connection with the liability of the petitioner. This being so, the demand made in Ext. P-13 that in case the petitioner did not comply with the demand to pay the sum of Rs.
Such agreements cannot have the effect of altering the terms of Ext. P-2 for the reasons that we have stated in connection with the liability of the petitioner. This being so, the demand made in Ext. P-13 that in case the petitioner did not comply with the demand to pay the sum of Rs. 1,14,390 the bank will be called upon to pay this amount as guarantor is not sustainable. The bank cannot be asked as guarantor to pay any amount pursuant to Ext. P-2 after 23rd June 1969. We therefore direct that no demand will be made against the bank for the payment of any amounts as guarantor to the department concerned pursuant to Ext. P-2 bond. We think that the petitioner has sufficient interests to sustain a plea that no such demand should be made. We must guard ourselves by saying that this does not mean that other remedies if any open to the authorities to get at the money belonging to the petitioner which may be with the bank are lot to be defeated by what we have said in this judgment. What we have said is that under the terms of the guarantee given by the bank as guarantor, they will be liable to comply with the terms of the bond Ext. P-2 till and only till 23rd June 1969. 10. Subject to the above direction that no demand will be made as guarantor from the 4th respondent, we dismiss this Original Petition. We direct the parties to Dear their respective costs.