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TMI Blog2017 (8) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs, in particular the prayer. 2. Upon perusal of paragraph 10, it could not be said to be containing prayer. Not only vague expressions were made, it was requested to award relief prayed for in some other writ petition which was Special Civil Application No.1472 of 2003. It was submitted by learned advocate for the petitioner that in the present petition the very prayers prayed for in the said Special Civil Application of 2003 have been asked for. As this petition was devoid of proper prayer, virtually with no prayer, the same could have been dismissed on the said ground alone. Resisting to deprecate the state of affairs, since the party-inperson had originally appeared, it was leniently looked at. 2.1 Learned advocate for the petitioner simultaneously submitted that the party-in-person had filed Civil Application No.11929 of 2011 with certain prayers which included the following two prayers, further praying to grant the same. "(v) to direct RBI, Respondent 2, to provide signed or certified copy, of the affidavit (dated 28-9-2011) made by Mr.K.Neethi Ragavan, Deputy General Manager, RBI, and filed in the H'ble High Court on 19-10-25011. - vide Annexure SCA/6964/2005 - CA-N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner in FCNR Accounts with the State Bank of India from the year 1979 onwards at the rate of reconversion prevailing on the original date of deposit from the date of deposit; (B) To direct the respondents namely Reserve Bank of India and State Bank of India to reconvert the amount of principal and interest thereon dealing to the petitioners at the exchange rate of Rs. 13.07 per US$ that was adopted on the date of conversion i.e. on 7.4.1998 as the notional rate of exchange and to make it transferable outside India; (C) To direct respondent No.2 Reserve Bank of India, in case of NRE Rupee deposit with other Banks as per the Ann.'A' dt.22.4.1988. (i) To pay the difference amounts resulting from the proportional adjustments to the exchange rates that existed on the dates of remittances and the date of releases. (ii) to pay interest thereon at 24% p.a. Compounded quarterly till the dates of repayment and; (iii) to make all these amounts transferable outside India at the current exchange rates. (D) To Award such amount of interest on the aforesaid amount as may be required in the in the interest of justice." 3.1 Thus it appears that the petition is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank of India; 4. Balance in excess of the minimum amount required to keep the account running, should be repatriated to India and a local bank certificate produced to us in support of; 5. The joint account holder should not operate on the account without our prior approval whenever he/she goes abroad for any purpose's." 3.5 The petitioners replied on 23rd October, 1988. The Reserve Bank allowed the petitioners to continue to foreign currency account as per communication dated 30th March, 1989 on the same conditions mentioned in its previous communication dated 30th September, 1988. The petitioners were required as a condition, to re-designate the NRI Account into Resident Account. However, the petitioners by letter dated 27th July, 1989 sought for continuance of NRE/FCNR Account in the same status without converting them to Resident Account, and further claimed exemption from the Exchange Control Regulations. The Reserve Bank of India repeated and reminded the conditions, asking the petitioners by letter dated 14th September, 1989 for re-designating the account as ordinary resident account. The petitioners did not abide by the conditions, as a result of which the Reser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th October, 2004, the order reads as under. "Mr.R C Jani learned advocate for the petitioners seeks permission to withdraw the petition with a view to make a representation before the Reserve Bank of India. Permission as prayed for is granted. The petition stands disposed of as withdrawn. Notice is discharged with no order as to costs." 3.8 The petition with the similar prayer was withdrawn as above. The petitioner made a representation before the Reserve Bank of India. The representation came to be decided on 26th February, 2005. The Reserve Bank of India noticed relevant aspects and decide as under which was communicated to the petitioner. ". Shri N.L. Dubasia and his family members had arrived in India on 1st February, 1988 after many years of service in Ghana and had declared their foreign currency assets and bank accounts in India to us. * While we had granted permission to maintain the foreign currency accounts abroad upto 31st December 1988, they were advised to redesignate all their NRE/FCNR accounts maintained with different authorised dealers as resident accounts vide our letter dated 30th September 1988. * The permission