Directorate Of Enforcement vs Ravinder Singh
2011 Latest Caselaw 4899 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                  CRL. A.NO.1231/2011
                   CRL.A.NO.1232/2011


                             Date of Decision : 30.09.2011

(1) CRL.A.1231/2011

DIRECTORATE OF ENFORCEMENT         ...... Appellant
                    Through: Mr.Ruchir Mishra, Adv.

                                  Versus

RENU VIJ                                 ......      Respondent
                               Through: Nemo

(2)CRL.A.1232/2011

DIRECTORATE OF ENFORCEMENT         ...... Appellant
                    Through: Mr.Ruchir Mishra, Adv.

                                  Versus

RAVINDER SINGH                            ......     Respondent
                               Through: Nemo

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.    Whether Reporters of local papers may be
      allowed to see the judgment ?            YES
2.    To be referred to the Reporter or not ?  YES
3.    Whether the judgment should be reported
      in the Digest ?                          YES


CRL.A.NOS.1231 & 1232/2011                         Page 1 of 19
 V.K. SHALI, J. (Oral)

1. These are two criminal appeals bearing no.1231/2001 titled

Directorate of Enforcement Vs. Renu Vij and

Crl.A.No.1232/2011 titled Directorate of Enforcement vs.

Ravinder Singh.

2. Both these appeals have been preferred against the orders

dated 26.6.2006, 6.8.2009 and 28.7.2009. Along with

Crl.A.No.1231/2011, two applications bearing Crl.M.A.No.

11750/2011 (seeking condonation of 507 days delay in

filing the appeal) and Crl.M.A.No.11752/2011 (seeking

condonation of 151 days delay in re-filing the appeal) are

filed and along with Crl.A.1232/2011 also, there are two

similar applications bearing Crl.M.A.no.11756/11 and

Crl.M.A. No.11758/11.

3. By virtue of the present order, both these sets of

applications are being considered and disposed of.

4. Briefly stated the facts of the case are that two appeals

bearing No. Crl.A.382/2005 and Crl.A.388/2005 were filed

by Smt.Renu Vij and Sh. Ravinder Singh respectively,

before Appellate Tribunal for Foreign Exchange against a

common adjudication order dated 4.3.2005 passed by the

Special Director, Enforcement Directorate, Govt. of India,

New Delhi imposing a penalty of Rs.1,00,00,000/- against

Renu Vij for contravention of Section 9(1) (d) read with

Section 68 of Foreign Exchange Regulation Act, 1973 and

Rs.40 lacs against Sh.Ravinder Singh for contravention of

provisions of Section 9(1)(b) of the Foreign Exchange

Regulation Act, 1973. The reason for imposition of these

penalties in the departmental adjudication proceedings

were essentially twofold i.e. (i) Smt.Renu Vij made a

payment of US$3,20,000/- to Sh.Ravinder Singh and he

received such payment otherwise than an authorized dealer

by order or on behalf of M/s Less and Less Trading

Company, Dubai and (ii) Renu Vij made a payment of

Rs.2,67,98,100/- to one Vinod Grover by order and on

behalf of Rajesh Mahajan of Dubai.

5. The Tribunal vide order dated 8.11.2005 granted

dispensation of the pre-deposit of penalty to both the

respondents on the ground of prima facie a good case is

being shown by both of them and thereafter, two appeals

were taken up for final disposal by the Division Bench of

the Appellate Tribunal.

6. Vide order dated 26.6.2006, while as the Chairperson was

of the view that the adjudicating Authority had committed a

serious error in treating the two statements of the

deceased Anil Vij, as confession and in imposing penalty on

the respondents and consequently, took the view that the

order of adjudication dated 4.3.2005 passed by the Special

Judge was liable to be set aside and quashed, contrary

view was taken by the Member, who was of the view that

the penalty was validly imposed on both the parties

though, the penalty amount imposed on respondent i.e.

Renu Vij was reduced from Rs.1 crore to Rs.5 lacs on

humanitarian ground to meet the ends of justice while as

the penalty of Rs.40 lacs imposed on Sh.Ravinder Singh

was confirmed. The humanitarian ground which had

prompted the member to reduce the penalty from Rs. 1

crore to Rs.5 lacs was the demise of Anil Vij, husband of

the appellant and one Vinod Grover (connected with their

organization) during the pendency of adjudication and thus

it had cause irreparable loss to the lady.

7. On account of this disagreement between the Members, the

matter was referred to the third Member for his view, so

that the matter gets finally adjudicated. The third Member

vide order dated 28.7.2009 dealt with the issues arising out

of the two appeals and supported the view of the

Chairperson, meaning thereby that the order dated

04.03.2005 of the Adjudicating Authority was liable to be

set aside. After receipt of order dated 28.07.2009, in terms

of majority opinion, the Division Bench allowed the said

appeals vide order dated 6.8.2009. In the present appeals,

three orders have been accordingly assailed i.e. 26.6.2006,

the original disagreement order, 28.7.2007, the order

passed by the third Member concurring with the view of the

Chairperson and the order dated 6.8.2009 whereby the

Division Bench, which had originally disagreed between

themselves, allowed the appeals of Smt.Renu Vij and

Sh.Ravinder Singh, in view of the opinion of the third

Member.

