Madras High Court
Neyveli Lignite Corporation Limited vs M/S. Metro Machinery Traders on 1 April, 2008
Bench: A.P. Shah, Prabha Sridevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01..04..2008
C O R A M
The Honourable Mr. A.P. Shah, Chief Justice
and
The Honourable Mrs. Justice Prabha Sridevan
Writ Appeal Nos.1488, 1502 and 1562 of 2007
1. Neyveli Lignite Corporation Limited
(A Govt. of India Enterprise),
Disposal Wing, Marketing Branch,
Card Complex,
Office of the Deputy General Manager,
Chemical Units, Neyveli-607 807.
2. Neyveli Lignite Corporation Limited,
Having its Registered Office at
'Neyveli House', rep. by its
Deputy General Manager, Chemical Units,
135, Periyar E.V.R. High Road, .. Appellants in
Kilpauk, Chennai-10. W.A.1488 of 2007
The State Trading Corporation of India Limited,
Having its Registered Office at No.1, .. Appellant in
Tolstoy Marg, New Delhi-1. W.A.1502 of 2007
M/s. Metro Machinery Traders,
No.42, II Floor, Nishant Kunj,
Pitampura, Delhi-110 088, .. Appellant in
Rep. by its partner Ram Kishan. W.A.1562 of 2007
versus
1. M/s. Metro Machinery Traders,
No.42, II Floor, Nishant Kunj,
Pitampura, Delhi-110 088,
Rep. by its partner Ram Kishan.
2. Union of India,
Rep. by its Secretary,
Ministry of Coal and Mines,
Central Secretariat,
New Delhi.
3. State Trading Corporation of India Limited,
Having its Registered Office at No.1,
Toistory Marketing, New Delhi-3.
4. Metal Scrap Trading Corporation
(A Govt. of India Enterprise),
'Ranka Chambers',
31, First Floor, Cunningham Road,
Bangalore-560 052.
5. The Director,
Directorate of Revenue Intelligence,
No.25, Gopalakrishna Iyer Road, .. Respondents in
T. Nagar, Chennai-17. W.A.1488 of 2007
1. M/s. Metro Machinery Traders,
No.42, II Floor, Nishant Kunj,
Pitampura, Delhi-110 088,
Rep. by its partner Ram Kishan.
2. Neyveli Lignite Corporation Limited
(A Govt. of India Enterprise),
Disposal Wing, Marketing Branch,
Card Complex,
Office of the Deputy General Manager,
Chemical Units, Neyveli-607 807.
3. Neyveli Lignite Corporation Limited,
Having its Registered Office at
'Neyveli House', rep. by its
Deputy General Manager, Chemical Units,
135, Periyar E.V.R. High Road, .. Respondents in
Kilpauk, Chennai-10. W.A.1502 of 2007
1. Union of India,
Rep. by its Secretary,
Ministry of Coal and Mines,
Central Secretariat,
New Delhi.
2. Neyveli Lignite Corporation Limited
(A Govt. of India Enterprise),
Disposal Wing, Marketing Branch,
Card Complex, Office of the Deputy General Manager,
Chemical Units, Neyveli-607 807.
3. Neyveli Lignite Corporation Limited,
Having its Registered Office at
'Neyveli House', rep. by its
Deputy General Manager, Chemical Units,
135, Periyar E.V.R. High Road,
Kilpauk, Chennai-10.
4. State Trading Corporation of India Limited,
Having its Registered Office at No.1,
Toistory Marketing, New Delhi-3.
5. Metal Scrap Trading Corporation
(A Govt. of India Enterprise),
'Ranka Chambers',
31, First Floor, Cunningham Road,
Bangalore-560 052.
6 The Director,
Directorate of Revenue Intelligence,
No.25, Gopalakrishna Iyer Road, .. Respondents in
T. Nagar, Chennai-17. W.A.1562 of 2007
- - - - -
Prayer : Appeals filed under Clause 15 of the Letters Patent against the order of a learned single Judge of this Court dated 26.10.2007 passed in W.P. No.43497 of 2006.
- - - - -
W.A. No.1488 of 2007
For Appellants : Mr. N.A.K. Sarma
For Respondent-1 : Mr. G.L. Rawal, Senior Counsel
and Mr. K.S. Vasan for
M/s. Murthy & Vasan.
For Respondent-2 : Mr. V.T. Gopalan, Senior Counsel
for Mr. P. Wilson, Asst. Solicitor General.
For Respondent-3 : Mr. D. Roy Choudhuri, Senior Counsel
for Mr. S. Umapathy
For Respondent-4 : Mr. A.L. Somayaji, Senior Counsel
for Mr. F.B. Benjamin George
For Respondent-5 : Mr. P. Wilson,
Asst. Solicitor General of India
- - - - -
J U D G M E N T
( Delivered by Prabha Sridevan, J. ) The writ petition was filed by the first respondent in W.A. No.1562 of 2007 for quashing the Sale Order/Acceptance Letter No.MSTC/S/NLC/EA-14/2005-06/101/008 dated 1.4.2005 issued by the fifth respondent, quash the same and direct the second and third respondents to return the amount of Rs.163,49,96,511/- after deducting the amounts already received, with interest at the rate of 18% from 30.4.2005 to the petitioner. The writ petition was dismissed on the ground that facts are disputed and they must be established before a court of law by adducing sufficient proof and that the writ court cannot grant the relief sought for. But, while dismissing the writ petition, the learned single Judge gave findings that the contract between the parties was void ab initio, that the appellant in W.A. No.1488 of 2007 (respondent in the writ petition) had committed fraud and answered these questions in favour of the writ petitioner. Aggrieved by that, W.A. No.1488 of 2007 has been filed on the ground that even if the appellant were to go before a forum where a decision on fact could be obtained, these findings would operate against them. W.A. No.1502 of 2007 has been filed for restitution of the money invested by the appellant in the said appeal. W.A. No.1562 of 2007 has been filed by the writ petitioner against rejection of monetary relief as prayed for.
