C. Arasakumar alias C.A. Kumar vs Union of India

Somasundaram,, J.—The petitioner has filed the present writ petition for the issue of a writ of Mandamus for directing the respondent to pay

a sum of Rs. 26,586/- along with interest at 15% per annum from 21-12-1984 for Rs. 68,258/-.

The case of the petitioner is as follows : On 25-4-1970, the officers of the Director of Enforcement seized a sum of Rs. 29,176/- from the

petitioner on the ground that the petitioner had contravened the provisions of the Foreign Exchange Regulation Act 1973, hereinafter referred to as

''Act'' by bringing the amounts from Sri Lanka otherwise than through authorised channel. On 31-12-1976, the Assistant Director of Enforcement

passed an order confiscating the above mentioned amount and also levied a penalty of Rs. 18,000/-. Against the said adjudication order passed by

the Assistant Director of Enforcement, the petitioner filed an appeal before the Foreign Exchange Regulation Appellate Board under S. 52 of the

Act. The appeal was dismissed by the Foreign Exchange Regulation Appellate Board. Against that order the petitioner filed the appeal in C.M.A.

409 of 1980 under S. 54 of the Act, before this court. The said appeal was allowed by the Division Bench of this Court on 21-12-1984 (reported

in 1986 Cri LJ 647 . Against the judgment of this court in C.M.A. 409 of 1980, the respondent filed a petition for Special Leave to appeal in SLP

5802 of 1985 before the Supreme Court. The said SLP was dismissed by the Supreme Court on 7-9-1987. In the meantime, the petitioner filed

contempt Application No. 264 of 1987 before this court against the respondent for not complying with the directions by this Court in C.M.A. 409

of 1980 by returning the seized amount of Rs. 29,176/- and Rs. 10,000/-, being the penalty paid by him. Subsequently the sum of Rs. 10,000/-

deposited by the petitioner as penalty and the seized amount of Rs. 29,176/- together with interest on Rs. 2493/- were refunded to the petitioner

on 21-12-87. The said interest of Rs. 2493/- was allowed by the bankers on the seized amount of Rs. 29,176/- from the date of seizure till its

confiscation. The Division Bench of this court which heard the contempt petition No. 264 of 1987 while dropping the contempt proceedings

observed as under :

So far as the claim of interest is concerned as there is dispute with regard to the right of the claim of interest as made by the appellant/petitioner

and as there is no direction in the earlier order of this Court with regard to the payment of interest we are not inclined to decide that question in the

present contempt proceedings. It is open to the applicant to seek any other appropriate remedy, if available and if so advised, in respect of the

claim of interest"".

According to the petitioner, the respondent is liable under S. 42 read with S. 63 of the Act to pay the petitioner interest at 6% per annum on Rs.

29,176/- seized from him, from the date of seizure. Further the respondent is also liable to pay interest at the same rate on Rs. 10,000/- collected

from the petitioner as penalty from the date of collection. In paragraph 6 of the affidavit, the petitioner has computed the amount payable to him

with interest as hereunder :

According to the petitioner, after giving credit to the sum of Rs. 41,669/- refunded by the respondent to the petitioner on 21-12-1987, he is still

entitled to a sum of Rs. 26,586/- along with interest at 15% per annum from 21-12-1984 on Rs. 68,258/- till the date of payment.

The respondent filed a counter-affidavit contending that the seized Indian currency is not covered u/s 42 of the Act and that Section 42 deals

only with drafts, cheques, travellers cheques or other instruments and not the currency notes. It is further stated in the counter-affidavit that Section

42 of the Act has been envisaged with the object of avoiding drafts, cheques, travellers cheques and other instruments getting invalid or stale after

the prescribed period. The further case of the respondent is that the respondent could not comply with the directions given in C.M.A. 409 of 1980

immediately, because a SLP was filed before the Supreme Court against the judgment in C.M.A. No. 409 of 1980 and that the respondent was

waiting for the orders of the Supreme Court on the Special Leave Petition, and as soon as the SLP was dismissed, the respondent complied with

the directions given by this Court in C.M.A. No. 409 of 1980 by returning to the petitioner on 21-12-1987 a sum of Rs. 41,669/-.

