TaxTMI 
TaxTMI 
2019 (10) TMI 961
X X X X Extracts X X X X
X X X X Extracts X X X X
.... appeals and as stated by the appellant, are being stated hereinafter. 2. The appellant is the agency for investigating the offence of money laundering. During the course of investigation Investigating Officer has located with properties acquired out of the proceeds of crime to the tune of Rs. 137 Crores. Therefore, the Provisional Attachment Orders under Section 5 of the Prevention of Money Laundering Act , 2002 (hereinafter referred to as "the PMLA"), were issued by the Investigating Officer. 3. According to the appellant, the charge against the University in every appeal is that it created global selling degrees, diplomas and certificate of various courses through its established network for which it has not been granted permission by any competent authority. The University engaged several Coordinators functioning all across India for conducting distance education courses. These Coordinators made payments to the University authorities on per student basis, after keeping their commission. 4. As offences under Sections 420, 467, 471, 120B of Indian Penal Code, 1860 (hereinafter referred to as "the IPC"), are scheduled offences, as mentioned in section 2 (1) (y) of the PML....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de above having regard to the nature of the lis and the anxiety expressed by the Petitioner-University; (iii) Soon after it is constituted, the Bench shall then issue notice upon the Petitioner-University and the Petitioner-University shall appear before the Bench and place before it all grievances expressed in the Petition; and (iv) Since the proceedings before the Adjudicating Authority was stayed by this Court by order dated 02-04-2015, the period of attachment prescribed under Sub-Section (1) of Section 5 shall exclude the period spent during the pendency of the case before this Court." 7. According to the appellant, the order of this High Court was complied, a Member (Legal) was appointed as provided under Section 6 of PMLA, and the matter was re-adjudicated and the Provisional Attachment Order was confirmed. Against the said Order, appeals were preferred by the respondents before the Appellate Tribunal, Prevention of Money Laundering (hereinafter referred to as "the Tribunal") on the ground that the said Confirmation Order was not passed by the Judicial Member. The Tribunal passed order on 15.06.2017 and remanded back the matter to the Adjudicating Author....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llate Tribunal is per incurium, as it has ignored the decision of Hon;ble Supreme Court in case of Pareena Swarup versus Union of India, and Director may take appropriate action to either get the order of the Hon;ble Tribunal stayed, modified, annulled or take appropriate action as deemed fit for giving effect to the Order of the Hon;ble Appellate Tribunal". (d) A letter dated 05.09.2017, was sent to Head Office of the Enforcement Directorate, New Delhi by Enforcement Directorate, Kolkata Zonal Office, seeking instruction regarding filing of appeal in Hon;ble Sikkim High Court or otherwise. (e) The Hon;ble Appellate Tribunal in appeals filed by Rai Foundation and five others directed the respondents vide Order dated 15.09.2017, to file reply within eight weeks and list the matter on 23.03.2017. (f) Shri N.K Matta, Department Counsel vide his opinion dated 09.10.2017, opined that "since it is difficult to give effect to the directions of the Hon;ble Sikkim High Court regarding Judicial Member we may either challenge the Order of the Hon;ble High Court before the Division Bench, with application for condonation of delay or the Central Government may pass an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Directorate, Kolkata to file Review Petition in Hon;ble Sikkim High Court. (t) Letter dated 05.07.2018, sent to Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim by Enforcement Directorate, Kolkata with request to draft a Review Petition. (u) Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim, vide his letter dated 17.07.2018, opined that there is no provision in Cr.P.C. 1973, for filing a revision petition against an order passed by High Court itself and further stated only recourse is to move the Hon;ble Supreme Court. (v) Letter dated 21.08.2018, sent to Sudesh Joshi, SPP by Enforcement Directorate, Kolkata with request to file review petition. (w) Learned Deputy Legal Advisor, Kolkata Regional Office, vide her opinion dated 23.08.2018, opined to file appeal against the order passed by the Tribunal. (x) That on the basis of the opinion dated 23.08.2018, Department decided to file an appeal before the Hon;ble High Court of Sikkim, and accordingly the Department approached the learned SPP;s of Gangtok for the purpose of filing the instant appeal. Further vide email dated 13.11.2018, learned Counsel Jig....