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TMI Blog2004 (4) TMI 527X X X X Extracts X X X X X X X X Extracts X X X X ..... nts herein be directed to take a final decision as envisaged in the letter dated 24.10.1989 (Annexure A to the writ petition) and an injunction be issued restraining the appellants from transferring, dealing with or disposing of goods pursuant to the contracts mentioned in Annexure-A in any manner without keeping the goods which are to be supplied to writ petitioner no.1. 3. The case set up in the writ petition is as follows. The writ petitioners had been purchasing various quantities of cloth from Finlay Mills Limited and Gold Mohur Mills Limited, both situate in Bombay. The petitioners entered into contracts specified in Annexure-A to the writ petition and made advance payment against the same. The concerned mills supplied and delivered the goods to the petitioners from time to time but a substantial part of the contract remained unexecuted. By the letter dated 26.9.1993 the mills were requested to take necessary steps for immediate delivery of the goods, in respect whereof payment had already been made. The mills vide their letter dated 29.9.1993 intimated that deliveries could not be effected as the banking transaction and accounts of the mills had been frozen, but assured tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibited from discharging any liability pertaining to pre-take over period; and (3) there were no invoices against which payments were received from the petitioners prior to take over and as such the question of effecting delivery of paid stocks did not arise. The writ petitioners made several representations and they were informed by the letter dated 4.10.1989 that the matter relating to delivery of cloth in pursuance of pre-take over contracts was under active consideration. However, no delivery was effected. The writ petition was thereafter filed in December, 1989 seeking the reliefs mentioned in the earlier part of the judgment. 4. The writ petition was contested on behalf of the appellants herein and the Principal Officer of National Textile Corporation (South Maharashtra) Ltd. filed a detailed counter-affidavit. Certain pleas taken in para 3 of the counter affidavit have an important bearing and therefore the same is being reproduced below: "Para3. At the outset I state as follows :- a) The writ petition being directed to obtain specific performance of the disputed contracts and further claiming a decree for the same which can and should be obtained by filing a regular suit, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereof no title had passed on to the writ petitioners. It was specifically denied that other dealers, similarly situate, had been delivered any goods in respect of pre-take over contracts and a uniform principle was adopted in this regard. No invoices had been raised in respect of any alleged balance goods of a pre- take over period. It was also pleaded that the payments, if any, alleged to have been made by the writ petitioners were in fact made to the erstwhile company and the writ petitioners were at liberty to recover the same from them but the respondents were not liable to pay back any amount or to deliver any goods. It was also asserted that the respondents had been discharged of every liability of any kind for the pre-take over period. The other allegations made in the writ petitions were also denied. 5. After exchange of affidavits the hearing of the writ petition commenced before a learned Single Judge on 14.6.1990 and finally judgment was reserved on 5.12.1990. However, after considerable period of time the writ petition was released by the learned Single Judge. Thereafter sometime in 1995 the writ petitioners made a prayer to file a supplementary affidavit for the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown as Rs.10,47,145.33 as against Finlay Mills and Rs.21,89,056.26 as against Gold Mohur Mills. 6 An affidavit in reply was filed to the aforesaid supplementary affidavit and it was submitted that the writ petitioners were put to strict proof of the letter dated 24.10.1989 as the same was alleged to have been given to them by Mr. Sundaram without disclosing the reason for doing so. The letter was a confidential internal communication and there was no occasion for Mr. Sundaram to hand over a copy of the same to the writ petitioners especially when he (Mr Sundaram) had left employment of National Textile Corporation (South Maharahstra) Ltd. in December, 1992. The letter was at best comment or opinion of Mr. Sundaram and was contrary to the opinion of the Attorney-General to the effect that the alleged contracts were not genuine. A copy of the opinion of the Attorney-General was also annexed. It was also pleaded that the Government of India had not accepted the alleged claim of the writ petitioners and had in fact launched prosecution against the Principal Officer of respondent no.4 for giving delivery of stocks to several parties after the date of taking over. It was further plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd held that all contracts relating to the management of the business and all contracts relating to the management of the affairs of the Textile Undertaking stood terminated on the appointed day and consequently the Central Government or the Custodian were neither obliged to discharge the contractual obligations by effecting deliveries, nor they were obliged to give any adjustments of the advances said to have been made. Regarding the letter dated 24.10.1989 it was held that the letter itself mentions that the facts stated therein could not be verified as most of the original records and documents had been seized and were lying in possession of CBI. That apart, the object of the letter was not to admit any liability or obligation but an opinion was expressed that the best course of action was to obtain a judicial pronouncement in the matter. Finally, the learned Single Judge held that the entire cause of action accrued in Bombay and therefore the High Court of Calcutta had no jurisdiction to entertain the writ petition. On these findings the writ petition was dismissed. 