TaxTMI 
TaxTMI 
1994 (7) TMI 87
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....make a provision for prohibiting, restricting or otherwise controlling, 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 coastwise or shipment as ship stores of goods of any specified description. In exercise of the said power, the Central Government has been controlling the export of goods from the country. Insofar as silver is concerned its export was completely prohibited till 1974. The said ban was lifted in February 1974. By notification dated August 26, 1976, the export of silver was canalised through the State Trading Corporation, appellant herein. The scheme for canalisation of export of silver through the appellant envisaged :- ....
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....mally not allowed to be exported. On February 20, 1979 the Chief Controller of Imports and Exports issued a Public Notice banning the export of these items with immediate effect. 5. The writ petitioners (respondents Nos. 5 and 6 in the appeals) had entered into contracts with the appellant prior to February 20, 1979 for supply of silver for the purpose of export. In view of the ban imposed on the export of silver by notification 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 notification dated February 20, 1979 i....
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....of the Contract Act due to impossibility of performance. This frustration is a complete defence to the enforceability of the contract between these two parties". 6. The appellant has filed these appeals only against the aforesaid observations of the High Court. While the appellant does not challenge the correctness of the observations of the High Court that the contract between the appellant and the foreign buyers has become impossible of performance and has become frustrated under Section 56 of the Contract Act, it seeks to protect itself against any claim by the foreign buyers since they were not parties to the writ petitions in the High Court and the appellant apprehends that if a claim is preferred against it the respondent suppliers w....
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....ebruary 20, 1979. In the said case an interim order had been passed by the Bombay High Court in writ petitions filed by the local suppliers wherein the High Court had restrained the implementation of the decision dated February 20, 1979 insofar as the contracts/licences specified in the notification were concerned and it was directed that local suppliers be permitted to export silver pursuant to the said contracts/licences. In the said case it was contended on behalf of the local suppliers that in view of the frustration of the contract between the appellant and the foreign buyers the obligation for indemnity in the contract between the local suppliers and the appellant was consequently absolved and that it was inequitable to keep the indem....
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....pellant remain operative and in the event of the appellant being held liable for damages in a claim by the foreign buyers the appellant should be entitled to reimbursement on the basis of the indemnity clause. The learned Additional Solicitor General has, in the alternative, submitted that the observations of the High Court may be clarifed so as to permit the appellant to raise the question in the event of such a contingency arising in future. 11. We, however, find that the question as to the applicability of the indemnity clause in the contract between the Indian suppliers and the appellant to claims by the foreign buyers against the appellant was not specifically raised before the high Court and the High Court has not dealt with the said....