TMI Blog1991 (6) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedures published by the first respondent - Union of India - and are specified as the registering authority for cotton textiles. As such registering authority, the third respondent is entrusted with the duties and functions of registering and deregistering exporters. The first respondent promulgates the import policy which is published in the form of book known as the Red Book . Along with the Red Book is also published a companion publication viz., the Import Trade Control Hand Book of Registers and Procedures under which importers are divided into four broad categories. The Hand Book prescribes the procedure for registration and it is in keeping with these regulations that the first petitioner, in February 1975, applied for registration with the third respondent i.e. the Export Council, hereinafter referred to as TEXPROCIL. It is undisputed that the petitioners were granted such registration on 20-3-1975. 3. The third respondent served a show cause notice dated 4-3-1977 on the present petitioners asking them to show cause as to why they should not be deregistered. The show cause notice has been annexed to the petition and it essentially proceeded on the basis that the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority by the 15th day of the month following the quarter. We further understand that our registration is liable to be cancelled in the event of breach of any of the undertakings mentioned above." In response to the show cause notice, the petitioners initially asked for inspection which appears to have been given. It is, however, necessary to reproduce the subsequent course of the litigation that ensued which has been summarised by the learned Single Judge as follows: The third respondent by order dated 2nd May 1977 (Exhibit G) deregistered the first petitioner with immediate effect. The petitioners appealed against this order. Even while this appeal was pending, the petitioners filed in this Court Writ Petition No. 943 of 1977. This Court passed the following order thereon : Mr. Rana states that as suggested by Court on the last occasion, he has moved the 2nd respondent-Council for a review to deregister the petitioners. Mr. Cooper on behalf of the 2nd respondent-Council states that the application for review will be considered on merits. In view of this arrangement, the petition is allowed to be withdrawn." 6. The third respondent accordingly heard the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 1st January 1978, the first petitioner should be treated as having been registered. While making this order, the third respondent also observed that for the leniency shown, the third respondent was influenced by the statement made by the petitioner s Counsel and repeated in the first petitioner s letter dated 25th January 1980 inter alia to the effect that the first petitioner has tried to make amends and that they want a fresh chance to remain as a member of the Council and prove themselves worthy of it. The order concluded with the hope - We sincerely trust that Prakash Cotton Mills will implement this assurance made by it. However, regardless of the leniency shown to it as also of its own regret and remorse and the consequent hope based thereon supra by the third respondent, the petitioners challenged the above order by preferring against the same an appeal to the second respondent. The said appeal was dismissed on 17th January 1981. Hence this petition." 5. The learned Single Judge has recorded the finding that the petitioners had submitted a request to the third respondent which, to our mind, is necessary to be reproduced in this judgment. This was contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verall effect of these alterations is that the original contract form as prescribed by the third respondent has been not only altered but completely mutilated and that, consequently, the show cause notice issued to the petitioners and the action that emanated thereafter were wholly and completely justified. It is against this order that the present appeal has been filed. 8. Mr. Mahto, learned Counsel appearing on behalf of the appellants has, in the first instance, submitted that Clause 33 which is the bedrock of the show cause notice served on the present petitioners essentially pre-supposes a situation whereby the alterations or variations in the standard contract form are so sweeping and of material consequence, that they alter the essential structure of the original contract. He submits that a reading of Clause 33 pre-supposes a situation whereby minor alterations and amendments are permissible and it is, therefore, his submission, that the only requirement under Clause 33 is that such alterations must be agreed to between the parties in token of which, they should have countersigned the contract. The extension of his argument is that on the facts of the present case, where i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had entered into the contracts would be misled in the belief that they were entering into the TEXPROCIL prescribed standard contract. 10. Mr. Vahanvati, learned Counsel appearing on behalf of the third respondent has handed over to us the Texprocil Standard Contract No.1 which is a printed document on which the variations have been reflected. We have taken this document on record (marked X ) and we are reproducing below some of the material variations : Clause 9 - the word orally" has been added in the clause casting an obligation on the seller (i.e. the petitioners) being required to notify the buyer of the number of packages likely to be ready for delivery..." By the insertion of the word orally , the entire purpose of this provision has virtually been nullified. Clause 12 - With regard to the delivery in instalments, the original seller was obliged as follows: The seller shall supply the goods approximately in equal lots per month. The term shall has been altered to read may for purposes of obviously securing an advantage to the sellers who are the original petitioners. Clause 13 - In this clause, the petitioners had added the words copy of oversea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its modified form: Clause 28: Force Majeure (as it originally stood) : The seller is not responsible for delays in delivery or non-shipment due to strike, lock-out, space not available for shipment, unforeseen accidental break-down of the machinery in the seller s mill, civil commotion, warlike conditions or any other force majeure condition. The seller should, however, invariably give notice of this fact to the buyer within a reasonable time of the occurrence of the event and in any case before the due date of delivery, duly accompanied by a certificate from the Regional Millowners Association certifying that the delay in delivery or non-shipment is caused by the aforesaid conditions. The buyer on being informed of such force majeure conditions affecting manufacture of the contracted goods or any portion thereof and also being intimated in writing of the time reasonably required to effect the delivery of the portion remaining to be manufactured the buyers shall have the option of either accepting the whole or the belated portion without any abatement in price or cancel the contract in respect of the goods remaining to be manufactured. Shall it, however, become impossible for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeavour to deliver the contracted goods as per delivery schedule. However, in the event of any delay or non-delivery of the goods or any portion thereof under this contract for any reason whatsoever, the sellers shall not be liable in any manner to the buyers. The buyers shall, however, continue to remain bound to take delivery of the goods under the above contract even beyond the delivery period provided the buyers had not given notice in writing to the sellers at least 15 days prior to the expiry of the last delivery of his intention not to take delivery of the remaining portion of goods after expiry of the contract period. (b) If the sellers do not receive the amount of incentive due to them in terms of the contract or import licence under the Export Promotion Scheme in force at the time of the contract for any default on the part of the buyers or for any reason whatsoever, the buyers agree to reimburse or compensate to the sellers to the extent of short-fall. The buyers further agree to nominate the sellers for import of Coal-tar Dyes and other licences against export of the contracted goods and apply to the authorities for payment of cash incentives and issue of impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods as the sellers consider necessary and for such examination the buyers shall afford full opportunity or (2) to claim from the buyers and be paid the difference between the invoice value and the ex-mill price of the goods for the local market and all other losses and damages that the sellers may have to suffer on account of non-export of the said goods by the buyer to the destination stated in the contract. (h) In the event of the buyers committing any default or breach of any of the terms of this contract, the sellers shall be relieved of all their obligations to the buyers under this contract or any other contract or contracts that may be subsisting between the sellers and the buyers." There can be no manner of doubt in our mind that the submission advanced on behalf of the petitioners that the alterations or variations, if any, were minor or immaterial is devoid of substance. 12. As indicated by us earlier, the show cause notice served on the present petitioners proceeds on the basis that a breach of Clause 33 has been committed by them. The concluding part of Clause 33 very clearly prescribes that whatever additions, deletions or amendments or alterations, if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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