to maintain foreign currency account abro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect from 1st February 1988 at the exchange rate prevalent on the date and surrender the interest claimed from Reserve Bank of India from 1st February 1988 and redesignate the rupee accounts as NRO accounts from the date on which the account holders again became NIRs. * State Bank of India vide their letter dated 3rd September 1998 advised us having complied with our instructions to convert NRE/FCNR into rupee account and an amount of Rs. 6,62,371 was paid as interest, net of taxes to Shri Dubasia from February 1988. In this Connection, it may be noted that the parties were residing in India from 1st February 1988 to 09th June 1994 before becoming non-residents again. Further despite our repeated advices to redesignate the nonresident accounts as early as 30th September 1988, the applicants have not complied with our instructions. In the circumstances, we have not acceded to his request for conversion of the FCNR accounts at the present exchange rate and also for repatriation of the funds." 3.9 The present petition came to be filed as the petitioners became aggrieved by the aforesaid decision of the Reserve Bank of India, on the representation made. It may be noted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that he whiled away the time without any excuse. Delay and latches actuated in indolence on part of the petitioner are the grounds alone on the basis of which this petition is dismissed. Learned advocate for the Reserve Bank of India could successfully rely on decision of the Supreme Court in C. Jacob v. Director of Geology [(2008) 10 SCC 115] and Yunus (Baboobhai) A. Hamid v. State of Maharashtra [(2009) 3 SCC 281] on this aspect. 5.2 Furthermore, as the Special Civil Application No.1472 of 2003 was filed on the basis of same cause of action which was withdrawn by the petitioner with a view to make representation as per the order referred to above, prayers in this petition could be said to be barred by principles of res judicata and the principles analogous thereto. Though the petitioner made representation, it is the same set of facts on the basis of which the cause of action arises. The Apex Court in State of Tamil Nadu v. Amala Annai Higher Secondary School [(2009) 9 SCC 286] held that the second writ petition would not be maintainable where no new cause of action had arisen. In that case, writ petition was filed by the respondent school praying that the State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph (c) of sub- clause (I) to be resident in India, returns to, or stays in, India, in either case - (a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, or (c) for any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period; (iii) a person, not being a citizen of India, who has come to, or stays in, India, in either case - (a) for or on taking up employment in India, or (b) for carrying on in India a business or vocation in India, or (c) for staying with his or her spouse, such spouse being a person resident in India, or (d) for any other purposes, in such circumstances as would indicate his intention to stay in India for an uncertain period; (iv) a citizen of India, who, not having stayed in India at any time after the 25th day of March, 1947, comes to India for any of the purposes referred to in paragraphs (a), (b) and (c) of sub-clause (iii) or for the purpose and in the circumstances referred to in paragraph (d) of that sub-clause or having come to India stays in India for any such purpose and in such circumstances. Explanation -A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only failed to comply with the instruments of RBI but have also renewed their NRE/FCNR accounts and therefore, the matter was referred to the Enforcement Directorate on 30.11.1994. In the meantime, all the authorized dealers except SBI had controverted the petitioners' NRE/FCNR Accounts to residential accounts. (f) Petitioner No.1 vide its letter dated 14.10.1997 sought the intervention of the High Commission of India, Nairobi for getting funds repatriated and the matter was examined by RBI and it was decided that since the petitioners did not opt for RIFEE Facility despite the repeated advice of RBI, the petitioners' request for repatriation of their funds cannot be acceded to by RBI." 6.2 When learned advocate for the Reserve Bank of India relied on the provision of Section 78of the Foreign Exchange Regulation Act, 1973 and Section 44 of the Act to contend that the petitioner was barred by virtue of the said provision, which submission could not be brushed aside lightly. Section 44 provides that no suit, prosecution or other legal proceedings shall lie against the Central Government or the Reserve Bank or any officer of Government or of the Reserve Bank or any other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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