Dismissed

FPA-PMLA-933/DLI/2015 of Shri R.B. Singh.The Deputy Director, Directorate of Enforcement, Delhi. v/s Shri Om Prakash Nahar, New Delhi.

ATFP21 Oct 2016FPA-PMLA-933/DLI/2015

Case brief

AI extract

What is this about?

The Appellate Tribunal rejected a petition for condonation of a 204-day delay in filing an appeal under the PMLA. The petitioners, a government department, could not provide acceptable reasons beyond bureaucratic delays. Relying on Supreme Court precedents, the court held that the law of limitation binds government departments and dismissed the appeal.

What did the court decide?

Miscellaneous petition for condonation of delay rejected; appeal held not maintainable and dismissed.

FPA-PMLA-933/DLI/2015 of Shri R.B. Singh.The Deputy Director… — Money Laundering | ATFP (2016)

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APPELLATE TRIBUNAL,UNDER SAFEM (FOP) ACT AT NEW DELHI

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Date of Judgment: 21^st October, 2016

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MP-PMLA-1768/DLI/2015 (COD) in

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FPA-PMLA-933/DLI/2015

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Shri R.B. Singh. … Appellant/Applicant The Deputy Director, Directorate of Enforcement, Delhi. Versus Shri Om Prakash Nahar … Respondent New Delhi.

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri. N.K. Matta, Advocate
For the respondent	: Shri Jaiveer Shergill, Advocate
CORAM
JUSTICE MANMOHAN SINGH	: CHAIRMAN
SHRI G.C. MISHRA	: MEMBER
SHRI B.K. BANSAL	: MEMBER

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JUDGEMENT

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MP-PMLA-1768/DLI/2015 (COD)

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The application MP-PMLA-1768/DLI/2015 has been filed by the applicant Shri R.B. Singh, Deputy Director, Directorate of Enforcement, Zonal Office, New Delhi, for condonation of delay of 204 days in filing the appeal FPA-PMLA-933/DLI/2015 against the order dated 11.08.2014 passed in original complaint no. 282/2014 by Adjudicating Authority

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FPA-PMLA-933/DLI/2015

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Page 1 of 5

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under PMLA in the matter of Shri R.B. Singh, Deputy Director, Directorate of Enforcement v/s Om Prakash Nahar.

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The applicant has pleaded that the order dated 11.08.2014 was received in the office of the appellant/applicant on 30.09.2014 and appeal against the same was filed on 8.6.2015. It has been stated that there was no intentional or deliberate delay on the part of the appellant and the delay occurred due to time taken in deep examination and long deliberation required from one officer to another for the decision taking process in the Government Department, constitution of a Review Committee for examining the impugned order, deliberation of the review committee and communication of the decision for granting permission to file the appeal, drafting of appeal , preparation of necessary bills and cheques for the payment of requisite filing fees.

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The respondent has pleaded that the appeal has been filed after much delay without showing any sufficient cause and without any supporting documents.

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We have heard both the parties. The applicant has harped upon the point that he being a Government Department ought to be given allowance for delay in decision making by the Government and he should not be equated with a private citizen. The applicant has cited in his support the decision of the Hon‟ble High Court of the Karnataka in the case of Union of India v/s Suresh N. Shetty [1986(25) ELT657 (kar.) ], in which the Hon‟ble High Court condoned the delay of 77 days in filing the appeal observing that the appellants decisions were collective and institutional decision as distinct from individual decision and that the words “sufficient cause” must generally receive a liberal construction FPA-PMLA-933/DLI/2015 Page 2 of 5

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so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to appellant.

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The respondent on the other hand has vehemently opposed the contentions of the applicant and cited the decision of the Hon‟ble Supreme Court in Post Master General v/s Living Media India Limited[ (2012) 3 Supreme Court Cases 563] and State of Uttar Pradesh v/s Amar Nath Yadav [(2014) 2 Supreme Court Cases 422]. The respondent has relied in particular on paras 27 to 30 of the judgment in the case of the Post Master General v/s Living Media India Limited, which are reproduced below:-

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“27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

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28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal mechanically and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

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29. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities and unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/ years due to considerable degree of procedural red tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the Government department. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

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30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserable failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.”

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FPA-PMLA-933/DLI/2015

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It is an admitted fact in the case that there has been a delay of 204 days in filing the appeal. It is also a matter of fact that no supporting documents have been filed by the appellant showing “sufficient cause” as to how the appellant had been prevented from filing the appeal within the stipulated period of 45 days under sub-rule (4) of Rule 3 of PMLA (Appeal) Rules, 2005.

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The judgment of Hon‟ble High Court of Karnataka in the case of Union of India v/s Suresh N. Shetty relied upon by the applicant in which the High Court allowed the condonation of delay of 77 days in that case treating the functioning of the Government on a different footing vis. a vis. private citizen is of no avail to the applicant as the Hon‟ble Supreme Court in its recent judgments passed in 2012 in the matter of Post Master General v/s Living Media India Limited and in 2014 in the case of State of Uttar Pradesh v/s Amar Nath Yadav has held that the Government Department cannot claim that they have a separate period of limitation and in the absence of plausible and acceptable explanation the delay cannot be condoned mechanically merely because the Government or a wing of the Government is a party to the appeal. The Hon‟ble Supreme Court has further laid down that the claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The Hon‟ble Supreme Court also ruled that condonation of delay is an exception and it should be used as an anticipated benefit for the Government Departments and that the law shelter everyone under the same light and should not be swirled for the benefit of a few.

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FPA-PMLA-933/DLI/2015

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From the breakup and the reasons for the delay as given by the applicant in this case it is evident that there has been inexplicable delay of 204 days including 22 days in just sending the certified copy of the impugned order to the head office, 36 days in just sending a reminder letter to the head office, 23 days in communication of permission granted by the Director of Enforcement Directorate for filing the appeal to the concern officers, 104 days in just drafting the appeal and 26 days in getting the officials sanctions.

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We find that no proper explanation has been offered by the applicant for the delay except mentioning of various dates and the applicant has miserably failed to give any acceptable and satisfactory reasons sufficient to condone such a huge delay of 204 days.

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In view of the above the miscellaneous petition for condonation of delay is rejected.

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Accordingly the appeal FPA-PMLA-933/DLI/2015 is also found to be not maintainable and is dismissed.

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(Justice Manmohan Singh) Chairman

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(G.C. Mishra) Member (B.K. Bansal) Member New Delhi, 21^st October, 2016. „s‟

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FPA-PMLA-933/DLI/2015

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