Multi Fashion Pvt. Ltd. & Ors. vs Union Of India & Ors.
2012 Latest Caselaw 6636 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
[
%                                 Date of decision: 20th November, 2012
+                               LPA No.756/2012

       MULTI FASHION PVT. LTD. & ORS.          ..... Appellants
                   Through: Mr. Mayank Goel & Mr. L. R. Luthra,
                             Advs.
                                   Versus
       UNION OF INDIA & ORS.                             ..... Respondents

                    Through:          Mr. Neeraj Chaudhari & Mr. Ravjyot
                                      Singh, Advs. For UOI.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
D. MURUGESAN, CHIEF JUSTICE

1. The appellants had filed W.P.(C) No.80/2008, from which this appeal arises, impugning the order dated 11th October, 2007 of the Appellate Tribunal for Foreign Exchange dismissing the appeal preferred by the appellants for the reason of the failure of the appellants to pre-deposit 10% of the penalty amount i.e. Rs.15 lacs as directed. The learned Single Judge while issuing notice of the writ petition directed the appellants to deposit some amount to show their bona fide. In pursuance thereto a sum of Rs.3 lacs was deposited by the appellants. The appellants thereafter deposited a further sum of Rs.3 lacs. The writ petition was listed before the learned Single Judge on 25th November, 2008 when the appellants sought time and assured that the balance amount of Rs.9 lacs would be deposited within two months. Accordingly, the writ petition was disposed of vide order dated 25 th November, 2008 directing that upon the appellant depositing Rs.9 lacs

within two months, the Appellate Tribunal would hear the appeal of the appellants on merits.

2. It appears that the appellants did not deposit the said amount of Rs.9 lacs within the time granted by the learned Single Judge. No application also was filed seeking extension of time. After more than four years, CM No.16874/2012 was filed seeking condonation of delay of 1095 days in depositing the amount. The learned Single Judge, vide impugned order dated 3rd October, 2012 has dismissed the said application holding that the time of two months for depositing the balance amount had been granted at the request of the appellants and that no cogent explanation for the delay had been furnished and that the appellants had displayed a complete lack of alacrity bordering on sloth.

3. We find no reason for interfering with the discretion, validly, in consonance with well established principles, exercised by the learned Single Judge in refusing to condone the delay. It cannot be lost sight of that as per the adjudication order dated 8 th January, 2004, penalty of Rs.150 lacs is due from the appellants. Though the appellants preferred the statutory appeal thereagainst but failed to comply with the condition of pre-deposit, leading finally to the dismissal of the said appeal on 11 th October, 2007. The appellants thereafter filed the writ petition in which though the learned Single Judge refused to interfere with the order of pre-deposit but granted time till 30th January, 2009 for making such deposit whereupon the appeal, even though already stood dismissed on 11 th October, 2007, was directed to

be heard. The appellants however still did not make the pre-deposit and waited for a further period of four years.

3. It is often found in the present day that such appellants do not make pre-deposit and allow their appeals to be dismissed, in the hope that the Governmental Agencies in their lethargy and red-tapism would not take steps for recovery of the adjudicated amount. Moreover when they find the Agencies to be ultimately enforcing recovery, they attempt to have their appeals re-activated. Such conduct has but to be deprecated.

4. It is also worth noticing that the appellants were directed to make pre- deposit of only 10% i.e. Rs.15 lac out of the adjudicated amount of 150 lacs, way back in the year 2004. The appellants cannot, after having enjoyed the said monies for the last eight years, be permitted to, at their own sweet will determine as to when they would want to have their appeal heard. No litigant has a right to so abuse the process of law.

5. As aforesaid, no error had been found by this Court in the order of the Appellate Tribunal requiring the appellants to make a pre-deposit of 10%of the adjudicated amount. That order has attained finality. This Court had only in exercise of its power of judicial review extended the time for making the said pre-deposit and directed the appeal to be heard thereafter. The appellants having not availed of the time which they had themselves sought and having also not made out any ground for condonation of delay, the order of the learned Single Judge is just and equitable.

6. The counsel for the appellants has relied on Tukaram Kana Joshi Vs. M.I.D.C. MANU/SC/0933/2012 to contend that the exercise of discretion in considering an application for condonation of delay must be fair and just and in order to promote justice and not to defeat it. However we find that the said judgment was rendered in a case where the delay had occurred in making the claim by some of the individuals seeking compensation for the land taken by the respondent authority without resorting to any procedure prescribed by law. The Apex Court in the same judgment has also observed that the relief of condonation of delay depends upon the facts of each case. The facts of the present case, which is under the Foreign Exchange Regulations Act, 1973, as aforesaid do not call for any indulgence to the appellants. The overall consideration of facts would show that the appellants were not diligent in complying with the orders.

7. The appeal is accordingly dismissed.

No costs.

CHIEF JUSTICE

RAJIV SAHAI ENDLAW, J NOVEMBER 20, 2012 pp