2018 (9) TMI 932

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....65 lacs from the branch office of M/s DNV located in Mumbai, as the Regional Manager of M/s DNV had taken up the flat bearing no. No.24 on 20th floor, Kanchanjunga Mumbai for 36 months which belonged to Appellant‟s brother and sisterin law and who had signed a Power of Attorney dated 21.05.1987 in favor of Appellant. 3. The facts of the matter are that in the year 1987, a Flat bearing No. flat No. 24 on 20th Floor, Kanchanjunga, Mumbai being owned by Shri Rajesh Kantilal Patel and his wife Smt. Lekha Rajesh Patel, 57, Ennismore Garden, London (British National), was leased out to Shri Ulf T. Fredudandahl, Regional Manager of M/s Det Norske Verita in India (hereinafter referred to as M/s DNV) as per agreement dated 09.04.1987. The sa....

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....inst them. 6. The said Show Cause Notice was duly been replied by an Advocate of the Appellant being Shri H.C. Jain, vide his letter dated 19.9.91 and19.11.1991 and finally by the letter dated 19.03.1997, thereby denying the allegation of contravention of FERA provisions. M/s DNV and Shri Ulf. T. Fredendaul was also issued Show Cause Notices with regard to certain other contraventions made under FERA with regard to other transactions. 7. The respondent no. 2, after hearing the matter, vide its order dated 27.09.1997, erroneously held the Appellant, M/s DNV and Shri Ulf T. Freudendaul, guilty for the contravention u/s 9(1)(b) & 9(1)(d) r/w 68(1) of the FERA for the amount of Rs. 65,00,000/-. Accordingly, the Respondent N. 2 imposed the pe....

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.... M/s DNV after the expiry of 36 months. it is not disputed that the money has not been returned to M/s DNV after the expiry of 36 months. 14. There is no denial or any allegations of not returning the same had been casted on the Appellant in the Memorandum or in the impugned judgment. 15. There is also not denial that the security deposit money had been received in India by the Appellant from the branch of office of M/s DNV which was also located in India then and the Regional Manager who had taken up the flat also was in India during that relevant time. There was no transferred of money outside India nor came inside Inida from outside. 16. The entire case of the appellant is that the said Rs. 65 Lacs taken as security deposit was taken ....

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.... Thus, the benefit of doubt goes in favour of the appellant because as per facts of the present case, it would be that any security deposit taken for fulfillment of the terms and conditions would not attract any general or special permission of RBI to be taken. 22. The impugned order is not sustainable as the said caretaker agreement to be a lease agreement and likewise as security deposit as consideration, as the terms „receipts and payments‟ visualized in section 9 (1) (b) & (d) of the FERA Act means consideration. 23. It is merely in the case of lease agreement that vested right is created in favor of lessee but in the present case no vested right is created as the said caretaker agreement is only a leave and license agreem....