ORDER
A.K. Sikri, J.
1. Apart from other questions, the main question which falls for determination in this writ petition is as to whether the instant writ petition is barred by res judicata/constructive res judicata. This and other related questions, the description of which would be given at the appropriate places, have arisen in the following factual matrix.
2. Respondent no.1 announced export policy Resolution 1970 relating to export promotion for the benefit of industrial exporters. From 1970 to February 1981 prices of domestic raw material consisting of various qualities of steel for the manufacture of hand tools were more or less competitive with the prices prevailing in the rest of the world. However, on 9th February, 1981 the Joint Plan Committee (hereinafter referred to as JPC, for short) announced a steep hike of 30% on the average in the administered prices of various qualities of steel. This led to the promulgation of the INTERNATIONAL PRICES REIMBURSEMENT SCHEME 1981 (hereinafter referred to as IPRS, for short) on 9th February, 1981. However, initially Carbon Steel Billets (CSB) and Chrome Vanadium Steel (CVS) were not included. CSB was added to the list to which IPR Scheme benefit was applicable by Notification dated 17th March, 1982 and CVS was added to this list by Notification dated 21st August, 1984.
3.IPRS was introduced for protection against price increase. As per the IPRS, after the exports are effected, the price difference between its “domestic price” and the relevant “international price” of the items mentioned therein was to be reimbursed to the exporters. The detailed procedure for such reimbursements was also prescribed in the IPRS in paras 2.4 and 2.7. Para 2.5 and 2.6 explained “domestic price” and “international price” as under:-
2.5 For reimbursement purposes, the “domestic price” for these categories would be the JPC plant price for these categories where JPC price control exists and SAIL price for other items prevailing on the date of exports. The domestic price will be exclusive of taxes like sales tax, octroi, etc.
2.6 The “International Prices” for various categories will be determined and announced for every month. The international price determined in respect of particular month would apply for reimbursement relating to shipments made in the second following month i.e. prices fixed for February, 1981 would apply for reimbursements on exports made during April, 1981. The procedure for fixation of “international price” as being finalised separately and will be intimated.
4. Although CSB was added in the list of dates/raw material to which IPRS benefit was applicable w.e.f. 17th March, 1982 and CVS was also added in the said list w.e.f. 21st August, 1984, no domestic price or international price was announced. However, significantly in the Notification dated 21st August, 1984 following lines were added “differential between indigenous and international prices shall be reimbursed on the basis of the differential on Mild Steel Billets (hereinafter referred to as MSB, for short).
5. Thereafter, Communication dated 10th December, 1985 was issued as per which government had decided to include an alloy and other steel including steel melting scrap under the IPRS, 1981 with the rider that the decision to include new categories of steel would be applicable on exports made on or after 10th December, 1985. Guidelines issued by IPRS dated 23rd July, 1981 were consequentially modified. Paras 2.5 of IPRS, 1981 relating to “domestic prices” and para 2.6 relating to “international price” were also modified by adding certain lines. Paras 3 and 4 of Communication dated 10th December, 1985 indicated the following addition to these paras:-
3. Following shall be added in para 2.5, “in respect of steel categories, made 2.1 (xiv) domestic prices will be announced every quarter based on the average domestic prices of bars of selected procedure of alloy and carbon steel in India. These prices shall apply for reimbursement relating to shipments in the following quarter.”
4. Following shall be added to para 2.6, “the international price for various categories of steel listed under 2.1 (xiv) will be announced every quarter. International price determined in respect of a particular quarter shall apply for reimbursements relating to all shipments made in the following quarters.”
