The Tribunal allowed an application to recall an order dismissing an appeal for non-prosecution, treating it as a restoration application due to unintentional absence, and fixed the appeal for future hearing.
Application for recall/restoration allowed; appeal fixed for hearing on 5th February, 2020.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
APPELLATE TRIBUNAL, FOREIGN EXCHANGE MANAGEMENT ACT AT NEW DELHI
MP-FE-524/MUM/2018 (Recall) MP-FE-117/MUM/2018 (COD) MP-FE-15/MUM/2015 (Rest.) MP-FE-109/MUM/2018 ( MISC.) FPA-FE-125/MUM/2002
Sh. Goldie Sud … Appellant
Versus
The Joint Director Directorate of Enforcement, Mumbai
… Respondent
Advocates/Authorized Representatives who appeared
For the appellant : Mrs. Nanita Sharma, Advocate Mr. Amar Deep Sharma, Advocate For the respondent : Mrs. Aagam Kaur, Legal Consultant CORAM SHRI G.C. MISHRA : MEMBER ORDER 16.09.2019
FPA-FE-125/MUM/2002
The matter is listed for hearing of application dated 19.08.2019 wherein it is prayed to recall the order dated 26.07.2019. No reply has been filed.
It is contended by the learned counsel for the appellant that the matter was dismissed for non-prosecution on 26.07.2019. It is revealed from that order that no one appears on behalf of the appellant on that date. During the course of the argument, the learned counsel for the appellant submits that she came to the Tribunal around 11:35 AM when the matter was already taken up and dismissed. In support of her contention she has filed the original entry pass which is available at Page No. 28 as Annexure-P-8. The entry pass shows the date 26.07.2019 and
FPA-FE-125/MUM/2002 Page 1 of 3
11:33 AM. The learned counsel for the appellant has filed the aforesaid application within 24 days. Her non-appearance in the case was unintentional. Since the appeal is not alive the only course left to the appellant is to file the application for restoration of the appeal. The application for recall is considered as an application for restoration of appeal. The learned legal consultant for the respondent raised the objection for the restoration of the appeal/recall of the order dated 26.07.2019.
I have heard both the parties, it is seen that the appeal is already pending since long. The matter has to be decided on merit, keeping in view of the laws involved in the present appeal. In the interest of fair and equity it is seen that there is no intentional default on the part of the appellant/counsel for the appellant to delay the proceeding. Hence, in the interest of justice and equity, the application for restoration of the appeal is allowed.
It is seen from the record that the initially the appeal was dismissed on 10.02.2010, on the ground of non-payment of Rs. 10,000/i.e. the cost imposed for restoration of the appeal. Thereafter, an application was filed on 08.09.2015 for restoring the appeal and the said appeal was taken up for hearing by Hon’ble Chairman on 13.11.2017. The Hon’ble Chairman after hearing held that the hearing of the appeal cannot be delayed in view of the minor lapses on the part of the appellant. Further, he went on record to pass the order that the amount deposited is taken on record. List the appeal for final hearing on 06.03.2018. Since, there was no specific words that the ‘appeal is restored’ so the Hon’ble Member was of the view that the restoration application is still pending. The appellant then filed an application before the Hon’ble Chairman seeking clarification of his order dated 13.11.2017
FPA-FE-125/MUM/2002
Page 2 of 3
which was taken up and decided on 17.09.2018. The following order was passed:
“ ORDER 17.09.2018
MP-FE-109/MUM/2018 ( Misc.) & FPA-FE-125/MUM/2002
The present application has been filed for clarification of order dated 13th November, 2017. The counsel for the respondent has no objection if the prayer is allowed. Order is passed accordingly. MP is disposed of. List this matter on 10th January, 2019 before Hon’ble Member Smt. Ananya Ray in Court No. II.”
The Hon’ble Member did not consider the fact that the appeal has been restored and again dismissed the appeal for non-prosecution which is the impugned order.
After hearing both sides and considering the different orders and material placed on record it is seen that the Hon’ble Chairman has accepted that the deposit of amount of Rs. 10,000/- and fixed the appeal for final hearing. In the giving situation, a court can fix a case for final hearing only after restoring the appeal to file. The intention, as it appears from the order that the Hon’ble Chairman’s intention was to restore the appeal and keep it for final hearing. I do not find any other interpretation in the given fact and circumstances of the case.
Therefore, in the interest of justice, the matter be fixed for hearing of the appeal.
List on 5th February, 2020.
(G.C. Mishra) Member
New Delhi, 16th September, 2019
‘K’
FPA-FE-125/MUM/2002
Page 3 of 3
2 issues framed by the court
Whether an application for recall of an order dismissing an appeal for non-prosecution should be allowed as an application for restoration.
Whether the intent of the Chairman to fix an appeal for final hearing after accepting fee deposit constitutes implicit restoration.
Goldie Sud
The Joint Director Directorate of Enforcement, Mumbai
G.C. Mishra
As recorded by the court registry
16 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
