IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17481 of 2010 1. J.J.EXPORTER LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT 1956 HAVING ITS REGISTERED OFFICE AT 23C, ASHUTOSH CHOWDHURY AVENUE, 2ND FLOOR, BALLYGUNGE, KOLKATA 2. SATYANARAYAN JHUJHUNWALLA S/O LATE KEDAR NATH JHUNJHUNWALLA RESIDING AT 9, RAJNIGANDHA, 25, BALLYGUNGE PARK, KOLKATA-700019. ................PETITIONERS. Versus 1. THE UNION OF INDIA FOREIGAN EXCHANGE MANAGMENT. 2. RESERVE BANK OF INDIA, CONSTITUTED UNDER THE RESERVE BANK OF INDIA ACT AND HAVING ITS OFFICE AT 15, NAETAJI SUBHAS ROAD AS WELL AS AT GANDHI MAIDAN PATNA THROUGH THE CHIEF GENERAL MANAGER. 3. DIRECTORATE OF ENFORCEMENT, FOREIGN EXCHANGE MANAGEMENT ACT, HAVING ITS PATNA'S SUB ZONAL OFFICE AT BSFC BUILDING 4TH FLOOR, FRAZER ROAD, PATNA-800001. 4. ASSISTANT DIRECTOR, DIRECTORATE OF ENFORCEMENT FOREIGN EXCHANGE MANAGEMENT ACT HAVING ITS OFFICE AT BSFC BUILDING , 4TH FLOOR, FRAZER ROAD, PATNA-800001 5. CITI BANK N.A., CITY CENTRE G.C-61, BANDRA KURLA COMPLEX BANDRA EAST, MUMBAI – 400051 THROUGH GENERAL MANAGER...........................RESPONDENTS. For the petitioners : Mr. Vinod Kanth, Sr. Advocate with Ms. Namrata Mishra, Advocate. For the Directorate of Enforcement : Mr. Raghib Ahsan, Sr. Advocate. For the R.B.I. : Mr. Chitranjan Sinha, Sr. Advocate with Mr. Kaushal Kumar Jha, Advocate. For the CITI Bank N.A. : Mr. Y.V. Giri, Sr. Advocate with Mr. Anshuman Singh, Advocate. P R E S E N T HON’BLE MR. JUSTICE S.N. HUSSAIN O R D E R 14/ 21.06.2011 Petitioner no.1 is a Company incorporated under the Companies Act, 1956 having its registered office at Calcutta and carries on business of exporting silk fabric and garments and for that purpose it enters - 2 - into long terms agreement with foreign buyers for export of such materials fixing price of the products in accordance with market situation prevailing at the relevant time and the fluctuations in the dollar rates vis a vis the Indian rupee. Petitioner No.2 is a Shareholder of petitioner no.1. 2. Respondent nos.3 and 4 are Directorate of Enforcement and its Assistant Director having Sub-Zonal Office at Patna, which had been established by the Central Government under section 36 (i) of the Foreign Exchange Management Act, 1999 (hereinafter referred to as „the FEMA‟ for the sake of brevity) for taking up investigation of contravention of the provisions of the Act or any rule, regulation, notification, direction or order issued in exercise of powers under the FEMA or contravention of any condition subject to which an authorization is issued by the Reserve Bank of India as provided under section 13 of the FEMA. 3. Respondent no.5 CITI Bank N.A. is a Banking Company constituted and registered in accordance with the laws of United States of America and is registered under the Banking Regulation Act, 1949 (hereinafter referred to as „B.R.A.‟ for the sake of brevity), as it carries its business in India also having its principal place of business at Mumbai and Kolkata and it is authorized by the Reserve Bank of India (respondent no.2) to deal in foreign exchange and foreign securities as authorized dealer under section 10 of the FEMA and it is also licensed under the B.R.A. and is bound by the provisions thereof. 4. This writ petition has been filed by the petitioners for a direction to the Reserve Bank of India (respondent no.2) and the Directorate of Enforcement (respondent nos.3 and 4) to mandatorily declare the Foreign Exchange Derivative Contracts – Master Agreement dated 25.05.2007 - 3 - (Annexure-1) entered between J.J. Exporter Limited (petitioner no.1) and CITI Bank N.A. (respondent no.5) as null and void and also to direct the Reserve Bank of India to declare the confirmatory contracts (Annexure 2 to 6) as illegal and void ab initio and direct CITI Bank N.A. not to enforce the same. The petitioners further sought relief of direction to respondent nos.2, 3 and 4 to get an independent enquiry done preferably by C.B.I. into the affairs of CITI Bank N.A. (respondent no.5) in respect of Foreign Exchange Derivative Contracts particularly in respect of petitioners and also to direct the respondents to give effect to the laws of India with respect to the relations between petitioner no.1 and respondent no.5. 5. Admittedly the petitioner Company has an account with CITI Bank N.A. and for the purposes of its business, petitioner no.1 approached respondent no.5 in May, 2007 for Foreign Exchange Derivative Contracts and accordingly Foreign Exchange Derivative Contracts – Master Agreement dated 25.05.2007 (Annexure-1) was approved by the petitioner at Kolkata and by respondent no.5 at Singapore and after its approval the said Master Agreement was executed at Singapore which is apparent from the execution portion at the end of the said agreement. Thereafter Foreign Exchange (FX) Contract Confirmations for five trades were also executed by the petitioners (Annexure-2 to 6) in confirmation of the Master Agreement for purchase and sale of currencies provided in the trades. 