2. The facts of the case are briefly stated hereunder :
The appellant in W.A. No.1488 of 2007, Neyveli Lignite Corporation Limited, 'NLC' for short, intended to set up and install a fertilizer plant some time in the 1960s and for installation of the fertilizer plant, some input machineries were imported. Some time in the 1990s, the plant had to be revamped and therefore, NLC imported certain machineries and equipments for utilisation of the same in revamping. But thereafter, the pricing policy of the Government of India made the fertilizer plant totally unviable. NLC decided to close down the fertilizer unit with effect from 28.1.2002. A decision was taken to dispose of the entire plant and machinery on an 'as is where is basis' by a process of e-auction to be conducted by the Metal Scrap Trading Corporation (MSTC). According to NLC, no restriction or condition had to be fulfilled before this could be disposed of. However, NLC informed the Commissioner of Central Excise and Customs by their letter dated 24.5.2004, of its proposal to dispose of the fertilizer plant. On 7.6.2004, the Superintendent of Central Excise, Virudhachalam sought certain clarifications and also visited the fertilizer plant. On 30.6.2006, NLC replied to the Central Excise authorities that the machineries were imported for revamping the fertilizer plant after payment of Customs/Excise duty as applicable and furnished all the necessary details. On 2.7.2004, the Superintendent, Central Excise asked for details of machineries imported with partial/full exemption of Customs Duty and Bills of Entry for the same. On 10.7.2004, NLC gave full details of the equipment imported by the fertilizer plant along with copies of Bills of Entries and the copies of the relevant Customs Duty Exemption Notifications of the Government of India.
3. About seven months thereafter, on 25.2.2005, NLC conducted through MSTC, the e-auction for the disposal of the disbanded fertilizer plant. Metro Machinery Traders (MMT), the writ petitioner (appellant in W.A. No.1562 of 2007) offered Rs.132 Crores and was the highest bidder. It furnished demand drafts for a sum of Rs.13.2 Crores in favour of NLC as a security deposit. MSTC, as the selling agent of NLC, issued the Sale Order/Acceptance Letter in favour of MMT on 1.4.2005, which is sought to be quashed in the writ petition. On 29.4.2005, MMT entered into a Memorandum of Understanding with the appellant in W.A. No.1502 of 2007, i.e., the State Trading Corporation of India ('STC' for short). The sale consideration as per the MoU was Rs.149,79,96,511/-. On the same day, a sale agreement and a pledge deed were also executed. On 30.4.2005, MMT deposited the above sum of Rs.149 Crores towards full payment to NLC. On 11.5.2005, MMT obtained factory licence and on 18.5.2005, NLC issued the delivery order. The delivery period was 370 days, i.e. from 19.5.2005 to 23.5.2006. NLC also informed the Superintendent of Central Excise about the e-auction and the fact that MMT had purchased the plant and machinery. This was on 30.6.2005. On 23.4.2006, MMT requested NLC to extend the time for finishing the work stating that almost 75% of the dismantling work had been completed. On 25.4.2006, MMT sent a legal notice to STC calling upon them to refund the cheque for the sum of Rs.150 Crores which was given as a security by MMT. On 1.5.2006, MMT issued a legal notice to STC and called upon them to remove the dismantled plant and machinery and continue to remove whatever stands dismantled from time to time and go ahead with the sale.
4. On 19.5.2006, STC filed a petition under the Arbitration and Conciliation Act before the Delhi High Court. An ex parte interim order was passed by the Delhi High Court restraining NLC from paying any amount to MMT and appointed an Advocate Commissioner. On 7.6.2006, the Director of Revenue Intelligence (DRI), Trichy informed NLC to arrange for an on-the-spot verification. The Advocate Commissioner appointed by the Delhi High Court visited the fertilizer plant on between 7.6.2006 and 15.6.2006 and prepared an inventory. The officials of DRI visited NLC, perused the files and recorded some statements. On 19.6.2006, the DRI informed NLC that "the goods/spares imported under concessional rate of Customs Duty and used in the revamping of the said fertilizer plant should not be disposed of or removed till the investigation by the Directorate is complete". NLC filed a detailed counter before the Delhi High Court. On 7.8.2006, the Delhi High Court passed an order appointing STC as the Receiver and directing NLC to facilitate the sale. Pursuant to this order, on 22.8.2006, MMT requested NLC to permit them to dispatch the materials to their buyers with immediate effect. On 23.8.2006, NLC intimated the order of the Delhi High Court to the DRI and on 24.8.2006, the DRI instructed NLC to strictly adhere to their letter dated 20.6.2006, by which they were asked not to remove or dispose of the goods imported under concessional rate of Customs Duty and used in the revamping of the fertilizer plant until investigation by the DRI is complete. On 25.8.2006, NLC permitted MMT to take delivery of the materials under the control of the Court Receiver. On 26.8.2006, MMT through STC removed 38 truckloads of dismantled materials from 26.8.2006 to 2.9.2006. On 29.8.2006, NLC asked MMT to remove without any delay, all the materials, except the imported materials. On 1.9.2006, MMT sent a legal notice to NLC demanding refund of the EMD. On 2.9.2006, NLC reiterated its request to MMT to remove the indigenous machineries and loose items, except the imported materials, without any delay. On 13.9.2006, NLC granted MMT, extension of delivery period by 75 days. On 14.9.2006, the DRI seized the imported materials alone out of the materials not yet removed by MMT and prepared a mahazar.
5. On 18.9.2006, NLC filed an application before the Delhi High Court to implead the DRI and the Commissioner (Customs) as parties. On 20.9.2006, the Delhi High Court rejected the application filed by NLC. On 26.9.2006, NLC requested the DRI to permit the removal of the imported materials also, against bond. On 27.9.2006, the DRI issued summons under Section 108 of the Customs Act, 1962 to the Managing Partner of MMT. On 30.9.2006, MMT sent a legal notice to NLC demanding refund of EMD etc. On 19.10.2006, the Delhi High Court passed an order restraining MMT from transferring, alienating or encumbering the properties of respondents 1 to 8 s per Annexure 'C' to that application. On 4.11.2006, NLC replied to MMT's notice dated 1.9.2006. On 6.11.2006, MMT filed the present writ petition for quashing the sale notice and for the monetary relief as stated earlier.
