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2018 DIGILAW 199 (CAL)

AI Champdany Industries Ltd. v. Union of India

2018-01-31

MIR DARA SHEKO

body2018
JUDGMENT : 1. Hearing is concluded and the matter is taken up for order. 2. At the very outset it may be mentioned that after completion of extensive argument advanced by Mr. Joydip Kar, learned senior counsel and Mr. Sabyasachi Chowdhury, being assisted by Mr. Abhijit Guha Roy, learned counsel representing the writ petitioners, regarding maintainability point raised by Mr. Saptansu Basu, learned senior counsel representing the respondent no.2, Mr. Koushik Chandra, learned Additional Solicitor General representing the respondent no.1 and Mr. Ghosh, learned counsel representing the respondent no.4, the Court is of the opinion that before entering into merit, the point of maintainability should be addressed, though learned counsel were submitting to dispose of the matter on merit as well. 3. To my mind, the maintainability point is to be addressed first since either side may have the option to test the order before appropriate forum whatever its outcome may be. 4. Mr. Basu inviting attention to the text of paragraphs 13, 14, 15, 17, 18 and also the prayer portion mentioned in paragraph 26 of the plaint of Civil Suit no. 293 of 2010, record of which has been called for perusal of this Court during pendency of hearing of this writ petition, submitted that the cause of action of the instant writ petition and the said suit is similar. Submitted further that before institution of the instant writ petition, the writ petitioners filed a writ petition, being W.P. No. 5365(W) of 2010 on 12th March, 2010, which was taken up for hearing on 29th April, 2015 and was finally disposed of on 6th May, 2015. Submitted further that although during pendency of that writ petition, the aforesaid Civil Suit was filed on 3rd December, 2010, but it was never disclosed before the Writ Court till disposal of the said writ petition. Further argued that while the second writ petition was filed on the self-same cause of action, the writ petitioners not only suppressed the fact of existence of the Civil Suit no. 293 of 2010, but also misled the Court by swearing false affidavit, for which Mr. Basu invited attention to paragraphs 40 and 42 of the instant writ petition, which will be dealt with appropriately. 293 of 2010, but also misled the Court by swearing false affidavit, for which Mr. Basu invited attention to paragraphs 40 and 42 of the instant writ petition, which will be dealt with appropriately. Further submitted that since the Writ Court is the Court of equity and as a consequence of adopting already an alternative efficacious remedy by the writ petitioners, the instant writ petition becomes barred, and for suppression of fact and misleading the Court, the writ petition is liable to be dismissed in limine. Mr. Basu however on merit referring paragraph 10 of the impugned report submitted that sanctity of those facts and figures could not be adjudicated before the Writ Court without taking any evidence and on that ground also the writ petition is not maintainable. 5. To justify the above submissions Mr. Basu relied upon the following cases : (1) (1977) 1 SCC, page 1 (Joi Singh -vs- Union of India & Ors.), paragraph 4; (2) AIR 1954 SC page 207 (K.S. Rashid & Son -vs- The Income Tax Investigation Commission Etc.), paragraph 4 (3) AIR 1962 SC 1320 (Burmah Construction Company -vs- State of Orissa & Ors.), paragraph 6 (4) (2007) 8 SCC page 449 (Prestige Lights Ltd. -vs- State Bank of India), paragraphs 27 & 33 (5) (2010) 2 SCC page 114 (Dalip Singh -vs- State of Uttar Pradesh & Ors.), paragraphs 4, 7 and 10 (6) (2011) 2 SCC page 439 (Godavari Sugar Mills Limited -vs- State of Maharashtra & Ors.), paragraph 5. 6. Learned counsel representing the respondent no.1 adopting the submission made by Mr. Basu and relying upon the report of EMA scheme, which was prepared after disposal of the first writ petition, submitted that certain number of certificates in question were found irregular, since the same was procured after the date of export. Submitted further that if those certificates were obtained after the date of export and were produced before the Government for discharging the financial obligation, then there would be no more scope for its verification, as to whether those certificates were issued in terms of Food Grade Jute Products (FGJP) scheme. Therefore, the finding as was held in the impugned order, requires no interference. 7. Therefore, the finding as was held in the impugned order, requires no interference. 7. Learned counsel representing the respondent no.4 submitted that the certificates were issued by his client in terms of clause (1) sub-clause (g), apart from clause 4 of the Memorandum of Understanding dated 16th October, 1998 and therefore, there was no irregularity on their part. 8. Learned counsel representing the writ petitioners though already argued the case on merit but now in reply on the point of maintainability submitted that in the earlier writ petition the notification dated 12th December, 2007 was assailed and this Court by passing order on 6th May, 2015 held that said notification was issued arbitrarily by giving retrospective effect by the authority without any valid reason and therefore, the same was not accepted by the Court, and, in deciding the said writ petition the Secretary, Ministry of Textile was directed to consider the claim of the writ petition in accordance with law in the light of the observation made in the body of the judgment after giving opportunity of hearing and also directed that if any amount is found payable to the petitioners, the said sum would be disbursed to the petitioners forthwith. 