6. Further in sub-para 3 of para 7 of Communication dated 10th December, 1985 it was mentioned that for steel melting scrap the domestic price will be the ruling price announced by Metal and Scrap Trading Corporation (hereinafter referred to MSTC, for short) prevailing on the date of export. The “international price” will be as per the public price announced on a monthly basis. After the issuance of aforesaid Communication/Notification dated 10th December, 1985 respondent started paying the petitioners benefit in respect of the exports of CSB and CVS from the date of issue of this Communication by calculating the price differential on the aforesaid basis. The petitioner started availing this benefit. However, in 1988 the petitioner filed Civil Writ Petition No. 2810 of 1988. We shall revert to the contents and prayer of this Writ Petition at the appropriate stage when we consider the issue of res judicata/constructive res judicata. This petition was dismissed in liming, without notice to respondents, by Order dated 14th December, 1988. Following Order was passed while dismissing the Writ Petition:-
“On 23rd July, 1981, the decision of the Government of India to include only certain categories of iron steel in the price protection scheme with effect from 9.2.1981 was circulated. Carbon steel and Chrome Vanadium Steel were not included in this list. However, these two items have since been included on 17th March, 1982, and 21st August, 1984 respectively.
We are not satisfied that merely because some discussion were going on, any promise was held out to the petitioner to come to the conclusion or have a legitimate expectation that the protection scheme would be made applicable to carbon steel and chrome vanadium steel with effect from 9th February, 1981.
Dismissed.
7. Petitioner filed Special Leave Petition No. 5355 of 1989 against the aforesaid Order which was also dismissed by the Supreme Court vide order dated 5th February, 1990 by observing as under:-
“This is an application for Special Leave arising out of the order of the High Court dated 14.12.1988. Having regard to the point urged before the High Court, as it appears from the Judgment and order of the High Court and Special Leave Petition, and in view of the order of the High Court, we find no ground to interfere under Article 136 of the Constitution.”
8. The petitioner for a considerable period, maintained stoic silence after the aforesaid Order dated 5th February, 1990 was passed by the Supreme Court. May be it was thought that matter stood concluded. However, some ingenious thought prevailed and the petitioner again woke up. Believing that all was not over yet, it sent legal notice dated 10th October, 1991 to the respondents claiming that the petitioner was entitled to the benefit of full price differential in regard to the CSB and CVS w.e.f. 17th March, 1982 and 21st August, 1984 respectively. Interim reply dated 14th November, 1991 to this legal notice was sent by the Government stating that the matter was under examination. It was followed by detailed reply dated 2/10th December, 1992 rejecting the request of the petitioner, inter alia, mentioning as under:-
“In the absence of a suitable system for working out domestic and international prices of carbon quality steel and chrome vanadium steel, it was decided that a minimum possible difference (which applied to MS Billets) was to be paid as reimbursement under IPRS for these item. When the IPRS was extended to cover alloy steel items in 1985, it was decided with effect from 10.12.1985, to reimburse exporters the actual difference between the domestic and international prices of all varieties of alloy steel including forging quality carbon steel and chrome vanadium steel since a suitable system for working out the prices had since been formulated. Prior to that, as already stated above, a minimum possible difference (which applied to MS Billets) only was payable to the exporters for these two items.”
9. Still not satisfied the petitioner sent yet another communication dated 24th March, 1993 in response to aforesaid reply seeking certain clarification from the Government which was followed by reminder dated 7th July, 1993. Government shot back vide reply dated 29th July, 1993 to the petitioner reiterating its earlier decision conveyed vide letter dated 10th December, 1992. At this point of time the petitioners preferred the present Writ Petition dated 5th March, 1994.
10. In the counter affidavit filed by the respondents the main plea taken by the respondent is that the present Writ Petition is barred on principles of res judicata inasmuch as earlier Writ Petition No. 2810 of 1988 filed by the petitioner having been dismissed, petitioners were precluded from filing another petition on the same cause of action. It is also submitted that the petitioner is making money claim in the present petition which should not be entertained in a Writ Petition and the appropriate remedy is a civil suit. On merits also the respondents have disputed the entitlement of the petitioner to claim the benefit of CSB and CVS under the IPRS for the period prior to 10th December, 1985, in the manner claimed by the petitioner.
