* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 16th JANUARY, 2014
DECIDED ON : 24th MARCH, 2014
+ CRL.A. 295/2012
DIRECTORATE OF ENFORCEMENT ..... Appellant
Through : Mr.Subhash Bansal, Advocate.
VERSUS
DELCO PRECITONE JEWELLERS PVT. LTD. & ORS.
..... Respondents
Through : None.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Crl.A.295/2012 has been preferred under Section 54 of the Foreign
Exchange Regulation Act, 1973 (hereinafter referred to as `FERA') against
the final order dated 09.09.2009 of Appellate Tribunal for Foreign
Exchange, New Delhi in Appeal Nos. 532/2004 to 534/2004. The Appellate
Tribunal allowed appeals of the respondents and quashed the adjudication
order dated 20.01.2004.
CRL.M.A.3304/2012 (delay) in CRL.A. 295/2012
2. The application has been moved for condonation of delay of 804 days
in filing the appeal.
Crl.A.295/2012 Page 1 of 10
3. Learned counsel for the appellant (Enforcement Directorate) urged
that the Appellate Tribunal's order dated 09.09.2009 was communicated to
the office of the Enforcement Directorate on 20.10.2009. The appellant
decided to challenge the said order and sent the comments/ instructions to
the previous Standing Counsel. The detailed appeal was prepared and
transmitted to the department for approval of the competent authority. After
the final approval, the appeal was preferred in the High Court. Mr.Atul
Nanda, Central Government Standing Counsel informed the appellant that
the appeal was filed vide Diary No.183108/2010 and was lying under
objection in the High Court Registry. Thereafter, Mr.Atul Nanda was
designated Senior Counsel and the proposed appeal was returned to the
Litigation Section vide letter dated 11.07.2011 for allotting to some other
advocate. On 25.07.2011, Litigation Section (High Court) issued BT in
favour of Mr.Sachin Datta. He took steps for refiling the appeal alongwith
condonation of delay application. Correspondences were exchanged to
ascertain the status of appeal. Vide letter dated 15.12.2011, Mr.Sachin Datta,
Central Government Standing Counsel informed the department regarding
return of the brief along with transmission form to the Litigation Section
with the copies of the appeal, whereby he informed that the High Court
Crl.A.295/2012 Page 2 of 10
Registry refused to accept refiling without proof of original date of filing by
the previous counsel. The appellant department was left with no recourse
and vide letter dated 22.12.2011 a request was made to Mr.Atul Nanda to
submit proof of filing of the appeal and submit the original appeals received
under objection. The appellant then approached Litigation Section (High
Court) for appointment of another counsel. Vide letter dated 23.12.2011,
Litigation Section found that the other counsel had also declined to accept
the brief. The delay of 804 days in filing the criminal appeal occurred due to
the reasons enumerated in Annexure B2. There was no intentional delay on
the part of the appellant.
4. I have considered the submissions of the appellant and have examined
the record. Apparently, the present appeal has been filed after an inordinate
delay of 804 days. Section 35 of FEMA permits the appeal to be filed within
60 days from the date of communication of the decision or order of the
Appellate Tribunal on any question of law arising out of such order. The
proviso authorises High Courts to extend the appeal to be filed within next
60 days, if it is satisfied that the appellant was prevented by sufficient cause
from filing the appeal. Since the impugned order was passed by the
Appellate Tribunal constituted under FEMA, in my view, the provisions of
Crl.A.295/2012 Page 3 of 10
Section 35 of the FEMA are attracted and the period of limitation for filing
the appeal cannot be extended beyond 120 days.
5. In `Thirumalai Chemicals Limited vs. Union of India (UOI) & ors.',
2011 (6) SCC 739, the Supreme Court held :
"14. Substantive law refers to body of rules that creates,
defines and regulates rights and liabilities. Right conferred
on a party to prefer an appeal against an order is a
substantive right conferred by a statute which remains
unaffected by subsequent changes in law, unless modified
expressly or by necessary implication. Procedural law
establishes a mechanism for determining those rights and
liabilities and a machinery for enforcing them. Right of
appeal being a substantive right always acts prospectively.
It is trite law that every statute prospective unless it is
expressly or by necessary implication made to have
retrospective operation. Right of appeal may be a
substantive right but the procedure for filing the appeal
including the period of limitation cannot be called a
substantive right, and aggrieved person cannot claim any
vested right claiming that he should be governed by the old
provision pertaining to period of limitation. Procedural law
is retrospective meaning thereby that it will apply even to
acts or transactions under the repealed Act.
