2021 (7) TMI 1436 - SCH - FEMA

Petitioner Granted Exemption from Pre-Deposit Requirement; Appeal Allowed Within Three Weeks Without Time Bar.

The SC dismissed the SLP, agreeing with the HC that the petitioner must pursue statutory remedies. The Court acknowledged the petitioner's lack of ... Requirement of pre-deposit - Availability of statutory remedy - petitioner would submit that the petitioner was in no way concerned with the affairs of the company after his resignation on 06.05.2006 much less with the agreement dated 21.06.2006. Further, even the earlier agreement was between the two companies to which the petitioner was not a signatory. As argued Petitioner has had no causal connection with the affairs of the company at the relevant time, which is allegedly involved in the commission of FEMA violations. If that is so, the petitioner cannot be compelled to pay pre-deposit amount even if he is driven to file the statutory appeal. HELD THAT:- Considering the arguments on both sides, in our opinion, for the stand taken by the petitioner, we direct the Appellate Authority to exempt the requirement of pre-deposit as regards this petitioner (M. Umesh), in case he resorts to remedy of appeal in light of the liberty given in terms of this order. In other words, the Appellate Authority shall not insist for pre-deposit requirement qua the petitioner herein, i.e. M. Umesh. Besides, the appellate authority shall not non-suit the petitioner for having filed the appeal beyond limitation as the petitioner was pursuing remedy before the High Court in the first place and thereafter before this court, after issuance of show cause notice. The petitioner through counsel assures to file the appeal within three weeks from today. If the appeal is filed beyond three weeks, the limited relief regarding limitation, in terms of this order, shall not apply and the entire limitation period be reckoned by the Appellate Authority. The Special Leave Petition is disposed of accordingly. Issues:1. Special Leave Petition (SLP) against High Court judgment requiring statutory remedy.2. Petitioner's lack of connection with company affairs and FEMA violations.3. Exemption from pre-deposit requirement for petitioner.4. Non-suiting petitioner for filing appeal beyond limitation.5. Discharge of Advocate-on-Record and representation by Official Liquidator.6. Liberty to file statutory appeal within three weeks.7. Appellate Authority's discretion on pre-deposit exemption.8. Consequences of not filing appeal within the specified time.Issue 1 - SLP against High Court judgment:The Supreme Court addressed a Special Leave Petition challenging the High Court's decision that the petitioner must pursue the statutory remedy due to the final order passed by the competent authority. The Court concurred with the High Court's view, leading to the disposal of the petition.Issue 2 - Lack of connection with company affairs and FEMA violations:The petitioner, represented by senior counsel Mr. Mukul Rohatgi, argued that they had no involvement in the company's affairs post-resignation and were not a signatory to the relevant agreements. The Court acknowledged the lack of causal connection between the petitioner and the alleged FEMA violations, leading to a direction to exempt the petitioner from pre-deposit if an appeal is filed.Issue 3 - Exemption from pre-deposit requirement:In consideration of the petitioner's arguments, the Court directed the Appellate Authority to waive the pre-deposit requirement for the petitioner, M. Umesh, if they opt for the remedy of appeal. This exemption was granted based on the petitioner's stance and liberty provided in the Court's order.Issue 4 - Non-suiting petitioner for limitation:The Court ensured that the petitioner would not be non-suited for filing the appeal beyond the limitation period, given their pursuit of remedies before the High Court and the Supreme Court after receiving a show cause notice.Issue 5 - Discharge of Advocate-on-Record and representation change:The application seeking permission to discharge Cyril Amarchand Mangaldas as Advocate-on-Record was allowed, and the Official Liquidator, Mr. M. Jayakumar, took over representation of the petitioner-company. Necessary amendments were directed to be made in the memo of petition.Issue 6 - Liberty to file statutory appeal within three weeks:The Court granted liberty to the petitioner in another SLP to file a statutory appeal within three weeks. It was emphasized that if the appeal is not filed within the specified timeframe, the relief regarding the limitation period may be withdrawn.Issue 7 - Appellate Authority's discretion on pre-deposit exemption:The petitioner was given the option to file a formal application before the Appellate Authority for exemption from paying 100% pre-deposit amount. The Court clarified that the decision on this application would be made based on its merits and in accordance with the law.Issue 8 - Consequences of not filing appeal within specified time:If the appeal is not filed within three weeks as directed, the limited relief concerning the limitation period may be withdrawn, and the appeal would proceed accordingly. The disposal of pending applications was also mentioned in the judgment.