9. According to the writ petitioners, though the impugned order dated 8th July, 2015 was passed by the authority in compliance of the Court’s order, but again caused alleged miscarriage of justice though there was no default or departure on the part of the writ petitioners either in terms of the scheme or the MOU. Therefore, on failure to comply with the order dated 6th May, 2015 of this Court, altogether on different cause of action the instant writ petition has been filed. 10. Mr. Kar inviting attention to Rules 2 and 3 of Order 2 of the Code of Civil Procedure and relying upon paragraphs 7 to 10 of the judgment delivered in the case of Bengal Waterproof Limited -vs- Bombay Waterproof Manufacturing Company & Anr. 10. Mr. Kar inviting attention to Rules 2 and 3 of Order 2 of the Code of Civil Procedure and relying upon paragraphs 7 to 10 of the judgment delivered in the case of Bengal Waterproof Limited -vs- Bombay Waterproof Manufacturing Company & Anr. reported in (1997) 1 Supreme Court Cases 99, submitted that the cause of action of the instant writ petition can not be said as the same or even continuing cause of action, as because the notification which was assailed in the earlier writ petition, was quashed by this Court, and after revisiting the issue a fresh cause of action arose when the part claim of the writ petitioners was considered favourably, denying the rest for no fault of the writ petitioners. 11. Mr. Kar also invited attention to the order dated 17th February, 2016 passed by this Court in the instant case that since at the threshold the writ petition was entertained by this Court by passing a reasoned order allowing the respondents to exercise counter-affidavit and virtually almost after the completion of argument advanced on behalf of the writ petitioners, the point of maintainability was urged by the respondents, the same should not be entertained and the matter should be decided on merit. 12. In my observation, as already indicated above, the merit of the case may be dealt with appropriately after deciding the point of maintainability, since it may, or may not, touch the jurisdictional root of the case in view of peculiar facts and circumstances available on record. This is admitted position that the first writ petition, being WP 5365(W) of 2010, was filed by the writ petitioners on 12th March, 2010, of which prayer (a), (b) and (c) are as follows: “(a) A writ of and/or in the nature of Mandamus do issue commanding the respondents not to give any effect and/or further effect to the impugned notification dated 12th December, 2007 issued by the respondent no.1 to the respondent no.2, being annexure P-10 hereto; (b) A writ of and/or in the nature of Mandamus do issue commanding the respondent no.2 to forthwith release the pending claim of EMA of the petitioners in terms of annexure P-10 hereto; (c ) A writ of and/or in the nature of Certiorari do issue directing the respondent nos. 1 and 2 to transmit all records pertaining to and/or in relation with the impugned notification dated 12th December, 2007 before this Hon’ble Court that conscionable justice may be done by setting aside and/or quashing the same.” 13. During hearing the Court is apprised of that final hearing of the said writ petition took place on 29th April, 2015 and order was passed on 6th May, 2015. Pursuant to prayer (a), paragraph 12 from its judgment is set out: “But in the present case the notification dated 12th December, 2007 has been arbitrarily, erroneously, whimsically given with retrospective effect by the authority without any valid reason there for which cannot be accepted by a Court of law. In the present case in my considered view that the impugned action of the Government is totally contrary to Articles 14, 16 and 19(1)(g) of the Constitution of India and is also very much against the principles of natural justice. Therefore, in my considered view, justice would be sub-served if the Secretary, Ministry of Textiles and his delegate is directed to consider the petitioners’ claim in accordance with law and in the light of the observations made in this judgment after giving an opportunity of hearing to the petitioners within eight weeks from the date of communication of this order and also communicate the decision of the hearing to the petitioners within two weeks thereafter.” 14. In view of the above order, in non-acceptance of the notice dated 12th December, 2007, as legally sustainable, virtually prayer (c) also was decided in favour of the writ petitioners in earlier writ petition. 15. It was indicated above that the Civil Suit no. 293 of 2010 was filed by the self-same writ petitioners on 3rd December, 2010, paragraph 33 of plaint however did not suppress about the pendency of the earlier writ petition at that relevant point of time and it was asserted in the following manner: “33. The plaintiff has challenged the arbitrary action of the defendants by filing a writ petition in this Hon’ble Court which is pending. The plaintiff has been advised to file the above suit without prejudice to its rights in the writ petition in order to avoid the claim of the plaintiff being barred by limitation.” 16. The plaintiff has challenged the arbitrary action of the defendants by filing a writ petition in this Hon’ble Court which is pending. The plaintiff has been advised to file the above suit without prejudice to its rights in the writ petition in order to avoid the claim of the plaintiff being barred by limitation.” 