Kulwant Singh Tiwana, J. - (1.) THIS judgment will dispose of Civil Writ Petition No. 4709 of 1975, filed by Messrs Lamba, Industries, and Civil Writ Petition No. 238 of 1975 filed by Messrs Harbans and Company, against Union of India through Secretary to Government; of India Ministry of Commerce, Respondent No. 1, State Trading Corporation of India Limited, Respondent No. 2, and others, as the common question of law and facts are involved in these:
(2.) MESSRS Lamba, Industries, Ludhiana, which is a partnership concern and is engaged in the manufacture of textile and hosiery goods has filed Civil Writ Petition No. 4709 of 1975 against Union of India, Respondent No. 1, State Trading Corporation of India, Limited, Respondent No. 2 and others stating that, - -vide Section 3 of the Imports and Exports (Control) Act, 1947 (hereinafter referred to as the Act) the Government of India has made provision for prohibiting and restricting or otherwise controlling the import and export of quality goods. In the year, 1960, Government of India launched a scheme known as "the Export Promotion Scheme" to encourage the manufacture and export of quality goods. According to this scheme a person, who exported goods to a foreign country was to be allowed import of goods into the country of an equal value. The Petitioner -firm also availed of this opportunity. In the year 1956, the State Trading Corporation of India Limited (hereinafter called as the S.T.C.) was registered with a purpose of organising and undertaking trade generally with the state trading countries and for the promotion of export, etc, with the President of India and the Secretaries Ministeries of Commerce and Industries as its shareholders. In the year 1967, the Government of India decided to canalise the import of foreign goods through the State Trading Corporation. This was notified, - -vide Public Notice No. 172 -ITC(PN)/67, dated November 25, 1967, copy of which is attached as Annexure P -1 to the petition, stating that the Government of India has decided to "canalise all imports of wool raw, wool tops etc." as given at serial No. 47 in Part V of the Import Trade Control Policy Schedule 1 for the year 1967. This policy was implemented immediately after the issuance of the above -said order. After this decision it was decided that the concerned exporters would be entitled to import goods to the extent of 60 per cent of the F.O.B. value of the goods exported. Out of the import entitlement of 60 per cent the Petitioner -firm was entitled to import 30 per cent directly on the basis of the letter of authority issued by the concerned authorities and the remaining 30 per cent through S.T.C. In the years 1969 to 1971 the Petitioner exported the goods worth about 5 to 6 lakhs and thus earned the import entitlement of Rs. 3 1/2 lakhs. Out of this, goods worth Rs. 20,299 were to be imported through the S.T.C. The procedure laid down and followed was that the Petitioner was given the railway receipts by the S.T.C. and on deposit of the money in the Bank the goods were released to the Petitioner -firm. So far as the clearance etc. of the imported goods were concerned the procedure was to be complied by the S.T.C. Whenever the money was paid by the Petitioner the goods were released to it. In January, 1972, a representative of the Petitioner -firm was summoned to Delhi to select the material out of the samples available for import on the basis of various release orders. The material was selected by the representative of the Petitioner -firm and the order was placed for import by the S.T.C. with the recognised local agents of the suppliers abroad. Indent No. 7014/72,' dated February 15, 1972, was placed for the purchase of goods worth Rs. 20,299 copy of this indent is Annexure P -2 to the petition. This order was for the import of woollen rags. This indent was received by the Petitioner -firm on February 15, 1972 with a letter, copy of which is Annexure P -3 to the petition, from S.T.C. Amongst the various documents received later on the Petitioner -firm received letter from the foreign supplier, copy of which is Annexure P -4 to the petition, with a certificate that "the goods are duly cut, mutilated which cannot be used for wearing purposes." The S.T.C. placed a similar order for the import of rags for Messrs Camel Knitting and Textile Mills, Ludhiana, Respondent No. 7, - -vide indent No. 7015/72. Messrs Mohan Lal and Sons, agents of the foreign -suppliers in India informed the Petitioner -firm that through an oversight the principles have shipped 66 bales jointly against Indents Nos. 7014 and 7015. Copy of this letter is Annexure P -5 of the petition. The Petitioner -firm was asked to make payment for the 66 bales jointly and arrange for their clearance. A similar service was received by the Petitioner firm through its Bankers, copy of which is Annexure P -6. The Petitioner -firm however, expressed its inability to pay for the goods imported by Respondent No. 7. On telephone the Petitioner was requested by the S.T.C. to honour the documents on the stipulation that Respondent No. 7, would pay, its share of the money. On August 16, 1972, the Petitioner -firm received letter, copy of which is. Annexure P -7, from the S.T.C. to the same effect. On the representation made by the S.T.C. the Petitioner -firm made the payment of Rs. 38,957.40 for goods ordered by it and also on behalf of Respondent No. 7. But, inspite of the demands made and insistence by the Petitioner -firm; neither Respondent No. 7 made the payment nor made any effort, towards the clearance of the goods. The Petitioner -firm insisted on the S.T.C. to get the amount, paid by it on behalf of Respondent No. 7. A good deal of correspondence took place between the Petitioner -firm and the S.T.C. in that behalf. In the meantime the Collector of Customs, Bombay Respondent No. 5, intimated the Petitioner -firm, - -vide letter copy of which is Annexure P -13 to the petition, that on examination it was found that the goods were not