ASN 1 CA-2-11.sxw v. Enforcement Directorate, Mumbai
Case at a glance
- Bench
- D Y CHANDRACHUD
Outcome
Disposed of
The Civil Application shall stand disposed of in the
Provisions considered
- Constitution of India arts. 136, 226
- Foreign Exchange Management Act, 1999 s. 35
- Limitation Act, 1963 ss. 5, 14
Key paragraphs
- Para 772772. The Supreme Court held that against an order of the Appellate ASN 3 CA-2-11.sxw Tribunal on an application for waiver of pre deposit, the remedy of an appeal is available under Section 35 of the Foreign Exchange Management Act 1999. A copy of the…
Judgment
Mr.M.S.Prasad for the Applicant. Mr. A.S.Rao with Mr. M.S.Bhardwaj and Ms. Pratibha Borade for the Respondent. M.S. SANKLECHA. JJ. CORAM : DR.D.Y.CHANDRACHUD & March 12, 2012. P.C. : An office objection has been raised to the effect that the appeal is barred by limitation. Accordingly, the civil application has been taken out for the exclusion of time during which the applicant was pursuing a remedy before the Delhi High Court in writ proceedings under Article 226 of the Constitution. The relevant dates are as follows: ASN 2 CA-2-11.sxw 1 2 3 4 5 6 Sr.No. Particulars Date of order of Appellate Tribunal Date Days 25/1/2008 Date of receipt of order by Advocate in Delhi 16/2/2008 Date of filing of W.P. before Delhi High Court 01/4/2008 44 days Date of judgment of Delhi High Court 23/7/2010 Date of receipt of order 27/7/2010 Date of filing appeal in Bombay High Court 11/8/2010 15 days Total days :- 59 days 2 In the present case, the applicant moved the Appellate Tribunal for Foreign Exchange against an order of the Adjudicating Authority. The Appellate Tribunal constituted under the Foreign Exchange Management Act, 1999 (“FEMA”)passed an order on 25 January 2008 on an application for stay, by directing a deposit of 50% of the penalty. The order of the Tribunal was received on 16 February 2008 against which the applicant filed writ proceedings before the Delhi High Court on 1 April 2008. The Delhi High Court by its Judgment dated 23 July 2008 declined to entertain the petition in view of the Judgment of the Supreme Court in Raj Kumar Shivhare Vs. Assistant Director, Directorate of Enforcement (2010) 4 SCC
The Supreme Court held that against an order of the Appellate ASN 3 CA-2-11.sxw Tribunal on an application for waiver of pre deposit, the remedy of an appeal is available under Section 35 of the Foreign Exchange Management Act 1999. A copy of the order of the Delhi High Court was received on 27 July 2010. The appeal has been filed in this Court on 11 August 2010. 3 In Raj Kumar Shivhare the Supreme Court while disposing of the proceedings observed as follows:
In view of this Court’s jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to Section 35 of FEMA and if such an appeal is filed within a period of thirty days from today, the appellate forum will consider the question of limitation sympathetically having regard the provision of Section 14 of the Limitation Act and also having regard to the fact that the appellant was bonafide pursuing his case under Article 226 of the Constitution before the Delhi High Court and then its appeal before this Court.
4 Following the decision of the Supreme Court, this Court in its order dated 5 July 2011 in Rajkumar Shivhare Vs.
Union of India (C.A.No.169 of 2010 in Civil Application No.169 of 2010 in Fera Appeal (Stamp) No.12870 of 2010) held that while the ASN 4 CA-2-11.sxw provisions of Section 5 of the Limitation Act stand excluded in their application to an appeal before the High Court under Section 35 of the FEMA, Section 14 of the Limitation Act 1963 does not provide for an extension of the period of limitation, and there is no provision in the FEMA which excludes the application of Section 14 of the Limitation Act. Where the conditions which are spelt out in Section 14 are fulfilled, an exclusion of the period provided for therein, would be warranted in determining as to whether an appeal under Section 35 of the FEMA is within limitation. Consequently. the period when a remedy was pursued bona fide in prior proceedings first before the Delhi High Court and thereupon in appeal before the Supreme Court was excluded.
In our view, the applicant has established requirements of Section 14 of the Limitation Act, 1963. The applicant was bona fide pursuing proceedings with diligence and in good faith before the Delhi High Court. The Judgment of the Supreme Court in Raj Kumar Shivhare‘s case was delivered on 12 April 2010 during the pendency of the writ petition filed by the present applicant before the Delhi High Court. The failure of the prior proceeding was on the ground that an appeal would lie and hence a petition under Article ASN 5 CA-2-11.sxw 226 would not be maintainable. Both the proceedings relate to the same matter in issue and were in Court. Consequently, the period which was spent in prosecuting the proceedings before the Delhi High Court would have to be excluded under Section 14 of the Limitation Act, 1963. If that period is excluded then it is evident that a period of 44 days had elapsed between the receipt of the order of the Appellate Tribunal and the filing of the petition before the Delhi High Court.
Operative part
A further period of 15 days elapsed between the date of the receipt of the order of the Delhi High Court and the filing of the appeal in this Court. The appeal has been filed within the period prescribed by Section 35 of the FEMA. The appeal is therefore, within limitation. The Office objection is accordingly disposed of. 5 The Civil Application shall stand disposed of in the aforesaid terms. (DR. D.Y. CHANDRACHUD, J.) (M. S. SANKLECHA. J.)
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: The Civil Application shall stand disposed of in the
Which statutory provisions did this judgment involve?
Constitution of India — arts. 136, 226; Foreign Exchange Management Act, 1999 — s. 35; Limitation Act, 1963 — ss. 5, 14.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.