8. Feeling aggrieved by the judgment and order of the learned Single Judge the writ petitioners preferred an app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly the view taken by the Division Bench of the High Court that it had jurisdiction to entertain the writ petition was perfectly correctly. 10. Under Clause (2) of Article 226 of the Constitution, the High Court is empowered to issue writs, orders or directions to any Government, authority or person exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. Cause of action as understood in the civil proceedings means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. To put it in a different way, it is bundle of facts which taken with law applicable to them, gives the plaintiff a right to relief against the defendant. In Union of India v. Adani Exports Ltd. AIR 2002 SC 126 in the context of clause (2) of Article 226 of the Constitution, it has been explained that each and every fact pleaded in the writ petition does not ipso facto lead to the conclusion that those facts give rise to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was to be made by them ex-factory at Bombay. According to the writ petitioners, the money was paid to the mills at Bombay. The learned Single Judge after a detailed discussion of the matter held that the Calcutta High Court had no jurisdiction to entertain the writ petition. The Division Bench has reversed this finding on the ground that concluded contract had come into existence which could be cancelled only after giving an opportunity of hearing and consequently the question of revocation of the contract at its Calcutta address would constitute a cause of action. In our opinion, the view taken by the Division Bench is wholly erroneous in law. It was nowhere pleaded in the writ petition that the appellant herein had initiated any action under Section 11 of the Act by issuing any notice to the writ petitioner for cancellation of the contract. In fact, it is stated in para 18 of the petition that the Central Government did not follow the procedure prescribed in Section 11 for cancellation of contract. Regarding the jurisdiction of the Calcutta High Court, the relevant statement was made in para 73 of the writ petition wherein it was stated as under : "73. Your petitioner carries on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 3 is clear and unambiguous inasmuch as in the said provision it has been declared that any liability incurred by the textile company in relation to the textile undertaking before the appointed day shall be enforceable against the textile company concerned and not against the Central Government or the Custodian. It was also held that the words "any liability" in sub-section (7) of Section 3 are of wide amplitude to cover every liability that was incurred by the textile company in relation to the textile undertaking before the appointed day. The Court thus rejected the contention that sub-section (7) of Section 3 must be so construed as to exclude its applicability in respect of liability for payment of gratuity under the Payment of Gratuity Act. The Court also examined the provisions of the Textile Undertakings (Nationalisation) Ordinance, 1995 (Ordinance No.6 of 1995) which was later on replaced by the Textile Undertakings (Nationalisation) Act, 1995) and held as under : "The provisions of Ordinance 6 of 1995 also show that the liabilities for the period prior to the take-over of the management are to be discharged from the amount payable to the owner of the textile unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was filed along with the supplementary affidavit on 27.1.1995 i.e. more than 5 years after filing of the writ petition which had been filed in December, 1989. Mr. Sundaram had left the employment in 1992. As the letter shows, it was an internal correspondence between the Chairman of National Textile Corporation and Joint Secretary, Ministry of Textiles, Government of India. The letter does not show that its copy was sent to anyone else much less to the writ petitioners. In para 4 of the supplementary affidavit filed by Mahender Kumar Goenka, it was stated that on his request Mr. Sundaram was kind enough to hand over a copy of the said letter dated 24.10.1989 to the petitioner. It is extremely difficult to believe that though Mr. Sundaram left the employment in 1992, but he was keeping a copy of the said letter with him and handed over the same to Shri Goenka in 1995. Shri Sundaram, who was an IAS Officer holding a very responsible post of Chairman-cum-Managing Director of National Textile Corporation, is not expected to keep private copies of official documents nor to hand over the same to a private party. We are, therefore of the opinion that the view taken by the learned Single ..... X X X X Extracts X X X X X X X X Extracts X X X X
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