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TMI Blog2013 (6) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... - Ajay Kumar Mittal And G. S. Sandhawalia,JJ. For the Petitioner : Mr. Rajiv Atma Ram, Sr. Advocate,with Mr. Jagmohan Bansal, Advocate, Mr. Deepak Gupta, Advocate, and Ms. Shivali Jain, Advocate For Respondent : Mr. Satish Aggarwala, Advocate, and Mr. Sunish Bindlish, Advocate, Mr. Kamal Sehgal, Advocate JUDGMENT CM No.1999-CWP of 2013 Written submissions on behalf of respondents No.1, 2 and 4 filed along with the application are taken on record subject to all just exceptions. C.M. application stands disposed of. CM No.10837-CWP of 2013 Documents (Annexures P-1 and P-2) filed along with the application are taken on record subject to all just exceptions. C.M. application stands disposed of. CM No.12179-CWP of 2013 Written statement filed on behalf of respondent No.3 along with the application is taken on record subject to all just exceptions. C.M. application stands disposed of. CWP No.10750 of 2012 The petitioners have approached this Court by way of present writ petition filed under Articles 226/227 of the Constitution of India wherein following prayers have been made: (i) Writ of Certiorari quashing the Panchnama dated 30.04.2012 (Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the parties. The learned counsel appearing for the Department strenuously contends that as and when the demand against the petitioners is finalized the amount of Rs.50 lacs deposited by them in June, 1999 will be adjusted against that demand and, therefore, this court should not direct the respondents to refund the aforesaid amount of Rs.50 lacs to the petitioners. We are unable to agree with the learned counsel. Since the adjudicating authority has not yet determined any amount as due which is payable by the petitioners, there is no justification for the Department to retain the sum of Rs.50 lacs which was admittedly deposited by the petitioners way back in June, 1999. If and when any demand is created, it will be open to the Department to recover the same from the petitioners in accordance with law. We, therefore, allow the writ petition and direct the respondents to refund the sum of Rs.50 lacs to the petitioners along with interest at the rate of 9% per annum from the date of deposit till the date of its return. The needful must be done within three months from the date of receipt of a copy of this order. Reference was also made to Paras 11 to 13 in M/s Century Met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Limited and another versus Export Credit Guarantee Corporation of India Limited and others, (2004)3SCC 553 and Godavari Sugar Mills Limited versus State of Maharashtra and others, (2011)2SCC 439 to controvert that the Hon'ble Apex Court distinguishing the Constitution Bench judgment in Suganmal's case (supra), has noticed that though normally writ of mandamus would not be entertained for the purpose of merely ordering of refund of money but the High Court had the powers to pass appropriate orders in exercise of jurisdiction under Article 226 of the Constitution of India in appropriate cases. 7. Learned counsel for the petitioners on instructions from Sh. Rajesh Dhanda, husband of Smt. Seema Dhanda, as she is the owner of the immovable property in the shape of plot situated at village Baranhara, near Goudham, Ludhiana, having approximately value of Rs.3 Crores, pointed out that Sh. Rajesh Dhanda is authorized to make a statement on behalf of his wife and his wife shall be bound by the statement made by him. It was further submitted that in order to safeguard the interest of the revenue, petitioner No.3 has agreed for retaining of an amount of Rs.2 Crores by the revenue til ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceedings. In enforcement of statutory functions of the State or its officers (vide Burmah Construction C. v. State of Orissa.). (ii) If a right has been infringed whether a fundamental right or a statutory right and the aggrieved party comes to the Court for enforcement of the right it will not be giving complete relief if the Court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realised by the Government without the authority of law. (Vide State of M.P. v. Bhailal Bhai.). (iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioners claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount though the High Courts have the power to pass appropriate orders in the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for respondents No.1, 2 and 4 is thus rejected. 11. After hearing learned counsel for the parties and perusing the record, we find that as on date no crystalized liability has been shown to be existing against the petitioners. Further, only a show cause notice has been issued whereunder a liability to the extent of Rs.50 lacs could be fastened. Insofar, as the matters which are under investigations, it has not been shown that any show cause notice in respect thereof has been issued by the respondent-department so far. 12. It is trite law that unless a demand, which is finalized and is existing which is liable to be discharged, the revenue cannot retain any amount unless there exists specific provision in the statute for the retention of the amount. 13. On a specific query put to the learned counsel for the revenue relating to any provision in the statute on the basis of which the revenue could provisionally retain the amount, learned counsel for the revenue candidly admitted that there is no such provision to retain the amount except to refer to Section 42 of the Customs Act, 1962. Further, on a query as to whether any order requiring the petitioners to refund th ..... 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