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Kajaria Exports Ltd. and anr. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Judge
Reported inAIR1985Cal70,88CWN1087
ActsConstitution of India - Article 226; ;Code of Civil Procedure (CPC) , 1908 - Section 20
AppellantKajaria Exports Ltd. and anr.
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateB.N. Sen, ;A. Mitra and ;N.P. Agarwalla, Advs.
Respondent AdvocateSubrata Roychowdhury, ;Jatin Ghose, ;S.K. Mitra and ;D.K. Mukherjee, Advs.
DispositionPetitions dismissed
Cases ReferredUnion of India v. Oswall Woollen Mills
Excerpt:
- .....the hindusthan aluminium corporation limited and such loss was suffered by the said corporation at calcutta, the writ petition was entertained by this hon'ble court in which it was held to have jurisdiction in that particular case. the ratio of the said division bench judgment on the question of jurisdiction has no manner of application in the instant case inasmuch as 'cause of action' means every fact which, if traversed, would be necessary for the plaintiff/petitioner to prove in order to support his right to the. judgment of the court. it is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded in the instant case, the licence was issued by an authority whose office is situated at delhi and the goods have arrived at.....
Judgment:
ORDER

Bhagabati Prosad Banerjee, J.

1. This Writ application was moved by the petitioners before this Hon'ble Court during vacation and it appears that Shri S. Kundu, learned Advocate appeared for the respondents before the learned vacation Judge on Oct, 18, 1984. The Writ petition was moved and an interim order was passed for release of a large consignment of portable electric generators which were lying in Bombay Port The learned vacation Judge while issuing the interim order directed the petitioner to pay the entire amount of duties in respect of the goods in question covered by the licence mentioned in Annex. 'A' to the Petition to the Customs Authorities. It also appears that Shri S. Kundu. the learned Advocate appearing for the respondents, also gave an undertaking before the learned vacation Judge that if the Writ petitioners succeed then the respondent authorities would make an order for refund of the disputed amount paid by the petitioners in the proceeding together with interest at the rate of 18 per cent per annum even though there was no dispute with regard to the rate of Customs duty involved in the writ petition. It was further directed by the learned vacation Judge that upon payment of necessary duties including the disputed amount by the Writ petitioners, the respondents would release the goods within a week thereafter and issue wharfage/demurrage exemption certificate from the date of the landing till the date of clearance in the forms acceptable to the concerned authorities. The petitioners were given liberty to apply for further orders at the time of the hearing of the application before the appropriate Bench. The learned vacation Judge by the order dated Oct 18, 1984, directed the said writ application to appear as Contested application on Oct, 30, 1984 before the appropriate Bench. Thereafter the matter was mentioned before this Court on Nov. 6, 1984, when Mr. Subrata Roychowdhury, learned Counsel appearing for the respondents drew the attention of this Court that the petitioners under the garb of a licence for import of spare parts of machinery/instruments had imported complete sets of electric generators which were not covered by the licence and as such the petitioners were not entitled to get delivery of the said goods particularly when the authorities had initiated and/or are contemplating to initiate adjudication proceedings. On the basis of such submission, I passed an order on Nov. 6, 1984, directing the matter to come up for bearing on Nov. 9, 1984. In the meantime I directed the parties to maintain status quo. Thereafter the respondent authorities filed application for vacating and/or variation of the interim order dated Oct. 18, 1984, passed by learned vacation Judge and in the said application the respondents took preliminary objection about the maintainability of the Writ Petition in this High Court before passing any further order in the matter and/or to deal with merits of the case. I think that the preliminary point regarding the jurisdiction of this Court to hear the matter as taken by the learned Counsel Mr. S. Roychowdhury, should be decided first inasmuch as if the preliminary point is answered in favour of the respondents, in that event. I am not required to go into the merits of the case. The admitted facts are that the pffices of alt the respondents are situated outside the jurisdiction of this Hon'ble Court. The import licence in question was issued by the Controller of Imports and Exports, New Delhi which is Annex. 'A' to the Writ Petition and that on the basis of such Import Licence, the petitioner, on the strength of a letter of authority imported the goods through the Bombay Port and goods were lying at the Bombay Port. According to the Writ petitioners the Customs Authorities at Bombay refused to clear the goods on the ground that the goods were not covered by the Import licence. In the circumstances aforesaid, it has to be found out whether the cause of action or any part thereof had actually accrued or arisen within the jurisdiction of this Court Article 226(2) of the Constitution provides that the power conferred by Clause (1) of Article 226 of the Constitution to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or any part, arises for the exercise of such power notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. In support of the contention of the Petitioner, that at least a part of cause of action arose wilhin the jurisdiction of this Hon'ble Court the petitioners stated that the Registered Office of the petitioner is situated at No. 8, Camac Street Calcutta and the Petitioner Company made correspondence with the foreign sellers from Calcutta address. The Bill of lading and the Invoice also mentioned the address of the Petitioner Company at Calcutta and that it was specifically averred in Para 46 of the Writ Petition 'that cause of action in this case has arisen partly in Calcutta where the shipping documents were received and prices of imported consignment was paid and further the contract of sale was concluded at Calcutta and the Registered Office of the Petitioner is at Calcutta. The said imported goods will be sold in Calcutta as well The impact of detention of the goods is felt in Calcutta.' In support of the contention regarding the jurisdiction of this Hon'ble Court, the Petitioner relied on a Bench decision of this Hon'ble Court reported in : AIR1983Cal307 , Union of India v. Hindusthan Aluminium Corporation. The learned counsel Mr. B. N. Sen, appearing on behalf of the Petitioner Company, placed reliance on Paras 24 and 25 of the said Division Bench Judgment and contended that as Hindusthan Aluminuum Corporation Limited was incurring loss as a result of the Alluminium Control Order, 1970 in Calcutta the cause of action was held to have arisen within the jurisdiction of this Hon'ble Court. The said Division Bench considered the validity of Aluminium Control Order, 1970 which was passed for availability of aluminium and its products at fair price and for regulating production, supply and distribution thereof and that in the context of that Control Order which had resulted loss to the Hindusthan Aluminium Corporation Limited and such loss was suffered by the said Corporation at Calcutta, the Writ Petition was entertained by this Hon'ble Court in which it was held to have jurisdiction in that particular case. The ratio of the said Division Bench Judgment on the question of jurisdiction has no manner of application in the instant case inasmuch as 'Cause of Action' means every fact which, if traversed, would be necessary for the Plaintiff/Petitioner to prove in order to support his right to the. judgment of the Court. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded In the instant case, the licence was issued by an authority whose office is situated at Delhi and the goods have arrived at Bombay Port and that the goods had to be cleared by the Customs authorities at Bombay. It appears from the petition that no notice and/or correspondence was made by the Customs authorities with the petitioner company at Calcutta.