6. It is claimed by learned counsel for the petitioners that on or about 25.01.2009 the petitioners came to know from Electronic Media and Internet that derivative transactions like transactions between petitioner no.1 and respondent no.5 were contrary to the FEMA and the Derivative Contracts Regulation, hence he sent letter dated 02.02.2009 to respondent - 4 - no.5 informing about the same and asking not to act in furtherance thereof. Respondent no.5 by its letter dated 04.02.2009 replied that the said trades were not illegal and petitioner no.1 was obliged to act in accordance with the agreement and contracts which were valid. Thereafter the petitioner approached the other authorities but of no avail and hence the instant writ petition was filed. 7. The concern of the petitioners is that the derivative contracts entered into between petitioner no.1 and respondent no.5 being in violation of the FEMA, the Directorate of Enforcement (respondent no.3) should exercise its power under section 35A of the B.R.A. and should direct respondent no.5 to refrain from enforcing the said contracts as the same were per se illegal as the procedure prescribed under Schedule-1 of the Foreign Exchange Derivative Contract Regulations 2000 was not observed and the foreign banks have not made any assessment or investigation as required under the regulations for their objective satisfaction regarding the genuineness, specially when there was no declaration of exposure based on transactions entered into in the past and hence the transactions as derivative contracts were not permissible under Regulation-4. 8. It was also claimed by learned counsel for the petitioners that declaration of exposure is a sine qua non for booking foreign contract as laid down under paragraph-A(ii) of the R.B.I. Circular No.6 of 2007, but there was no declaration of exposure limits reached on past performance as prescribed therein. It was further asserted that under the Master Circular, the contracts were permitted to be booked up for one year only but some of the said contracts were for the tenure of two years which was in violation of Master Circular Clause 1(b) of the Reserve Bank of India. Furthermore in - 5 - the said derivative contracts, alternative clauses of the transactions booked under the past performance perspective permitted by the Reserve Bank of India or the transactions booked against the exposures referred to in the contract, had been kept in tact and neither of them had been scored out. 9. Although counter affidavits have been filed by respondent no.2 and respondent nos.3 & 4 to which replies and supplementary affidavits have also been filed by the petitioners, but much earlier to that an interlocutory application bearing I.A. No.10575 of 2010 had been filed on behalf of the CITI Bank N.A. (respondent no.5) raising an issue of jurisdiction claiming that Patna High Court had no jurisdiction to entertain this writ petition, because no part of the cause of action has taken place within the State of Bihar. He further claimed that for the same set of relief and for similar prayers the petitioners have already filed two suits; one bearing Title Suit No.664 of 2009 before 2nd Civil Judge (Senior Division) Alipore, Kolkata and the other bearing Suit No.1939 of 2010 in the High Court of Judicature at Mumbai under its ordinary original civil jurisdiction. Hence, he averred that the present writ petition before this court is not maintainable and this question be determined by this court by way of preliminary objection. 10. Learned counsel for respondent no.5 argued that the Master Agreement was executed by petitioner no.1 in Kolkata in the State of West Bengal and the other transactions were also entered into by petitioner no.1 in Kolkata where registered office of both the petitioners are admittedly located, but respondent no.5 executed Master Agreement in Singapore and entered into other transactions with petitioner no.1 at its treasury office at Mumbai, whereas each and every negotiation, discussion, - 6 - meeting, telephonic conversation, exchanges of correspondence or documents in any manner whatsoever as well as transaction of money in relation to the agreement/contracts were performed either in Mumbai or in Kolkata but never in the State of Bihar. 