6. Before the learned single Judge, NLC contended that the writ petition was not maintainable since there were disputed questions of fact and that there was an arbitral clause in the agreement entered into between the parties and the same has to be invoked. The learned single Judge accepted the case that there were two independent transactions, one between MMT and NLC, which culminated in the auction sale and the other between MMT and STC, which was subjudice. The learned Judge, however, with regard to the transaction between MMT and NLC, held that NLC had knowledge about the importation of the goods subject to the Notification and that it could be sold only after the dutis are cleared and otherwise, the stringent provision under the law would follow. The learned Judge held that the machinery had been imported and there was a ban for sale of the property without the clearance from the Department and therefore, the sale was forbidden by law and that it is a contract void ab initio. According to the learned Judge, the factual position with regard to the payment of concession and duties and the use of the imported materials for its own purpose were matters within the special knowledge of NLC and the bidders were not put on notice of this position and therefore, the officials, who (should have got the clear knowledge of the transactions) and had a duty to bring it to the notice of the auction purchasers, had not done so and that no one would have ventured to purchase the properties when it was under the active clutches of law and that concealment is evident and having come to the above conclusions, answered the question regarding whether the contract was void ab initio and whether there was fraud in favour of MMT. But, as regards the remedy that MMT claimed, the learned Judge, while referring to Clause 59 of the agreement, which is the arbitration clause, held that when the contract is prohibited by law, even if there was an independent arbitration clause, no one can derive benefit from the void contract. Therefore, according to the learned Judge, the parties cannot invoke the arbitration clause. As far as quantification of the monetary relief is concerned, the learned Judge had considered the facts relating to the dismantling and removal of the goods and held that a perusal of these details would clearly reveal all the facts "except the value of the materials removed". Therefore, the learned Judge held that in a case like this, "Where the petitioner wants to have the entire amount to be refunded, unless and until facts regarding the value of the machineries removed are not certain, the Court cannot grant the relief sought for". Therefore, the learned Judge held that the Court is unable to grant the relief and it could be decided "only by a court of civil law" and not by a writ court. The impugned order was passed by the learned single Judge on 26.10.2007. It is against these findings that NLC has filed W.A. No.1488 of 2007; STC has filed W.A. No.1502 of 2007 against the refusal to order restitution and MMT has filed W.A. No.1562 of 2007 against the refusal to grant refund.
7. Heard Mr. N.A.K. Sarma, learned counsel appearing for NLC, Mr. G.L. Rawal, Mr. D. Roy Choudhuri and Mr. A.L. Somayaji, learned senior counsel appearing for the respondents as well as Mr. V.T. Gopalan, learned senior counsel and Mr. P. Wilson, learned Assistant Solicitor General appearing for the Union of India.
8. Learned counsel appearing for NLC filed in Court, brief Notes on the factual aspects of the case. Learned senior counsel appearing for MMT filed written submissions. Learned senior counsel appearing for STC also filed written submissions.
9. Learned counsel appearing for NLC would submit that the impugned order suffers from severe infirmities :
(a) When the learned single Judge had come to the conclusion, and rightly so, that there were disputed questions of fact, he ought not to have given any findings regarding factual issues.
(b) The finding that the goods were prohibited goods and therefore, the contract was void ab initio is ex facie wrong since the goods at the worst are only dutiable goods. As per the Government Notification, NLC could import the goods subject to certain conditions and according to NLC, those conditions were complied with. The DRI has presently initiated proceedings where this issue would be adjudicated upon and even if the DRI and the Customs Authorities do not accept the case of the appellant, the only consequence would be that the appellant would be called upon to pay the duty because the goods are not prohibited goods and therefore, the contract is not void ab initio.
(c) The learned single Judge had erroneously come to the conclusion that there was fraud. To establish fraud, the person alleging it will have to prove that there was active concealment of a material fact and for that, evidence is required; in any event, NLC had laid all the cards on the table. NLC had informed the DRI of the fact that it intended to sell the plant and machinery and that the goods were procured only after paying the duty as applicable, and whatever clarifications were sought for by the Department had been given by NLC and it was several months thereafter that the e-auction was held and during that period, there was no intimation from the DRI, which could in any way have inhibited NLC from proceeding with the e-auction. In these circumstances, there was nothing to be concealed and nothing was in fact concealed.
(d) Learned counsel submitted that as far as NLC is concerned, the sale had been effected. As per the contract, no re-selling was permitted within the premises of NLC. According to the learned counsel, contrary to the terms of the contract betweenMMT and NLC, MMT had entered into an agreement with STC, by which a sum of Rs.150 Crores had been advanced by STC to MMT, part of which sum was apparently utilised by MMT for making the deposit to NLC. Learned counsel also submitted that it is surprising that STC advanced the money on the basis of no security, apart from the letters from the Valuers.
(e) Even assuming the argument that the contract is void ab initio, the contract between the parties contained an arbitration clause and this question as to whether the contract was void is an arbitrable issue and therefore, MMT must go before the arbitrator for resolution of its disputes.
(f) In addition, learned counsel submitted that several truckloads had been removed and the learned single Judge had accepted all those documents as though they were proved documents, whereas only in some of the gate passes, the endorsement of STC is there and that too, only as Court Receiver, and some of the others do not bear the endorsement and therefore, there is a serious dispute with regard to the value of the quantity of goods removed.
(g) Learned counsel submitted that it is difficult to believe that the writ petitioner, which is a business firm, should now complain that a commercial transaction should be quashed as void, invoking writ jurisdiction and also seeking refund, when all these matters must only be proved by evidence.
