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TMI Blog2010 (12) TMI 1159X X X X Extracts X X X X X X X X Extracts X X X X ..... on was admitted on 13.08.2010. Pending the writ petition, this court granted an interim injunction restraining the second and third respondents from implementing the order of the third respondent, dated 5.7.2010 and also to extend the Full-fledged Money Changer License pending disposal of either writ petitioner or the appeal lying with the Secretary, Ministry of Finance, Government of India, New Delhi or on reaching a finality in the Supreme Court. 3.It was noted by this court while granting an interim injunction that the Reserve Bank had granted an authorization for setting up payment system on installment basis. While considering the fact that a criminal case has been launched against the petitioner on a private complaint filed by a person hailing from Delhi they have forgotten the reality that a case has been launched against the petitioner only in his individual capacity. Thereafter, this court went on to make the following findings for the purpose of grant of interim injunction, dated 13.8.2010, which are as follows: 4.It is submitted that the disputed signatures found in the documents seized in the criminal case were sent for expert opinion and the expert has opined th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority for that purpose and for matters connected therewith or incidental thereto. 7.Under PAASA, no person is authorised other than the Reserve Bank to commence and operate the payment systems except under and in accordance with an authorisation issued by the Reserve Bank of India. Under Section 5, any person desirous of commencing or carrying on a payment system should apply to the Reserve Bank for an authorisation. Section 7 authorizes the Reserve Bank that if it is satisfied after any inquiry made and the application is complete in all respects and that if it conforms to the provisions of this Act and the regulations, can issue an authorisation for operating the payment system under this Act having regard to several considerations which are set out in Section 7(1)(i) to (ix). It is relevant to extract 7(1)(vi), which is as follows: 7.Issue or refusal of authorisation.-(1)The Reserve Bank may, if satisfied, after any inquiry under section 6 or otherwise, that the application is complete in all respects and that it conforms to the provisions of this Act and the regulations issue an authorisation for operating the payment system under this Act having regard to the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the power vested under Section 7(1) of PASSA and after noting the financial status, experience of management and integrity of the petitioner, summoned him. The petitioner had appeared before the Committee of Chief General Managers of RBI on 18.5.2010. It was recorded by the RBI that he himself stated before them that the Company will come out clean from the on going court case. Therefore, he was advised that his continuance of business beyond September 30, 2010 cannot be permitted and he should apply afresh and his application will be considered on merits. 11.The communication sent by the RBI to the London based company vide its letter dated 5.7.2010 and which was injuncted from acting upon in M.P.(MD)No.1 of 2010 reads as follows: Please refer to the correspondence resting with your letter SMFB/LON/RF-4E1/96 dated November 14, 2009 and your subsequent submissions made before the Committee of Chief General Managers of the Reserve Bank of India on May 18, 2010 in Mumbai. In the light of the request made by you before the Committee and to ensure that the existing activities are carried out in a non-disruptive manner, you are permitted to continue the business of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Indian company. 15.In the counter affidavit of the RBI filed along with the vacate interim injunction application, a preliminary objection was raised regarding the maintainability of the writ petition. It was claimed that the U.K. based company had preferred an appeal to the Central Government under Section 9. It is a juristic person and only the company by its authorised representative alone can file a writ petition. The petitioner claiming to be the Chief Executive cannot file any suit or writ in the name of the company. His authorisation to file the writ petition is not stated in the affidavit. It is also claimed that the application by a foreign company was submitted to the RBI Payment and Settlement Systems at Mumbai. The foreign company never had any correspondents with the RBI, Chennai and that no part of the cause of action arose within the jurisdiction of the Madurai Bench of the High Court. It is not merely the company, but persons operating a company can also be relevant in considering an authorisation. Certainly persons getting involved in criminal cases can also be a relevant factor. Besides, the financial position of the company also became the relevant factor in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Harbanslal Sahnia v. Indian Oil Corpn. Ltd.4, State of H.P. v. Gujarat Ambuja Cement Ltd.5 and Sanjana M. Wig v. Hindustan Petroleum Corpn. Ltd.6) Therefore, he prayed for the relief claimed in the writ petition. 