8. The Department felt aggrieved by these three orders

accordingly, preferred the present appeals against the said

order of setting aside the imposition of penalty. The

appeals are accompanied by two sets of applications in

both the appeals. In Crl.A.No.1231/2011, an application

bearing Nos.11750/2011 (seeking condonation of 507 days

delay in filing the appeal) and in Crl.A.No.1232/2011 an

application bearing Crl.M.A.no.11756/11 (seeking

condonation of 507 days delay in filing the appeal from the

date of final order i.e. 6.8.2009). It may be pertinent here

to mention the averments made in the said applications,

which read as under:-

"(i) That vide order dated 26.6.2006, 28.7.2009 and 6.8.2009 passed by learned Appellate Tribunal for Foreign Exchange (Ld. Tribunal) in Appeal no.382/2005 titled as Smt. Renu Vij Vs. Special Director, Enforcement Directorate and also Appeal No.388/2005 titled Shri Ravinder Singh Vs. Special Director, Enforcement Directorate, the Hon‟ble Tribunal set aside the adjudication order passed by the Appellant, a certified copy of the same was received by the department on 23.9.2009. The appellant department decided to challenge the order of the Hon‟ble Tribunal and they send the comments /instructions to the counsel for the appellant, the detailed Appeal was prepared and was further required to be transmitted to the Department for the approval of the competent authority. It was approved that the same was signed, attested and filed before this Hon‟ble Court. That delay was neither intentional nor deliberate.

(ii) The delay of 507 days in filing the criminal appeal has occurred in the aforesaid circumstances. It is in the interest of the justice that the delay in filing the appeal be condoned."

9. These two appeals are the replica of each other and so are

the applications.

10. It may be pertinent here to note that the applications which

have been filed are bereft of any details as regards the

reasons as to why a delay of 507 days had occurred in

filing the appeals.

11. The second set of applications in filing the aforesaid

appeals are Crl.M.A. no.11752/11 in Crl.A.No.1231/11 and

Crl.M.A.no.11758/11 in Crl.A.No.1232/211 wherein the

condonation of 151 days delay in re-filing the appeals has

been sought, the reasons for delay in re-filing the appeals

are given in para 3 of the applications wherein it is stated

that while the appeals were pending under objection in the

Registry, the learned counsel for the appellants had got

designated as a senior counsel and thus the brief of the

appellants was returned to them. Thereafter, the

appellants wrote to the concerned Department for

appointment of another counsel for the purpose of removal

of defect in re-filing and pursuing the present appeals and

this took considerable time and thus resulted in delay of

151 days in re-filing of the appeals. It is also stated that

the delay is not intentional or deliberate.

12. It may be pertinent here to note that in these applications,

no date of collection of the brief from the registry is given.

No date on which the re-filing has been done has been

given. The explanations made in the applications are too

general and casual in nature which are far from meeting

the requirement of 'sufficient cause'.

13. I have heard the learned counsel for the appellants. It has

been contended by the learned counsel for the appellants

that the delay in filing the original appeal and in re-filing

has taken place on account of the delay in normal decision

making process which is bound to entail certain time at

different levels and since the case of the appellants, prima

facie, is very good, therefore, the delay in filing the

appeals, both originally as well as in re-filing may be

condoned and the appeals may be heard on merits. The

learned counsel for the appellants has not cited any

judgment in support of its contention. Very general

submissions have been made that the public interest would

suffer in case appeals are not heard on merits.

14. I have considered the submissions made by the learned

counsel for the appellants and gone through the

applications.

15. An appeal according to Section 35 of FEMA has to be filed

against the order of the Appellate Tribunal within a period

of 60 days from the date of pronouncement of the order.

The relevant Provisions of Section 35 of FEMA and Section

54 of FERA under which these appeals have been filed,

read as under:-

"35. Appeal to High Court.--Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law arising out of such order:

Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

54. Appeal to High Court.--An appeal shall lie to the High Court only on questions of law from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of Section 52:

Provided that the High Court shall not entertain any appeal under this section if it is filed after the expiry of sixty days of the date of communication of the decision or order of the Appellate Board, unless the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time."

16. A perusal of the aforesaid two Sections would show that

under Section 54 of FERA, appeal had to be filed in only 60

days, which has been reiterated under Section 35 of the

FEMA. But one modification has been made by addition of

a proviso which lays down that if sufficient cause is shown,

this period may be condoned by another 60 days. A

conjoint reading of the main Section with the proviso would

mean that the appeal has to be filed maximum within a

period of 120 days and not beyond that. As against this,

in the instant case, there is a delay of 507 days in filing the

appeal and further delay of 151 days in re-filing.

