2017 (8) TMI 1016 - HC - FEMA

Dismissal of Petition: Delay & Res Judicata Applied. Claims on FCNR/NRE Deemed Weak. Costs Imposed

N.L. Dubasia & 1 Versus Union of India THR' & 2

The court dismissed the petition primarily due to delay and the application of res judicata principles. The petitioners' claims regarding FCNR/NRE ... Provision of Section 78 of the Foreign Exchange Regulation Act, 1973 and Section 44 of the Act applicability - Held that:- The petitioner who had come to India from foreign country, wanted that their NRI Account/FCNR Account may be continued in the same status. It was a kind of privilege claimed. Such status could be accorded only within the permissible parameters and in accordance with law by the Reserve Bank of India. It is difficult to conceive that the petitioners' claim to maintain status of FCNR Account could be asserted as enforceable right. It was only a kind of benefit offered to such class of persons. The petitioners cannot enjoy such benefit when they did not comply with the conditions. For all the aforesaid reasons and grounds, the petition is bereft of merits. No relief is liable to be granted to the petitioner. Therefore, the petition is dismissed with cost of ₹ 20,000/- which shall be deposited by the petitioner with Gujarat High Court Legal Aid Committee on or before 31st August, 2017 and the receipt shall be produced with the Registry. Rule stands discharged. Issues Involved:1. Lack of proper pleadings and prayer in the petition.2. Maintainability of the petition due to inordinate delay.3. Applicability of principles of res judicata.4. Merits of the petitioners' claims regarding FCNR/NRE accounts and related reliefs.Issue-wise Detailed Analysis:1. Lack of Proper Pleadings and Prayer in the Petition:The court noted that the petitioners' pleadings were casual, clumsy, and lacking in legal quality, particularly due to the absence of an express prayer clause. Despite the petitioner's counsel pointing to paragraph 10 of the petition, the court found it vague and insufficient as it merely requested reliefs prayed for in another writ petition (Special Civil Application No. 1472 of 2003). The court considered dismissing the petition on this ground alone but chose to be lenient as the party initially appeared in person.2. Maintainability of the Petition Due to Inordinate Delay:The court highlighted that the petitioners were aware of the Reserve Bank of India's decision since at least 1993 but did not take timely action, waiting until 2003 to file the petition. The court emphasized that the petitioners' delay and lack of diligence in pursuing their claims were grounds for dismissal. The court referenced Supreme Court decisions in C. Jacob v. Director of Geology and Yunus (Baboobhai) A. Hamid v. State of Maharashtra to support this stance.3. Applicability of Principles of Res Judicata:The court observed that the petitioners had previously filed and withdrawn a similar petition (Special Civil Application No. 1472 of 2003) without liberty to file a fresh petition. The court held that the current petition was barred by principles of res judicata and analogous principles, as it was based on the same cause of action. The court cited precedents such as State of Tamil Nadu v. Amala Annai Higher Secondary School and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior to reinforce this conclusion.4. Merits of the Petitioners' Claims:The petitioners sought a direction for the respondents to refund amounts deposited in FCNR accounts and reconvert them at specific exchange rates. The court found that the petitioners' claims were untenable on several grounds:- The petitioners had failed to comply with the Reserve Bank of India's instructions to redesignate their accounts as resident accounts.- The petitioners did not avail the RIFEE facility despite repeated advice from the Reserve Bank.- The Reserve Bank's decision to deny the petitioners' requests was made in good faith and within the legal framework, as protected under Sections 44 and 78 of the Foreign Exchange Regulation Act, 1973.- The court noted that the petitioners' request for special treatment was an admission that they were not entitled to the claimed exemptions under the law.Conclusion:The court dismissed the petition on preliminary grounds of delay and res judicata. Additionally, the court found the petitioners' claims on merits to be weak and unsupported by law. The petitioners were ordered to pay costs of Rs. 20,000 to the Gujarat High Court Legal Aid Committee by 31st August 2017. The Civil Application No. 11929 of 2011 was also dismissed, except for two specific prayers.