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e PMLA, as this provision is not inconsistent with the provision of PMLA. She further submitted that though there is considerable delay in filing the appeals but in view of the fact that a huge amount is involved in the matter, the delay in filing the appeals should be condoned. She also submitted that the Hon;ble Apex Court in the matter of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation : MANU/SC/0487/2013: (2013) 7 SCC 439, has observed that the offences of money laundering are in a calculated manner serious threat to the economy of the country. She submitted that in these appeals more than 100 crores of rupees are involved, therefore, delay in filing the appeals deserves to be condoned. 13. Learned counsel for the appellant further referred the judgment in the matter of Principal Secretary, Transport Department, Government of Sikkim -Vs- Narmaya Das : 2006 ACJ 150, which reads as under: "10. As regards the sufficiency or otherwise of the cause shown in the present case for condonation of delay it is useful to refer to the following decisions of the Hon;ble Supreme Court in Ram Nath Sao Vs Gobardhan Sao. AIR 2002 SC 1201, wherein it has held as follows: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aw are involved the explanation furnished should not be brushed aside taking hyper technical view of the matter. It is indeed well-established that merits of the case may also be taken into consideration in excusing the delay. In Urban Improvement Trust V. Poonam Chand : AIR 1997 Raj 134, it has been held as follows: "(19) Now it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Limitation Act and dismissing appeals as barred by lapse of time, the courts of law are required to put a glance as a condition precedent on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merits ordinarily efforts should be made to decide the appeals on merits." In addition to the above, recent decision of the Hon;ble Supreme Court rendered in Divisional Manager, Plantation Division, Andaman and Nicobar V. Munnu Barrick : AIR 2005 SCW 109, leaves no room for doubt that where serious questions of law are raised by appellants the courts should take a liberal view on the application for condonation of delay. 13. .......... It is well settled that laches and delay defeats equity and justic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her submitted that if the applications for condonation of delay under Section 42 of the PMLA read with Section 5 of the Limitation Act are not considered by this Court, it will cause serious prejudice and respondents will sway away with the properties and will not be available for the purpose of trial. She also submitted that the proceeds of crime are more than 100 crores of rupees and the appellant has a very good case on merit, therefore, the applications for condonation of delay should be allowed. 15. Mr. Shakeel Ahmed, Mr. Ajay Rathi and Ms. Gita Bista, learned counsel for the respondents vehemently opposed the delay condonation applications. They submitted that provisions of Section 42 of the PMLA clearly mandates that the appeal has to be filed within 60 days but in terms of its proviso further 60 days' grace period can be granted by the High Court (who is appellate authority in terms of Section 42 of the PMLA) to entertain the appeal but not further period not exceeding to 60 days. The proviso to Section 42 of the PMLA makes the position crystal clear that the High Court, being an Appellate Court in terms of Section 42 of the PMLA, has no statutory power to allow the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....CC 791 : Commissioner of Customs and Central Excise Vs. Hongo India Private Ltd. & Anr., (vi) (2001) 8 SCC 470 : Union of India Vs. Popular Construction Co., (vii) (2009) 317 ITR 305 ALL : Commissioner of Income Tax-I & Ors. Vs. Mohd. Farooq & Ors., (viii) (1999) 8 SCC 532 : Lachhman Das Arora Vs. Ganeshi Lal & Ors., (ix) MANU/GT/0074/2014-By Principal Bench of National Green Tribunal consisting of Chairperson, Member Judicial and three Members (Expert) : Sunil Kumar Samanta Vs. West Bengal Pollution Control Board, (x) AIR 2017 KER 12 : Kavitha G. Pillai Vs. Joint Director, (xi) (2011) 15 SCC 30 : Ketan V. Parekh Vs. Special Director Directorate of Enforcement and Anr., (xii) (2017) 140 SCL 40 (Bombay) : Chhagan Chandrakant Bhujbal Vs. Union of India, (xiii) MANU/RH/0070/2019 : Anoop Bartaria Vs. Deputy Director Enforcement, (xiv) (2007) 2 SCC 322 : D. Gopinathan Pillai Vs. State of Kerala & Anr., and (xv) (2008) 7 SCC 619 : Tata Motors Limited Vs. Pharmaceutical Products of India Ltd. & Anr. 17. I have considered the submissions of learned counsel for the parties. 