Judgment:
V.S. Aggarwal, J.
1. M/s. S.K. Trading Corporation, hereinafterreferred to as the plaintiff/petitioner has filed thepresent suit for permanent injunction seeking torestrain the defendants (Union of Indian and Anr.)from demanding a sum of Rs. 6,75,725/- which in fact ita wrong calculation towards the penalty imposedagainst the plaintiff on account of short shipmentduring the year 1994 under PP/PT and NQ/NT quota.
2. The facts alleged are that the plaintiff firmdeals in export of ready-made garments to UnitedStates of America under registration with the DirectorGeneral of Foreign Trade, Asaf Ali Road, New Delhi.The plaintiff was allotted Past Performanceentitlement/past performance transfer (or shortPPE/PPT) and Non Quota Entitlement/Transfer Quotaunder the country/category USA during the year 1994.The plaintiff firm utilised the quota and its over allutilisation was 77.97% in PP/PT and 80% in Non quotaentitlement/transfer quota system which was in termsof the agreement. Later on due to short shipment theApparel Export Promotion Council forfeited an amountof Rs. 9,57,013 by way of issuing a speaking order.The plaintiff/petitioner preferred an appeal againstthe said order before the Office of the TextileCommissioner, Mumbai as per the provisions of theGarments Export Policy. The said appeal was disposedof by the Office of the Textile Commissioner dated 9thFebruary, 1998. It was directed that proportionaterelief based on overall performance should be given.
3. Plaintiff contends that subsequently he wasdelivered a letter thereby requiring the plaintiff toremit a sum of Rs. 6,75,725/- against the penaltyimposed as per the order of the Office of the TextileCommissioner. The plaintiff aggrieved with the saidcalculation gave a representation vide the letter of21st March, 1998 addressed to the Joint Director withthe request to re-check at their end and issuerequisition based on calculation. As per thepetitioner/plaintiff the actual forfeiture whichshould have been as per the order of the commissionerwould be Rs. 2,10,434/-. The said representation wasduly received by the respondent. The plaintiff gaveanother representation to the Office of the TextileCommissioner but without doing anything, the plaintiffreceived a 15 days notice dated 16th May, 1998. Theplaintiff thereupon preferred an appeal before theSecond Appellate Committee, Govt. of India. It wasfinally disposed of on 16th July, 1999. But theplaintiff received another demand notice againdemanding Rs. 6,75,725/-. The said demand is stated tobe illegal and contrary to the order passed by theTextile Commissioner, Mumbai. Hence the present suit.
4. During the pendency of the present suit IA8710/99 had been filed seeking and interiminjunction to restrain the defendants from demanding asum of Rs. 6,75,725/- which is a wrong calculationbecause according to the petitioner the correctlycalculated amount has to be Rs. 2,10,434/-
5. In the written statement filed the civil suithas been contested by the Apparel Export PromotionCouncil. It has been pleaded that plaintiff has beenfalse facts and even concealed material facts. Whenthe plaintiff had preferred an appeal he himself hasadmitted before the Textile Commissioner thatforfeiture amount is Rs. 6,75,725/-. This fact hasbeen concealed from the court. The same amount isbeing demanded. It is denied that the defendant isdemanding an amount in excess or that calculationmade is not correct. By the present order is 8710/99is proposed to be disposed.
6. The main argument urged at the bar on behalf ofthe plaintiff/petitioner was that against the demandof defendant No. 3, Apparel Export Promotion Council ofRs. 9,57,013/-, the plaintiff had preferred an appealbefore the office of the Textile Commissioner. Thesaid appeal was disposed of by the Office of theTextile Commissioner on 9th February, 1998 anddefendant No. 3 was directed to give proportionaterelief based on overall performance. He contendedthat the overall performance was found to be 75% andabove in respect of the amount forfeited towards shortshipment. But in this regard it is unnecessary forthis court for purposes of the present order go tointo the details of the same. This is for the reasonthat the defendants learned counsel has drawn theattention of the court towards the calculation of theplaintiff given to the Textile Commissioner dt. 28thAugust, 1997. Therein regarding the forfeiture ofRs. 9,57,013/- the defendant while challenging the samestated that the total amount of Rs. 6,75,725/- is theactual forfeiture amount. Once the defendant hadadmitted and told the Textile Commissioner that as perhis own calculation Rs. 6,75,725/- is due indeed itlooks inappropriate in a suit for permanent injunctionto lay such a claim. Now it is being asserted thatlesser amount in fact is due.
7. Grant of an injunction or an ex injunction is anequitable relief. A litigant who approaches the courtis bound to produce all the documents written by himrelevant to the litigation. When he withholds adocument in order to gain an advantage on the orderside it must be taken to be playing a fraud on thecourt (S.P. Naidu v. Jagannath and Ors. : AIR1994SC853 .) Identical is the position herein. The plaintiff asalready referred to above did not refer to the saiddocuments which was in his own writing to theCommissioner at the time when he filed the suit.Consequently he is disentitled to claim an interimrelief.
8. There is another way of looking at the samecontroversy. The same being that the plaintiff knowsa specific amount that is being forfeited. In otherwords adequate monetary compensation can always beclaimed. The result would be that for purposes of thepresent order it can safely be stated that it cannotbe termed that if the injunction order is refused, theplaintiff cannot be compensated in terms of the money.
9. As an offshoot of these reasons it must be heldthat the plaintiff is not entitled to ad interiminjunction. The application referred to above isdismissed.
10. List before the Joint Registrar foradmission/denial of documents on 22nd March, 2002.