11. Learned counsel for respondent no.5 further claimed that in fact both the parties as per Clause 13(b) of the Agreement had agreed to have their disputes resolved through Foreign Arbitration under the aegis of London Court of Arbitration Rules in London and the decision of the Tribunal shall be final, binding, incontestable, to be enforced as a decree of a Court or used as a basis for judgment thereon in India or elsewhere and nothing contained in Part-I of the Arbitration and Conciliation Act 1996 of India shall apply to any Arbitration under the said Agreement. He also stated that although arbitral proceedings were going on in London and the petitioners were participating therein, but in breach of the said agreement the petitioners filed the aforesaid suit in the Civil Court Alipore, Kolkata challenging the transactions and also filed the other suit in Bombay High Court for a declaration that Bombay Courts were only competent courts which had exclusive jurisdiction with respect to any suit, action or any other proceeding relating to the Master Agreement. 12. Learned counsel for respondent no.5 also argued that according to Clause 13(c) of the Agreement it was specifically proved that subject to the provision of Clause 13(b) with respect to any suit, action or any other proceeding relating to the agreement in question including any arbitral proceeding, the courts of competent jurisdiction at Mumbai shall have exclusive jurisdiction in India. He also averred that no injunction or interim relief having been granted to the petitioners either by the Court of - 7 - Calcutta or by the High Court of Mumbai, the petitioners have illegally moved this court for the reliefs claimed therein. 13. Learned counsel for the Reserve Bank of India (respondent no.2) fully supported the objection of respondent no.5 regarding the question of maintainability of this writ petition and the jurisdiction of this court which he had also raised in his counter affidavit. 14. Learned counsel for respondent nos.1, 3 and 4 stated that they were not concerned with the instant question raised by respondent no.5 with respect to maintainability of the writ petition and jurisdiction of this court. However, he submitted that the prayer sought by the petitioners are contrary to the provisions of the FEMA as it required a complaint to be filed before the Adjudicating Authority and a show-cause notice to the person concerned and opportunity of hearing to all the parties. He further submitted that investigation is going on and only after completion of the investigation, matter can be proceeded under section 13 of the FEMA read with its Rules and hence declaration sought in the writ petition is misconceived and fit to be rejected at this stage as pre-mature. 15. Learned counsel for respondent nos.1, 3 and 4 further claimed that breach of the provision of the FEMA would attract penal consequences. He stated that repudiation of the contract by the petitioner was carefully gone into and considered by the authorities. There are to types of derivative contracts entered by the petitioner; one was forward contract on “Past Performance Basis” and the others were “Options”, but in the petitioners‟ case it was noticed that no past performance figure which could not exceed three years average or last year export were mentioned and no markings of past performance were shown in the contract, hence - 8 - investigation under section 37 of the FEMA was initiated and notice was issued to the petitioners and the Banks, but the said investigation under section 37 of the FEMA is yet to be concluded and only when respondent no.4 is satisfied on investigation that penalty proceedings under section 13 is required to be initiated, a complaint shall be filed before the Adjudicating Authority for the purpose of adjudication under section 13 of the FEMA. Neither any proceeding under section 13 of the FEMA has been initiated against the petitioners or against their banks nor any search and seizure have been conducted at the place of business of the petitioners or their bankers, hence he claimed that the writ petition is not maintainable and is pre- mature. 16. On the other hand, learned counsel for the petitioners, replying to the question of maintainability and jurisdiction raised by learned counsel for the respondents, submitted that the Master Agreement between the parties was a private agreement in a model form containing appendices and had no sanctity so far the Indian laws were concerned, nor they were binding in terms of the FEMA, but the hedging contracts being derivative contracts in accordance with the FEMA, the Indian laws including R.B.I. Acts and Rules would prevail and can be challenged in this court. He also referred to Regulation 2 (iv) of Foreign Exchange Management (Foreign Exchange Derivative Contracts) Regulations 2000 which was framed in accordance with the provisions of section 47 of the FEMA and which defined forward contract as a transaction involving delivery, other than cash or tom or spot delivery of foreign exchange. He also referred to Regulation- 3 and 4 of the said Regulations which provided that no person in India shall enter into a Foreign Exchange Derivative Contracts without prior - 9 - permission of the Reserve Bank of India and any such contract would be at the risk in respect of a transaction permissible under the Act, or Rules or Regulations or Directions or Orders made or issued thereunder. He also referred to Schedule-I and Schedule-II of the said Regulation which were with respect to Foreign Exchange Derivative Contracts permissible for a person resident of India and a person resident of outside India which provided their respective terms and conditions. 