NO.25 OF 2011 IN FERA APPEAL (ST.) NO.22192 OF 2011 Jwalaprasad Gupta v. Director, Enforcement Directorate & Ors.

Mr. Madhu M. Patel for the Applicant/ Appellant. Mr. Vijay Kantharia with Mr. Shrikrishna R. Ganbavale for the Respondents. ...... CORAM : DR.D.Y.CHANDRACHUD & M.S. SANKLECHA, JJ. 29 February 2012. P.C. :

The Applicant seeks an order for the condonation of a delay of 148 days in filing the appeal. An order of adjudication was passed by the Special Director in the Enforcement Directorate on 30 November 2000 in respect of a contravention which is alleged to have taken place under the erstwhile Foreign Exchange Regulation Act

1973. The order of the adjudicating authority was evidently passed after the Foreign Exchange Management Act 1999 had come into force on 1 June 2000. An appeal against the order of the adjudicating authority was filed before the Appellate Tribunal for foreign exchange which has been constituted under the provisions of PNP 2 CAY25-29.2.sxw Section 19 of the Foreign Exchange Management Act 1999. The Tribunal disposed of the appeal by its decision rendered on 8 February 2007. The Applicant had filed an appeal before this Court against the decision of the Tribunal. Counsel appearing on behalf of the Appellant states that the appeal was filed on 30 May 2007. The appeal was on the request of the counsel for the Applicant permitted to be withdrawn by an order of the Division Bench dated 21 January 2011 which reads as follows :

Counsel for the appellants seeks leave to withdraw the appeals with liberty to file fresh appeals incorporating all substantial question of law arising out of the orders passed by the Appellate Tribunal. Accordingly, both the appeals are allowed to be withdrawn with liberty as prayed. No order as to costs.

The present appeal was filed on 17 August 2011. An application has been filed for the condonation of delay. Under the provisions of Section 35 of the Foreign Exchange Management Act 1999, an appeal before the High Court has to be filed within sixty days from the date of the communication of the decision or order of the Appellate Tribunal. The High Court is empowered to condone a delay of a further period not exceeding sixty days.. Admittedly, the appeal in the present case is filed well beyond the period of 120 days which constitutes the outer limit in Section 35. For the purpose of the present proceedings, even if the date of the previous order of the Division Bench dated 21 January 2011 is treated as the relevant date from which the period of limitation would begin to run, it is evident that the present appeal PNP 3 CAY25-29.2.sxw has been filed well beyond the period of 120 days and hence, the delay cannot be condoned. In Thirumalai Chemicals Limited v. Union of India1, the Supreme Court has held that the erstwhile Appellate Board under the FERA stood dissolved and ceased to function when the FEMA was enacted. Hence, an appeal against an order of an Adjudicating Officer made under the FERA had to be filed before the Appellate Tribunal constituted under the FEMA after the FEMA came into force. The appeal filed by the Applicant was, hence, before the Appellate Tribunal upon the enforcement of the FEMA. The further appeal to this Court would be governed by Section 35 of the FEMA. The earlier appeal, as noted above, was permitted to be withdrawn on 21 January 2011 with liberty to file an appeal afresh. Having regard to the provisions of Section 35 and even if the the period spent in pursuing the earlier proceedings before this Court is to be excluded, the present appeal has been filed much beyond the maximum period that is stipulated in Section 35. Hence, for these reasons, the Civil Application cannot be entertained. The Civil Application is accordingly dismissed. (Dr. D.Y. Chandrachud, J.) (M.S. Sanklecha, J.) 1 (2011) 6 SCC 739.