FILE APPEAL WITHIN THE TIME LIMIT OF SECTION 35 OF FEMA-ELSE CONDONATION OF DELAY WILL NOT BE POSSIBLE

FILE APPEAL WITHIN THE TIME LIMIT OF SECTION 35 OF FEMA-ELSE CONDONATION OF DELAY WILL NOT BE POSSIBLE -

KETAN V. PAREKH & ORS v. SPECIALDIRECTOR, DIRECTORATE OF ENFORCEMENT & ANR [SC]

This case relates to Section35 of FEMA Foreign Exchange Management Act, 1999-- There was a delay of 2 years and 8 months' delay in filing appeal before the HighCourt- High Court declined to condone the delay - Whether decision of the High Court is correct- The Supreme Court concurred with the decision of the High Court

The defenedant held the plaintiff was  guilty of infringing the provisions of FEMA and levied penalty on them. TheAppellants contested he penalty before the Appellate Tribunal for Foreign Exchange and requested for cancelling with the need of pre-deposit of the amount of penalty.Appellate Tribunal ordered the Appellants to deposit fifty percent of the amount of penalty with a condition that if they fail to do so, the appeals will be dropped.

The Appellants contested the above verdict, by  filing writ petitions, before the Delhi High Court which set aside the writ petitions. Hence, the Appellants filed appeals under Section 35 of the Foreign Exchange and Management Act before the Bombay High Court. Defendants also filed applications for condonation of  2 years and 8 months' delay.The Division Bench of the Bombay High Court set aside  the applications for condonation of delay by citing that it does not possess authority to consider an appeal filed beyond four months and even though in terms of the autonomy given by the Delhi High Court, the Appellants could have made their appeals within one month, but they did not  do so and, hence,time lag in filing the appeals cannot be excused.

However , Supreme Court of India did not allow the appeal and set aside the appeal on the following elements:

 

Supreme Court was of the view that the applleants plaint did not even mention that they had been prosecuting a relief before a wrong forum before the Delhi High Court with good faith.

Further , the plaintiffs did not mention in their plaint that they lost time in fighting their case before the Delhi High Court.

This demonstrates that the Plaintiffs were trying to have cover under Section 5 of the Limitation Act, which, as emphasised before cannot be taken into account due to the wording  of Section 35 of the FEMA Act and elucidation  of analogues provisions by this Court.

Hence,the Division Bench of the Bombay High Court correcty pointed out  that even though the
dispute pertaining  to jurisdiction of the Delhi High Court to extend time to the plaintiffs to file appeals is highly controversial, the time mentioned  in the order given by the Delhi High Court
cannot be extended.

In view of the above discussion, we hold that the impugned order does not suffer from any legal infirmity.

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