Bhawarlal S. Kothari vs Registrar, Appellate Tribunal ...
2013 Latest Caselaw 5083 Del

R-48
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      CRL.A. 186/2007
                                               Decided on 06.11.2013


IN THE MATTER OF :
BHAWARLAL S. KOTHARI                              ..... Appellant
                   Through : Mr. P. Ojha, Mr. Alok Singh and
                   Mr. Suresh Kumar, Advocates

                       versus

REGISTRAR, APPELLATE TRIBUNAL FOREIGN EXCHANGE & ANR.
                                                ..... Respondents
                    Through Ms. Rajdipa Behura, Advocate


CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present appeal has been filed by the appellant, a permanent

resident of Mumbai, against an order dated 22.3.2006 passed by the

Appellate Tribunal for Foreign Exchange (in short 'the Tribunal') in

Appeal No.134/1996, preferred by him against the order dated

27.2.1996 passed by the adjudicatory authority holding inter alia that

the appellant had contravened the provisions of Section 8(1) of the

Foreign Exchange Regulation Act, 1973 (in short 'the FERA') and

imposing a penalty of Rs.87,000/- on him.

2. At the outset, learned counsel for the respondents opposes the

present appeal on twin grounds of maintainability, the first ground

being that the present appeal has been filed beyond the prescribed

period of limitation and the second ground is that this Court is not

vested with the territorial jurisdiction to entertain the same.

3. For deciding the objection of limitation taken by the counsel for

the respondents, as noted above, reference to some dates is

considered relevant. The impugned order is dated 22.3.2006. Section

35 of the Foreign Exchange Management Act, 1999 (in short 'FEMA')

provides for 60 days for filing an appeal in the High Court and the said

period of 60 days are to be reckoned from the date of communication

of the decision or order of the Tribunal to the aggrieved party. It is an

undisputed position that on the date of filing of the appeal, the

provisions of the FERA had ceased to apply and the provisions of FEMA

have been invoked by the appellant.

4. As per the learned counsel for the appellant, a certified copy of

the impugned order came to be served on the appellant on

27.12.2006. The records reveal that the present appeal was filed on

26.2.2007. If the period of 60 days for filing the appeal is reckoned

from 28.12.2006, the same would have expired on 25.2.2007.

However, 25.02.2007 happened to be a Sunday, and the present

appeal came to be filed on the very next working day, i.e. on

26.02.2007; as such it has been filed well within the period of

limitation. Therefore the objection raised as to the maintainability of

the appeal on the ground that it is barred by limitation, is found to be

devoid of merits and is turned down.

5. Coming to the second objection taken by the learned counsel for

the respondents with regard to lack of territorial jurisdiction, counsel

for the respondents refers to the Explanation appended to Section 35

of the FEMA to contend that the appellant who is a permanent resident

of Mumbai, being the aggrieved party, ought to have approached the

Bombay High Court to assail the impugned order. In support of her

submission that this Court is not vested with the territorial jurisdiction

to entertain the present appeal, she relies on the decision of the

Supreme Court in the case of Raj Kumar Shivhare vs. Assistant

Commissioner, Directorate of Enforcement, reported as 2010 (4)

SCALE 705.

6. To appreciate the aforesaid submission made by the counsel for

the respondent, it is necessary to advert to Section 35 of the FEMA,

which reads as below:

"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.

Explanation - In this section "High Court" means-

(a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and

(b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain."

7. As noted above, the Explanation clause of Section 35 of the

FEMA explains the term "High Court" in two contexts. In Explanation

(a), the term "High Court" has been defined as a court where the

aggrieved party ordinarily resides or carries out business or personally

works for gain and Explanation (b) applies where the Central

Government being an aggrieved party, proposes to file an appeal and

in such circumstance, the "High Court" has been defined as one within

whose jurisdiction the respondent or any of the respondents ordinarily

reside or carry out business or personally work for gain. In other

words, both the Explanations work to the benefit of the individual,

whether as the appellant/aggrieved party or as a respondent in a

State appeal.

8. In the present case, the appellant herein is the aggrieved party,

who, as is apparent from a perusal of the memo of parties and the

affidavit filed in support of the appeal, is a permanent resident of

Mumbai. In such a circumstance, Explanation (a) of Section 35 of

FEMA comes into play and there is no manner of doubt that the

appellant ought to have approached the court where he ordinarily

resides to file the present appeal. In view of the above, this Court

cannot be treated as the "appropriate court" within the meaning of the

Explanation to Section 35 of the FEMA for purposes of entertaining the

present appeal.

9. Accordingly, the objection taken by the respondent with regard

to the maintainability of the appeal on the second ground is upheld

and the present appeal is disposed of with liberty granted to the

appellant to approach the appropriate High Court vested with the

territorial jurisdiction, as specified in Section 35 of the FEMA, for filing

an appeal against the impugned order. In view of the fact that the

date of the impugned order is 22.3.2006 and the present appeal came

to be filed within the period of limitation, on 26.2.2007 and after the

pleadings were completed, the same was admitted for final hearing on

25.3.2009 and ever since, it has remained pending, the appellant shall

be at liberty to invoke the provisions of Section 14 of the Limitation

Act for explaining the delay in approaching the said court. Further, in

the interest of justice, it is directed that the interim order dated

30.3.2007, staying the operation of the impugned order, shall continue

to operate in favour of the appellant for a period of six weeks from

today so as to enable him to seek interim relief from the High Court

vested with the territorial jurisdiction to entertain the appeal in

accordance with law.

10. The appeal is disposed of.

HIMA KOHLI, J NOVEMBER 06, 2013 sk