19.However, one can understand if the petitioner sought for the disposal of his statutory appeal under Section 9 pending before the Central Government and thereafter, worked out remedies in terms of the said order. But, on the other hand, the petitioner without reference to the pending appeal had independently filed the present writ petition and sought for the continuance of his authorisation through the court order even before the main writ petition could be disposed of. The petitioner had practically secured an order which would amount to allowing the main writ petition itself and that too without notice to RBI. 20.In this context, the learned Senior Counsel Mr.AR.L.Sundaresan referred to the judgment of the Supreme Court in Union of India and others Vs. Adani Exports Ltd. and another reported in 2002 (1) SCC 567 and contended that the petitioner is indulging in forum shopping. Since no part of the cause of action arose, the court should not entertain the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mited and another Vs. State Bank of Sikkim and others reported in AIR 2007 SC 1812 = 2007 (11) SCC 335, wherein the Supreme Court considered as to whether in the absence of any cause of action within the territorial jurisdiction of the High Court, can a writ petition be entertained? He referred to the following passages found in paragraphs 37 and 38 of the said judgment, which reads as follows: 37.From the aforesaid discussion and keeping in view the ratio laid down in a catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisiction of the court, the court would have territorial jurisdiction to entertain the suit/petition. Nevertheless it must be a part of cause of action , nothing less than that. 38.In the present case, the facts which have been pleaded by the appellant Company, in our judgment, cannot be said to be essential, integral or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel appearing for the RBI are well founded. First of all, a perusal of the averment made in the affidavit does not disclose any cause of action for the petitioner to move this court. The authorisation stands in the name of the U.K based company. There is no record to show either the company had decided to file such a writ petition or it had authorised any one in India including the petitioner to approach this court. Even otherwise, the entire events that led to the RBI's communication arose within Mumbai in the State of Maharashtra. Therefore, the petitioner could not have created a cause of action on the plea that he has an office at Nagercoil and that he was the Ex-Chairman of the Indian company and that the Indian Company and the U.K company are one and the same. 25.It is seen from the appeal memo pending before the Central Government that the appeal itself was filed by the U.K based company. Therefore, the petitioner's filing the present writ petition in the name of the U.K based company or as the Chief Executive of the U.K based company is clearly impermissible. The attempt made by the petitioner is nothing but an abuse of the process of law. Even otherwise, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 had observed as follows: 29.By referring to the aforesaid schemes under different statutes, this Court wants to underline that the right of appeal, being always a creature of a statute, its nature, ambit and width has to be determined from the statute itself. When the language of the statute regarding the nature of the order from which right of appeal has been conferred is clear, no statutory interpretation is warranted either to widen or restrict the same. 30.The argument that writ jurisdiction of the High Court under Article 226 of the Constitution is a basic feature of the Constitution and cannot be ousted by parliamentary legislation is far too fundamental to be questioned especially after the judgment of the Constitution Bench of this Court in L.Chandra Kumar v. Union of India7. However, that does not answer the question of maintainability of a writ petition which seeks to impugn an order declining dispensation of pre- deposit of penalty by the Appellate Tribunal. 31.When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh B.P. Jeevan Reddy, J. delivering the majority judgment, and dealing with a case of refund of Central excise duty held: (SCC p.607e-f, para 77) 77. ? So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32- is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. In the concluding portion of the judgment it was further held: (Mafatlal Industries Ltd. case14, SCC p.635c, para 108) (x) ? The power under Article 226 is conceived to serve the ends of law and not to transgress them. ..... 38. The learned counsel for the respondents relied on a judgment of this Court in Seth Chand Ratan v. Pandit Durga Prasad15. The learned counsel relied on para 13 of the said judgment which, inter alia, lays down the principle, namely, when a right or liability is created by a statute, which itse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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