16. For future reference the prayers (a), (b) and (c) of the said Civil Suit, as mentioned in paragraph 34 are also set out: For “(a) Declaration that the notification dated 12th December, 2007 is bad in law and not binding upon the plaintiff and the plaintiff is entitled to receive the balance payments under the said EMA scheme of the defendant no.1; (b) A decree for a sum of Rs. 10,97,86,570/- against the defendant nos. 1 and 2 jointly and severally. (c) Interim interest and interest upon judgment;” 17. Since Mr. Basu raised the point of maintainability, though at belated stage, let me verify as to whether the second writ petition has been filed on the self-same cause of action. However, this is not an un-denying fact that the parties to the earlier writ petition, to the civil suit as well as to the instant writ petition are the same and identical. It has already been indicated that in compliance of the order passed in the earlier writ petition, the order in the form of report was passed by the authority on 8th July, 2015, which has been assailed as reiterated by letter dated 19/20th November, 2015. 18. Amongst the prayers of the writ petition, the text of the relevant prayer (c) may be set out: “(c) A writ of and/or in the nature of Mandamus do issue commanding the respondent no.2 to forthwith release the pending claim of EMA of the petitioners in terms of annexure P-11 hereto.” 19. It appears from “EMA Outstanding General/100% EOU”, being annexure P-11 of the writ petition that the total outstanding was Rs. 10,97,86,570/-. It is obvious that the Writ Court can have no scope to assess or calculate any such accounts for determination of the outstanding. However, the writ petitioners have sought for direction of this Court upon the respondent no.2 to release the same amount as pending claim of EMA. 20. I have already set out prayer (b) of the civil suit, wherefrom the amount can be seen as the same and identical. However, the writ petitioners have sought for direction of this Court upon the respondent no.2 to release the same amount as pending claim of EMA. 20. I have already set out prayer (b) of the civil suit, wherefrom the amount can be seen as the same and identical. It is obvious that cause of action is the component of a bundle of facts. The text of earlier writ petition, present one as well as of the plaint of the civil suit (supra) are taken together to gather the facts asserted therein, then it gives the single story that the writ petitioners though by remaining with the EMA scheme and the executed Memo of Understanding they had done their all role in the transaction without any departure. Therefore, the writ petitioners should not be debarred of their claim. Therefore, filing of a civil suit by inserting claim in such given fact within ambit of order and Rule of the Code of Civil Procedure, is the right approach apart from precluding the claim from being barred under Law of Limitation. Now this is to be looked into as to when such a suit is filed and pending then whether this second writ petition becomes bar or not. It can be said that by virtue of the decision of this Court in earlier writ petition, being W.P. no. 5365(W) of 2010, prayer (a) of the civil suit (supra) has now become infructuous, because the relief so far the notification dated 12th December, 2007 has been observed by this Court as not acceptable by a Court of Law, which cannot be re-visited once more in the suit, until and unless the said order is taken before the appropriate forum for its setting aside, which has not been taken place so far. Therefore, in the suit the relief as residue remains for adjudication only in respect of prayer (b), which is identical to prayer (c ) of the present writ petition based on the same bundle of facts barring the result yielded on revisiting the dispute after disposal of earlier writ petition. 21. Therefore, in the suit the relief as residue remains for adjudication only in respect of prayer (b), which is identical to prayer (c ) of the present writ petition based on the same bundle of facts barring the result yielded on revisiting the dispute after disposal of earlier writ petition. 21. Looking back once again to prayer (c) of the instant writ petition that the direction has been sought for as regards the money claim whereas in the instant suit decree for same amount of money also was prayed for, virtually that is the ultimate goal to achieve by the writ petitioners, if they can succeed. I have already indicated that while pursuant to the earlier order of this Court the authority has re-visited the EMA scheme and did not reject the claim as a whole, save and except alleged detection of the irregularities in the claim as detailed in paragraph 10 of the report. 22. I accepted the argument of Mr. Basu that the same cannot be scrutinized or interfered within writ jurisdiction, since the same can only be adjudicated on taking evidence by giving opportunity to the parties. 23. In the case of Godavari Sugar Mills Ltd. –vs- State of Mahatashtra (supra) reported in (2011) 2 SCC 439 , one question was specifically dealt with in paragraph 5, “whether the writ petition was for recovery of money and therefor not maintainable?" The question was answered in paragraph 7 in that case, which is set out: “7. The High Court relying upon the decision of this Court in Suganmal –vs- State of M.P. has held that the prayer in the writ petition being one for payment of interest, it should be considered to be a writ petition filed to enforce a money claim and therefore, not maintainable.” 24. Therefore, let me differ to be at par with Mr. Kar that the present writ petition is filed on a different or separate cause of action, because the genesis of the writ petition coupled with the money claim, even the amount of the claim are the same and identical 25. For better appraisal the text of paragraph 10 of the impugned report under reference is set out: “10. Kar that the present writ petition is filed on a different or separate cause of action, because the genesis of the writ petition coupled with the money claim, even the amount of the claim are the same and identical 25. For better appraisal the text of paragraph 10 of the impugned report under reference is set out: “10. Apart from the above, there are several other irregularities in the claims which have been noticed, some of which are listed below: (i) In 383 cases the pre-shipment certificates are irregular as the date of the certificate is after the date of export. (ii) In 19 invoices the term food grade is not mentioned at all. Further, in 57, the term food grade has been added in a different manner. (iii) In 176 certificates it has been clearly stated that the sample has not been drawn by the lab i.e. SGS. 26. It means 100% documents would not have been found in order. Rather, how much of those were found in order, those were only attended. 