9911796707
TMI Blog1999 (2) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... lay Against that order appeal was preferred before the Division Bench and Division Bench upheld the order of learned single Judge with a further direction that the petitioners shall abide by the order of the single Judge and if that order is modified or there is any variation in that order by the single Judge subsequently that direction shall also be abided by the petitioner No 1 3The licence was handover to the petitioner Number 1 He submitted it before the Director General of Foreign Trade That licence was revalidated Thereafter an application has been moved by the petitioner Number 1 in this Court stating that now the Customs Authorities no more require the licence and, therefore, it may not be necessary to return that licence to Customs Authorities Customs Authorities confirmed this fact and the fact was also brought to the notice of this Court that the period of licence will expire by 28th February, 1999 and therefore it will only be a piece of paper with no value, if it is not used It was also an admitted case of respondent number 6 that though the unutilised portion of the licence is to the tune of US $ 27,70,533, but respondent No 6 has share in that licence to the tune o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring and Trading Company Private Limited, being the petitioner herein By one letter they have transferred part of the licence to the tune of US $ 10,05,238 and by the other they have transferred the part of the licence to the tune of US $ 6,05,000 But Counsel for the respondent No 6 could not produce any evidence showing payment of consideration and how that consideration has been paid by respondent Number 6 to the petitioner Number 1 ? Whether the second letter of transfer has been issued by the petitioner Number 1 in favour of respondent Number 6 The second letter thus creates some doubt whether there was a transfer of licence by the petitioners to the tune of US $ 10,05,238 only or in addition there was a further transfer of licence to the tune of US $ 6,05,000 I agree with Dr Pal that whether two letters have been given by the petitioner or not and whether there was a transfer of licence to the tune of US $ 10,05,238 or in addition there was a further transfer of the licence to the tune of US $ 6,05,000 should be decided in a suit and normally this Court should not interfere and decide the disputed questions of fact, in a writ jurisdiction 8But at the same time this Court ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expiry of some period that will be of no use and both the parties will be loser The licence has been issued for use it should be used and benefit should go to the person entitled to use of that part of the licence Therefore, no doubt the disputed question can be decided in a regular suit, but regular suit cannot be decided in a day or in a month It takes years and the period of the licence will expire on 28th February, 1999, not only that here the subject matter is licence The value of the licence not only depends till it remain valid but it relates to the trade commodity The price and profit on use of the licence is fluctuating in the market Therefore, the licence should be used within a period for which the licence has been issued Even the value of licence is affected by policy of Government or any change in Govt, that can be liberal or strict that will determine the value of licence Therefore, there is no reason to invite all these questions which complicate the issue, if the licence is not used till disposal of suit Therefore, in my view the proper course should be that the licence should be used immediately by the person who has a better claim over the licence, on the facts on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of M/s Hanuman Trading Corporation, respondent No 6 and the original licence has been handed over to respondent No 6 for make use of that part of the licence 17Counsel for the petitioner further submits that the respondent No 6 has not paid the consideration for the part of the licence which has been transferred to the respondent No 6 No step has been taken by the respondent No 6 for revalidation of the licence when it was cancelled by the Additional Director General of Foreign Trade vide his order dated 28th September, 1995 If some part of the unused portion of the licence of the respondent No 6 would remain, then he would have taken steps and apply for revalidation of the licence, but no steps have been taken by him 18No proof of payment of consideration has been furnished Even respondent No 6 has not submitted both the letters for Telegraphic Release Advice (TRA), therefore TRA was issued to the extent of value of the licence to the tune of $ 10,05,238 If the part of the licence was transferred by the petitioner to the respondent No 6 to the tune of $ 16,10,238 then he could submit both the transfer letters, if both were issued, in favour of respondent No 6 for TR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, on the same date? He failed to satisfy me the justification for issue of two letters by petitioner No 1, in favour of the respondent No 6 though issued on the same day that creates a great doubt against the claim of the respondent No 6 whether the second letter was issued by the petitioner No 1 at all ? 21A specific further query was put to the learned Counsel for the respondent No 6 as for how much the part of the licence was purchased and how the consideration has been paid The learned Counsel for the respondent No 6 submits that they have purchased it for US Dollars 16,00,000 The payment was in cash No receipt was obtained It is a matter of surprise that the respondent No 6 has purchased licence worth US Dollars 16,10,238 and has paid consideration in cash and no receipt has been obtained In one affidavit dated 1-1-1999 respondent has stated that petitioner has validly raised debit note, in subsequent affidavit dated 25-1-1999, respondent denied to have received such debit note or has any knowledge of such debit note 22When respondent No 6 claims that petitioner has issued two transfer letters one pertaining to US $ 10,05,238 other letter pertaining to US $ 6,05,000 The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred the figure US $ 10,05,238 and not US $ 16,10,238 26Dr Pal, learned Counsel for respondent has further submitted that this Court has permitted the petitioner to make use of the licence to the tune US $ 20,70,533, vide Order dated 27-11-1998 but prior to that date petitioner has utilised the part of the licence and thereby, committed contempt of Court 27If petitioner has committed the contempt of Court by violating the direction of this Court, he will be punished, but it does not affect the issue of transfer How much part of the licence have been transferred that depends on whether respondent No 6 has proved that two letters of transfer of licence issued by petitioner, in favour of respondent No 6, one for US $ 10,05,238 and second letter pertaining US $ 6,05,000 28Thus, contempt petition does not affect the merit of transfer issue The contempt petition is still pending before this Court 29Whether respondent No 6 has submitted two letters of transfer, for Telegraphic Release Advice, learned Counsel for Custom Deptt has submitted that the respondent No 6 has submitted only one letter which has been given by the petitioner, in favour of respondent No 6, for an amount o ..... 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