11. During the arguments it was admitted by the parties that following two issues need to be resolved in the present case and arguments were pressed on these issues:
1. Whether the present Writ Petition was barred by principles of res judicata/constructive res judicata, in view of dismissal of the earlier Writ Petition no. 2810 of 1988 by Order dated 14th December, 1988 and dismissal of Special Leave Petition by the Supreme Court against that Order vide Supreme Court’s Order dated 5th February, 1990?
2. Whether the petitioners were entitled to the benefit as per the IPR Scheme, 1981, w.e.f. 17th March, 1982 in respect of CSB and 21st August, 1984 in respect of CVS?
RES JUDICATA / CONSTRUCTIVE RES JUDICATA
12. In order to sustain the present Writ Petition, it was argued by Mr. Rajiv Nayyar, learned senior counsel appearing on behalf of the petitioner that the cause of action and the claim in the earlier Writ Petition was different than that of the present Writ Petition. Certain portions of the earlier Writ Petition particularly para 34 and sub-paras (a), (d) and (e) thereof as well as certain portions of para 35 were read out in support of this plea. Learned counsel also referred to the prayers made in that Writ Petition and referring to the aforesaid averments in the earlier Writ Petition it was sought to be argued that the subject matter of the earlier Writ Petition was entirely different. To substantiate this assertion, it was submitted that IPRS, 1981 was made effective from 9th February, 1981 and the petitioner wanted the benefit in respect of export of CSB and CVS also to be paid w.e.f. 9th February, 1981 i.e. from the date of institution of the IPRS. It was thus an attempt of the petitioner to get this relief in this Petition which was different from the one claimed in earlier Writ Petition and this would be amply clear from the Order dated 14th December, 1988 passed by the Division Bench of this Court dismissing the earlier Writ Petition wherein Court had held that it was not satisfied that there was any promise or legitimate expectation that Scheme would be made applicable to CSB and CVS w.e.f. 9th February, 1981. He further submitted that Notification dated 10th December, 1985 was infact an exercise by which certain more items of alloy steel were included in the IPRS and in so far as CSB and CVS are concerned, these items had already been included in the earlier w.e.f. 17th March, 1982 and 21st August, 1984 respectively. Therefore, this Notification did not alter the position. According to him, even in this Notification no mechanism to work out “domestic price” and “international price” was stated. Petitioner had been requesting for such mechanism to be prescribed. However, when no decision was taken till 1992 legal notice was sent and the preliminary reply of the Government to this legal notice also mentioned that the matter was under examination. However, only when final reply was given rejecting the claim that the cause of action accrued for claiming this benefit under IPRS, 1981. It was submitted that in the earlier Writ Petition the petitioners had submitted that CSB and CVS should have been included w.e.f. 9th February, 1981. But in the present Writ Petition petitioners were claiming the export benefit in respect of CSB and CVS items w.e.f. 17th March, 1982 and 21st August, 1984 respectively i.e. when these items were included in the IPRS. Therefore, it was submitted that petitioner was entitled to these benefit from these dates in any case and this relief being different from the relief claimed in the earlier Writ Petition, the dismissal of the earlier Writ Petition would not operate as res judicata.
13. In the alternative it was argued that even otherwise the earlier Writ Petition was dismissed in liming without even notice to the respondents and dismissal of the Writ Petition in liming would not operate as res judicata and present Writ Petition could be entertained.
