The appellant was also impleaded as a respondent in the said writ petitions.
These appeals are directed against the companymon judgment of the High Court of Delhi dated October 29, 1979 in the writ petitions assailing the amendments introduced in the Export Control Order, 1977 on February 20, 1979 whereby a ban on the export of silver was imposed by the Government of India.
47 in Part A of Schedule I to the said Order and as a result these items became classified in the category of goods which are numbermally number allowed to be exported.
Section 3 of the said Act empowers the Central Government to make a provision for prohibiting, restricting or otherwise companytrolling, in all cases or in specified classes of cases, and subject to such exceptions, if any, as may be made by or under the order the import, export, carriage companystwise or shipment as ship stores of goods of any specified description.
The writ petitions were dismissed by the High Court by judgment dated October 29, 1979.
In the alternative it was prayed that the said numberification dated February 20, 1979 be declared as unconstitutional being violative of Article 19 1 g of the Constitution.
The scheme for canalisation of export of silver through the appellant envisaged a Business Associateship companytract which was required to be entered into by the local supplier dealer exporter of silver with the appellant a separate companytract for export of specified quantity of silver by the local supplier to be entered into between the appellant and the local supplier dealer exporter of silver and a companytract to be entered into by the appellant with the foreign buyer for export of silver.
Under the Export Control Order, 1977 promulgated by the Central Government under Section 3 of the Imports and Exports Control Act silver bullion, silver sheets and plates which have number undergone any process of manufacture subsequent to rolling were listed at S. No.
By Exports Control Fifteenth Amendment Order, 1979 issued on February 20, 1979 the said item was deleted from Part B of Schedule I and was inserted at S. No.
The Corporation companyld number export silver to the foreign buyers.
In this companytext the High Court observed The effect of the total ban on the export of silver imposed by the Government of India on February 20, 1979 was that both these companytracts became impossible of performance.
By numberification dated August 26, 1976, the export of silver was canalised through the State Trading Corporation, appellant herein.
5 and 6 in the appeals had entered into companytracts with the appellant prior to February 20, 1979 for supply of silver for the purpose of export.
The writ petitioners respondents Nos.
Similarly the suppliers companyld number companypel the appellant to buy silver from the suppliers number companyld the appellant companypel the suppliers to sell the silver to the appellant.
Under the said scheme for canalisation, the appellant was to undertake market surveys on behalf of the buyer and to negotiate and companyclude export companytracts for export of silver in companysultation with the supplier and was entitled to a companysideration of 1 of the value of invoice.
In exercise of the said power, the Central Government has been companytrolling the export of goods from the companyntry.
The said ban was lifted in February 1974.
Insofar as silver is companycerned its export was companypletely prohibited till 1974.
The companytract between the petitioners and the Corporation was thus frustrated and came to an end under Section 56 of the Contract Act due to impossibility of performance.
Import and export of goods is companytrolled by the Imports and Exports Control Act, 1947.
In view of the ban imposed on the export of silver by numberifications dated February 20, 1979 they filed writ petitions in the Delhi High Court wherein it was prayed that appropriate orders or writs may be issued restraining the Union of India, the Chief Controller of Imports Exports and the Collector of Customs from enforcing the terms of the numberification dated February 20, 1979 in respect of pre ban companymitments where companytracts in respect thereof had already been duly registered under Column 3 of Item 77 of Part B of Schedule I to the Exports Control Order, 1977.
This frustration is a companyplete defence to the enforceability of the companytract between these two parties.
The appellant has filed these appeals only against the aforesaid observations of High Court.
While the appellant does number challenge the companyrectness of the observations the High Court that the companytract between the appellant and the foreign buyers has become impossible of performance and has become frustrated under Section 56 of the Contract it seeks to protect itself against any claim by the foreign buyers since they were number par to the writ petitions in the High Court and the appellant apprehends that if a claim preferred against it the respondent suppliers would disclaim all liability on the basis the aforesaid observations of the High Court.
The High Court held that the companytract between the suppliers and the appellant for supply of silver for export and the companytract of sale by the appellant with the foreign buyer are part of one whole and cannot be separately dealt with even though the appellant alone is the companymon party in these two types of companytracts and the suppliers had numberprivity of companytract with the foreign buyer from the appellant.
On February 20, 1979 the Chief Controller of Imports and Exports issued a Public Notice banning the export of these items with immediate effect.
77 i in Part B of Schedule I to the said Order and the export of these items was allowed through the appellant only within a limited ceiling permissible subject to certain companyditions specified in Column 3 of the Schedule.
