1: bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2550 OF 1988 M/s.R.Dalpatlal & Co. ..Petitioner Vs. The State Trading Corporation of India & Ors. ..Respondents Mr.S.G.Kamdar, Senior Advocate with Mr.N.M.Shah for petitioner. Ms.S.V.Bharucha for respondent Nos.2 and 3. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 3RD MARCH,2010 ORAL JUDGMENT (PER : V.C.DAGA,J.) 1. The petitioner M/s.R.Dalpatlal & Co. is a Diamond Merchant dealing in export and import of Diamonds to various countries. According to the petitioner, on the basis of export effected in the year 1978-79, the petitioner became entitled to issuance of Export House Certificate since the petitioner had exceeded export than the statutory limit prescribed in the export policy. That respondent Nos.2 and 3 were bound and liable to issue the Export House Certificate however, they refused to issue said Certificate on the ground that the petitioner did not diversify exports. 2. The aforesaid refusal was subject of litigation in Writ Petition No.646 of 1985. The petitioner succeeded in the said litigation and directions were, ultimately, issued by this Court to issue Export House Certificate to the petitioner. It appears that pursuant to the said directions, the Export House Certificate was issued to the petitioner, annexed to the petition as Exhibit-C. 2: 3. It appears that, during the pendency of the petition, respondents came out with the policy of surrendering of unutilised and unavailed licences issued prior to 1994 vide its Circular dated 15th June, 1992 followed by another Circular dated 1st July, 1996. The petitioner claims that as per the said Circulars, the respondents were under obligation to pay 20% premium amount against the value of the licences which according to the petitioner is valued at Rs.1,63,87,900/-. The petitioner further submits that the licence of the petitioner was valid for the period of 12 months from 31st August, 1997. He, further submits that the petition was filed before the expiry of said licence period. The licence expired on 11th August, 1998 expired during the pendency of this petition. According to petitioner, as per the terms of the said circulars, the petitioners are entitled to enforce the terms thereof and entitled to claim 20% of the value of the licence. 4. Mr.Kamdar, learned Senior Counsel appearing for the petitioner submits that the relief claimed by the petitioner in the petition and question raised is squarely covered by the judgment of this Court in the case of W.P. No. 313 of 1996 decided on 27 th April, 2006 in the matter of M/s.London Star Diamond Company & Anr. Vs. The Union of India & Ors. (unreported). He, thus, submits that the petitioner is entitled to succeed in the petition for the reasons recorded in the said judgment. 5. At this juncture, we may place it on record that no return or counter affidavit in reply to the petition after admission is filed on behalf of the respondents. The entire claim of the petitioner is now based on the amended part of the petition in view of the subsequent event which required the petitioner to amend their petition. In spite of notice of the amended petition and amended prayer clause claiming 20% of the premium amount against value of the licence, no reply and/or counter affidavit or return to oppose the contentions raised in the amended petition or relief claimed therein are filed 3: by the respondents. Under these circumstances, we have no option but to treat all the allegations made in the petition as deemed admission on the part of the respondents. 6. The petitioner is perfectly justified in contending that in absence of specific denial, the claim of the petitioners is required to be treated as having been admitted by the respondents. Reliance is rightly placed on the judgment of the Apex Court in the case of Sushil Kumar Vs. Rakesh Kumar (Supra), wherein the Apex Court ruled that if allegations are not specifically denied in the written statement that the statements made by the petitioners is incorrect and if the denial is evasive and not categorical, then Court has to treat it as admissions made in the petition. It is no doubt true that the Apex Court in the said referred case was dealing with the Election Petition while making the aforesaid observations, however, the said observations are based on the provisions of Order VIII Rule 3 of the CPC. The principles thereof are very much applicable to the pleading in Writ Petitions. The Division Bench of this Court in the case of Sheshrao Nagorao Umap (Dr.) Vs. State of Maharashtra (Supra) dealing with the Writ Petition has specifically observed that the specific allegations made in the petition, not denied by the respondents should be treated as admitted by the respondent. The law in this behalf is well settled. In absence of specific denial on the part of the respondents with regard to the merits of the claim of the petitioner, we have no hesitation to hold that the respondents have admitted their claim. 7. Ms.Bharucha, learned Counsel for the respondent Nos.2 and 3 could not point out as to how the case of the petitioner is different than found in the judgment of this Court delivered in the case of M/s.London Star Dimond Co. She tried to place reliance on one of the judgments of the Apex Court in the case of Union of India Vs. M/s.Godrej Soaps Pvt. Ltd. AIR 1987 SC 175, which deals with the import of canalized item, however, the reliance placed on the said judgment is misplaced since that issue now in this case does not survive 4: in view of claim of the petitioner restricted to the refund of 20% premium amount against value of the licence. 8. The learned Senior Counsel for the petitioner submits that admitted by the licence has already been handed over to the Joint Secretary of Foreign Trade, Mumbai on 25th February, 1991. The said handing over of the licence has to be treated as surrender in favour of the Joint Director of Foreign Trade, Mumbai as held in the case of M/s.London Star Diamond Company (Supra). The observations made in this behalf in that judgment, reproduced hereinbelow are clear. “It is an admitted position that the additional licence No.A- 0223440 for a CIF value of Rs.33,66,109/- was issued to the petitioner on 27th April,1994. The said licence mentioned incorrect CIF value and, accordingly, the petitioner returned the same to the third respondent for correction of the CIF value by increasing it to Rs.39,32,242/-. When the amendment in the licence was pending, the REP circular No.12/94 dated 15th June, 1994 came to be issued by the Central Government. The said circular dated 15th June, 1994 provides that those exporters who have already filed their applications for grant of REP licence/exim scrip in accordance with the relevant instructions and which are pending for disposal, the payment of premium at he appropriate rate may be considered by the concerned licensing authority without insisting for the separate premium application. Since on 15th June,1994, the additional licence was already lying with the concerned authority for correction of the value and endorsement to that effect, it was not necessary for the first petitioner to make separate application for premium. The first petitioner's case is wholly and squarely covered by para 3 of the REP Circular No.12/94 dated 15th June, 1994. Instead of granting premium to the first petitioner alongwith the communication dated 11th July, 1994, the first petitioner was sent the additional licence with CIF value of Rs.39,32,242/-. We have no hesitation in holding that in view of the circular dated 15th June, 1994, it was incumbent upon the respondent No.3 to consider payment of premium straightway instead of making endorsement on the additional licence by correcting CIF value. The senior counsel for the revenue could not show any fault or default on the part of the first petitioner. 5: 9. The case of the petitioner is similar and identical. Hence, petitioner’s claim is squarely covered by the judgment of this Court in the case of London Star Diamond Co. (Supra) and the petitioner is thus entitled to relief in terms of prayer clause (bb). 10. In the result, rule is made absolute in terms of prayer clause (bb). In the event of non payment of premium within eight weeks from the date of receipt of the writ of this judgment, unpaid amount of premium shall carry interest @ 6% p.a. till payment in full and final. No order as to costs. (K.K.TATED,J.) (V.C.DAGA,J.)