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TMI Blog1989 (1) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... l within the beneficial scope of the policy in para 185(4), take away with one hand what the policy gives with the other. We think we should accept the submissions of Shri Harish Salve which is consistent with the view taken of the matter by the High Court in other cases and hold that the conditions in para 185(4) of the policy would not be attracted to the case of Export Houses which are granted Imprest Licences. We think it would be somewhat unfA.I.R. for the respondents, who have succeeded in the High Court, to decide this question without an opportunity to them to satisfy the Court as to the reasons, if any, for the delay and as to the sufficiency of such reasons. Accordingly, the appellate-judgments of the High Court under appeal are set aside and the appeals 149 of 1987 and 179 of 1987 before the High Court are remitted for a fresh disposal as indicated above. - 8-9 of 1989 - 2579 and 2580 of 1987) - Dated:- 2-1-1989 - R.S. Pathak C.J.I. and M.N. Venkatachaliah, J. REPRESENTED BY: Shri Subba Rao, Advocate, for the Appellants. Shri Harish Salve, Advocate, for the Respondents. [Judgment per: Venkatachaliah, J.]. - By these two special leave petitions und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. M/s. Nutan Gems, respondent in SLP 2580 of 1987 is a recognised Export House which had, similarly, been granted an Imprest Licence dated 24.2.1983 for the import of uncut and unset diamonds with certain export obligations attached to it and that after the due discharge of the export obligations, Respondent became entitled to a revalidation and endorsement of the Imprest-Licence for import of OGL items. The application dated 16.1.1984 made in this behalf by the respondent was rejected by appellant No. 3 by his order dated 10.3.1984. M/s. Nutan Gems filed writ petition No. 1813 of 1985 in the High Court for issue of an appropriate writ quashing the said order of rejection and directing appellants to revalidate and endorse the Imprest Licence. On 19.9.1985, Learned Single Judge allowed the writ petition. This order was affirmed in appeal No. 149 of 1985 by the Division Bench on 17.2.1987. 5. These appellate-judgments of the High Court are assailed in these appeals. Though a number of contentions are raised in the Memorandum of Special Leave Petition, the points, however, pressed at the hearing admit of being formulated thus : (a) that in the Import-Export Policy, 1982-83 the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequent upon the changes in the policy. This question becomes relevant, says Shri Salve, at a stage which is subsequent to the revalidation and endorsement of the Imprest-Licence and that the position in the present cases has not yet reached that stage. However, he submitted that as to the choice of items permissible for import, the matter would of course, have to be determined and guided by these pronouncements. As contention (c) is not in controversy it is not necessary to dwell on it any further. What, however, remain to be considered are the contentions (a) and (b). 7. Re : Contention (a) : Clauses (3), (4), (5) and (7) of para 185 of the policy provide : (3) Where REP licence has been issued to the Export House on its own exports, the facility of importing OGL items under sub-para (1) above will be allowed without debit to the value of such REP licence, provided the value of such imports does not exceed the value of the REP licence. (4) The facility for import of OGL items available in sup-para (3) above, may also be allowed, on merits, to Export Houses against their advance/imprest licences on account of which they are rendered ineligible to obtain REP licence. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Indeed, this question was left upon by this Court while dismissing SLP 7389 of 1985 (Union of India v. Messrs H. Patel Co.). In its order dated 19.7.1985 this Court said : ....... We, however, make it very clear that we express no opinion on the validity of the above said contention based on paragraph 185(7) referred to above. The true effect of the said provision is left open to be considered in an appropriate case when an occasion arises to do so." 8. Sri Salve, submitted that in the very nature of the procedures and exercises inherent in the affectuation of an imprest-licence, as distinguished from Replenishment Licence, the Export-House has first to import the uncut and unset diamonds and thereafter fulfil its export-obligations of cut and polished diamonds as a necessary antecedent for the effectuation of its entitlement to a revalidation and endorsement for OGL items. The very nature of the time consuming transactions that are required to be gone through preceding the very creation of the right to revalidation and endorsement are inconsistent with the feasibility of compliance with the time-schedule in para 185(7). Learned Counsel says that the view that should co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision and, in many instances which would otherwise fall within the beneficial scope of the policy in para 185(4), take away with one hand what the policy gives with the other. We think we should accept the submissions of Shri Harish Salve which is consistent with the view taken of the matter by the High Court in other cases and hold that the conditions in para 185(4) of the policy would not be attracted to the case of Export Houses which are granted Imprest Licences. Accordingly we hold and answer contention (a) against the appellants. 10. Re: Contention (b): This pertains to appellants plea of delay as relief. Appellants have A.I.R.ed a serious grievance over this aspect. Shri Subba Rao streneously contended that the respondents had approached the High Court after an inordinate and unexplained delay of over one and a half years in each of these cases and that appellants objection as to the disentitlement of the respondents to relief on the ground of delay was not even so much as adverted to by the learned Single Judge or the Division Bench. Learned counsel submitted that promptitude and vigilent pursuit of legal remedies with obligence is basic to the entitlement to reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, application for revalidation and OGL endorsement was made within four months therefrom on 12th March, 1984. There is, in the circumstances, no such delay as to warrant its rejection on that ground. The contention thus fails and is rejected. Shri Subba Rao submits that the delay referred to in the above paragraph is the delay in seeking revalidation and endorsement after the issue of redemption certificate and not the delay in filing the Writ Petition and that in both the present cases the plea of delay in filing the writ petitions has not received due consideration by the High Court. Shri Subba Rao referred to a number of pronouncements of this Court, to substantiate that such unexplained delay particularly in matters dealing with import licences would bar relief and that unexplained delay, by itself and without more, is a factor disentitling a person to relief. He submitted that absence of prejudice to the opposite party, by itself, would not justified delay and that in the context of grant of import licences passage of time brings with it, as here, problems of conflicting policy considerations. Where changes of policy would impart crucial significance to the delays, Courts, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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