18. Against the order ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of sixty days, thus, the permissible limit of extended period of sixty days is permissible. The legislation has made it very clear that the High Court can allow appeal to be filed within a further period not exceeding sixty days. "not exceeding sixty days" clearly means that no appeal can be entertained after exceeding period of sixty days. 21. The Hon'ble Supreme Court of India has dealt with the issue of condonation of delay under section 35 of the Foreign Exchange Management Act, 1999, which is same as Section 42 of the PMLA, in a case titled as Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Anr., reported in (2011) 15 SCC 30. The Hon'ble Supreme Court of India held as under:- "18. The question whether the High Court can entertain an appeal under Section 35 of the Act beyond 120 days does not require much debate and has to be answered against the appellants in view of the law laid down in Union of India v. Popular Construction Co., (2001) 8 SCC 470 , Singh Enterprises v. CCE, (2008) 3 SCC 70, CCE & Customs v. Punjab Fibres Ltd., (2008) 3 SCC 73, Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169, CCE & Customs v. Hongo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in Union of India v. Simplex Infrastructures Ltd. [Union of India v. Simplex Infrastructures Ltd., 2016 SCC OnLine Cal 12045] is set aside and the appeal is allowed. The petition under Section 34 stands dismissed on the ground that it is barred by limitation. There shall be no order as to costs. " 24. Similarly in the matter of Bengal Chemists and Druggists Association vs. Kalyan Chowdhury : (2018) 3 SCC 41, the Hon;ble Supreme Court held that limitation period of 45 days in Section 421 (3) plus additional 45 days grace period are peremptory and mandatory nature and no further time can be granted beyond this total period. The Supreme Court held as under: "4. A cursory reading of Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply "as far as may be". In a case like the present, where there is a special ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days." The aforesaid judgment was reiterated and followed in ONGC Ltd. V. Gujarat Energy Transmission Corpn. Ltd. [ONGC Ltd. V. Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 : (2017) 3 SCC (Civ) 47] , SCC at para 5. 7. It now remains to deal with the decisions cited by the learned counsel appearing on behalf of the appellant. The first is the judgment in Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry [Guda Vijayalakshmi v. Guda Ramachandra Sekhara Sastry, (1981) 2 SCC 646 : (1981) SCC (Cri) 574] . In that case, a transfer petition was filed under Section 25 CPC, 1908 in this Court. A preliminary objection was taken stating that in view of Sections 21 and 21-A of the Hindu Marriage Act, 1955, Section 25 would not be applicable. This was turned down by this Court stating that Section 21 would not apply to substantive provisions of the Code as apart from procedural provisions. Equally, Section 21-A of the Hindu Marriage Act, 1955 only dealt with transfers "in certain cases". This being so, the wide and plenary power conferred on this Court to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... mandatory and peremptory language contained in Section 417(4) CrPC. This Court held that all periods of limitation are cast in such mandatory and peremptory language and, therefore, Section 5 could not be said to be impliedly excluded. 11. This case again is wholly distinguishable. It applies only to a period of limitation which is given beyond which nothing further is stated as to whether delay may be condoned beyond such period. In the present case, Section 421(3) does not merely contain the initial period of 45 days, in which case the aforesaid judgment would have applied. Section 421(3) goes on to state that another period of 45 days, being a grace period given by the legislature which cannot be exceeded, alone would apply, provided sufficient cause is made out within the aforesaid grace period. As has been held by us above, it is the second period, which is a special inbuilt kind of Section 5 of the Limitation Act in the special statute, which lays down that beyond the second period of 45 days, there can be no further condonation of delay. On this ground therefore, the aforesaid judgment also stands distinguished. 12. One further thing remains - and that is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. " 26. A larger Bench of the Hon;ble Supreme Court in Commissioner of Customs and Central Excise vs. Hongo India Private Ltd. & Another : (2009) 5 SCC 791, held that High Court has no power to condone delay beyond period specified in Section 35 H of the Central Excise Act. It is held as under: - "32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there....