14. Mr. Neeraj Kishan Kaul, learned counsel for the respondents, on the other hand submitted that the dismissal of the first Writ Petition by this Court would operate as res judicata because the relief which are sought in the present Writ Petition were claimed in the earlier Writ Petition as well. He referred to various averments made in the earlier Writ Petition and in the Special Leave Petition filed by the petitioner to demonstrate that the earlier Writ Petition was not only confined to giving effect to Notification dated 10th December, 1985 w.e.f. 1981 but the petitioner had also sought the benefit under the IPRS w.e.f. 17th March, 1982 in so far as CSB is concerned and 21st August, 1984 in so far as CVS is concerned. It was further submitted that this was even admitted by the petitioner’s own counsel in the legal notice dated 10th October, 1991 which was sent to the respondent before filing the present Writ Petition. Thus, when the point was raised in the earlier Writ Petition, even if it is presumed that it was not argued or not decided, the petitioner was still precluded from filing another petition claiming the same relief as it would be deemed that this relief claimed by the petitioner in the earlier Petition was declined. He referred to number of judgments of the Apex Court in support of this contention. He also submitted, in the alternative, that if it is presumed that the relief sought now was not the subject matter of the petition which was earlier filed and dismissed, filing of this Petition in the year 1994 and claiming the benefit on the basis of the Notification dated 10th December, 1995 for CSB w.e.f. 17th March, 1982 and for CVS w.e.f. 21st August, 1984 would suffer from delays and laches. Even on merits, he submitted, petitioner had no case.
15. After hearing both the counsel and perusing the records we are inclined to accept the submission of the respondent. At the outside it may be mentioned that the petitioner itself, in the legal notice dated 10th October, 1991 through its counsel mentioned about the scope of the earlier Writ Petition in the following words:-
“There were two patent illegalities and errors in the implementation of the IPR Scheme, 1981 by the Government of India.
First, the failure to implement the scheme with effect from 9.2.1981; and second, the implementation of the scheme in respect of price differential of chrome Vanadium Steel and Carbon Steel Billets only with effect from 10.12.1985 and not with effect from 21.8.1984 and 17.3.1982 respectively, as it was the price differential of some other commodity, namely, Mild Steel, Billets, which was reimbursed for the period 17.3.1982 and 10.12.19855 and 21.8.1984 to 10.12.1985 respectively for Carbon Steel Billets and Chrome Vanadium Steel.
These two illegalities were made the subject-matter of a writ petition (C.W.P.No.2810 of 1988) filed by my client in the High Court of Delhi. The High Court of Delhi dismissed the writ petition, and refused to give any relief in regard to the reimbursement under IPRS, 1981 for the periods 9.2.1981 to the respective dates, when Carbon Steel Billets and Chrome Vanadium Steel were included under the IPRS, 1981, which was the subject matter of a separate ground raised in the writ petition.”
16. Thus, according to the petitioner’s own stand there were two patent illegalities in implementation of IPRS, 1981 and both these illegalities were made the subject matter of Writ Petition No. 2810 of 1988. The second illegality which is specifically alleged related to the implementation of the IPRS in respect of the price differential of CVS and CSB w.e.f. 10th December, 1985 and not w.e.f. 21st August, 1984 and 17th March, 1982 respectively. This further becomes clear from the reading of the Writ Petition No. 281 of 1988 also and in particular paras 24, 25, para 26(4), 27, 32 as well as the prayer clause which are quoted below for ready reference:-
24. As would appear from the above narration of facts the Ministry of Commerce, Government of India, has been used to taking half-hearted, adhoc type and intermittent decisions which accommodated, from different dates, the claims legitimately put/ the petitioner Company and pursued through the EEPC. However, on 10th December, 1985, the Government decided to include both the above categories of steel consumed in manufacturing hand tools for exports under IPRS 1981 and from that date onwards, the formula urged by the petitioner company all along to be the correct one, has been adopted. Reimbursements to the company and the Hand tool industry would thus be based upon the differential between the domestic price of Carbon Steel and Chrome Vanadium Steel and the international price of the same quality of steel as against the price differential relating to Mild Steel made in the past. Government have not however till now authorised full reimbursement on the basis of above correct formula from the date IPRS was implemented, that is, 9th Feb, 1981, -in respect to both Forging Quality Carbon Steel and Chrome Vanadium Steel to the petitioner company/hand tool manufacturers and exporters or at least from the date each of these qualities of steel was brought under the purview of the Scheme i.e. 17.3.82 and 21.8.84 respectively although it is not the case of the petitioner.
