UNION OF INDIA Vs. LOKSONS PRIVATE LIMITED

JUDGEMENT

(1.) This is an appeal from an interim order passed by our learned Brother Judge Shah J. on 11th of December, 1979 in the present petition whereby the petitioners have been allowed to export a silver wire of half of the value of the contract quantity.

(2.) On our about 14th of July, 1979, the petitioners entered into two contracts with Messrs. Globe Trading Agency Ltd., Dubai, under which the petitioners agreed to sell to Messrs. Globe Trading Agency Ltd. assorted Silver Wires containing 47 percent silver and 52 per cent copper or any other non-ferrous metal, at a price of Rs. 950/- per kg. The shipment was for August-September, 1979. This period has been subsequently extended to 16th of October, 1979. One contract was for the supply of about 6350 kgs. of silver wires while the second contract was for the supply of about 650- kgs. of silver wires of the above description. In respect of these contracts, the petitioners have received remittances of the total value of Rs. 6,75,000/- from Dubai. Out of these a remittance of Rs. 7,50,000/- was received on 27th of June, 1979. Another remittance of Rs. 10,00,000/- was received on 19th of July, 1979 and yet another remittance of Rs. 50,00,000/- was received on 28th of July, 1979. Originally, the remittances were for larger amounts, but out of these remittances a total amount of Rs, 66,10,000/- is available as against the two contracts which are the subject matter of the petition. At the time when these contracts were entered into, there were no restrictions on the export of goods which contained less than 50 per cent silver. Before these goods could be shipped, however, on 18th of August, 1979, the Export (Control) Order was amended. As a result if this amendment, in item 77 of part B of Schedule 1 to the Exports (Control) Order 1977, sub-item (iv) was added. Under this sub-item, manufacturers and products having 50 per cent or less silver content were permitted to be exported on merits. It may be noted that Part B of Schedule I to be Exports (Control) order of 1977 gives a list of items and export of which is allowed on merits or subject to a ceiling or other conditions to be specified from time to time. The export policy in respect of this item which was inserted for the first time in Part B of Schedule I was also published by a public notice dated 13th of August, 1979 which was, in fact, published on 22nd of August, 1979. Under the policy so published, it was stated that provisions of paragraph 295 of the Hand Book of Import-Export Procedures, 1979-80 will not be applicable to any pre-control commitments consequent to the public notice. All cases of pre-control commitments will be decided on merits only where certain conditions have been satisfied. The condition which is relevant for our present purpose is condition (i) which stipulates that advance payment must be received through an authorise dealer in foreign exchange covering the full f.o.b. value of the consignment before the date of this public notice. The notice further provides that the exports concerned should sent their claims in pursuance of the public notice to the original licensing authorities concerned along with documentary evidence relied upon in support of such commitments/contracts having been made as provided therein. Pursuant to this public notice, by their letter dated 29th August, 1979, the petitioners applied for permission to export silver wires under the contracts in question. They also stated in the letter that they had received complete advance payment in respect of the said contracts. Two separate letters of the same date were sent to the respondents along with photostat copies of the two contracts. Thereafter, with their letter dated 4th September, 1979, the petitioners enclosed original documents and the certificate of Inward Remittance received. Since the petitioners did not hear from the respondents, they sent a reminder dated 13th of September, 1979 asking them to expedite their application and also asking for an appointment in connection with the pending applications. No such appointment was given to the petitioners. By their letter dated 15th of September, 1979, addressed to the petitioners, the respondents rejected the applications of the petitioners stating that their application could not be considered, as they had failed to furnish the documents prescribed in para 3 of the Public notice No. 54-ETC/79 dated 13-8-1979. Thereafter, the petitioners filed the present petition asking inter alia, for an order or direction directing the respondents to permit the petitioners to export the said goods as per the said contracts. The petitioners took out a Notice of Motion for interim relief in this petition which came up for hearing before our learned Brother, Sawant J. After certain discussions, on 26th of September, 1979, our learned Brother Judge directed the respondents to make a report furnishing the reasons why the applications were rejected. Pursuant to this direction, the respondents have submitted two reports (one in respect of each contract), both dated 8th of October, 1979, communicating the reasons for the order in detail. In the reports, the reasons given for rejecting the applications was that, according to the respondents, the petitioners had not complied with condition (1) which was imposed by the public notice of 13th of August, 1979 relating to receipt of advance payment against the contracts prior to the date of the public notice. According to the respondents, the Remittance Certificates were subsequently amended to cover the items of silver products containing 50 per cent or less silver. By his order dated 18th of October, 1979 our learned Brother Sawant J. refused to grant any interim relief to the petitioners. From this order, the petitioners preferred an appeal. In view of the contents of the two reports, the petitioners in their affidavit in appeal relied upon certain documents in order to show that the amendments in the Remittance Certificates were made on 3rd of August, 1979 prior to the date of the public notice, viz. 13th of August, 1979. In this connection the petitioners relied upon certain letters from Messrs. Globe Trading Agency Ltd. to the British Bank of the Middle East and the letters from that Bank as also from the State Bank of India to the effect that the amendments in the Remittance Certificates were made on 3rd of August, 1979. The respondents did into file any affidavit in reply to this affidavit, just as they have not filed any affidavit in reply to the original Notice of Motion. When the appeal come up for hearing the petitioners withdraw the appeal as they were relying on certain new documents which they had obtained after 18th of October, 1979. They, therefore, made an application for a review of the order which was passed on 18th of October, 1979, which application was supported by an affidavit in which these new documents were set out. The respondents have filed two affidavits in this application, one of in November, 1979 and the other in December, 1979, in which once again the respondents have set out the reason why the petitioners cannot be permitted to export the goods under the two contracts. By his order dated 11th of December, 1979, our Learned Brother Shah J., after considering thee reports and the two affidavits which were filed by the respondents, permitted the petitioners to export the goods limited to half the value at the agreed price for the reasons set out in that order.

(3.) Mr. Paranjpe who appears for the respondents has challenged this order by the present appeal. He has raised a number of preliminary points in this appeal. We need not deal with all the points in detail, since this is merely an appeal from an interlocutory order. But we will set out in brief the reasons why the preliminary points do not, prima facie, appeal to us. Mr. Paranjape has strenuously urged that the application for review as barred by principles analogous to the principal of res judicata because, according to him all the facts were before Sawant, J. when he rejected the petitioners application for interim relief. He also pointed out that the appeal from this order was withdrawn by the petitioners and hence a review of the original interlocutory order was barred by principles analogous to the principle of res judicata. This argument does not have much substance because certain new material has come to light after the passing of the original interlocutory order of 18th October, 1979. The petitioners obtained from the two banks concerned documents to show that the alternations in the Remittance Certificates were made by the banks on 3rd of August, 1979. This is a very material circumstances in the present case since the ground for rejecting the petitioners applications was based on the alternations in the Remittance Certificates which the respondents suspected had been carried out subsequently. It is true that these documents were available with the petitioners at the times when they filed the appeal and they had filed an affidavit in the appeal relying upon these documents. Never the less, this was new material which was being produced before the Appeal Court for first time and hence the petitioners rightly decided that the correct procedure in such a situation was to ask for a review of the original order. Under these circumstances, the appeal was withdrawn. This withdrawal of the appeal cannot bar the petitioners from applying for a review of the original order. All these are interlocutory orders and at the interlocutory stage such orders can always be reconsidered if any fresh material comes to light or if there is any change in the circumstances.