2. Mr. Roychowdhury, learned Counsel appearing for the Respondents, relied on the observation made by the Supreme Court in the case of Union of India v. Oswall Woollen Mills reported in : [1985]154ITR135(SC) and contended that the Writ Petition has been deliberately filed before this Court which is far away from Bombay as part of manoeuvre in a legal battle so as to render it difficult for the Officers at Bombay to give instructions and/or to move applications to vacate and/or to contest the matter and further contended that the respondents against whom the reliefs have been claimed in the writ petition are all outside the jurisdiction of this Hon'ble Court and no part of the Cause of action arose within the jurisdiction of this Hon'ble Court Mr. Roychowdhury also contended that the Writ Petition was designedly moved at Calcutta instead of Bombay.

3. In my view the mere fact that the Petitioner's Registered Office is at Calcutta and the mere fact that the Petitioner Company made correspondence to foreign sellers and the foreign sellers also made correspondence with the Calcutta office in the matter and the price of the goods was paid from Calcutta Office are wholly irrelevant in the matter for the purpose of ascertaining the question of the jurisdiction of this Court in this case. These facts were not material facts for the purpose of ascertaining the jurisdiction of this Court to entertain writ petition.

4 Mr. Sen, appearing on behalf of the Petitioner, drew my attention to the Supreme Court Judgment referred to above, and contended that (there) the Head Office was at Ludhiana and that was the reason why the Supreme Court observed that one would have expected that the Writ Petition should have been filed in that case either in the High Court of Punjab and Haryana or in Delhi High Court I am unable to accept the contention of Mr. Sen in this behalf. The Supreme Court in substance pointed out that the principal respondent against whom preliminary relief is sought to be claimed is one of the relevant factor for determination of the jurisdictioa Of course, having a Registered Office in Calcutta would have some relevance if any notice and/or order was served by the respondents at the Registered Office at Calcutta. Mere having an Office at Calcutta, without having anything more does not and cannot mean that this Hon'ble Court has jurisdiction to entertain the writ petition when all the respondents are situated outside the jurisdiction of this Hon'ble Court and no part of the Cause of action arose within the jurisdiction of this Hon'ble Court The petitioner challenged the actions of the respondents whose offices are situated at Bombay. In view of the facts and circumstances stated above, I hold that this Court had no jurisdiction to entertain the writ petition as no part of Cause of Action arose within the jurisdiction of this Hon'bte Court and I uphold the preliminary objection raised by Mr. Roychowdhury and dismissed the writ petition on the preliminary ground I do not find any bona fide ground for moving this writ petition before this Court when goods are lying in the Bombay Port and the Customs Authorities at Bombay refused to release the goods on the ground that the goods imported were not covered by the licence issued by the authorities from Delhi Before I part with the matter, 1 must place It on record that the learned Advocate who appeared before the learned Judge in the vacation Bench ought to have taken this preliminary point and at least should have taken instruction before appearing in this Court during vacation from the Collector and/or the Assistant Collector, Bombay and when there was no dispute with regard to the rate of Customs duty, it is not understood why he gave an undertaking for refund of the disputed amount of duty, if any. This might have been due to the fact that the said learned Advocate was not in touch with the Customs authorities at Bombay when he represented the Respondents and this might have perhaps misled the learned vacation Judge while passing the interim order.

5. Accordingly, the writ petition is dismissed as this Court had no jurisdiction to entertain the writ petition. All interim orders are vacated I make it clear that I have not decided the matter on merits. This order is passed without prejudice to the rights of the Petitioner to move before the appropriate forum. The Petitioner shall pay costs of this application asessed at 10 gold mohurs to the Respondents. Prayer for stay of the operation of the order is refused.

In re : Kajaria Exports Ltd. & Another

6. As this matter is similar to the other matter in which I passed judgment to-day, but only distinguishing fact that this Writ application was moved ex parte and as I have already held in the other case that this Court has no jurisdiction to entertain the writ petition, this writ petition is also dismissed on the ground mentioned in the other judgment The Petitioner shall pay costs of this application assessed at 10 gold mohurs to the Respondents.

7. The prayer for stay of operation of the order is refused


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