Apart from the letter dated 6th Jan. 1983 from the Ministry of Commerce, which was subsequently followed by other actions acceding progressively to the full demand of the petitioner company and Hand tools manufacturer exporters in general and petitioner in particular, the Government of India have not given any written communication, either to the petitioner company or to the EEPC or other hand tools makers rejecting the claim as aforesaid. Reference may be made however to a meeting taken by Mr.R.K. Dang, Addl. Secretary in the Ministry of Commerce, on 8th May, 1986, at which the then Joint Secretary in the Ministry, Mr.J.N. Ranjan, made the/ observations on the above issue:-
“That data submitted by individual units about losses incurred by them due to delay in implementation of IPRS was not adequate and the Government could under no circumstances, compensate for losses allegedly incurred by the industry on this account.”
25. It deserves notice that neither Ministry of Commerce not EEPC had ever asked for any data for deciding the issue in question from the petitioner company and the hand tool industry. Besides, no such enquiry was even called for as all the relevant data were already available to the Government through EEPC and JPC. It therefore transpires that a wrong reason was assigned by the distinguished Joint Secretary of the Ministry for not acceding to the legitimate demand of the Hand Tools exporter-manufacturers and the petitioner company as earlier on 10th December, 1985, the Ministry on its own had accepted all the / rightly made since inception of Scheme (1981) by the petitioner company, by correcting their past mistakes and without asking for any fresh data from the Hand Tools Industry or the petitioner company.
26. It is regretfully noted further that the Officials of the Ministry of Commerce have been changing the stand from the side of the Government at different times on the above issue and for this, no valid or logical reasons have ever been assigned by either the Spokesman of the Union Ministry of Commerce or the Engineering Export Promotion Council. This emerges from the following facts:-
(4) The Government on a review of its own, granted full reimbursement of price differential of like-to-like quality of steel with effect from 10th Dec., 1985 to the Hand Tools producers and exporters. But ignoring the claim of the petitioner and the Hand-Tool Industry to pay the amount due towards backlog for the period 9.2.1981 to 9.12.1985,the Govt. left this issue unsettled. These facts show that inspite of a clear promise and commitment by the Govt., the Hand Tools manufacturers-exporters were made victim of the apathy and neglect by the concerned Officials of the Ministry of Commerce who acted dishonestly and unfairly for nearly five years thereby putting the Government in great embarrassment in relation to Hand Tools Industry and the EEPC.
27. The Union of India, through the Ministry of Commerce and EEPC have thus withheld arbitrarily and unjustifiably payment of an amount of Rs.2014.06 lakhs between 9.2.1981 and 9.12.1985, as this amount would have been paid to the petitioner company under the IPRS, if the decisions had been correctly taken and the formula of computation of the amount reimbursable to the petitioner and the Hand Tools Industry had been correctly made as has been actually done from 10th December, 1985.
32. The petitioner company has computed its net claim against the Government of India of the past outstanding dues under IPRS at Rs.2014.06 lakhs including interest @ 15%. This has been done, taking into account the following factors:-
a) Reimbursement in regard to forging quality carbon steel should be deemed as due since 9.2.1981;
b) Reimbursement as regards Chrome Vanadium Steel should also be deemed as due since 9.2.1981.
c) Difference between domestic price and ruling international price for both the above mentioned qualities of steel should be calculated on the basis of difference between the domestic price and ruling international price of like-to-like quality of steel and not mild-steel as has been wrongly done prior to 10 Dec. 1985.
The outstanding dues as aforesaid have been calculated for the period up to 9.12.1985 as since 10.12.85. the petitioner company is being reimbursed the dues under IPRS on full basis.
d) The details of the amount of Rs.2014.06 lakhs due to the petitioner company are furnished in a table separately annexed hereto for reference.
