TMI Blog2017 (8) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule stands discharged. - SPECIAL CIVIL APPLICATION NO. 6964 of 2005 And CIVIL APPLICATION NO. 11929 of 2011 In SPECIAL CIVIL APPLICATION NO. 6964 of 2005 - - - Dated:- 11-8-2017 - MR. N.V.ANJARIA, J. For The Petitioner : HCLS Committee, Advocate, Mr. Jainish P Shah, Advocate, Ms E.Shailaja, Advocate For The Respondent : Mr Uday Joshi For M/s Trivedi Gupta, Advocate, Mr Amar N BHATT, Advocate, Mr Devang Vyas, Advocate, Ms Bela A Prajapati, AdvocatE COMMON CAV JUDGMENT Besides that the pleadings of the petitioners were noticed to be casual, clumsy and wanting in legal quality, as there was no express prayer clause in the petition, learned advocate for the petitioner No.2 Mr.Jainish Shah was asked at the outset about it. While learned advocate for the petitioner was entirely at his receiving end, he tried to point out paragraph 10 of the petition reflecting a prayer, further submitting that as he has not drafted the petition and earlier the petitioner had been appearing as party-in-person, the petition suffers from want of proper pleadings, in particular the prayer. 2. Upon perusal of paragraph 10, it could not be said to be containing prayer. Not only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, what was the stand taken by the petitioner before the learned Single Judge and the ratio laid down by the Supreme Court in the judgment referred to and thereby ought to have passed a speaking order in the matter. The impugned order being not a speaking order to that effect, we set aside the order dated 19.2.2010 passed by the learned Single Judge in Special Civil Application No.6964 of 2005 and remit the writ petition for hearing on merits by the learned Single Judge. Office is directed to list it before appropriate Court on 18th July 2011. 2.5 Accordingly, the present Special Civil Application came to be posted again and reached hearing before this Bench. 3. What the petitioners seek herein, are thus the same prayers as made in Special Civil Application No.1472 of 2003. This petition was withdrawn as per order dated 18th October, 2004. The prayers made, and re-sought in the present petition are reproduced hereunder. 8(A) The respondents Nos.2 and 3 may be directed by a writ of mandamus or any other appropriate writ, direction or order to reply the amount deposited by the petitioner in FCNR Accounts with the State Bank of India from the year 197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1988 the petitioner No.1 addressed a letter to respondent No.2-Reserve Bank of India to state that substantial funds was receivable from the Government of Ghana and to request the Reserve Bank to permit to have their funds carry the same status. The petitioners were holding Foreign Currency Non-Resident (FCNR)/NRE Account. By immediately followed another letter, the petitioners stated that they had come to India with a view to set up a small scale industry in Gujarat, but felt that the picture in industry in general was gloomy and by so saying, they repeated the request for permitting to continue the NRE/FCNR status. 3.4 The Reserve Bank of India by letter dated 30th September, 1988 communicated to the petitioners that the RBI was agreeable to continue to maintain any one of the two foreign currency accounts with Barclay Bank, London and Western Trust Plymouth, U.K., upto 31st December, 1988 or till the petitioners settle their dues abroad, subject to certain conditions which included keeping of minimum balance and other conditions mentioned, noticing therefrom the main conditions. 3. All other debits and credits will require prior approval of Reserve Bank of India; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erve Bank of India addressed letter to the petitioner inter alia stating in respect of the subject matter as under. In this connection was advise that as per exchange control regulations the NRE/FCNR a/cs. of the returning Indias are required to be converted into resident a/cs, from the late of their arrival in India. Since you returned to India on 1.2.1988 all the NRE/FCNR a/cs. maintained by you should have been redesignated as resident a/cs, from that date. It is observed that except the FCNR a/cs. with State Bank of India, your non-resident a/cs. maintained with other Ads have been designated as resident a/cs. We are, therefore, advising State Bank of India, suitably, in the matter Further, as you have not opted for the RIFEE facility despite our advice, we regret our inability to accede to your request to convert the a/cs. with State Bank of India to RFC a/c. /repartriation abroad. 3.7 The aforesaid resulted into further correspondence, petitioner addressing letters to State Bank of India and making representations to the other authorities in 2003. The petitioner filed Special Civil Application No.1472 of 2003. This Special Civil Application came to be disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to us. However the parties not only failed to comply with our instructions despite repeated advices but also reshuffled/renewed their NRE/FCNR accounts. Meanwhile all the authorised dealers, except State Bank of India, had reconverted the NRE/FCNR accounts to resident accounts. As regards the FCNR accounts with State Bank of India, the authorised dealer sought permission to continue these accounts since the applicants had left India on 9th June 1994. State Bank of India had informed us vide their letter dated 27th October 1997 that the FCNR accounts have not been converted into resident