9911796707
TMI Blog2023 (6) TMI 546X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued a memorandum dated May 3, 2002 to the company and its directors calling upon them to show cause as to why adjudication proceedings should not be initiated against them for their failure to take action to secure the receipt of export proceedings to the tune of US$ 6,37,000 out of the total invoice value of US$ 8,37,200 in respect of 3GRs all dated March 29, 1996. 3. The show cause notice dated May 3, 2002 resulted in an order of adjudication dated December 30, 2002. The adjudication order on appeal was set aside on the ground of violation of principles of natural justice and was remanded for fresh adjudication. The fresh adjudication resulted in an order dated August 28, 2003. 4. The order dated August 28, 2003 was made the subject-matter of the challenge before the Appellate Tribunal Foreign Exchange by the appellants. The appeals by the appellants before the Appellate Tribunal Foreign Exchange were disposed of by the impugned order dated March 2, 2009. 5. Before the adjudicating authority as also before the appellate authority, primarily two points were canvassed on behalf of the appellants. The first point was with regard to the sun set clause of Foreign Exchange Amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1973 and in particular Section 18(3) thereof. The issue is whether, filing of the suit by the appellants before the Hon'ble High Court at Calcutta and obtaining a decree thereon for realisation of the balance of the price of goods sold and delivered to the importer would constitute "reasonable steps to receive or recover the payment for the goods" as envisaged under Section 18(3) of the Act of 1973 or not. 10. The learned advocate appearing for the appellants contends that, the appellants having filed a suit before the Hon'ble High Court at Calcutta for the balance price of goods sold and delivered within the extended period and obtaining a decree thereon, such steps should be construed to be reasonable steps taken on behalf of the appellants to receive or recover the payment of the goods exported within the meaning of Section 18(3) of the Act of 1973. He contends that, a part of the cause of action arose within the jurisdiction of the Hon'ble High Court at Calcutta. It is nobody's case that, the decree passed by the Hon'ble High Court at Calcutta is a nullity due to lack of jurisdiction. The inability of the appellants put to the decree into execution is of no consequence sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 18 of the Act of 1973 can produce materials before the adjudicating authority to dislodge the statutory presumption under Section 18(3) of the Act of 1973. In the facts and circumstances of the present case, the issue is whether, filing of a suit for recovery of the balance of the price of the goods sold and delivered in respect of an export in any court in India and obtaining a decree therein would constitute taking all reasonable steps to recover the payment for the goods envisaged under Section 18(3) of the Act of 1973 or not. 15. As noted above, the export was effected on March 29, 1996 with the appellants receiving a period till September 30, 1996 to obtain the payments for the export. The appellants received a portion of the payment of the export leaving a balance. The appellants obtained extension for receipt of the balance of the price of goods exported and such extension continued till May 31, 2000. Between the periods September 30, 1996 and May 31, 2000 the appellants filed a suit before the Hon'ble High Court at Calcutta being CS/299/1999 against the foreign buyer, on May 17, 1999 seeking recovery of the balance of the price of the goods exported. Such s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for the goods'. In fact, the key words are 'all reasonable steps'. 19. Section 18 (3) of the Act of 1973 requires an exporter to take steps to receive or recover the payment of the goods. The word 'steps' is qualified with the word 'reasonable'. Therefore, an exporter is required to take such steps as are fair, practicable and sensible to receive or recover the payment for the goods exported. The words 'reasonable steps' are preceded by the word 'all'. The word 'all' in Section 18 (3) of the Act of 1973 is used as a determiner. Therefore, an exporter is required to take all fair, practicable and sensible steps to receive or recover the payment of the exported goods. As to whether or not, an exporter took all reasonable steps to receive or recover the payment for the exported goods is a question of fact which is required to be determined in each case. At times, mere filing of the suit and obtaining of decree thereon without taking any further steps may not be construed to be 'all reasonable steps' as contemplated under Section 18 (3) of the Act of 1973. However, in a given set of facts filing of a suit and obtaining a decree thereon may constitute all reasonable steps within th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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