Tea Tec Exports v. Tea Board

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930** **WP(C).No. 28152 of 2005(B)** **------------------------------------** **PETITIONER(S):** **-----------------------** **TEA TEC EXPORTS, DHOLAKIA HOUSE, K.P.K. MENON ROAD, WILLINGDON ISLAND, COCHIN-682 003.** **BY ADV. SRI.PREMJIT NAGENDRAN** **RESPONDENT(S):** **------------------------** **THE TEA BOARD, 14, BTM SARANI (BRABOURNE ROAD), P.O. BOX NO.2172, CALCUTTA-700 001.** **ADV. SRI.A.M.SHAFFIQUE (SR.) FOR R1 SRI.E.K.NANDAKUMAR FOR R1 SRI.A.K.JAYASANKAR NAMBIAR FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 28152 of 2005(B)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - PHOTOSTAT COPY OF THE JUDGMENT IN ORIGINAL PETITION NO.9153 OF 1992 OF THIS HONOURABLE COURT DATED** **EXT.P2 - PHOTOSTAT COPY OF THE JUDGMENT IN WRTI APPEAL NO.363 OF 2004 OF THIS HONOURABLE COURT DATED** **EXT.P3 - PHOTOSTAT COPY OF THE ORDER DATED 9TH MARCH 2004 ISSUED BY THE RESPONDENT.** **EXT.P4 - PHOTOSTATE COPY OF THE LETTER NO. 17(30)/LC/2004/2465 DATED 31.03.2005 ISSUED BY THE RESPONDENT.** **EXT.P5 - PHOTOSTATE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 30.04.2005 ISSUED BY THE RESPONDENT.** **EXT.P6 - PHOTOSTATE COPY OF THE REMINDER SEND BY THE PETITIIONER TO THE RESPONDENT DATED 3.6.2005.** ## **RESPONDENTS' EXHIBITS:** **EXT.R1(a) - TRUE COPY OF SCHEME DATED 19.7.1988** ## **S.SIRI JAGAN, J ================== W.P(C)No.28152 of 2005 ================== Dated this the 24[th] day of October, 2008.** ## **J U D G M E N T** The petitioner is a firm engaged in the business of exporting tea as per a notification issued by the Government of India. The respondent was to frame a scheme that would give incentive to the exporters for promoting exports of Black South Indian Tea in bulk. Accordingly the respondent framed a scheme for payment of primary incentive for export of bulk tea of South Indian Origin. The petitioner exported 400 metric tonnes of tea, which export was eligible for incentive as per the said scheme. The export was to SHEMTO, Egypt. The incentive amount was Rs.4 lakhs. But the respondent, while not disputing the claim for incentive, informed the petitioner that as per the orders in the Government of India, the amount can be paid only to the trade representative of the Arab Republic of Egypt's Trade Centre situated at Calcutta. Repeated representations made by the petitioner to the respondent fell on deaf orders. Ultimately, the petitioner was **W.P(C)No.28152 of 2005** - 2 - forced to approach this Court by filing O.P. No.9153 of 1992. That original petition was ultimately disposed of on 18.11.2003, by Ext.P1 judgment, directing the respondent to consider the claim of the petitioner. Although the petitioner filed a writ appeal, in view of the clarifications made by the Division Bench, they chose to withdraw the writ appeal. Accordingly, by Ext.P2 judgment the petitioner was allowed to withdraw the writ appeal. In the subsequent proceedings before the respondent, the petitioner claims that they raised claim for interest also for delayed payment of incentive. Subsequently, by Ext.P3 order, the claim of the petitioner for incentive of Rs.4 lakhs was upheld and by Ext.P4, the cheque for Rs. 4 lakhs forwarded to them. By Ext.P5, the petitioner wrote to the respondent that their claim for interest has not been considered and therefore the interest on the amount also may be paid to them. Although, Ext.P6 reminder was issued interest was not paid. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: **W.P(C)No.28152 of 2005** - 3 - “a) to issue of a writ of mandamus or other appropriate writ, direction or order directing the respondent to pay a reasonable rate of interest on the incentive amount of Rupees Four Lakhs from 29.05.1989 to 31.03.2005. b) to award the cost of this petition to the petitioner.” Relying on the decisions of the Supreme Court in **India Carbon Ltd. and Others** v. **State of Assam** 1997 (6) SCC 479 and **Union of India and Others vs. Orient Enterprises and Another** 1998 (3) SCC 501, the learned Counsel for the respondent would submit that in respect of the payment of amounts under a scheme no interest is payable. 2. I have considered the rival contentions in detail. 3. I note that at no point of time, the respondent had any dispute as to whether the incentive was payable under the Scheme in respect of the export made by the petitioner. The only dispute they had was as to whom the incentive had to be paid. Assuming that the said dispute was genuine, the respondent had a duty to resolve that the dispute within a reasonable time. The respondent has not case that they finally decided the dispute either in favour or against the **W.P(C)No.28152 of 2005** - 4 - petitioner within any reasonable period. In spite of filing the writ petition before this Court the respondent had not woken up to resolve dispute that issue. They waited till this Court passed Ext.P1 judgment, directing them to consider the matter and pass orders. Nothing prevented the respondent from deciding the issue finally which they were legally bound to do, since they had been entrusted with the task of doing it by the Government of India as per the scheme framed in accordance with directions of the Government of India. The money to be paid as incentive was not the money of the respondent. The money was to be paid from the Government of India to the petitioner. The respondent was only a trustee for the money. As a trustee they had a duty to pay it to the beneficiary within a reasonable time. By no stretch of imagination can it be said that 16 years is a reasonable time. During this time, the petitioner was deprived of the use of money legally due to them and at the same time the respondent had the use of that money. Of course the learned Counsel for the respondent would contend that it cannot be **W.P(C)No.28152 of 2005** - 5 - said that the money was with them. But no such contention has been raised in the counter affidavit. Once it is admitted that the respondent themselves had no dispute as to the eligibility for payment of incentive for the export made by the petitioner, I must assume that the money was with the respondent. In any event as per the scheme they were the custodian of the amounts to be paid as incentive to eligible exporters. In that view, the respondent had used the money belonging to the petitioner for 16 years. Even if the action of the respondent was not deliberate there was abject negligence on the part of the respondent in not finally deciding the matter within a reasonable time. Ultimately they themselves decided that the petitioner is eligible for the money which decision should have been taken immediately when the claim for incentive was made by the petitioner. That being so, I am satisfied that the respondent should adequately compensate the petitioner for having been deprived of the use of money belonging to them. I am of opinion that an amount of Rs. 1.5 lakhs would be adequate compensation for the **W.P(C)No.28152 of 2005** - 6 - same. Accordingly, I direct the respondent to pay to the petitioner the said amount of Rs.1.5 lakhs within a period of two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. **S.SIRI JAGAN, JUDGE** rhs