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TMI Blog2015 (9) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... public sector undertaking STC (State Trading Corporation of India Limited) which is one of the agencies nominated by Union of India for promotion of import and export of gold and other precious metals under the foreign trade policy for selling/exporting gold jewellery and diamond to prospective overseas buyers. It was stated that as per the Agreement the respondent was to obtain orders for gold jewellery from prospective foreign buyers in the name of STC. The role of STC was that of an "Exporter" as defined under section 2(20) of the Customs Act, 1962 and the role of the respondent was that of a "Shipper". 3. It was further urged by the respondent that certain disputes arose between the respondent and STC. It is the contention of the respondent that after 2009 STC has not cleared the dues of the respondent despite repeated requests. The respondent states that it invoked the arbitration clause as per the agreement. Different proceedings have been filed by both STC and the respondent before the Bombay High Court. The respondent had filed a petition seeking appointment of an Arbitrator. STC has filed summary suits for recovery against the respondent. It is urged that it was only in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition which would cause grave prejudice to the appellant and is impermissible in law. 8. Learned counsel appearing for the respondent, however, submits that the amendment which was allowed permits the respondent to impugn the Show Cause Notice dated 27.3.2015 which is based on the same set of facts as the earlier impugned order dated 25.3.2011. 9. We may first have a look at the relevant portion of the impugned order which reads as follows:- "This is an application under Order VI Rule 17 read with Section 151 CPC for amendment of the present petition seeking to add the following relief:- "setting aside the impugned order/communication dated 25.03.2011 and 19.09.2014 along with SCN dated 27.03.2015." In my view, the amendment sought will not change the nature of the petition and is formal in nature. For the reasons given in the application, the same is allowed and the amended petition is taken on record. The application stands disposed of." 10. The original relief as claimed by the respondent in the writ petition reads as follows:- "i) Issue a writ of certiorari thereby setting aside the impugned communication/order dated 25.3.2011 issued by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmitted the following offences:- a) "In terms of Section 138 of Negotiable Instruments Act and thereby violated the provisions of Section 8(a) of the Foreign Trade (Development & Regulation) Act 1992, as amended, as the post dated cheques furnished by you to M/s. STC Ltd, as per clause 10 (b) (i) & (ii) of the agreement dated 15.12.2006 has bounced; b) There is reason to believe that while you had entered in to an agreement with State Trading Corporation wherein you had taken full responsibility in terms of clause 10 (b)(v) of the said agreement to arrange as shipper, the realization of the export proceeds from the foreign buyer, you failed to fulfill this commitment and, therefore, acted gravely prejudicial to the interest of State Trading Corporation which is engaged in imports and exports and therefore, violated provisions of Section 8 (b) of Foreign Trade (D&R) Act, 1992; c) You have failed to realize an amount of Rs. 17.93 Crores from various foreign importers. Since you have failed to give the factual details on when the said amount was supposed to be realized and whether you have obtained an extension for the period of realization after the due period of realization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normally be refused by a Court. Reference in this context may be had to the judgment of the Supreme Court in Ganesh Trading Co. Vs. Moji Ram, AIR 1978 SC 484 where the Supreme Court in paragraph 5 held as under:- "5. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action..." 20. Reference in the above context may also be had to Abdul Rehman and Anr. vs. Mohd. Ruldu and Ors., (2012) 11 SCC 341 and State of Madhya Pradesh vs. Union of India AIR 2012 SC 2518. 21. No doubt the Code of Civil Procedure does not apply to writ proceedings under Article 226 of the Constitution of India. Section 141 of CPC provides that the procedure provided in the Code reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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