Dismissed

FPA-FE-75/KOL/2006 of Shri Ashutosh Saha v/s The Joint Director Directorate of Enforcement, Kolkata

ATFP22 Mar 2018FPA-FE-75/KOL/2006

Case brief

AI extract

What is this about?

This order dismissed the appellant's Review Petition under FEMA. The Appellate Tribunal rejected the condonation of a nearly three-year delay in filing the review, finding the appellant's explanation of delayed notice receipt to be dishonest and contradicted by their own prior correspondence.

What did the court decide?

Miscellaneous Application for condonation of delay in filing the Review Petition was dismissed; accordingly, the Review Petition was also dismissed.

FPA-FE-75/KOL/2006 of Shri Ashutosh Saha v/s The… — Civil Procedure and Limitation | ATFP (2018)

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APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT AT NEW DELHI

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Date of Decision: 22.03.2018

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MP-FE-01/KOL/2012 FPA-FE-75/KOL/2006

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Shri Ashutosh Saha … Appellant Versus The Joint Director Directorate of Enforcement, Kolkata … Respondent

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Advocates/Authorized Representatives who appeared

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For the appellant	: Shri Jaideep Tandan, Advocate Alongwith Shri Ashutosh Saha, (in person)
For the respondent	: Ms. Aagam Kaur, Advocate
CORAM
MS. ANANYA RAY	: MEMBER
JUDGEMENT

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MP-FE-01/KOL/2012

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Vide order dated 21^st May, 2009 the erstwhile Appellate Tribunal for Foreign Exchange had dismissed the appeal for non-compliance of pre-deposit of penalty. They have filed a Review Petition on 20.12.2011requesting for recalling of the said order as well as condoning the delay in filing the Review Application.

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Brief facts are that the Appellate Tribunal vide its order dated 5^th July, 2006 rejected their application for waiver of pre-deposit and gave the appellant 45 days from that day to deposit the said penalty. It appears that this period was further extended vide the tribunal order

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FPA-FE-75/KOL/2006

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Page 1 of 7

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dated 19^th January, 2007 as recorded in the final order dated 21^st May, 2009. The final order reads as under:-

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“Para 4:- From the perusal of the above it is clear that it is the mandatory obligation on the part of the appellants to make pre-deposit of the penalty at the time of filing the appeal. This tribunal had shown enough latitude when permitting further period of 45 days vide order dated 19.01.2007”.

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However, at the time of passing the final order on 21^st May, 2009 they had still failed to make the pre-deposit amount as noted above. Accordingly the appeal was dismissed on 21.05.2009.

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They filed a Review Application on 20.12.2011 i.e. after more than two and a half years of passing of the order. In the said petition itself they have also requested for condoning the delay in filing the Review Petition stating that they did not receive the copy of the final order. The learned counsel for the appellant Shri Jaideep Tandan during the hearing stated the following:

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(a) That the order dated 21^st May, 2009 is bad in law in as much as they did not receive the copies of either order dated 19^th January, 2007 by which the extension of the period for the deposit was given by the Tribunal, nor the final order dated 21^st May, 2009.

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(b) That the final order breaches the principles of natural justice in as much as it is an ex-parte order and no one from the appellant is present on the said date.

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(c) He relied on the following judgement: (i) Kamlesh Ishwarbhai Patel Vs. Union of India of Delhi High Court decided on 6^th July, 2012. He FPA-FE-75/KOL/2006 Page 2 of 7

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referred to para 7 which relied on Thirumali Chemicals Ltd. Vs. UOI (2011) 6 SCC 739 wherein it was stated that the Tribunal can entertain the appeal after the prescribed period of 45 days if its satisfied that there was sufficient cause for not filing the appeal within the said period.

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(ii) High Court of Bombay decision dated 28.4.2015 Vinyl Chemical India Ltd. Vs. State of Maharashtra (writ petition no. 2774/2014) where it was held that what is relevant is as to whether a party seeking condonation of delay has made out a case of sufficient cause or not.

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(iii) The Supreme Court decision dated 19.02.1987 in Collector Land Acquisition Anantnag & Anr. V/s MST. Katiji and others; wherein the test of „sufficient cause‟ for condoning a delay in filing of appeal was the issue.

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He therefore argued that the powers of condoning the delay in filing the appeal was very much there with the appellate tribunal and in the present case the appellant being a poor man who was duped by his associates, because of his illiteracy and innocence is a sufficient cause for condoning the delay, and recalling the earlier order so that justice could be meted out to the appellant.

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In response the learned counsel for the respondent stated that the appellant is not an illiterate person as the appellant himself has signed documents and that he was the proprietor of a firm.

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She further stated that the 2006 pre-deposit order has not been complied with even today, a fact which is accepted by the appellant side. The Tribunal was very much within their rights to dismiss the appeal as FPA-FE-75/KOL/2006 Page 3 of 7

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per the provisions of Section 19 of FEMA. They have filed a Review Petition after almost three years of the final order. This itself will show that the appellant is not interested in following the order of this Court.

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I have carefully examined the case, the documents on record and have also gone through the judgements cited.

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It is a fact that the appellant has filed the condonation of delay in the same application in which they have filed the Review Petition.

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They have stated that they received the final order dated 21.05.2009 only on 14.12.2011 from the Officers of the Enforcement Directorate and immediately thereafter they filed the Review Petition. However they have submitted no facts, evidences or proof as to what happened on 14.12.2011. This appears to be a random date which is proved by their own letter dated 19.01.2011 addressed to the Registrar of the Appellate Tribunal signed by the appellant himself which reads as:- “I have come to know from the Directorate of Enforcement Calcutta Office that my appeal was dismissed by the Tribunal vide order dated 21.05.2009. I have not received copy of any such order….. Please supply me a copy of the order.” Exactly when and how he got to know is not spelt out.

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So in January 2011 the appellant writes a letter to the Registry about the said final order dated 21.05.2009 but in the Review Application says that he got to know about the said order on 14^th December, 2011. Moreover, there is available on record a copy of a letter in Subject “Appeal No. 75,76/2006” dated 26.05.2009 from the Asst. Registrar of the Appellate Tribunal addressed to the appellant stating “a FPA-FE-75/KOL/2006 Page 4 of 7

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certified true copy of the final order passed by the Tribunal on 21.05.2009 in the above mentioned RP/Appeal is forwarded herewith for information and necessary action.”

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All the above proves that the conduct of the appellant/his counsel has not been very honest and they have tried to misguide the tribunal. That they have failed to file a review petition within a reasonable time is apparent from above, and are now coming up with some ground or the other. The judgements relied upon by the learned counsel of the appellant during hearing as ground as quoted supra, do not help them as none of the Judgements deals with condonation of delay when the conduct of the appellant in making the said application is in doubt.

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Reliance is placed on the judgement of the Supreme Court in Civil Appeals nos. 8183-8184 of 2013 dt. 13.09.2013 in the case of Esha Bhattacharjee V/s. Managing Committee of Raghunathpur Nafar Academy & Ors. The principles that can be culled out are:-

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“(i) There should be a liberal, pragmatic, justice-oriented, nonpedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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(ii) The term “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

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FPA-FE-75/KOL/2006

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Page 5 of 7

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(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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(vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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(ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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FPA-FE-75/KOL/2006

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Page 6 of 7

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(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.”

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Moreover, even till date they have not done any pre-deposit.

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The Miscellaneous Application for condonation of delay in filing the Review Petition is therefore, dismissed. Accordingly Review Petition also gets dismissed.

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(Ananya Ray) Member

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New Delhi,

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22^nd March, 2018.

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„D‟

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FPA-FE-75/KOL/2006

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