10. Learned counsel relied on the following decisions :
Har Shankar vs. Dy. Excise & Taxation Commissioner, (1975) 1 S.C.C. 737;
State of Orissa vs. Narain Prasad, (1996) 5 S.C.C. 740;
Kerala State Electricity Board vs. Kurien E. Kalathil, J.T. 2000 (8) S.C. 167;
State of Bihar vs. Jain Plastics and Chemicals Limited, J.T. 2001 (9) S.C. 582;
Lexicon Finance Limited vs. Union of India, 2002 (3) Arb. LR 60 (Karnataka) (DB);
NIIT Limited vs. Ashish Deb, 2004 (2) L.W. 244;
Kvaerner Cementation India Ltd. vs. Bajranglal Agarwal, 2001 (6) Supreme 265; and Shree Ram Mills Ltd. vs. Utility Premises (P) Ltd., (2007) 4 S.C.C. 599
11. Learned senior counsel appearing for MMT submitted that inspite of a recommendation by the Disinvestment Commission that the fertilizer plant was not financially viable and had to be disposed of, the import was made in the year 1999. It was submitted that there were post-importation conditions and Condition No.50 of Notification No.20 of 1999 imposes a statutory ban on NLC from parting with or selling the goods without prior permission of the Commissioner of Customs and the goods were sold on an 'as is where is basis', but this impediment, viz. there was a post-importation condition preventing any sale was deliberately suppressed and therefore, this was a fraud which vitiated the contract and rendered it void. It was submitted that it is not correct to state that without any investment on its own, MMT had used public money belonging to STC for this purpose. On the other hand, MMT had already invested Rs.38.70 Crores, out of which Rs.13.70 Crores were deposited with NLC and this investment was made almost three years ago. It was submitted that the condition that the entire dismantling work had to be carried out within 370 days is an unworkable condition since the activities could not be carried out without complying with the requirements of law. It was submitted that it was not correct to state that 75% of the dismantled goods have been removed; actually 75% of the dismantling work alone has been carried out. Learned counsel submitted that the issue relating to two bank cheques of Rs.75 Crores given to STC is not relevant to this controversy. The issue between MMT and STC is an arbitrable one and it is before the Arbitral Tribunal headed by the former Chief Justice of India and therefore, that will be decided in accordance with law. It was explained by the learned senior counsel as to how the scrap was removed and sold, and all the delivery cum gate passes which have been issued would show the quantity of subject goods which have been removed from the premises and from this, the value can be ascertained and this cannot be a disputed question of fact. Learned senior counsel submitted that the very fact that the Customs Authorities had issued summons under Section 108 of the Customs Act to the Managing Partner of MMT would show that the authorities are dealing with the goods as smuggled goods. According to the learned senior counsel, NLC has committed illegality and is now trying to cover up the same. It was submitted that it was not necessary for MMT to approach any other forum in view of the unassailable findings rendered by the learned single Judge on the crucial issues, viz. the fact that the contract is void and that there was fraud on the part of NLC. Once these findings have been arrived at, there is no difficulty at quantifying the monetory value of the claim of MMT. Therefore, the learned senior counsel submitted that the appeal preferred by MMT should be allowed and monetary relief should also be granted.
12. Learned senior counsel relied on A.I.R. 1974 S.C. 2105 [Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot], A.I.R. 1970 S.C. 802 [Gunwant Kaur vs. Bhatinda Municipality] and A.I.R. 1986 S.C. 825 [Chaitanya Kumar vs. State of Karnataka] to support his case that even in exercising its jurisdiction under Article 226, it is possible for the Court to grant the relief, especially when arbitrariness and perversion are writ large. Learned senior counsel also relied on 1989 (39) E.L.T. 316 [R.K. Industries vs. Commissioner of Customs & Excise], where it has been held that once goods are permitted to be cleared with conditions, they will continue to be prohibited goods unless the conditions laid thereto are complied with. The decision in 1983 (13) E.L.T. 1321 [Amba Lal vs. Chhagan Lal] was also relied on to show that the contract will be void not only on account of the fraudulent act, but since it is hit by the law of the land, viz. the Customs Act.
13. Learned senior counsel appearing for STC submitted that the advertisement calling for e-auction did not reveal that the goods were imported under concessional rate of duty. There was a financial arrangement between MMT and STC. STC got the plant and machinery valued by a Government approved Valuer and MMT got the plant and machinery valued by another Valuer upto 27.4.2006 and the scrap of the value of Rs.37,55,64,347/- was received. STC had got the goods inspected by two of its Senior Directors and it was only after they gave the green signal that STC decided to involve itself in this matter. According to STC, MMT had committed breach of the MoU and all the cheques were dishonoured by the bankers of MMT. Since as per Section 126 of the Customs Act, goods confiscated vest in favour of the Government of India, NLC had no title to sell the goods. STC has also alleged that NLC and MMT had committed fraud and that the contract was void ab initio and that NLC had unjustly enriched itself.
14. Learned senior counsel relied on L.S. Synthetics Ltd. vs. Fairgrowth Financial Services Ltd., (2004) 1 S.C.C. 456, Allahabad Bank vs. Bengal Paper Mills Co. Ltd., (2004) 8 S.C.C. 236, Naihati Jute Mills vs. Khyaliram, A.I.R. 1968 S.C. 522, Bhaurao Paralkar vs. State of Maharashtra, (2005) 7 S.C.C. 605, I.T.C. Limited vs. George Joseph Fernandes, (1989) 2 S.C.C. 1, Suwalal Jain vs. Clive Mills Co., 2003 A.I.R. S.C.W. 3041 and Union of India vs. Kishorilal Gupta, A.I.R. 1959 S.C. 1362.
15. The relevant Sections and Notifications are discussed hereunder. Section 23 of the Contract Act, 1872 reads as follows :
"23. What considerations and objects are lawful and what not.- The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful.Every agreement of which the object or consideration is unlawful is void."
Section 24 deals with void agreements and Section 19 deals with voidable contracts where free consent is vitiated by fraud.
16. Section 2(14) of the Customs Act deals with dutiable goods. Section 2(33) deals with prohibited goods. As per Section 11 of the Customs Act, the Central Government may by notification in the Official Gazette prohibit, absolutely or subject to conditions, the import or export of goods of any specified description. Section 25 deals with the power to grant exemption from duty, and the Central Government does so if it is satisfied in public interest so to do, by notification in the Official Gazette, either absolutely or subject to conditions, goods of any specific description specified in the notification, from whole or part of the duty or excise leviable. Section 111 deals with confiscation of improperly imported goods and Section 125 deals with action to pay fine in lieu of confiscation.