The following two points arise for consideration in this writ petition :-

(1) Whether the petitioner is entitled to interest at the rate of 6% per annum on the amount of Rs. 29,176/- from 25-4-1970 and on the penalty

amount of Rs. 10,000/- collected from the petitioner, from the date of collection till 21-12-1984 i.e., the date of the judgment in C.M.A. 409 of

1980, u/s 42(3) of the Act, and interest at the rate of 15% per annum on Rs. 68,258/- from 21-12-1984 till the date of payment as claimed in the

writ petition ?

(2) To what relief if any the petitioner is entitled to in this writ petition ?

POINT No. 1 :- Mr. N. A. K. Sharma, learned counsel for the petitioner contended that on 25-4-1970 the Officers of the Director of

Enforcement seized a sum of Rs. 29,176/- from the petitioner on the ground that he contravened the provisions of the Act; by the order dated 31-

1-1976, the Assistant Director of Enforcement, confiscated the said sum of Rs. 29,176/- and levied a penalty of Rs. 18,000/-, pursuant to the said

order, the petitioner paid a sum of Rs. 10,000/- towards penalty levied on various dates; by the judgment dated 12-12-1984 in C.M.A. No. 409

of 1980 (reported in 1986 Cri LJ 647 a Division Bench of this Court set aside the order of confiscation passed by the departmental authorities and

directed the refund of the confiscated amount and the penalty deposited by the petitioner; u/s 42 read with Section 63 of the Act, the respondent is

liable to pay interest at 6% per annum on the amount of Rs. 29,176/- seized from the petitioner, from the date of seizure, and on the penalty

amount of Rs. 10,000/- from the date of collection of the penalty till the date of judgment in C.M.A. 409 of 1980. The learned counsel for the

petitioner further contended that Section 42 of the Act imposes a statutory obligation upon the respondent to pay interest at 6% per annum on the

amounts referred above. There is no merit in the contention of the learned counsel for the petitioner, because the plain language of Section 42 does

not support the contention of the learned counsel for the petitioner. Section 42 of the Act deals with encashment of draft, cheque (including

travellers cheques) or other instruments. Section 2(f) of the Act defines the term ""currency"" and it runs as follows :-

Currency"" includes all coins, currency notes, bank notes, postal notes, postal orders, money orders, cheques, drafts, traveller''s cheques, letters of

credit, bills of exchange and promissory notes.

Section 2(f) contains an inclusive definition of ''currency'' and it includes currency notes, drafts, cheques, travellers cheques etc. Though, currency

notes, drafts, cheques and traveller''s cheques come within the purview of the currency defined u/s 2(f) of the Act, Section 42 of the Act deals only

with certain specific category of currency, namely, drafts, cheques, traveller''s cheque and other instruments. Section 42 of the Act does not deal

with the other forms of currency like currency notes. Currency notes seized from the petitioner cannot be considered either as a draft, cheque,

traveller''s cheque or other instruments referred to in Section 42. Section 42(3) of the Act provides for payment of interest and Section 42(3)

reads thus :-

Where a direction is made u/s 63 or an order has been made under the Customs Act, 1962 to confiscated any draft, cheque (including traveller''s

cheques) or other instrument the proceeds of which have been realised under sub-section (1), such proceeds shall vest in the Central Government

and in all other cases such proceeds shall be paid to such person as may appear to the officer or the Court, who or which made the direction under

sub-section (1), to be entitled thereto in such currency and in such manner as he or it deems just together with interest at the rate of six per cent per

annum from the date on which such draft, cheque (including traveller''s cheques) or other instrument came into his or its custody till the date of

payment.

Sub-section (3) of Section 42 must be read along with sub-sections (1) and (2) of Section 42. Section 42(1) provides for encashment of seized

draft, cheque, (including traveller''s cheques) or other instrument, during the pendency of the investigation and the adjudication proceedings before

the departmental authorities and the proceedings before the Court of law. Section 42(1) says that when the seized draft, cheque, including

traveller''s cheque or other instruments are in the custody of an Officer of Customs or in the custody of an Officer of Enforcement or in the custody

of the Court, the Collector of Customs, Director of Enforcement and concerned Court respectively may be an order direct that the sum due under

such draft, cheque, (including traveller''s cheques) or other instruments be encashed either through the Reserve Bank or such other agency as the