woollen rags, but serviceable woollen garments. On receipt of this notice the Petitioner -firm sent a reply to the Collector of Customs and offered to get the goods mutilated and nominated Messrs Oswal Spinning and Weaving Mills, Ludhiana for this purpose. The Customs authorities intimated the Petitioner -firm that because of lack of space with Messrs Oswal Spinning and Weaving Mills, Ludhiana, they, had not mutilated the goods of some other concern and insisted for the nomination of any other mutilator." The Petitioner -firm then contacted the Marketing Manager, State Trading Corporation of, India, Limited, Respondent No. 4, at Ludhiana and impressed upon him to make, the payment of the money paid for Respondent No. 7. The S.T.C. had also written letters to Respondent No. 7 to make the payment to the Petitioner -firm. The representative of the Petitioner -firm was asked by the S.T.C. to see its Director and in consequence thereof the representative of the Petitioner -firm met the Director who directed Shri M.M. Gupta to look into the matter and decide, the same, within a week. But the matter was not decided,. On September 5, 1974, the Petitioner -firm received an intimation from the Docks Manager, Bombay Port Trust, Respondent No. 6, copy of which is, Annexure P -23. that as the goods have not been,, cleared, the' same were being disposed of, by public auction. The Petitioner -firm, immediately represented to the Port Trust Authorities against this action. Respondent No. 6 asked the Petitioner -firm to pay demurrage which/according to Respondent No. 6, had accumulated to the tune of Rs. 1,70,000. The Petitioner -firm, since then, has been continuously writing to the authorities to settle the matter, but nothing was done. On February 24, 1975, the representative of the Petitioner -firm met Shri M.N. Mishra, Director of S.T.C. with a request to refund the money. Shri M.N. Mishra accepted the submission of the Petitioner -firm and ordered for the adjustment of the extra amount paid by it on behalf of Respondent No. 7. After meeting Shri M.N. Mishra, the Petitioner -firm submitted application, copy of which is Annexure P -27 to the Chief Marketing Manager, S.T.C., Respondent No. 4. The Petitioner -firm again represented for the implementation of the order of Shri M.N. Mishra. The Petitioner -firm also represented to Respondent No. 6 for the waiver of the demurrage, - -vide litter, copy of which is Annexure 24. The Petitioner -firm had been representing to Respondent No. 2, for the release of the goods imported, - -vide Indent No. 7014/72 and also adjustment of the amount paid by it for the goods imported on behalf of Respondent No. 7.
(3.) THE Petitioner -firm claims that S.T.C. is the agent of Union of India, Respondent No. 1 and is to import various goods against the import entitlement earned by various persons. The amount of nearly Rs. 40,000 paid by the Petitioner is lying blocked and he is entitled for the delivery of the goods and the action of the S.T.C. Respondent No. 2, in not delivering the goods was absolutely illegal and without jurisdiction. The S.T.C., Respondent No. 2, having undertaken to import the goods and the Petitioner -firm having paid the money in good faith on the representation made by it is entitled to the delivery of the goods and the rule of promissory estoppel/equitable estoppel is attracted to the circumstances of the case. The non -delivery of the goods by the S.T.C. has resulted into the miscarriage of justice. The action of Respondent No. 6 in asking the Petitioner -firm to pay demurrage amounting to Rs. 3 lakhs is absolutely illegal. The goods were imported by the S.T.C, the description of which was given by the Petitioner -firm. The Petitioner -firm is not at all responsible for any infirmity found in the description of the goods and is entitled to the possession of those goods without being called upon to pay any thing more. The Petitioner - -firm has been put to heavy and recurring loss by the failure of the authorities to deliver the goods to it inspite of the fact that it has paid the full money thereof and he had exported the goods on the faith that it would get raw material against the goods exported. Since the Petitioner -firm has paid, the share of the money of Respondent No. 7 on the representation made to it by the S.T.C. it is, therefore liable to pay back that sum of «money to it or to. adjust it against other, imports. The Petitioner -firm on the above stated facts has prayed for a writ of certiorari, mandamus or any other suitable writ against the Respondents for a direction to deliver the imported material to the Petitioner -firm, and for a declaration that the Petitioner -firm -was not liable to pay, any demurrage etc. and it is entitled, to the possession of goods imported, and that the Petitioner -firm be also declared entitled to the possession of the goods imported - -vide Indent No. 7015 or in the alternative to be entitled to the refund of the money paid by the Petitioner in that behalf. The State Trading Corporation, Limited, Respondent No. 2, and its Marketing Manager, Respondent No. 4, in their return raised preliminary objections that the writ petition was not maintainable against the S.T.C. which is incorporated as a Company under the Companies Act, 1956; that the petition was bad for non -joinder of the foreign suppliers as one of the Respondents since the goods were to be supplied by the foreign suppliers to the Petitioner -firm that the matter in dispute was purely of a civil nature arising out of the contract and civil writ petition is not a remedy to enforce contractual obligation that the Petitioner made misrepresentation and had made concealments in the petition and on that ground it is liable to be dismissed; that there are many disputed questions of fact in the writ petition which are not conveniently determinable in the present proceedings in this Court; that the writ Petitioner -firm has no legal right which was enforceable through this writ petition.;