9911796707
TMI Blog1980 (1) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... 979. One contract was for the supply of about 6350 kgs. of Silver Wires while the second contract was for the supply of about 650 kgs. of silver wires of the above description. In respect of these contracts the petitioners have received remittances of the total value of Rs. 67,50,000/-, from Dubai. Out of these, a remittance of Rs. 7,50,000/- was received on 27th of June 1979. Another remittance of Rs. 1,10,00,000/- was received on 19th of July 1979 and yet another remittance of Rs. 50,00,000/- was received on 28th of July 1979. Originally, the remittances were for larger amounts, but out of these remittances a total amount of Rs. 66,10,000/- is available as against the two contracts which are the subject-matter of the petition. At the time when these contracts were entered into, there were no restrictions on the export of goods which contained less than 50 per cent silver. Before these goods could be shipped, however, on 13th of August 1979, the Exports (Control) Order was amended. As a result of this amendment, in item 77 of Part 'B' of Schedule I to the Exports (Control) Order, 1977, sub-item (iv) was added. Under this sub-item, manufactures and products having 50 per cent or le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be considered, as they had failed to furnish the documents prescribed in para 3 of Public Notice No. 54-ETC/79, dated 13-8-1979. Thereafter, the petitioners filed the present petition asking, inter alia, for an order or direction directing the respondents to permit the petitioners to export the said goods as per the said contracts. The petitioners took out a Notice of Motion for interim relief in this petition which came up for hearing before our learned Brother, Sawant J. After certain discussions, on 26th of September 1979, our learned Brother Judge directed the respondents to make a report furnishing the reasons why the applications were rejected. Pursuant to this direction, the respondents have submitted two reports (one in respect of each contract), both dated 8th of October 1979, communicating the reasons for the order in detail. In the reports, the reasons given for rejecting the applications was that, according to the respondents, the petitioners had not complied with condition (1) which was imposed by the public notice of 13th of August 1979 relating to receipt of advance payment against the contracts prior to the date of the public notice. According to the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons why the preliminary points do not, prima facie, appeal to us. Mr. Paranjape has strenuously urged that the application for review was barred by principles analogous to the principle of res judicata because, according to him, all the facts were before Sawant J. when he rejected the petitioners' application for interim relief. He also pointed out that the appeal from this order was withdrawn by the petitioners and hence a review of the original interlocutory order was barred by principles analogous to the principle of res judicata. This argument does not have much substance because certain new material has come to light after the passing of the original interlocutory order of 18th of October 1979. The petitioners obtained from the two banks concerned documents to show that the alterations in the Remittance Certificates were made by the banks on 3rd of August 1979. This is a very material circumstance in the present case since the ground for rejecting the petitioner's applications was based on the alterations in the Remittance Certificates which the respondents suspected had been carried out subsequently. It is true that these documents were available with the petitioners at the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pre-control commitments will be decided on merits only where the conditions stipulated therein are satisfied. Mr. Paranjape has emphasised the words "on merits". He has urged that even after the petitioners comply with the conditions which are laid down in the public notice, still the respondents have an absolute discretion to accept or reject their applications. In our view, this is not a correct reading of the public notice, as the Supreme Court has rejected such an exalted claim about the nature of the authority conferred on the respondents to grant or reject applications for export and import licences at their absolute discretion in the Union of India and Others v. M/s. Anglo Afghan Agencies, A.I.R. 1968 S.C. at 718. In any case, this aspect of the matter need not be examined in detail because in the two reports which the respondents have filed in the present case as well as in their affidavits which have been filed in the review application, the respondents have stated that they have rejected the applications of the petitioners entirely on the basis that the petitioners have not complied with the conditions which are laid down in the public notice on 13th of August 1979. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners. These are the only reasons why the applications of the petitioners have been rejected. 6. As our learned Brother Shah J. has noted in his order, none of these grounds appears to be substantial. The entire suspicion of the respondents rests on the alternations in the Remittance Certificates, but this suspicion has been found to be baseless in the light of the documents from the banks which have been produced by the petitioners. In fact, at the hearing of the review application, the learned Advocate for the respondents very fairly conceded that the alterations in the Remittance Certificates were genuine and had been effected prior to the publication of the public notice of 13th of August 1979. This concession has very fairly not been withdrawn before us. Hence there can be no doubt that the alterations made in the Remittance Certificates are of a date prior to the public notice of 13th of August 1979. If this is so, then there can be no doubt that the petitioners have complied with all the conditions which are laid down in the public notice of 13th of August 1979. The respondents have merely relied upon these alterations to allege that the contracts themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the conditions which are laid down in the public notice of 13th of August 1979. They have produced all the relevant documents and there is nothing more which they can produce. Under these circumstances, nothing more remains to be done and, in our view, there is no reason why we should interfere with the order passed by our learned Brother Shah J. on 11th of December 1979. 8. Mr. Paranjape has urged that the contracts contain a force majeure clause under which, if there is a change in the export policy, such a change would be covered. He has, therefore, urged that the petitioners have not suffered any damage and no interim relief should be granted to them. This argument is also fallacious. There is no reason to suppose that if the petitioners are not permitted to carry out their contracts, they will not suffer any loss or damage. The petitioners are likely to suffer a loss by not being allowed to carry out their contracts even though it is possible that they may have a good defence to the other party's claim for damages. 9. Mr. Paranjape has also strenuously urged that we cannot judge the petitioners' applications for export licences on the basis of the policy exist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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