17. The relevant portion of Notification No.20/1999-Customs dated 28.2.1999 and the Annexure thereto reads as follows :
"Effective rates of customs duty for goods of Chapters 1 to 99 In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the goods of the description specified in column (3) of the Table below or column (3) of the said Table read with the relevant List appended hereto, as the case may be, and falling within the Chapter, heading No. or sub-heading No. of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) as are specified in the corresponding entry in column (2) of the said Table, when imported into India
(a) from so much of the duty of customs leviable thereupon under the said First Schedule as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table;
(b) from so much of the additional duty leviable thereon under sub-section (1) of section 3 of the said Customs Tariff Act, as is in excess of the rate specified in the corresponding entry in column (5) of the said Table, subject to any of the conditions, specified in the Annexure to this notification, the condition No. of which is mentioned in the corresponding entry in column (6) of the said Table :
Provided that nothing contained in this notification shall apply to goods specified against serial Nos.174, 175, 176, 177, 178 and 179 of the said Table on or after the 1st day of April, 2000.
Explanation For the purposes of this notification, the rate specified in column (4) or column (5), is ad valorem rate, unless otherwise specified."
TABLE
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S.No. Chapter or Description Standard Additional Condition heading No. of goods rate duty rate No. or sub- heading No.
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(1) (2) (3) (4) (5) (6)
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... ... ... ... ... ... 142 Any Chapter (A) Machinery, instruments 5% 10% 24 appliances, as well as parts (whether finished or not) or raw materials for the manufacture of aforesaid items and their parts, required for renovation or modernisation of a fertiliser plant; and (B) Spare parts, other raw materials (including semi-finished material) or consumables storse, essential for maintenance of the fertiliser plant mentioned above.
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ANNEXURE
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Condition No. Conditions
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... ...
24 (1) If an officer not below the rank of a Deputy Secretary to Government of India in the Department of Fertilisers,
(i) certifies that the scheme for renovation or modernisationm, as the case may be, of the fertilizer plant has been granted techno- economic clearance by the said Department;
(ii) recommends, in each case, the grant of exemption under this notification to,
(a) Machinery, instruments, apparatus and appliances, as well as components (whether finished or not) or raw materials for the manufacture of aforesaid items and their components, required for renovation or modernisation of a fertiliser plant; and (b) spare parts, other raw materials (including semi-finished material) or consumable stores, essential for maintenance of the fertiliser plant mentioned above, (hereinafter referred to as the said goods), for such scheme;
and
(iii) certifies in each case, that the said goods are, or will be, required for the purposes specified above;
(2) the value of import of the goods specified in sub-clause (b) of clause (ii) of sub-condition (1) shall not exceed 10% of the value of imported goods specified in sub-clause (a) of the said clause;
(3) if the importer furnishes an undertaking to the Assistant Commissioner of Customs to the effect that the said imported goods shall be used for the purposes specified above and in the event of his failure to use the goods for such purposes, he shall pay an amount equal to the difference between the duty leviable on the said imported goods but for the exemption under this notification and that already paid at the time of importation.
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18. It is clear from the above provisions of the Contract Act and the Customs Act that when it is alleged that fraud vitiates a contract, then the contract becomes voidable and it is for the person alleging fraud to prove it. The ingredients of fraud are mentioned in Section 17 of the Contract Act. Therefore, if fraud is the vitiating factor, then the contract does not become void ab initio, it is merely voidable and it is for the party who alleges fraud to prove the same.
19. In A.I.R. 1974 S.C. 2105 [Babubhai Muljibhai Patel vs. Nandlal Khodidas], the Supreme Court has held as follows :
"A writ petition under Art. 226, is essentially different from a suit and it would be incorrect to assimilate the incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in writ petition, the High Court may decline to try a petition. If, however, on consideration of the nature of the controversy, the High Court decides, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, the Supreme Court would not interfere in appeal with the order made by the High Court in this respect."
20. There are many other decisions to the effect that the Court cannot fold its hands in the face of rank injustice or arbitrariness and when there is no dispute on facts and records are before the Court, merely because the proceedings are one under Article 226, the Court shall not refrain from granting the relief. There is no quarrel with this position. In (1975) 1 S.C.C. 737 (supra), the Supreme Court has held as follows :
"Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of all trading transactions. Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could ever have a binding force.
...
The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations.
... The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. That, however, will not estop the appellants from contending that the amended Rules are not applicable as their licences were renewed before the amendments were made."
In J.T. 2001 (9) S.C. 582 (supra), it was held as follows :
"Settled law Writ is not the remedy for enforcing contractual obligations. It is to be reiterated that writ petition under Article 226 is not the proper proceedings for adjudicating such disputes. Under the law, it was open to the respondent to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the litigant, he should be required to pursue that remedy and not invoke the writ jurisdiction of the High Court. Equally, the existence of alternative remedy does not affect the jurisdiction of the court to issue writ, but ordinarily that would be a good ground in refusing to exercise the discretion under Article 226.
...
Such seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs."
21. Now, what are the questions that are disputed here? It is not possible to go into all the issues which are disputed between the parties, but we will list some of them.
22. According to MMT, Condition No.50, which is contained in the Annexure to Notification No.20 of 1999, under Serial Number 240, describes the goods as recorded magnetic tapes, CD-ROMs and floppy diskettes imported by the University Grants Commission and that these goods shall not be sold or parted with without prior permission of the Commissioner of Customs. On the other hand, the goods in question are described under Serial Number 142 as machinery, instruments, apparatus and appliances, etc. and the condition applicable to them as per the Annexure is Condition No.24, which only requires the importer to furnish an undertaking that the imported goods shall be used for the purpose specified above and failure to do so would require the importer to pay the differential duty. Therefore, according to NLC, the only condition imposed on NLC was to 'use' it and it had been used in the plant. Only the plant later on was closed because of financial non-viability and therefore, according to NLC, in fact, when the adjudication by the Customs Authorities and the DRI is complete, it would be seen that even the differential duty need not be paid. There was no bar on the sale and in any event, NLC bona fide was of the opinion that on receipt of its clarifications, the DRI had dropped further course of action and that is how NLC proceeded with the e-auction. On the other hand, according to MMT, there was deliberate suppression of the post-importation conditions, which amounts to fraud. According to STC, NLC had no title to sell the goods that were e-auctioned and they had suppressed the fact that the goods were imported subject to conditions and MMT, being an expert in disposal of scrap materials, had induced NLC to suppress the real valuation and there was connivance between NLC and MMT, to deceive STC and induce STC to part with Rs.150 Crores.
