Company Ltd. And Anr vs Enforcement Directorate And Ors
2022 Latest Caselaw 94 Cal

17.01.2022
Court No.13
Item No.5
AP
                                 WPA 20930 of 2021

                       MAGMA HDI GENERAL INSURANCE
                           COMPANY LTD. AND ANR.
                                      Vs.
                     ENFORCEMENT DIRECTORATE AND ORS.
                           (Through Video Conference)

              Mr. P. Chidambaram, Senior Advocate
              Mr. Abhrajit Mitra, Senior Advocate
              Mr. Debanjan Mondal
              Mr. Amar Gandhi
              Mr. Sanket Sarangi
              Mr. P. Bose
              Ms. Riddhima Sharma
              Ms. Nidhi Jha
                                                  ... For the Petitioners.

              Mr. Ranjan Roy
                                                             ... For the ED.

                     The instant writ petition has been filed challenging

              the order dated 24th November 2021 passed by the Special

              Director, Adjudicating Authority under the Enforcement

              Directorate acting under the provisions of The Foreign

              Exchange Management Act, 1999 (hereinafter referred to

              as 'the FEMA 1999').

                     By    the   impugned     order    the    Enforcement

              Directorate, has imposed penalty on the writ petitioners

              and its directors for contravention of the provisions of the

              Foreign Exchange Management (Transfer or Issue of

              Security by a person Resident outside India) Regulation

              2000 read with Section 42 the FEMA 1999.

                     The impugned order is challenged inter alia on the

              ground of violation of natural justice, lack of jurisdiction,

              failure to provide appropriate reasons and perversity.
                         2




        The petitioners' have already filed an appeal against

the impugned order under Section 19 of the FEMA 1999

before the appellate tribunal. Learned counsel for the

Enforcement Directorate would rely upon a decision dated

9th September, 2021 of a Division Bench of this Court

Gautam          Kundu       Vs.     The   Joint     Director

ED/FMAT146/2021. It is submitted that since the ground

urged in paragraph 58 of the writ petition for approaching

the High Court is absence of quorum at the Appellate

Tribunal the impugned order may be stayed until such

availability.

        Mr. P. Chidambaram, learned Senior Advocate has

argued before this Court since the impugned order has

been challenged for want of jurisdiction and for violation of

principal of natural justice amongst other issues, the writ

petition, ought to be entertained, admitted and decided on

its own merit irrespective of the pendency of the appeal

under Section 19 of the FEMA 1999.

        Having heard the learned counsel for the parties

and considering the judgments cited before this Court, this

Court is of the view that the respondents, should be

permitted to use an affidavit even on the question of

jurisdiction and natural justice.

In that view of the matter and also considering the

fact that the Tribunal is not denuded from the power of

addressing a challenge to jurisdiction or violation of

natural justice, this Court is inclined to stay the operation

of the impugned orders for a period of two months from

date.

Let affidavit-in-opposition be filed by the

Enforcement Directorate within a period of four weeks

from date; reply, if any, be filed within a week thereafter.

It is made clear, that in the event the Tribunal is

reconstituted and become functional in the meantime, the

party shall be at liberty to mention the matter before the

Tribunal.

(Rajasekhar Mantha, J.)