27. Within the scope of Article 226 of the Constitution of India when this Court has overviewed, then the Court did not come across any complain that opportunity of hearing was not given, or, documents were not attended, or there was any procedural irregularity. Therefore, some relevant portion from paragraph 4 from the case of Joi Singh–vs- Union of India reported in (1977) 1 SCC page 1 is set out to indicate that the writ petition would not be maintainable simultaneously. “4. There cannot be any doubt on the point that the extent of purity of the gypsum won by the appellant is a question of fact. It has also been brought to our notice that after the dismissal of the writ petition by the High Court, the appellant has filed a suit, in which he has agitated the same question which is the subject matter of the writ petition. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.” 27. In our opinion, the appellant cannot pursue two parallel remedies in respect of the same matter at the same time.” 27. Paragraph 4 from AIR 1954 SC 207 (Constitution Bench) also may be relevant in the same context, which is set out: “For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion, to refuse to grant any writ if it is satiated that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is concerned, it has been brought to our notice that the appellants before us have already availed themselves of the remedy provided for in Section 8(5) of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances, we think that, it would not be proper to allow the appellants to invoke the discretionary jurisdiction under Article 226 of the Constitution at the present stage, and on this ground alone, we would refuse to interfere with the orders made by the High Court." 28. Therefore, when the alternative efficacious remedy has already been adopted by the writ petitioners by filing civil suit by taking the ratio of the decisions cited at the bar, the writ petition simultaneously should not be allowed to be continued on the similar cause of action. 29. On the contrary, the text of paragraphs 40 and 42 of present writ petition, which was affirmed on 28th January, 2016 is a glaring instance of taking shelter of falsehood without hesitating even to mislead the Court, though the civil suit filed by the writ petitioners is still pending in the Original Sid of this Court. Those paragraph nos. 40 and 42 of writ petition are set out: “40. The petitioners state and submit that there are no other alternative and/or efficacious remedy available in law and/or in fact and the relief prayed for herein, if granted, would afford complete and adequate relief to your petitioners.” “42. The petitioners have not moved any other application in any other forum on the self-same cause of action.” 30. The petitioners state and submit that there are no other alternative and/or efficacious remedy available in law and/or in fact and the relief prayed for herein, if granted, would afford complete and adequate relief to your petitioners.” “42. The petitioners have not moved any other application in any other forum on the self-same cause of action.” 30. The above text, however, are not merely twisted or suppression of fact, but in reality false assertions, which may require adequate attention to deal with. 31. How to treat a litigant by an equitable court in view of above conduct also may have one answer from paragraph 10 of the case of Dalip Singh –vs- State of Uttar Pradesh (supra), which is set out: “10. In K.D. Sharma –vs- SAIL the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim.” 32. Same view was reiterated in the case of Prestige Lights Ltd. –vs- State Bank of India (supra) in paragraph 33, which is set out: “33. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” 33. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter.” 33. In view of above, when already the appropriate suit covering money claim is at place, where for just and adequate grounds amendment in pleading also is permissible in need under law, this parallel proceeding before the writ court upon hearing on the point of maintainability is held as barred and is no more allowed to continue being based on the principles laid down under order 14 Rule 2(2)(b) of the Code of Civil Procedure, since any other principle like order 7 Rule 11 of the Code (on which some submission was made) having no applicability herein. 34. In the situation, while the suit is pending for adjudication upon evidence of the parties, any observation or decision about the impugned report, as revisited, may cause prejudice to either of the parties. Therefore, refraining myself from entering into merits and keeping liberty of the parties in tact and keeping all points pertaining to the report of EMA claims dated 8th July, 2015, as was assailed in the writ petition, open for raising in the civil suit (supra), if so requires, the writ petition being held not maintainable, is disposed of without going into merits. 35. No order as to costs. 36. Let the records of Civil Suit no. 293 of 2010, which was called for perusal of this Court during hearing and disposal of the writ petition, be now sent back to the department of Original Side forthwith. 37. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.