23. Next, according to NLC, MMT had entered into a MoU contrary to the terms of the contract, for which STC had advanced Rs.150 Crores, which was utilised by MMT for making the deposit as sale proceeds. On the other hand, according to MMT, the arrangement with STC was purely a financial arrangement and nothing more. There was no sale and there was no violation of contract. According to STC, they had bona fide entered into the arrangement with MMT after due inspection and they had invested a sum of Rs.150 Crores only on the basis of the valuation given by NLC and with regard to the consideration for the contract entered into between MMT and STC, MMT had violated the contract and the cheques had been dishonoured.
24. Next, according to MMT, they could not take steps for dismantling the machinery and plant because for a long time, nothing could be done because of the conduct of NLC and though notional possession was given in May 2005, that is of no avail because of the non-viability of documents and certain statutory requirements. Whereas, according to NLC, MMT had commenced its dismantling work on 19.5.2005 and ought to have completed the entire delivery process within 370 days, i.e. on or before 23.5.2006 and inspite of repeated extension of time, MMT had not dismantled the entire plant and machineries.
25. Next, according to NLC, the entire disbanded fertilizer plant had been sold in situ by STC to MMT and this conduct would show that there was collusion and conspiracy. This is denied by MMT and STC.
26. Next, a question was raised as to how STC decided to advance Rs.150 Crores based on two valuation reports, both of which indicated that the value was above Rs.350 Crores and thus proved the allegation of collusion and conspiracy between STC and MMT. Both these contentions are denied by STC.
27. Even with regard to the quantity of goods removed, there is dispute between the parties.
28. Therefore, right from the fact whether there was anything to suppress at all, there is a dispute amongst the three parties.
29. According to NLC, since there was no condition barring sale, there could be no suppression of such a condition. Further, all the facts were brought to the notice of the DRI at the earliest juncture and since there was no action, NLC proceeded to bring the properties for sale by e-auction. Perhaps, MMT may be able to produce evidence that there was something within the knowledge of NLC at the time of e-auction which they have not produced; but they have actively suppressed it. If that evidence is produced, then the adjudicated authority, whether it is a Court or an Arbitrator, may be able to give a finding on the question of fraud, since fraud requires the following ingredients :
(a) A suggestion of that which is not true by one who does not believe it to be true as if it were a fact.
(b) Active concealment of a fact by one who has knowledge or belief of the fact.
(c) A promise made by one without any intention of performing it.
(d) Any other act which intended to deceive or any act which the law specifically declares to be fraudulent.
30. The learned single Judge, after extracting Section 17 of the Contract Act, has held that a reading of the said section would make it abundantly clear that not only the representation, either oral or written, but also the active concealment would constitute fraud and that in the instant case, the officials of NLC "should have got the clear knowledge". It is clear that the Court had presumed that the officials had the knowledge of the vitiating circumstance. On the other hand, according to NLC, since they had addressed a communication to the Department, they presumed that there was no duty payable and the e-auction notice was issued bona fide. The question whether this can be accepted would depend upon the documentary and oral evidence and not on presumption or merely on the basis of available records. Therefore, the finding regarding fraud is set aside. This is not to suggest that we are accepting the case of NLC that there was no suppression. We only hold that the question whether there was suppression and fraud must be proved by one who alleges fraud; the question of collusion and conspiracy must also be proved by the one who alleges it. These are questions which have to be proved by adducing evidence.
31. The next question is with regard to the violation of the provisions of the Customs Act. Prohibited goods are those goods which are prohibited by notification in the official gazette. So, what are "prohibited goods" are known in advance and sometimes, there is absolute prohibition and sometimes, it is conditional and if those conditions are violated, then they become prohibited; if these conditions are complied with, then the import of goods would not be something impermissible in law. Whereas, the goods in question are goods which are imported subject to conditions. They were given exemption from duty as per Section 25(1) of the Act, but subject to conditions. If the conditions were violated, they become dutiable goods. It is clear from a reading of the various sections of the Customs Act, as for example, Section 111 that the Act deals with "prohibited goods" and "dutiable goods" as two identifiable and separate categories. Goods which are dutiable but which are exempted from duty subject to conditions cannot become prohibited if these conditions are violated; they only become dutiable. Therefore, when it is accepted by both parties that the goods were imported as per Notification No.20 of 1999, we are unable to see anything in the relevant clause in the said Notification which persuades us to come to the conclusion that the goods were prohibited. In fact, Mr. V.T. Gopalan and Mr. P.Wilson would only submit that the authorities be permitted to proceed with the adjudication. In this case, NLC has in fact given a bank guarantee for Rs.3 Crores and bond for Rs.23 Crores towards provisional release of the imported material.
32. As regards the finding that the goods are prohibited, it is clear from Notification No.20 of 1999 that Serial Number 142 deals with machinery, instruments, apparatus and appliances, as well as parts (whether finished or not) or raw materials for the manufacture of aforesaid items and their parts, required for renovation or modernisation of a fertiliser plant, and spare parts, other raw materials (including semi-finished material) or consumables stores, essential for maintenance of the fertilizer plant mentioned above. Now, the goods in question are exempt from duty wholly or partially, in exercise of the powers conferred under Section 25(1) of the Act. Therefore, it is clear from this that the import of the goods is not prohibited, but partial or whole exemption from duty is granted subject to certain conditions. According to NLC, it had complied with the conditions inasmuch as the imported goods were 'used' while revamping the fertilizer plant. The fact that subsequently a decision was taken because of the policy of the Government, which rendered the fertilizer plant unviable, would not justify a conclusion that the condition subject to which exemption from duty was granted had been violated. On the other hand, it is the case of the DRI that this issue has to be adjudicated upon. As per Section 125 of the Customs Act, if the goods are not prohibited, then the adjudicating officer shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the officer thinks it fit. It is only when it is a prohibited good that the officer has the discretion and it is open to him not to give the option to pay fine in lieu of confiscation. Therefore, the finding of the learned Judge that the goods are prohibited is not correct and deserves to be set aside. In view of the above, the finding that the goods are prohibited is set aside.
