Nina Padma Singh vs Union Of India And Ors.
2011 Latest Caselaw 3769 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 5th August, 2011

+                                W.P.(C) 5578/2011

       NINA PADMA SINGH                                         ..... Petitioner
                    Through:            Mr. Rajiv Gupta, Adv.

                                    Versus

    UNION OF INDIA AND ORS.                    ..... Respondents
                 Through: Mr. Sachin Datta with Ms. Gayatri
                           Verma & Mr. Abhimanyu Kumar,
                           Advs. for R-1 to R-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may               Not necessary
       be allowed to see the judgment?

2.     To be referred to the reporter or not?              Not necessary

3.     Whether the judgment should be reported             Not necessary
       in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The challenge in the petition is to the order dated 8 th September, 2009

of the Appellate Tribunal for Foreign Exchange, inter alia allowing the

appeals of respondent No.7 Sh. B.N. Jha, Senior Manager, Bank of Baroda,

Aliganj, Lucknow and of respondent No.4 Bank of Baroda, Aliganj,

Lucknow against the order dated 15th October, 2007 of the Special Director,

Enforcement Directorate, levying penalty of `5,00,000/- on respondent No.7

Sh. B.N. Jha and of `20,00,000/- on respondent No.4 Bank of Baroda in

terms of Section 68 of the Foreign Exchange Regulation Act, 1973 (FERA).

The said penalties were imposed for contravention of Sections 6(4) & 6(5)

read with Section 13A-10 of Exchange Control Manual, 1993 i.e. of granting

of loan to the petitioner, a Non Resident Indian (NRI) and relending of the

same to the respondent No.5 M/s Prime Petro Products Ltd. through its

Chairman and Managing Director Sh. R.K. Mishra impleaded as respondent

No.6.

2. The petitioner had earlier filed a writ petition before the High of

Judicature at Allahabad, Lucknow Bench for getting the matter investigated

from the Central Bureau of Investigation and / or the Central Revenue

Intelligence. The said writ petition was disposed of on 3 rd April, 2000 with

the direction that upon the petitioner approaching the agencies, they would

consider the case and pass appropriate orders.

3. It appears that in pursuance of the aforesaid direction, the petitioner

approached the Enforcement Directorate, FERA and which led to the order

dated 15th October, 2007 (supra) of imposition of penalty. Vide the same

order, penalties were also imposed on the said M/s Prime Petro Products

Ltd. and its Chairman Mr. R.K. Mishra also.

4. Appeals before the Appellate Tribunal were filed by the said M/s

Prime Petro Products Ltd. and Mr. R.K. Mishra also. However, they failed

to comply with the order of pre-deposit and thus their appeals were

dismissed by the same order dated 8th September, 2009 (supra).

5. The Appellate Tribunal has allowed the appeals of Mr. B.N. Jha and

Bank of Baroda holding that on the material on record, the due diligence

practiced by the Bank and its officer Mr. B.N. Jha was established and the

findings of the Enforcement Directorate of contravention of statutory

provisions by them were based on wrong assumptions. It was held that the

Bank had at the time of granting loan to the petitioner obtained her

undertaking that she was not taking the loan for further committing loan

transaction and had also complied with the other instructions issued by the

Reserve Bank of India in this regard. It was thus held that the Bank and its

official could not be said to be privy to or in the know of the illegality

committed and no case for imposition of penalty against them was made out.

6. This petition challenging the order of the Appellate Tribunal has been

preferred after nearly two years therefrom. The counsel for the petitioner

however urges that the grievance of the petitioner is of the petitioner having

not been made a party to the appeal and having not been heard. It is

contended that the petitioner thus had no knowledge of the order and has

filed the present petition immediately on coming to know thereof.

7. A reading of the order of the Enforcement Directorate appealed before

the Appellate Tribunal does not show the presence of the petitioner before

the Enforcement Directorate either. In fact, the petitioner was not even a

noticee before the Enforcement Directorate. It is not the case of the

petitioner also that she was a party and / or heard by the Enforcement

Directorate.

8. It has thus been enquired from the counsel for the petitioner as to what

was the right of the petitioner to be made a party in the appeal before the

Appellate Tribunal and grievance in which regard is raised herein. The

counsel for the petitioner is unable to cite any provision or principle of law

entitling the petitioner to be a party in such appeals.

9. I am of the opinion that once the petitioner was not a necessary or a

proper party in the appeal, no grievance of non impleadment can be made.

10. It has next been enquired from the counsel for the petitioner as to

what is the prejudice which the petitioner suffers from the order of the

Appellate Tribunal allowing the appeals of the Bank and its official. The

order as aforesaid only finds them to be not in violation of the provisions of

law aforesaid and thus not liable for any penalty. It is not as if the said

penalty amount was to come to the petitioner.

11. The counsel for the petitioner is again unable to explain as to how the

petitioner is affected by the order so as to have a locus to challenge the

same. The only reason stated is that since the account of the petitioner with

the Bank has been seized, the petitioner is interested in challenging the said

order.

12. There is no merit in the said contention also. Neither the order of the

Enforcement Directorate nor of the Appellate Tribunal deals with the seizure

if any of the account of the petitioner and does not make any order /

provision therefor. If the petitioner is aggrieved from the seizure of her

account, her remedies therefor are independent of the orders aforesaid.

Moreover, since the petitioner was not a party to the said orders, the

petitioner cannot even contend that in other proceedings if any already taken

or to be taken by her, she would be affected by any findings in the orders of

the Appellate Tribunal.

13. The counsel for the Enforcement Directorate appearing on advance

notice has also contended that the order of the Appellate Tribunal is further

appealable before this Court and the petitioner even if aggrieved therefrom

has remedies by way of such appeal and this writ petition would not be

maintainable for the said reason also. Reliance in this regard is placed on

judgment dated 26th July, 2010 in W.P.(C) No.2008/2004 titled Smt. Adarsh

Kaur Gill Vs. Assistant Director.

14. There is no merit in the petition; the same is dismissed. No order as to

costs.

RAJIV SAHAI ENDLAW (JUDGE) AUGUST 05, 2011 'gsr'