Nemi Chand Jain @ Chandra Swami vs Enforcement Directorate
2009 Latest Caselaw 5111 Del

4&5
%     09.12.2009

Present:    Mr. Chetan Sharma, Sr. Adv. with Mr. Santosh Chaurihaa,
            Adv. for the appellant.
            Mr. N.K. Matta and Mr. Tuhir, Advs. for the respondent.
+ CRL.A. Nos. 866-867/2009
*

These are appeals under Section 54 of Foreign Exchange

Regulation Act read with Section 49(4) of Foreign Exchange Management

Act, 1999 for quashing of the order dated 7 th July, 2009 passed by the

Appellate Tribunal for Foreign Exchange, whereby Appeal No. 76 of 2005

filed by the appellant Chandra Swami and Appeal No. 77 of 2005 filed by

the appellant Vikram Singh, was dismissed.

2. The appellants filed Appeal No. 76 and 77 of 2005, challenging the

order passed by Deputy Director, Directorate of Enforcement, imposing

penalty of Rs.10 Lacs upon appellant Chandra Swami and penalty of

Rs.10 Lacs upon appellant Vikram Singh. The Tribunal, vide order dated

12th December, 2005 directed them to pre-deposit full amount of penalty

within 45 days from the date of the order and also directed that in case

of failure to make deposit, the appeals will be dismissed on this ground

alone. The order passed by the learned Tribunal was challenged by the

appellants by filing writ petitions in this Court. Those writ petitions were

dismissed by a learned Single Judge of this Court vide order dated April

24, 2006. A Division Bench of this Court vide order dated October 3,

2006, directed decision of the appeals on merits, without insisting on pre- deposit. On an appeal, filed by Directorate of Enforcement, the Hon'ble

Supreme Court vide order dated April 28, 2008 set-aside the order

passed by the Division Bench and remitted the matters back for deciding

the appeals afresh. When the matters again came up before a Division

Bench of this Court, the LPAs filed by the appellants were dismissed vide

a detailed order dated November 27, 2008, thereby upholding the order

passed by the learned Single Judge. Special Leave Petitions preferred by

the appellants against the decision of the Division Bench dated

November 27, 2008 were dismissed by the Hon'ble Supreme Court on

27th March, 2009.

3. Since the appellants did not make the deposit in terms of order

dated 12th December, 2005, the Tribunal vide order dated 7 th July, 2009,

dismissed the appeals filed by them solely on account of non-compliance

of pre-deposit order dated 12th December, 2005. The Tribunal, while

dismissing the Appeals, declined the offer of the appellants to furnish

security to the extent of amount of the penalty. The appellants had

proposed to deposit the Title Deed of a property, in lieu of cash deposit in

terms of dated 12th December, 2005. Being aggrieved from the dismissal

of the appeals, the appellants have approached to this Court by way of

present appeals.

4. In my view, once the order of the tribunal dated 12 th December,

2005 has been challenged by the appellants before this Court and has

been upheld not only by a learned Single Judge, but also by a Division bench of this Court and a Special Leave Petition against the order of the

Division Bench has been dismissed by the Hon'ble Supreme Court, the

order of the Tribunal got merged into the order of this Court and,

therefore, it was not permissible for the Tribunal to revisit that order and

permit the appellants to furnish security in lieu of making cash deposit of

the amount of penalty.

5. It was contended by the learned counsel for the appellants that the

order dated 12th December, 2005, passed by the Tribunal did not specify

the mode of pre-deposit of the amount of the penalty, and therefore, it

was very much open to the Tribunal to accept security of immovable

property in lieu of cash deposit. In my view, the contention is totally

misconceived. The Tribunal had passed a specific order directing both

the appellants to "pre-deposit full amount of penalty". This is a plain and

unambiguous order incapable of more than one interpretation. This

order required the appellants to make cash deposit of the amount of

penalty and did not leave any scope with the Tribunal to accept security

in lieu of cash deposit.

6. Since the order passed by the Tribunal on 12 th December, 2005

envisaged only cash deposit of the amount of penalty and that order was

uphold by the learned Single Judge as well as by the Division Bench of

this Court, the appellants could not have offered security of an

immovable property in lieu of cash deposit. I, therefore, find no fault

with the order whereby the appeals have been dismissed. So far as the present cases are concerned, I need not go into the question as to

whether the Tribunal can, in any other case, accept security in lieu of

cash deposit or not.

For the reasons given above, I find no merit in the appeals. The

same are hereby dismissed.

V.K. JAIN, J DECEMBER 09, 2009