33. According to MMT, it has burnt its hands badly by this contract and it is entitled to have its loss recompensed. It is not disputed that MMT is one of the leading business firm trading in hardware goods, metal and iron scrap, plant and machinery etc. They have entered into the contract with NLC purely as a business venture. It may be for various intervening circumstances that their project misfired. They may be entitled to some relief, but it has to be established before a forum where evidence is let in and issues of facts are decided. In (1996) 5 S.C.C. 740 (supra), it was held as follows :
"The approach adopted in this decision has to be borne in mind in every such case. It is also to be kept in mind that while the decisions referred to hereinbefore are by smaller Benches, this decision is by a Constitution Bench. A person who enters into certain contractual obligations with his eyes open and works the entire contract, cannot be allowed to turn round, according to this decision, and question the validity of those obligations or the validity of the Rules which constitute the terms of the contract. The extraordinary jurisdiction of the High Court under Article 226, which is of a discretionary nature and is exercised only to advance the interests of justice, cannot certainly be employed in aid of such persons. Neither justice nor equity is in their favour."
In J.T. 2000 (8) S.C. 167 (supra), it was held thus :
"The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition."
It is a pure question of contract and Article 226 is not the forum where a decision can be rendered.
34. (1985) 3 S.C.C. 267 (Ram and Shyam Company vs. State of Haryana) was a case where a private deed secretly offered was accepted and the highest bidder was thrown out. In that case, the Supreme Court held that it is not necessary for the party to be sent to avail of the alternate remedy and that even in the writ court, the relief sought for can be granted. In ABL International Ltd. vs. E.C.G.C. of India Ltd., 109 (2004) Delhi Law Times 415 (SC), the Supreme Court held that in a given case, it was open to the writ court to give monetary relief also, but that would depend on the facts of the case and where there is no dispute on the factual issues. Here, at every stage, there seems to be a dispute between the parties and not merely minor disputes which are raised only to throw out the writ jurisdiction, but real basic disputes. Therefore, monetary relief cannot be granted in exercise of writ jurisdiction.
35. The other ground on which the impugned order suffers from an error is where it holds that because the agreement is void ab initio and the contract is prohibited by law, the arbitration clause cannot be invoked.
36. Clause 59 of the agreement entered into between the parties provides for arbitration in case of disputes between them and the said clause reads thus :
"Arbitration : In the event of any dispute and / or difference arising between the Bidder / Purchaser / Buyer and / or their Agent as to the construction, interpretation and / or execution of the contract and / or the respective rights and liabilities of the parties, such disputes and / or differences shall be referred to the sole Arbitration of the Chief Executive of the Principal for a Company registered under the Companies Act in case of PSU or the Head of the Department in case of a Government Department / Ordnance Factory Board Units / Defence Unit, who may act himself or nominate in his place any Officer subordinate to him or of MSTC being not below the rank of General Manager / Director in the Government Department / General Manager in Defence Forces, who shall act as the Sole Arbitrator. The provision of The Arbitration and Conciliation Act, 1996, and the Rules thereunder shall apply to such Arbitration. The award passed by such Sole Arbitrator shall be final and shall conclusively bind all the parties."
37. It was contended on behalf of MMT that though the decisions relied on by them, as for instance A.I.R. 1962 S.C. 1810 (Khardah & Co. vs. Rajunooh & Co.) etc., arose out of the old Arbitration Act, the principle that once the contract is void, all clauses are void ab initio is a principle that still holds good. We are afraid, this is not the present position of law and this is seen from the following judgments.
38. In 2002 (3) Arb. LR 60 (supra), a Division Bench of the Karnataka High Court held thus :
"The Supreme Court in the case of Waverly Jute Mills Company Limited (supra), relied on by the petitioner's counsel in support of his first contention, has held as under :
'17. ... if a contract is illegal and void, an arbitration clause which is one of the terms thereof, must also perish along with it and that a dispute relating to the validity of a contract is in such cases for the Court and not for the Arbitrators to decide...".
From the aforesaid decision, it is clear that if the entire contract which contains the arbitration agreement is held to be void, the arbitration clause in such a void contract has no independent existence and therefore the dispute arising between the parties under such void contract cannot be referred to arbitration. The said judgment was rendered while interpreting the provisions of the Arbitration Act of 1940. It is seen that the new Arbitration Act has come into force. Probably taking note of the law declared by the Supreme Court, the Parliament in its wisdom has tried to remedy the situation by enacting Section 16(1) of the new Act. It will be appropriate to reproduce Section 16 of the Act, which reads as follows :
'16. Competence of Arbitral Tribunal to rule on its jurisdiction.- (1) The Arbitral Tribunal may rule on its own jurisdiction ruling on any objections with regard to the existence or validity of the arbitration agreement, and for the purpose -
(a) an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
(b) a decision by the Arbitral Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause."
A perusal of the aforesaid provision makes it clear that an arbitration clause in an agreement shall be treated an agreement independent of other terms of the contract and even if the Arbitral Tribunal were to hold that the contract is null and void, it shall not entail ipso jure the invalidity of the arbitration clause. In other words, even if the contract is held to be void, the clause regarding arbitration found in a void contract would not become void. It exists independently of the said contract and it could be enforced. Therefore, in the light of the statutory provision, the contention of the learned counsel for the petitioner is not applicable and the above case is not helpful to the facts of the given case and the argument has no substance. However, this Court cannot go into the question of fact and further, the Arbitrator has already decided the issue."
In 2004 (2) L.W. 244 (supra), a Division Bench of this Court has held thus :
"Though the respondents/plaintiffs have challenged the validity of the agreement on the ground that a fraud was played on them, the same also can be gone into by the arbitrator in view of powers given under Sec.16 of the Act. This aspect was not considered by the learned Judge while rejecting the Application filed under Sec.8 of the Act by the appellant/defendant., Hence, we are inclined to interfere with the order passed by the learned Judge."
