TMI Blog2013 (9) TMI 730X X X X Extracts X X X X X X X X Extracts X X X X ..... A full bench of the Supreme Court in the case of The Direct Recruit Class II Engineering Officers Association and Ors. –Vs.- State of Maharashtra and Ors.[1990 (5) TMI 223 - SUPREME COURT] - where the High Court dismissed a writ petition after hearing the matter on the merit a subsequent petition in the Supreme Court under Article 32 on the same facts and for the same reliefs filed by the parties will be barred by the general principle of res judicata - If in such a case a person was allowed to choose and sue upon one cause of action at one time and to reserve other for subsequent litigation that would aggravate the burden of litigation - This was an abuse of the process of the court - The rule had been referred to as a constructive res judicata which in reality was an aspect of the general principle. In the first writ petition the petitioner had prayed for a writ in the nature of Mandamus commanding the respondents to release the foreign exchange seized and the Indian currency and return the redemption fine and penalty respectively deposited by the petitioner etc. - In the present writ petition also the petitioner had made the same prayer seeking a Mandamus commanding the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a learned single judge of this court by an order dated December 21, 2011 by granting liberty to the petitioner to file a representation before the Commissioner of Customs (Airport), Kolkata in terms of the order passed by the revisional authority. It was further directed that if such revision was filed the same should be disposed of by the respondent no. 1 by passing a reasoned order within four weeks from the date of communication of the order in terms of the order passed by the revisional authority. The learned single judge further granted liberty to the petitioner to file appropriate application before the appropriate forum for other reliefs as prayed for in that writ petition. According to the petitioner nothing was returned pursuant to the order passed by the Commissioner of Customs (Appeal) and the petitioner, therefore, filed the second writ petition being WP 576 of 2012 inter alia praying for a writ in the nature of Mandamus commanding the respondents to release the equivalent amount of foreign exchange in implementation of the order passed by the revisional authority. The petitioner also prayed for an ad interim order of injunction directing the respondents to implemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to him the learned single judge disposing of the first writ petition had given the petitioner liberty to file the purported application before the appropriate forum and for other reliefs. The petitioner has interpreted this order as issues being kept open which militates against the possibility of the writ petition being hit by the principle analogous to res judicata. So far as the second writ petition is concerned, the petitioner argues, entitlement to take release of the goods after payment of the redemption fine is distinct from challenging the confiscation order. It was only by way of abundant precaution that the petitioner pleaded to have reserved the right to challenge the order of confiscation and penalty by a separate proceeding. Mr. Mehta has referred to paragraph 57 of the writ petition wherein it has been pleaded that the second writ petition was filed for the limited purpose of return of the seized currency for which redemption fine was paid without prejudice to the rights and contentions of the petitioner and keeping and reserving the issue of seizure of currency and confiscation thereof to be pursued by the petition in a separate proceeding. In support of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition is dismissed not on the merits but because of the laches of the party he has an alternative remedy to avail himself of. The dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 of the Constitution except in cases where the facts thus found by the High Court may themselves be relevant under Article 32 of the Constitution. According to the petitioners the present petition is not barred by res judicata or accord and satisfaction. Ms. Shampa Sarkar, the learned advocate for the respondents has submitted that the order complained of has already been complied with by the petitioner by depositing the redemption fine and penalty. The analogy given by the petitioner of disputes relating to chartered vessels exporters pay the differential duty and preferred appeal thereafter is equally not applicable to the facts of the case. Ms. Sarkar has made a subtle distinction that payment of a redemption fine and penalty was made to get the Indian equivalent of the foreign currency and not as a predeposit of duty for filing the appeal before the Commissioner. Section 129E of the Customs Act provides that a person desirous of appealing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eprobate or accept and reject the same instrument. This settled principle is based on a very ancient enunciation of law. Justice Honyman in Smith Vs.- Baker reported in 1878 LR 8 CP 350 held that a man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could never be entitled on the footing that it is valid, and at another time say that it is void for the purpose of securing some further advantage. In the case of R. N. Gosain Vs.- Yashpaldhir, reported in AIR 1993 SC 352 the court had held the doctrine that a person who approbates cannot reprobate is based on the doctrine of election which postulates that no party can accept and reject the same instrument. The doctrine of election applies to cases when a man as against another has two alternative but mutually exclusive courses to resort to and he is to make an election between the two. If he by his conduct induces the other man to believe that he is pursuing a certain course leaving aside the other and as a result of it that induced other man alters his course of action he is not permitted to subsequently alter his stand by resorti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific performance when he demanded and accepted the deposit of damages passed by the trial Court. It was further held that since the vendor had altered his position to his detriment by raising and paying over the damages when he would not have been required to do so if the purchaser had sought specific performance on appeal, the purchaser was estopped from seeking specific performance on appeal. Lord Templeman delivering the majority judgement held that the vendor was only liable to pay damages or to perform the contract and was not bound to suffer the infliction of both remedies, even with the hope of recovering from the effect of one of them in due course, subject to any order the court might care to make about costs or delay. The vendor having been obliged by the purchaser to comply with the order to pay damages was harassed by the order for specific performance. Once the damages had been raised and paid and accepted the purchaser was estopped by election from appealing against the order for the payment of those damages. The petitioner while seeking the implementation of the order passed by the respondent authorities and having complied with the same by paying the redempti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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