PRAYER CLAUSE:
(a) Issue a writ of mandamus and/or any other appropriate writ, order and/or direction directing the respondents to grant the benefit of the International Price Reimbursement Scheme 1981 to carbon steel and Chrome vanadium steel, used by the petitioner for export production, with effect from 9.2.81 in the manner prescribed in the memorandum dated 10th December, 1985, issued by the Government of India, Ministry of Commerce, and to direct payment of the amount of Rs.2014.06 lakhs to the petitioner as per the statement of claim filed by the statement of claim filed by the petitioner which includes the amount of interest @ 15% per year for the relevant period.
(b) Issue a writ of mandamus and/or any other writ, order or direction, directing the Respondents to give effect to its decision contained in letter dated 10.12.1985 from 9.22.1981:
(c) Pass such other or further orders as this Hon’ble Court may deem fit and proper.
17. Infact the tenor of the entire petition would show that the petitioner, in the earlier Writ Petition, wanted the benefits of IPRS, 1981 in respect of CSB and CVS for export production w.e.f. 9th February, 1981, in the manner prescribed in the Memorandum dated 10th December, 1985. The case set up by the petitioner was that the formula for granting this benefit, which was prescribed in the Memorandum dated 10th December, 1985 should be made applicable w.e.f. 9th February, 1981 when the IPRS, 1981 itself was introduced and in any case from the dates when CSB (i.e. 17th March, 1982) and CVS (i.e. 21st August, 1984) were included in IPRS, 1981. Reading of the aforesaid paras makes it clear that alternate submission of the petitioner was that although the two items were included in IPRS w.e.f. 17th March, 1982 and 21st August, 1984 respectively in the absence of formula at that time the petitioner was not given the benefit from these dates. The procedure was for the first time laid down in Memorandum dated 10th December, 1985 and petitioner wanted the benefit on the basis of formula contained in this Memorandum at least from the date of inclusion of the aforesaid two items in the IPRS, 1981. The reason for this was obvious. While including the CVS w.e.f. 21st August, 1984 and CSB w.e.f. 17th March, 1982 in the IPRS it was stated by the Government that the differential between the indigenous and international price shall be reimbursed on the basis of differential on Mild Steel Billets (MSB). There was no “international price” fixed or in existence at that time as per the formula contained in para 2.6 of the IPRS, 1981. This was introduced in 1985 and for the period up to 10th December, 1985 petitioners were reimbursed on the basis of differential on MSB. Petitioner wanted it on the basis of formula contained in Office Memorandum dated 10th December, 1985. The petitioner, in its zeal to get more benefit, claimed the same from 9th February, 1981 itself i.e. when the IPRS, 1981 was introduced. However, the alternative plea was that the formula contained in Office Memorandum dated 10th December, 1985 be applied at least from 17th March, 1982 and 21st August, 1984 for CSB and CVS respectively.
18. Therefore, it stands established that prayer which is sought to be made now was part of the earlier Writ Petition. This would be further borne out from the fact that the money which the petitioner claimed in the earlier Writ Petition namely dues to the tune of Rs. 2014.06 lakhs includes this period as well. It is on this premise that we have to decide the legal question of res judicata.
19. Once it is established that the relief now sought was the relief claimed in the earlier Writ Petition also, the answer to the legal issue would not pose any problem. In K.K. Modi versus K.N.Modi and others , Supreme Court stated the law on the point in the following words:
“Under Order 6 Rule 16, the court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure, (15th Edn., Vol.II, p.1179, note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process. In the present case the High Court has held the suit to be an abuse of the process of the court on the basis of what is stated in the plaint.
The Supreme Court Practice 1995 published by Sweet & Maxwell in paragraphs 18/19/33 (p.344) explains the phrase “abuse of the process of the court” thus:
“This term connotes that the process of the court must be used bonafide and properly and must not be abused. The court will prevent improper use of its machinery and will in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation. … The categories of conduct rendering a claim frivolous, vexatious or an abuse of process are not closed but depend on all the relevant circumstances. And for this purpose considerations of public policy and the interests of justice may be very material.”