15. Law on the subject has also been elaborately dealt with
by this Court in various decisions and reference may be
made to few of those decisions. This Court in Garikapati
Veeraya v. N. Subbiah Choudhry and Ors. AIR 1957 SC
540, New India Insurance Company Limited v. Smt. Shanti
Mishra (1975) 2 SCC 840, Hitendra Vishnu Thakur and
Ors. v. State of Maharashtra and Ors. (1994) 4 SCC 602;
Maharaja Chintamani Saran Nath Shahdeo v. State of Bihar
and Ors. (1999) 8 SCC 16; Shyam Sundar and Ors. v. Ram
Kumar and Anr. (2001) 8 SCC 24, has elaborately
Crl.A.295/2012 Page 4 of 10
discussed the scope and ambit of an amending legislation
and its retrospectivity and held that every litigant has a
vested right in substantive law but no such right exists in
procedural law. This Court has held the law relating to
forum and limitation is procedural in nature whereas law
relating to right of appeal even though remedial is
substantive in nature.
17. Right of appeal conferred under Section 19(1) of FEMA
is therefore a substantive right. The procedure for filing an
appeal under Sub-section (2) of Section 19 as also the
proviso to Sub-section (2) of Section 19 conferring power
on the Tribunal to condone delay in filing the appeal if
sufficient cause is shown, are procedural rights."
6. It further held :
"19. Law of limitation is generally regarded as procedural
and its object is not to create any right but to prescribe
periods within which legal proceedings be instituted for
enforcement of rights which exist under substantive law. On
expiry of the period of limitation, the right to sue comes to
an end and if a particular right of action had become time
barred under the earlier statute of limitation the right is not
revived by the provision of the latest statute. Statutes of
limitation are thus retrospective insofar as they apply to all
legal proceedings brought after their operation for
enforcing cause of action accrued earlier, but they are
prospective in the sense that neither have the effect of
reviving the right of action which is already barred on the
date of their coming into operation, nor do they have effect
of extinguishing a right of action subsisting on that date.
Bennion on Statutory Interpretation 5th Edn.(2008) Page
321 while dealing with retrospective operation of
procedural provisions has stated that provisions laying
down limitation periods fall into a special category and
opined that although prima facie procedural, they are
capable of effectively depriving persons of accrued rights
Crl.A.295/2012 Page 5 of 10
and therefore they need be approached with caution.
25. The appellate Board under FERA, it may be noted stood
dissolved and ceased to function when FEMA was enacted.
Therefore, any appeal against the order of the adjudicating
officer made under FERA, after FEMA came into force, had
to be filed before the Appellate Tribunal constituted under
FEMA and not to the Appellate Board under FERA. Section
52 of FERA stipulates the limitation for an appeal against
the orders of the adjudicating officer to the Appellate
Board. It provides the period of limitation as 45 days but the
Board may entertain an appeal after the expiry of 45 days
but not beyond 90 days. Under FEMA, an appeal lies to the
appellate tribunal constituted under that Act and Section
19(2) provides that every appeal shall be filed within 45
days from the date on which a copy of the order of the
adjudicating authority is received. The appellate is however
empowered to entertain appeals filed after the expiry of 45
days if it is satisfied that there was sufficient cause for the
delay in filing the appeal. Though both Section 52(2) of
FERA and Section 19(2) of FEMA provide a limitation of 45
days and also give the discretion to the appellate authority
to entertain an appeal after the expiry of 45 days, if the
Appellant was prevented by sufficient cause from filing an
appeal in time, the appellate authority under FERA could
not condone the delay beyond 45 days whereas under
FEMA, if the sufficient cause is made out, the delay can be
condoned without any limit. The question we have already
pointed out is whether Section 52(2) of FERA or Section
19(2) of FEMA will govern the appeal. As noticed above,
any provision relating to limitation is always regarded as
procedural and in the absence of any provision to the
contrary, the law in force on the date of the institution of the
appeal, irrespective of the date of accrual of the cause of
action for the original order, will govern the period of
limitation.
26. Section 52(2) can apply only to an appeal to the
appellate Board and not to any appellate tribunal.
Crl.A.295/2012 Page 6 of 10
Therefore, irrespective of the fact that the adjudicating
officer had passed the orders with reference to the violation
of the provisions of FERA, as the appeal against such order
was to the appellate tribunal constituted under FEMA,
necessarily Section 19(2) of FEMA alone will apply and it is
not possible to import the provisions of Section 52(2) of
FERA. As we are not concerned with the appeals to
Appellate Board, but appeals to the Appellate Tribunal,
limitation being a matter of procedure, only that law that is
applicable at the time of filing the appeal, would apply.
Therefore, Section 19(2) of FEMA and not Section 52(2) of
FERA will apply. As noticed above, under Section 19(2) ,
there is no ceiling in regard to the period of delay that could
be condoned by the appellate tribunal. If sufficient cause is
made out, delay beyond 45 days can also be condoned. The
tribunal and the High Court misdirected themselves in
assuming that the period of limitation was governed by
Section 52(2) of FERA.
