The High Court dismissed a writ petition filed by a company aggrieved by an order dismissing its appeal for non-compliance of a pre-deposit direction. The Court held that the petitioner misused the extraordinary jurisdiction after informing the Tribunal it would not comply with the pre-deposit order due to lack of funds.
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Mgn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1379 OF 2009
Shalini Exporets Pvt. Ltd...Petitioner
Vs.
1.Union of India & Ors...Respondents
Mr. Naresh S. Thacker i/b. Madhur R. Baya, for the
Petitioner.
Mr. P.S. Jetly with Mr. S.C. Pal and Mr. P. Khosla i/b.
Dr. T.C. Kaushik, for the respondents.
CORAM : F.I. REBELLO &
D.G.KARNIK, JJ.
P.C.
Rule. Heard forthwith.
2.The Adjudication Officer passed an order under the
provisions of the Foreign Exchange Regulation Act (FERA)
and Foreign Exchange Management Act, 1999 (FEMA). The
petitioner herein aggrieved preferred an Appeal before
the Tribunal which was numbered as Appeal No.243/05.
The Appellants moved by way of dispensation of pre-
deposit. By order dated 13th May, 2005 the Tribunal
passed an order to make pre-deposit of 30% of the amount
of penalty within 456 days from the date of the order
failing which the Appeal would be dismissed on that
ground alone.
3.The petitioner herein did not comply with the said
direction, but on 6thFebruary, 2006 moved a
Miscellaneous Application for Reveiw/Modification of the
order dated 13th May, 2005. By order of 18th July, 2008
after hearing the parties the learned Tribunal was
pleased to observe in para.8 that Appeal No.24305 is
required to be dismissed for non-compliance of pre-
deposit order dated 13th May, 2005.
4.It appears that there was also another appeal being
Appeal No.244/05 filed by the Director in the matter of
imposition of penalty which we need not advert to, but
may only mention that there seems to have been some
difference of opinion between the two Bench constituted,
whereupon the matter was referred to a third member and
consequently on decision of the third Member that appeal
came to be disposed of.
5.At the hearing of the appeal on behalf of the
petitioner the learned Counsel submits that the learned
Tribunal noted that the application for review or
recalling of the order it is repeatedly contended by
the Director that the appellant company has no financial
wherewithal with them to deposit the penalty. On
behalf of the appellant company this is what was
contended by the learned Counsel before the Tribunal.
�According to him, the appellant company is neither
capable nor intends to abide by the aforesaid pre-
deposit order�. In para.9 thereafter the Tribunal
dismissed the appeal for non-compliance of the order
dated 13th May, 2005.
6.The petitioner before us contendS that the appeal
could not have been dismissed. In our opinion this is
totally misuse by the petitioner herein of the extra
ordinary jurisdiction of this Court. After making a
statement before the Tribunal that they will not abide
by the order of pre-deposit such a petitioner cannot
move this Court and seek its extra ordinary
jurisdiction. In the light of the above, we dismiss
this petition.
(D.G. KARNIK, J.)(F.I. REBELLO,J.)
1 issue framed by the court
Whether a company can approach this Court for extraordinary jurisdiction after making a statement to the Tribunal that it has no financial wherewithal to abide by the pre-deposit order.
Shalini Exporets Pvt. Ltd
Union of India
F.I. Rebello
D.G. Karnik
As recorded by the court registry
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