One of the examples cited as an abuse of the process of the court is relitigation. It is an abuse of the process of the court and contrary to justice and public policy for a party to relitigate the same issue which has already been tried and decided earlier against him. The reagigation may or may not be barred as res judicata. But if the same issue is sought to be roagitated, it also amounts to an abuse of the process of the court. A proceeding being filed for a collateral purpose, or a spurious claim being made in litigation may also in a given set of facts amount to an abuse of the process of the court. Frivolous or vexatious proceedings may also amount to an abuse of the process of the court especially where the proceedings are absolutely groundless. The court then has the power to stop such proceedings summarily and prevent the time of the public and the court from being wasted. Undoubtedly, it is a matter of the court’s discretion whether such proceedings should be stopped or not; and this discretion has to be exercised with circumspection. It is a jurisdiction which should be sparingly exercised, and exercised only in special cases. The court should also be satisfied that there is no chance of the suit succeeding.
20. Similarly, the Constitutional Bench of the Supreme Court in the case of Daman Singh and others versus State of Punjab and others categorically held that even if a particular point was raised but not argued it would be treated as rejected. If a party had argued a particular point and it was not considered, the appropriate remedy was to file application for review or clarification. In para 13 of the aforesaid judgment following dicta was laid down:-
“The final submission of Shri Ramamurthi was that several other questions were raised in the writ petition before the High Court but they were not considered. We attach no significance to this submission. It is not unusual for parties and counsel to raise innumerable grounds in the petitions and memoranda of appeal etc., but, later, confine themselves, in the course of argument to a few only of those grounds, obviously because the rest of the grounds are considered even by them to be untenable. No party or counsel is thereafter entitled to make a grievance that the grounds not argued were not considered. If indeed any ground which was argued was not considered it should be open to the party aggrieved to draw the attention of the court making the order to it by filing a proper application for review or clarification. The time of the superior courts is not be be wasted in enquiring into the question whether a certain ground to which no reference is found in the judgment of the subordinate court was argued before that court or not?
21. In the present case no review petition was filed by the petitioner, after the dismissal of the earlier Petition by this Court on the ground that the point raised was not considered. On the contrary Special Leave Petition was filed where this issue was again raised as is clear from paras 174, 175, 177, 190 and 191 of the Special Leave Petition. But the Special Leave Petition was also dismissed. In the case of Government of Andhra Pradesh versus M. Narasimha Murthy it is held that if a question is raised and not decided it will be treated as decided against the petitioner and would operate as res judicata. To the same effect is the judgment of the Supreme Court in the case of Sobhag Singh and others versus Jai Singh and others and the case of Ashok Kumar Srivastav versus National Insurance Company Ltd. and others .
22. Since submission of the learned counsel for the petitioner that the question raised in the earlier writ petition were different is not factually correct, the judgment cited in the case of Life Insurance Corporation of India and another versus Gangadhar Vishwanath Ranade (dead) by LRs and the case of Jeypore Sugar Company Ltd. Versus Sales Tax Officer and others would have no application. We also do not agree with the submission of the learned counsel for the petitioner that since the earlier Writ Petition was dismissed in liming it would not operate as res judicata. In this case the earlier Writ Petition was dismissed by Order dated 14th December, 1988 and the persual of the Order shows that it is a speaking order whereby the contention of the petitioner was considered and rejected on merits. Same is found in Order dated 5th February, 1990 of the Supreme Court dismissing the Special Leave Petition filed by the petitioner against the aforesaid dismissal of the Writ Petition in such a case where the Writ Petition is dismissed may be without show cause notice, but on merits and by given reasons, dismissal of such a Writ Petition would operate as res judicata. If the contention of the petitioner is accepted it would lead to illogical consequences. Even after getting the Petition dismissed on merits, a party would still have right to file another Writ Petition on the same cause of action by contending that earlier Writ Petition was dismissed in liming and without notice to the other side. That would mean, to operate as res judicata, it is necessary for the Court to give notice to the respondents of other Writ Petition which is filed, invite counter affidavit and then decide the same even if the Court is of the opinion that the matter is hopeless and without merit and does not even warrant the issuance of notice. Such a proposition cannot be accepted. Even in the two cases cited by the petitioner namely, Pujari Bai versus Madan Gopal and Krishan Lal versus State of J & K the Court has held that the dismissal of the earlier Writ Petition would not operate as res judicata when there was no decision on merits. In the present case the earlier Writ Petition was infact “heard and finally decided” on merits.