17. Learned counsel for the petitioners also argued that a contract has three ingredients, namely offer, acceptance and consideration which had been fully covered by the derivative contracts and the confirmatory contracts as the petitioners are exporters of silk fabrics to U.S.A. through respondent no.5 and in lieu thereof petitioners get dollars and hence all the three ingredients were covered in the said transactions and accordingly the provisions of the FEMA were fully attracted to the instant case and if anyone contravenes any provision of the Act or contravenes any rule, regulation, notification, direction or order issued in exercise of powers under the Act or contravenes any condition subject to which an authorization is issued by the Reserve Bank, he shall upon adjudication be liable to a penalty as per section 13 of the FEMA. 18. Learned counsel for the petitioners claimed that petitioner no.1 is a Company incorporated under the Companies Act 1956, having its regional office at Kolkata and its registered office in Bhagalpur and although petitioner no.2 is presently residing at Kolkata but he is a permanent resident of Bhagalpur Town in the State of Bihar falling within the jurisdiction of this court. In this connection, he relied upon two decisions of the Apex Court in case of Kusum Ingots & Alloys Ltd. vs. - 10 - Union of India and another, reported in (2004) 6 Supreme Court Cases 254 and in case of Alchemist Ltd. and another vs. State Bank of Sikkim and others, reported in (2007) 11 Supreme Court Cases 335. 19. Learned counsel for the petitioners also argued that petitioners are not raising any dispute rather they are seeking a mere declaration as per the specific provisions of law and for that purpose this writ petition is maintainable and this High Court has got appropriate jurisdiction to decide such matters in the facts and circumstances of the case mentioned above. So far the two suits at Kolkata and Mumbai are concerned, it was stated by learned counsel for the petitioners that they were filed in different situation and for the reliefs with respect to the cause of action which had arisen within their respective territorial jurisdictions and hence on their basis this writ petition cannot be adversely affected. 20. Considering the entire facts and circumstances of the case as well as the materials on record and the arguments raised by learned counsel for the parties on the question of maintainability of this writ petition and the jurisdiction of this court, it transpires that the instant writ petition has been filed by the petitioners not only challenging the confirmatory contracts (Annexure-2 to 6) but also challenging the main Foreign Exchange Derivative Contract – Master Agreement dated 25.05.2007 which were executed by respondent no.5 at Singapore and were executed by petitioner no.1 at Kolkata (West Bengal). There is no mention of town Bhagalpur of the State of Bihar in any of the said agreement or contract. 21. The petitioners have completely failed to show by any material whatsoever that any cause of action had ever taken place within the State of Bihar. On the other hand, the respondents have been able to show - 11 - that the agreements and contracts were executed by petitioner no.1 in Kolkata or in Mumbai and all negotiations, conversations, correspondences or documents and transactions were performed either in Mumbai or in Kolkata, but never in the State of Bihar. Admittedly the registered office of petitioner no.1 is situated at Kolkata and petitioner no.2 (shareholder of petitioner no.1) also resides at Kolkata. Petitioners may have factories all over India, but that cannot legally give them cause of action at all those places. 22. Admittedly petitioner no.1 had filed Title Suit No.664 of 2009 in the court of 2nd Civil Judge (Senior Division), Alipore (Kolkata) for a decree of Rs.81,15,475.00 and also for cancellation and adjudication of the International Swap Derivatives Association Master Agreement and letters along with interest pendete lite, further interest, injunction, attachment and other reliefs. In the said circumstances, the Master Agreement which is challenged in the instant writ petition, had been specifically challenged by petitioner no.1 in the aforesaid civil suit. 23. In addition to the aforesaid suit, petitioners had also filed another Suit No.1939 of 2010 in the High Court of Judicature at Mumbai in its ordinary original civil jurisdiction against respondent no.5 for the following reliefs: (a) That this Hon’ble Court be pleased to order and declare that the courts of