17. The law regarding the condonation of delay has gone sea-

change after the judgment of the Apex Court in Ramlal &

Ors. Vs. Rewa Coalfields Ltd. AIR 1962 SC 361. In the

said case, the Apex Court had observed that while seeking

condonation of delay the party should not only explain as

to why it did not file the appeal on the last day but it must

also explain each day's delay, which has occurred

thereafter.

18. This concept of explaining each day's delay has been

relaxed by the Apex Court over a period of time and it has

adopted a very liberal approach with regard to the

condonation of delay. It has held that the broad

parameters which should be kept in mind while condoning

the delay are:-

(i) That the quantum of delay which is sought to be

condoned by a party may not be material, what is

material is the bonafides of the party seeking

condonation of such a delay;

(ii) The Court's approach for the condonation of delay

under the heading of 'sufficient cause'' must be

pragmatic and liberal, so as to advance substantial

justice between the parties. It has also been

observed that different standards cannot be applied

to a private party and the Government body.

Although some play in the joints so far as the

functioning is concerned has to be given.

19. It may be pertinent here to refer to only one of the

judgments of the Apex Court which is in line with the

earlier judgments holding such an opinion and has dealt

with all those previous judgments with regard to the

condonation of delay. It has been observed in State of

Nagaland Vs. Lipok AO and Ors. AIR 2005 SC 2191 as

under:-

"The expression „sufficient cause‟ must receive a liberal construction so as to advance substantial

justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by the Government are lost for such defaults, no person is individually affects, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristic of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities, Government, like any other litigant must take responsibility for the acts and omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its offices or agents and where the officers were clearly at cross-purposes with it.

The decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise is a routine. Considerable delay of procedural red- tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default, no person is individually affected but what in the

ultimate analysis suffers, is public interest. The expression „sufficient cause‟ should, therefore, be considered with pragmatism in justice- oriented approach rather than the technical detention of sufficient cause for explaining every day‟s delay. The State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision where he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.

The Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay.

20. In the light of the aforesaid observations of the Apex Court

what needs to be considered is as to whether in the present

case, by making averments in the applications, the original

delay of 507 days in filing the appeal as well as the delay in

re-filing, has been explained or not? Secondly, whether the

appellants are bonafide or not, in filing the appeal.

21. So far as the averments made in the applications are

concerned, it may be said that the applications have been

drafted in a most casual manner and absolutely no details

have been given for the reasons as to why a delay of 507

days had occurred. This is despite the fact although it has

been observed hereinabove that the maximum period

within which the appeal can be filed despite condonation of

delay is only 120. Even if this Court wanted to show

indulgence to the appellant, being a Government body, it

finds it difficult to help the appellants as it has been guilty

of gross negligence. In my opinion, the department sat

over the files purposely and intentionally to help the

respondents and then filed the appeals belatedly to get

only a seal of legitimization.

22. No date, on which the judgment of the Appellate Tribunal

was received by them or the dates on which the different

officers dealt with the file has been given. The averments

which have been made in such a casual manner seeking

condonation of delay has been reproduced hereinabove,

and it has been stated that decision making process has

resulted in 507 days delay.

23. If these are the averments made in the applications in such

important matters where the citizen is sought to be

fastened with a liability running into lacs of rupees, it can

be said that this is being done in a most casual manner and

as a matter, there is a gross negligence on the part of the

department. Even after the objections were raised by the

Registry with regard to the filing of the appeals, the officers

of the department had not woken up in order to remove

those objections. No dates have been given as to when the

file was collected from the registry when the counsel was

designated as a senior, what date the matter was referred

to the department by the Directorate of Enforcement for

the purpose of appointment of an alternate counsel and in

the absence of these details, it can certainly be said that

the intention of the Department was not bonafide in

pursuing the matter as they were sleeping over the matter

either deliberately or inadvertently. It has been a common

practice of some of the Departments that when they want

to help a party, they will cause delay deliberately so that

ultimately when the appeal or any such matter is filed only

a seal of legality is obtained from the Court inasmuch as

the Court will be dismissing the application or the appeal

seeking condonation of delay. The other possibility is that

the department is deliberately trying to keep the person in

limbo, despite knowing well that the matter has been

pending before the adjudicating authority from 2004

onwards and thereby casting a cloud on their rights which

has accrued to them in view of the appeal being allowed by

the Appellate Tribunal.

24. There is so much of gross negligence on the part of the

appellants that even the word 'sufficient cause' has not

been used by them in the applications.

25. The Court is cognizant of the fact that after the expiry of

the period of limitation, a vested right is created in favour

of the opposite party and therefore, the benefit of such

right accrued ought not to be disturbed lightly.

26. I, therefore, feel that both the appeals are bereft of any

material which will persuade the Court to condone the

delay either originally or in re-filing. After the expiry of

period of limitation a vested right is created in a party

which cannot be defeated easily. On the contrary,

accordingly, the applications seeking condonation of delay

in original filing and re-filing in both the set of appeals are

also disallowed and resultantly the appeals are dismissed

as barred by time.

V.K. SHALI, J.

SEPTEMEBR 30, 2011 RN