23. This petition is, therefore, clearly barred on the principles of res judicata/constructive res judicata.
24. Infact there is force in the submission of learned counsel for the petitioner that the petition suffers from delays and laches as well. Even if it is presumed that the cause of action in the present petition is different than the grievance raised in the earlier Writ Petition, and that the petitioner had not claimed the benefit of price differential from 17th March, 1982 and 21st August, 1984, the earlier Writ Petition filed in the year 1988 for claiming the said benefit is highly belated. As per the petitioners’ own admission, petitioner started getting this benefit from 10th December, 1985 i.e. when Office Memorandum of even date was issued by the Government. If the petitioner started getting the benefit in the year 1985 and was not given the benefit from 17th March, 1982 and 21st August, 1984 with respect to two items i.e. CSB and CVS, respectively the cause of action accrued in favor of the petitioner in 1985 itself. Thus the Petition filed in the year 1994 would clearly suffer from laches and delays. Merely because the petitioner served a notice in the year 1991 which was replied to in the year 1992 and thereafter in January 1993 is not a satisfactory explanation for delay.
2. Whether the petitioners were entitled to the benefit as per the IPR Scheme, 1981, w.e.f. 17th March, 1982 in respect of CSB and 21st August, 1984 in respect of CVS?
24. Even otherwise petitioner’s claim for price differential w.e.f. 17th March, 1982 in respect of CSB and w.e.f. 21st August, 1984 in respect of CVS is not sustainable. As already pointed out above, when the CSB and CVS were included, it was categorically mentioned that the differential between the indigenous and international price shall be reimbursed on the basis of differential on MSB. On this basis petitioner has been given the benefit. His claim is for giving him the benefit in the manner prescribed in the Memorandum dated 10th December, 1985. Since prior to 10th December, 1985 international price was not available and the very basis on which, in the interregnum the benefit was to be given was stipulated in Memorandum dated 21st August, 1984 itself and was in fact given. Claim of the petitioner to get the benefit in the manner prescribed in the Office Memorandum dated 10th December, 1985 from a date anterior to the issuance of this Office Memorandum was categorically rejected by dismissing the earlier petition. The matter can be looked into even from another angle. Petitioner gets the benefit of price differential only because of IPRS, 1981 issued by the Government. But for that Scheme petitioner did not have any inherent right to receive any benefit. Para 2.10 of the IPRS even empowers the Government to modify the said scheme. Therefore it was the prerogative of the Government to prescribe as to what benefit is to be given to such exporters and on what basis. It could give the benefit in the form as prescribed in the Office Memorandum dated 21st August, 1984 i.e. other than international price. After all before the two items CSB and CVS were included in IPRS petitioner had no right to claim any benefit under the Scheme in respect of export of these items. Once these items were included it was within the power of the Government to prescribe the manner in which the benefit has to be given. The Government categorically decided as is clear from Office Memorandum dated 21st August, 1984 to reimburse the exporters on the basis of differential on MSB and the manner in which the benefit is to be given was changed by Office Memorandum dated 10th December, 1985 which would be applicable for exports made on or after this date. There was no vested right in the petitioner to claim the benefit in a particular manner, that too in the absence of any such prescription. Therefore, the petition seeking this benefit is even otherwise without any merit. In fact this could be added reason to conclude that the contention was raised in the earlier petition and was rejected on merits and therefore operates as res judicata.
25. From whatever angle the matter is looked into the present petition has no force. The same is accordingly dismissed with costs quantified at Rs. 10,000/-