39. In 2001 (6) Supreme 265 (supra), it was held that the arbitral tribunal under the Arbitration and Conciliation Act has the power to rule on its own jurisdiction even when no objection with respect to the existence or validity of the arbitration agreement is raised. In (2007) 4 S.C.C. 599 (supra), it was held thus :
"Thus, the Chief Justice has to decide about the territorial jurisdiction and also whether there exists an arbitration agreement between the parties and whether such party has approached the court for appointment of the arbitrator. The Chief Justice has to examine as to whether the claim is a dead one or in the sense whether the parties have already concluded the transaction and have recorded satisfaction of their mutual rights and obligations or whether the parties concerned have recorded their satisfaction regarding the financial claims. In examining this if the parties have recorded their satisfaction regarding the financial claims, there will be no question of any issue remaining. It is in this sense that the Chief Justice has to examine as to whether there remains anything to be decided between the parties in respect of the agreement and whether the parties are still at issue on any such matter. If the Chief Justice does not, in the strict sense, decide the issue, in that event it is for him to locate such issue and record his satisfaction that such issue exists between the parties. It is only in that sense that the finding on a live issue is given. Even at the cost of repetition we must state that it is only for the purpose of finding out whether the arbitral procedure has to be started that the Chief Justice has to record satisfaction that there remains a live issue in between the parties. The same thing is about the limitation which is always a mixed question of law and fact. The Chief Justice only has to record his satisfaction that prima facie the issue has not become dead by the lapse of time or that any party to the agreement has not slept over its rights beyond the time permitted by law to agitate those issues covered by the agreement. It is for this reason that it was pointed out in the above para that it would be appropriate sometimes to leave the question regarding the live claim to be decided by the Arbitral Tribunal. All that he has to do is to record his satisfaction that the parties have not closed their rights and the matter has not been barred by limitation. Thus, where the Chief Justice comes to a finding that there exists a live issue, then naturally this finding would include a finding that the respective claims of the parties have not become barred by limitation."
In M/s. S.B.P. & Co. vs. M/s. Patel Engineering Ltd., J.T. 2005 (9) S.C. 219, the Supreme Court held as follows :
"Section 16 of the Act only makes explicit what is even otherwise implicit, namely, that the arbitral tribunal constituted under the Act has the jurisdiction to rule on its own jurisdiction, including ruling on objections with respect to the existence or validity of the arbitration agreement. Sub-section (1) also directs that an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract. It also clarifies that a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.
...
When the Tribunal decides these two questions, namely, the question of jurisdiction and the question of exceeding the scope of authority or either of them, the same is open to immediate challenge in an appeal, when the objection is upheld and only in an appeal against the final award, when the objection is overruled."
40. (2004) 11 S.C.C. 456 (supra) was relied on by the learned senior counsel appearing for STC to contend that the Court had the responsibility to direct restoration and recovery of properties or money. This was to show that even in the writ petition, the learned single Judge could have granted the monetary relief. (2004) 8 S.C.C. 236 (supra) was relied on to show that the law of restitution must be invoked when there is unjust enrichment. A.I.R. 1968 S.C. 522 (supra) was relied on and this deals with the impossibility of performance of a contract. (2005) 7 S.C.C. 605 (supra) was relied on to show the effect of fraud on proceedings and (1989) 2 S.C.C. 1 was relied on to show that one who knowingly enters into a contract with improper object cannot enforce his rights thereunder. 2003 A.I.R. S.C.W. 3041 was also relied on to show that the dispute relating to the legal validity of an arbitration agreement can be determined only by a Court and not by an Arbitrator.
41. We have disagreed with the findings of the learned single Judge that the goods are prohibited goods. We have also held that the question whether there was fraud must be decided only by a court of fact. If there is fraud, Section 19 of the Contract Act will come into play, which deals with voidable contracts. Therefore, assuming that fraud is proved, the contract only becomes voidable and not void ab initio. Therefore, the finding of the learned single Judge that the contract is void ab initio is also erroneous. The question whether there is unjust enrichment or whether NLC had knowingly entered into a contract which was incapable of being performed are all matters which can be decided only by adducing evidence. In view of the decisions cited above, even if the contract is void, the arbitral clause does not become void in any circumstance, and the parties would have to go before the arbitrator, who will decide whether the contract has become void.
42. In view of the fact that the disputed questions of fact cannot be gone into by this Court, the monetary relief was rightly declined by the learned single Judge and the finding of the learned single Judge is, therefore, confirmed.
43. For all the reasons stated above, W.A. No.1488 of 2007 is allowed and W.A. Nos.1502 and 1562 of 2007 are dismissed. The parties shall invoke the arbitration clause in the agreement and have the disputes resolved in accordance with law. No costs. Consequently, M.P. Nos.1, 1 of 2007 and 1 of 2008 are closed.
(A.P.S., C.J.) (P.S.D., J.) ab April 1, 2008 Index : Yes Website : Yes To 1. Union of India, Rep. by its Secretary, Ministry of Coal and Mines, Central Secretariat, New Delhi. 2. State Trading Corporation of India Limited, Having its Registered Office at No.1, Toistory Marketing, New Delhi-3. 3. Metal Scrap Trading Corporation (A Govt. of India Enterprise), 'Ranka Chambers', 31, First Floor, Cunningham Road, Bangalore-560 052. 4. The Director, Directorate of Revenue Intelligence, No.25, Gopalakrishna Iyer Road, T. Nagar, Chennai-17. 5. Neyveli Lignite Corporation Limited (A Govt. of India Enterprise), Disposal Wing, Marketing Branch, Card Complex, Office of the Deputy General Manager, Chemical Units, Neyveli-607 807. 6. Neyveli Lignite Corporation Limited, Having its Registered Office at 'Neyveli House', rep. by its Deputy General Manager, Chemical Units, 135, Periyar E.V.R. High Road, Kilpauk, Chennai-10. The Honourable Chief Justice and Prabha Sridevan, J. ab Pre-delivery Judgment in W.As.1488, 1502 & 1562 of 2007 Delivered on 01..04..2008