accounts for want of our advice and pendency of the matter before ED. Subsequently, Shri Dubasia vide his letter dated 14th October 1997 sought the intervention of the High Commission of India, Nairobi for getting his funds repatriated. The matter was examined by us and it was decided that since the applicant did not opt for RIFE facility despite our advice, his request for repatriation of his funds cannot be acceded to. Shri and Smt. Dubasia were advised accordingly vide our letter dated 8th December 1997. State Bank of India was advised vide our letter dated 8th December 1997 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and made payment on 03rd September, 1998. By communication dated 03rd September, 1998 addressed to the petitioner, State Bank of India, pursuant to the direction given by the Reserve Bank of India, Exchange Control Department, Central Office, Mumbai, credited amount of ₹ 06,62,371/- in the account of the petitioner. The petitioner filed petition in the year 2003. Even before the said Special Civil Application No.1472 was filed in the year 2003, the petitioner had approached Supreme Court with similar grievance. On 29th August, 2002, the order was recorded by the Supreme Court that learned counsel for the petitioners seek permission to withdraw the writ petition with liberty to approach the high court for appropriate relief. This writ petition is, accordingly, dismissed as withdrawn . Also came to be withdrawn as above the Special Civil Application No.1472 of 2003, the petitioner opting to make representation in the matter to Reserve Bank of India. 5.1 It is clear that though the petitioner was aware at least since 1993 about decision with which he was dissatisfied, he sat tight for long 10 years. In the year 2002, he approached the Supreme Court and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were not to apply, the second petition would be barred on the ground of public policy. Therefore, the proposition is clear that once the petition was withdrawn without liberty to file fresh petition, mere making of representation would not furnish a new cause of action. Therefore on all the above preliminary grounds, the petition is liable to be dismissed. 6. Even looking at the merits of the case and the prayers of the petitioners, petitioners acquired status of non-resident Indian by operation of law, as, admittedly, they come to India on 01st February, 1988 and stayed until June, 1988. Section 2(p) of the Foreign Exchange Regulation Act, 1973 defines a person resident in India as under. 2(p) person resident in India means - ( i) a citizen of India, who has, at any time after the 25th day of March, 1947, been staying in India but does not include a citizen of India who has gone out of, or stays outside, India, in either case- ( a) for or on taking up employment outside India, or ( b) for carrying on outside India a business or vocation outside India, or ( c) for any other purpose, in such circumstances as would indicate his intention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign currency accounts by reporting the entire balance to India. ( b) By letters dated 30.09.1988 (page 81-83), 30.03.1989 (page 87), 14.09.1989 (page 80), 14.12.1990 (page 93), the petitioners were advised to redesignate their Non Resident Accounts to Resident Accounts. They were also advised to avail of RIFEE facility. However, the petitioners did not comply with those advices. The conditions on which the petitioner was permitted to maintain any of the two foreign currency accounts with Barclays Bank London and Western Plymouth UK as contained in RBI's letter dated 30.09.1988 (page 81-84) were not complied by the petitioners. ( c) The petitioners did not inform SBI about the change in their residential status in time and have been trying to maintain their foreign currency account as non residents. The petitioners only disclosed their change in residential status to RBI, only after RBI issued letter dated 26.08.1993 (page 97) to SBI. ( d) The petitioners are precluded from seeking benefit of clause 29A.15 of Exchange Control Manual which grants exemption for a period of 5 years or more in case of exploratory purposes the petitioner have never approached ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge control Regulations requiring surrender of FC balances, and continuance of NRE/FCNR status for a period of five years, but here I submit that my case deserves special and sympathetic consideration on this matter. 6.4 In the above submission there was a tacit admission that the petitioners were not entitled to the grant of exemption but only wanted a sympathetic consideration and special treatment, which could not be given in law. The entire case of the petitioners was on a weaker footing on merits. 6.5 In the overall conspectus of merit in the case, the petitioner who had come to India from foreign country, wanted that their NRI Account/FCNR Account may be continued in the same status. It was a kind of privilege claimed. Such status could be accorded only within the permissible parameters and in accordance with law by the Reserve Bank of India. It is difficult to conceive that the petitioners' claim to maintain status of FCNR Account could be asserted as enforceable right. It was only a kind of benefit offered to such class of persons. The petitioners cannot enjoy such benefit when they did not comply with the conditions. 7. For all the aforesaid reasons an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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