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2015 (9) TMI 195 - DELHI HIGH COURT

2015 (9) TMI 195 - DELHI HIGH COURT - 2015 (324) E.L.T. 444 (Del.) - Amendments to petition Cancellation of Importer-Exporter Code no. Certain disputes arose between respondent and STC STC filed summary suits for recovery against respondent against which petition was filed Meanwhile Addl. DGFT issued Show Cause Notice to respondent for having prima facie violated provisions of Foreign Trade (Development and Regulation) Act, 1992 and was called upon to show cause why its Importer- Exporte .....

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ly be refused by Court Hence, principles regarding amendment of pleadings as provided in CPC would be guiding factor while adjudicating applications for amendment in writ petition Amendment now sought by respondent has effect of changing entire writ petition substantially New facts and issues are being added to petition Amended petition would virtually tantamount to substitution of altogether new case when compared to original case It is appropriate that respondent challenges Show Caus .....

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nt appeal is filed seeking to impugn the order dated 3.8.2015 passed by the learned Single Judge. By the impugned order the application filed by the respondent under Order VI Rule 17 CPC for amendment of the petition was allowed. 2. Respondent filed the writ petition seeking a Writ of Certiorari for setting aside the communication/order dated 25.3.2011 issued by the appellant putting the respondent on the Denied Entity List (DEL) issued by the appellant. It was the contention of the respondent i .....

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ive 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 agreeme .....

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request/complaint dated 27.1.2011 of STC. The respondent claims that the order dated 25.3.2011 was never supplied to it and no opportunity whatsoever was given to the respondent to show cause. Hence, the writ petition was filed. 4. During pendency of the writ petition it appears that on 27.3.2015 the Additional Director General of Foreign Trade, Mumbai issued a Show Cause Notice to the respondent for having prima facie violated the provisions of The Foreign Trade (Development and Regulation) Ac .....

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ought. 6. The impugned order dated 03.08.2015 permitted the amendment application holding that the amendment sought will not change the nature of the petition and is formal in nature. 7. We have heard learned counsel for the parties and perused the record. The learned Additional Solicitor General who has appeared for the appellant has argued that the amendment application was mischievous, malafide and an abuse of the process of Court. He submits that the impugned Show Cause Notice dated 27.3.201 .....

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ght to move the present amendment application. He further submits that amendment which has now been allowed by the impugned order seeks to completely change the nature of 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 im .....

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asons 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 respondent which has never been supplied to detenue but is clear from the DEL status obtained from the website of the respondent. 11. A perusal of the writ pet .....

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of the appellant dated 31.12.2003 which require passing of a speaking order after giving an opportunity of hearing. It is also contended that the dispute between the respondent and STC is a contractual dispute on which suits/arbitration proceedings have been initiated. 12. A perusal of the Show Cause Notice dated 27.3.2015 now issued to the respondent which is sought to be added as an impugned document to the petition, shows that it notes the following reasons to cancel the IEC of the respondent .....

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avely prejudicial to the interests of State Trading Corporation which is one of the most important government canalizing agency for exports and imports. c. You have failed to realize an amount of ₹ 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 any extension for the period of realization after the due period of realization was over and if so from which authority .....

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. 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 Corpora .....

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was obtained, you have created a position which goes against you and points towards an economic offence committed by you under FEMA and have, therefore violated provisions of Section 8(a) of Foreign Trade (D&R) Act. 1992. 14. In the aforesaid factual matrix the Show Cause Notice seeks to cancel the Importer Exporter Code of the respondent. 15. A perusal of the application filed by the respondent for amendment shows that detailed amendments are now sought to be added to explain as to why the .....

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buyer had failed to make payment, STC failed in its responsibility to invoke the insurance policy to recover the money due. LPA 553/2015 Page 8 of 11 (c) Afterwards the respondent requested STC to reconcile accounts and the respondent also invoked the arbitration clause. (d) STC in a malafide manner, despite knowing that because of bonafide disputes the respondent had sent a letter regarding stop payment of PDCs which have been given on secondary securities, sought to encash the said post dated .....

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ally altered and changed from the original writ petition. 19. In the context of amendments of pleadings in a suit the legal position is well settled. Amendments which seek to add entirely new cause of actions which virtually amount to substitution of a new plaint or a new cause of action in place of what was originally there, would 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 th .....

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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 pro .....

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f interpretation of the explanation to Section 141 CPC the Supreme Court held as follows:- 9. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the Code to Writ Proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribu .....

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