2015 (9) TMI 338 - HC - FEMA

Court dismisses appeal (Crl.A.276/2012) for 832-day delay under FEMA rules, stresses timely actions.

DIRECTORATE OF ENFORCEMENT Versus HARMIT SINGH and ANR

The court dismissed the appeal (Crl.A.276/2012) due to an inordinate delay of 832 days in filing, beyond the prescribed limitation period under FEMA. The ... Application filed beyond period of limitation – Condonation of Delay – Appeal was preferred against final order of Tribunal which was allowed and order of adjudication was quashed – Aggrieved by said order of tribunal, appeal was filed before High court which is objected on ground that it has been preferred beyond period of limitation – Held that:- Apparently, appeal has been filed after inordinate delay of 832 days. Section 35 of FEMA permits appeal to be filed within 60 days from date of communication of order of Appellate Tribunal on any question of law – Proviso authorises High Courts to extend appeal to be filed within next 60 days, if it is satisfied that appellant was prevented by sufficient cause – Undoubtedly, Section 54 FERA permits appeal to be filed to High Court within 60 days – High Court shall not entertain any appeal under Section 54 if filed after expiry of 60 days unless High Court is satisfied that appellant was prevented by sufficient cause. Reasons given by appellant for delay in filing appeal do not constitute sufficient cause –Rather reveals that there was inaction and negligence on part of various officers – No attempt was made for long seven months to rectify it and refile appeal – Application for condonation of delay cannot be decided as matter of routine as vested right accrues in favour of opposite party and benefit of such right cannot be disturbed lightly – No merit found in application of appellant seeking condonation of delay – Accordingly, other applications are also dismissed – Decided against Applicant Issues Involved:1. Maintainability of the appeal due to delay in filing.2. Applicability of Foreign Exchange Regulation Act (FERA) vs. Foreign Exchange Management Act (FEMA) provisions regarding the limitation period.3. Sufficient cause for condonation of delay.Issue-wise Detailed Analysis:1. Maintainability of the appeal due to delay in filing:The appeal, Crl.A.276/2012, was filed under Section 54 of FERA against the Appellate Tribunal's order dated 09.09.2009. The respondents raised a preliminary objection regarding the maintainability of the appeal due to it being filed beyond the prescribed period of limitation. Under FEMA, no appeal can be preferred beyond 60 days from the date of communication of the decision, with an additional 60 days allowed for sufficient cause. The appeal was filed after an inordinate delay of 832 days. The appellant's counsel argued that the delay was due to procedural steps and correspondence between various departments and counsels, but the respondents contended that the delay was unreasonable and unjustified.2. Applicability of FERA vs. FEMA provisions regarding the limitation period:The appellant argued that the provisions of FEMA were not applicable since the appeal was filed under Section 54 of FERA. However, the court noted that the impugned order was passed by the Appellate Tribunal constituted under FEMA, making the provisions of Section 35 of FEMA applicable. Section 35 of FEMA allows appeals to be filed within 60 days from the date of communication of the decision, with an additional 60 days for sufficient cause. The court referred to the Supreme Court's ruling in Thirumalai Chemicals Limited vs. Union of India, which clarified that procedural laws, including limitation periods, apply retrospectively. Therefore, the limitation period under FEMA was applicable, and the appeal could not be entertained beyond 120 days.3. Sufficient cause for condonation of delay:The appellant's counsel provided detailed reasons for the delay, including procedural steps, changes in counsel, and internal departmental approvals. However, the court found that these reasons did not constitute sufficient cause. The delay was attributed to inaction and negligence on the part of various officers, with no sincere efforts made to rectify objections and refile the appeal. The court emphasized that applications for condonation of delay cannot be decided as a matter of routine, as vested rights accrue in favor of the opposite party, which cannot be disturbed lightly. The court cited previous judgments, including Directorate of Enforcement vs. Renu Vij, where similar delays were not condoned.Conclusion:The court dismissed the application for condonation of delay, finding no merit in the appellant's reasons for the delay. Consequently, the appeal (Crl.A. 276/2012) and the related application (CRL.M.A.3137/2012) were also dismissed as infructuous.