27. We have already indicated that Clause (b) of Sub-
section (5) of Section 49 refers to appeal preferred and
pending before the Appellate Board under FERA at the time
of repeal. The said clause does not specifically refer to
appeals preferred against adjudication orders passed under
FEMA with reference to causes of action which arose under
FERA. We have already noticed the right of appeal under
FEMA has already been saved in respect of cause of action
which arose under FERA however subject to the proviso to
Sub-section (2) of Section 19 , in the case of belated
appeals.
28. Above discussion will clearly demonstrate that Section
49 of FEMA does not seek to withdraw or take away the
vested right of appeal in cases where proceedings were
initiated prior to repeal of FERA on 01.06.2000 or after. On
a combined reading of Section 49 of FEMA and Section 6 of
General Clauses Act, it is clear that the procedure
prescribed by FEMA only would be applicable in respect of
an appeal filed under FEMA though cause of action arose
Crl.A.295/2012 Page 7 of 10
under FERA. In fact, the time limit prescribed under FERA
was taken away under the proviso to Sub-section (2) of
Section 19 and the Tribunal has been conferred with wide
powers to condone delay if the appeal is not filed within
forty-five days prescribed, provided sufficient cause is
shown. Therefore, the findings rendered by the Tribunal as
well as the High Court that the Tribunal does not have
jurisdiction to condone the delay beyond the date prescribed
under FERA is not a correct understanding of the law on
the subject."
7. In `Union of India vs. Ashok J.Ramsinghani', 2011 (4) ALLMR 45,
the Bombay High Court held :
"16. We find it difficult to accept the above contentions. The
legislature while repealing FERA and replacing it with
FEMA has expressly dissolved the first appellate authority,
namely the Appellate Board. Thus, on commencement of
FEMA, the first appellate forum prescribed under FERA
namely, the Appellate Board is expressly abolished. As a
result, after commencement of FEMA, appeals against
adjudication orders passed under FERA had to be filed
before the appellate authorities under FEMA, namely
Special Director (Appeals) / Appellate Tribunal, as the case
may be. The legislature further provides under Section
49(5)(b) of FEMA that appeals pending before the Appellate
Board on the date of commencement of FEMA shall be
transferred to the Appellate Tribunal constituted under
FEMA. Thus, on commencement of FEMA, appeal against
the adjudication order passed under FERA would be
maintainable before the appellate authorities constituted
under FEMA within the period of limitation prescribed
under FEMA. In other words, appeals against adjudication
orders passed under FERA or FEMA after the
commencement of FEMA, have to be filed before the
appellate authorities constituted under FEMA within the
period of limitation prescribed for filing appeals before the
Crl.A.295/2012 Page 8 of 10
appellate authorities constituted under FEMA."
8. Undoubtedly, Section 54 FERA permits an appeal to be filed to the
High Court within 60 days. The proviso clearly prescribes that the High
Court shall not entertain any appeal under Section 54 if it is filed after the
expiry of 60 days of the date of communication of the decision or order of
Appellate Tribunal unless the High Court is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time. Even if
provisions of Section 54 are taken into consideration, there is no sufficient
ground made out by the appellant to file the appeal after an inordinate delay
of 804 days. The delay has not been explained. The reasons given by the
appellant in Annexure `B' for delay in filing the appeal do not constitute
sufficient cause. Rather it reveals that there was inaction and negligence on
the part of the various officers. No sincere efforts were made to pursue the
appeal even after objections were raised. No attempt was made for long
seven months to rectify them and refile the appeal. There was slackness on
the part of the appellant to take remedial steps. Application for condonation
of delay cannot be allowed as a matter of routine as vested right accrues in
favour of the opposite party and benefit of such right cannot be disturbed
lightly.
Crl.A.295/2012 Page 9 of 10
9. In `Directorate of Enforcement vs. Renu Vij', (Crl.A.No.1231/2011)
decided on 30.09.2011 and `Directorate of Enforcement vs. Harmit Singh &
Anr.', (Crl.A.No. 276/2012) decided on February 28, 2013, this Court in
similar circumstances declined to condone the delay of 507 days & 832
days, respectively, in filing the appeals from the date of final order.
10. Negligence of the appellant to pursue the matter is writ large as it
failed to take steps to serve the respondents. The appellant did not take any
steps on 30.10.2012, 27.02.2013, 13.08.2013 & 29.10.2013. It failed to
furnish the fresh address of the respondents and to place on record the
amended memo of parties.
11. In view of the aforestated reasons, I find no merit in the application of
the appellant seeking condonation of delay in filing the appeal. Accordingly,
the application for condonation of delay is dismissed.
CRL.A. 295/2012 & CRL.M.A.3303/2012 (Stay)
12. In view of the order passed in Crl.M.A.3304/2012, the appeal is
dismissed. Pending application also stands disposed of being infructuous.
(S.P.GARG)
JUDGE
MARCH 24, 2014/tr
Crl.A.295/2012 Page 10 of 10
|