Collector of Customs or Director of Enforcement or the Court as the case may be, deems fit. Section 42(2) of the Act provides that, any proceeds

realised in pursuance of a direction under sub-section (1) shall be kept in a separate account to be maintained by the prescribed authority in the

prescribed manner. Section 42(3) says that where a direction is made u/s 63 of the Act to confiscate any draft, cheque (including traveller''s

cheque) or other instruments, the proceeds of which have been realised under sub-section (1) of Section 42, such proceeds shall vest in the

Central Government and in all other cases, such proceeds shall be paid to such person as may appear to the officer or the Court, who or which

made the direction under sub-section (1) of Section 42, to be entitled thereto in such currency together with interest at the rate of 6% per annum

from the date on which such draft, cheque, (including traveller''s cheque) or other instruments came into his or its custody till the date of payment.

The expression ""such proceeds"" used in Section 42(3) of the Act refers only to the proceeds realised in pursuance of the direction u/s 42(1) of the

Act and kept in separate account as contemplated in Section 42(2) of the Act. Sub-sections (1) and (2) of Section 42 will not apply to currency

notes, because there is no question of encashing currency notes. Thus a combined reading of sub-sections (1), (2) and (3) of Section 42 would go

to show that Section 42(3) will cover only draft, cheque (including traveller''s cheque) or other instruments and it will not cover currency notes. As

rightly contended by the learned counsel for the respondent Section 42 of the Act has been envisaged with the object of avoiding all the drafts,

cheques and traveller''s cheques or other instruments getting invalid or stale after the prescribed period. Further Section 42(2) of the Act speaks

about the deposit of amounts realised by way of encashment of the drafts, cheques, traveller''s cheques and other instruments in a separate account

to be maintained in the prescribed manner which would necessarily fetch interest. There is no provision in the Act for depositing the seized

currency notes in a separate account and therefore the claim for interest on the seized currency notes from the petitioner cannot be countenanced.

As already pointed out, Section 42 refers only to drafts, cheques, and other instruments and it does not refer to currency notes at all. In these

circumstances, it has to be concluded that Section 42(3) does not provide for payment of interest on currency notes confiscated and the penalty

collected from the petitioner when the order of confiscation of currency notes and the imposition of penalty by the departmental authority is set

aside by the Court and when the Court directs the refund of the currency notes confiscated and the penalty collected.

Further the operative portion of the judgment of the Division Bench of this Court in C.M.A. No. 409 of 1980 reads as follows :-

.... we set aside the orders of the Foreign Exchange Regulation Appellate Board affirming the orders of the appellate authority and direct the

refund of the confiscated amount and penalty ...

A perusal of the judgment in C.M.A. No. 409 of 1980 shows that the petitioner has not even made any claim for interest on the amount ordered to

be refunded. As a matter fact, the Division Bench which heard and disposed of C.M.A. No. 409 of 1980 did not direct the payment of interest on

the amount seized and confiscated and the penalty collected from the petitioner while directing the refund of the said sums. The said judgment in

C.M.A. 409 of 1980 which does not provide for interest on the amounts ordered to be refunded has become final and the petitioner has not taken

the matter on appeal to the Supreme Court on the question of interest. When the judgment in C.M.A. 409 of 1980 has not made any provision for

interest on the amount ordered to be refunded has become final, it is not open to the petitioner to make a separate claim for interest alone by filing

the present writ petition. Therefore, there is no difficulty in coming to the conclusion that the petitioner is not entitled to claim interest at the rate of

6% per annum u/s 42(3) of this Act, on the seized amount of Rs. 29,176/- from 25-4-1970 and on the penalty amount collected from the

petitioner, from the date of collection till 21-12-1984 when the order of confiscation and imposition of penalty passed by the departmental

authority was set aside in C.M.A. 409 of 1980. Hence, the petitioner is not entitled to the amount as claimed in the writ petition. Though Section

42(3) of the Act does not provide for payment of interest on Rupees 29,176/- seized from the petitioner, a sum of Rs. 2493/- allowed as interest

by the bankers on 29-1-1976 from the date of seizure of the currency notes till the date of confiscation was also refunded to the petitioner while

refunding the sum of Rs. 29,176/- seized from the petitioner and Rs. 10,000/- collected as penalty from the petitioner pursuant to the judgment in

C.M.A. 409 of 1980.