competent jurisdiction at Mumbai, India have exclusive jurisdiction with respect to any suit, action or any other proceedings relating to the Master Agreement dated 25th May, 2007 including in relation to any Arbitration Award; (b) That this Hon’ble Court will be pleased to restrain the Defendant by itself, its officers, employees, servants, agents and assigns by a permanent order and injunction from in any manner whatsoever, directly or indirectly enforcing and/or seeking recognition of the - 12 - Final Award or any other Award or Awards that may hereafter be rendered in LCIA Arbitration No.91294 until such time the Plaintiffs or any of them are in any manner directly or indirectly prevented, by or at the instance of the Defendant either by an order of any court (including the said English Court order dated 15th April, 2010 in the Claim No.2010 FOLIO 458 of the High Court of Justice Queens Bench Division, Commercial Court) or otherwise however, from challenging the First Partial Award dated 11th March, 2010 in the courts of competent jurisdiction at Mumbai; (c) That this Hon’ble Court by a permanent order and injunction will be pleased to restrain the Defendant by itself, its officers, employees, servants, agents and assigns from in any manner whatsoever, directly or indirectly enforcing and/or seeking recognition of the Final Award or any other Award or Awards that may hereafter be rendered in the said LCIA Arbitration No.91294 in any Court or jurisdiction whatsoever within or outside India; (d) That this Hon’ble Court by a permanent order and injunction be pleased to restrain the Defendant by itself, its officers, employees and agents and assigns from in any manner whatsoever taking any steps or proceedings against the Plaintiffs or any of them in the High Court of Justice Queens Bench Division, Commercial Court or in any other Court in England and Wales or in any other jurisdiction outside Mumbai which in any manner prevent and/or seek to prevent or has the effect of preventing the Plaintiffs from pursuing the present suit, or any other suit, action, or proceedings relating to the Final Award or any other Award or Awards that may hereafter be rendered in the LCIA Arbitration No.91294 before the courts of competent jurisdiction at Mumbai; (e) That pending the hearing and final disposal of the present suit, this Hon’ble Court by a temporary order and injunction will be pleased to restrain the Defendant by itself, its officers, employees, servants, agents and assigns from in any manner whatsoever, directly or indirectly enforcing and/or seeking recognition of the Final Award or any other Award or Awards that may hereafter be rendered in the said LCIA Arbitration No.91294 in any court or jurisdiction whatsoever within or outside India; (f) That pending the hearing and final disposal of the present suit, this Hon’ble Court by a temporary order - 13 - and injunction will be pleased to restrain the Defendant by itself, its officers, employee, servants, agents and assigns from in any manner whatsoever taking any steps or proceedings against the Plaintiffs or any of them in the High court of Justice Queens Bench Division, Commercial court or in any Court in England and Wales or in any other jurisdiction outside Mumbai which in any manner prevents and/or seeks to prevent or has the effect of preventing the Plaintiffs from pursuing the present suit, or any other suit, action or proceedings relating to the Final Award or any other Award or Awards that may hereafter be rendered in the LCIA Arbitration No.91294 before the Courts of competent jurisdiction at Mumbai; (g) For ad-interim relief in terms of prayers (e) and (f) above; (h) For such further and other reliefs as the nature and circumstances of the case may require; (i) For costs of the suit. 24. In none of the aforesaid suits any mention with respect to any transaction, communication or agreement or contract within the State of Bihar had been made nor it was shown that the said matter in any manner was concerned with the town of Bhagalpur or the State of Bihar. Hence there was no occasion for the petitioners to file the instant writ petition merely because the said court did not grant any interim relief. Furthermore, the petitioners themselves claiming in Suit No.1939 of 2010 that the courts of competent jurisdiction at Mumbai (India) had exclusive jurisdiction with respect to any suit, action or any other proceedings relating to the Master Agreement dated 25.05.2007 in relation to any Arbitration Award for declaration of which they had also filed the suit at Mumbai, there was no occasion at all for them to file the instant writ petition at Patna. 25. In any view of the matter both the parties to the impugned agreement and contracts had specifically agreed as per Clause 13 - 14 - (b) of the Agreement that their disputes should be resolved through Foreign Arbitration under the aegis of