Point No. 2 :- The next question we have to examine is, whether the respondent is justified in withholding the payment of the amount ordered to

be refunded to the petitioner by the judgment of this Court in C.M.A. 409 of 1980 dated 21-12-1984 till 21-12-1987 ? Whether it is a fit case

where the respondent should be directed to pay interest on the amount directed to be refunded by the judgment in C.M.A. 409 of 1980 from the

date of judgment till the date of actual payment of the amount on 21-12-1987 ? This Court by the judgment in C.M.A. 409 of 1980 dated 21-12-

1984 directed the respondent to refund the confiscated amount and the penalty collected from the petitioner. The sum of Rs. 29,176/- seized from

the petitioner was ordered to be confiscated by the departmental authorities on 31-12-1976. The petitioner also paid a sum of Rs. 10,000/- as

penalty on various dates. Admittedly the respondent refunded a sum of Rs. 41,669/- made up of the confiscated amount of Rs. 29,176/-, Rs.

10,000/- collected from the petitioner as penalty and Rs. 2493/- the interest on Rs. 29,176/- from the date of seizure till the date of confiscation

allowed by the banker only on 21-12-1987. The case of the respondent for not paying the amount ordered to be refunded to the petitioner by the

judgment in C.M.A. 409 of 1980 is that the respondent filed SLP No. 5802 of 1985 before the Supreme Court against the judgment in C.M.A.

409 of 1980 and was waiting for the orders on the Special Leave Petition; the SLP was dismissed by the Supreme Court on 7-9-1987 and

immediately after the dismissal of the Special Leave Petition, the respondent on 21-12-1987 paid the amount ordered to be refunded to the

petitioner and hence there is no mala fides on the part of the respondent in withholding the amount ordered to be refunded by the judgment in

C.M.A. 409 of 1980. When this Court by the judgment in C.M.A. 409 of 1980 set aside the order of confiscation and penalty passed by the

departmental authorities and directed the respondent to refund the confiscated amount and penalty to the petitioner, the respondent is under an

obligation to refund the sum of the petitioner with a reasonable time. Admittedly the respondent complied with the directions given in the judgment

in C.M.A. No. 409 of 1980 and paid the amount to the petitioner only on 21-12-1987, three years after the date of the judgment in C.M.A. 409

of 1980. The filing of the SLP before the Supreme Court against the judgment in C.M.A. 409 of 1980 is not a ground for not complying with the

directions given by the Court C.M.A. 409 of 1980 by refunding the amount of the petitioner, particularly when the respondent has not obtained

any order from the Supreme Court staying the operation of the judgment in C.M.A. 409 of 1980. Even if the respondent has filed the SLP before

the Supreme Court against the judgment in C.M.A. No. 409 of 1980, the respondent could have paid the amount to the petitioner after taking

sufficient securities from the petitioner for safeguarding the interest of the department, in the event of its success in the appeal before the Supreme

Court. The respondent is not justified in withholding the payment of the amount ordered to be refunded to the petitioner in C.M.A. 409 of 1980

for a period of three years from the date of judgment in the Civil Miscellaneous Appeal and thereby deprived the petitioner from having the benefit

of the amount for three years. In these circumstances, it has to be held that the withholding of the money ordered to be refunded to the petitioner,

by the judgment in C.M.A. 409 of 1980, for three years without obtaining any order from the Supreme Court staying the operation of the

judgment in C.M.A. 409 of 1980, is an unauthorised one and the respondent is liable to pay interest on the said amount to the petitioner.

Therefore, I am inclined to hold that this is a fit case where the respondent should be directed to pay interest at the rate of 12% per annum on the

sum of Rs. 39,176/- ordered to be refunded to the petitioner by the judgment in C.M.A. No. 409 of 1980 for a period of three years from 21-12-

1984, the date of judgment in C.M.A. 409 of 1980, up to 21-12-1987, when the amount was actually refunded to the petitioner.

In view of the above discussion, the respondent is directed to pay to the petitioner the interest at 12% per annum on Rs. 39,176/- for a period

of three years from 21-12-1984 to 21-12-1987, within a period of three months from the date of receipt of the copy of the order in this writ

petition and the writ petition is allowed to the extent indicated above. In other respects, the writ petition is dismissed. There will be no order as to

costs.

Petition partly allowed.