Delhi High Court
S.K. Khandelwal & Anr vs The Special Director Of ... on 17 February, 2016
Author: Manmohan
#53
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 1318/2016 & CM APPL. 5764/2016
S.K. KHANDELWAL & ANR ..... Petitioners
Through Mr. Rajeeve Mehra, Senior Advocate with Mr.
Soumik Ghosal and
Mr. Ramesh Singh, Advocates for
P-1.
Mr. Ramesh Singh, Advocate for P-2.
versus
THE SPECIAL DIRECTOR OF ENFORCEMENT
AND ANR ..... Respondents
Through Mr. Ashish Dholakia, Advocate for UOI.
% Date of Decision: 17th February, 2016.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petition has been filed seeking partial quashing of the order dated
15th October, 2013 passed by respondent no. 2 whereby two appeals bearing nos. 14
and 15 of 2012 along with application for condonation of delay were dismissed.
2. Mr. Rajeeve Mehra, learned senior counsel for petitioner no. 1 states that
though the applications for condonation of delay were allowed in appeals bearing
nos. 116/2011, 117/2011 and 118/2011, yet they were dismissed in appeal nos. 14
and 15 of 2012. Mr. Mehra further states that the delay in filing the appeal is
entirely attributable to general counsel of the petitioner.
3. Mr. Ashish Dholakia, learned counsel for respondents, who appears on
advance notice, states that present writ petition is not maintainable as the petitioners
have an alternative effective remedy by way of an appeal under Section 35 of the
Foreign Exchange Management Act, 1999. In support of his submissions, he relies
upon a judgment of the Supreme Court in Raj Kumar Shivhare vs. Assistant
Director, Directorate of Enforcement & Another, (2010) 4 SCC 772.
4. In rejoinder, Mr. Rajeeve Mehra, learned senior counsel for petitioner no. 1
submits that a writ petition is maintainable challenging an order passed by the
Appellate Tribunal for Foreign Exchange. In support of his submission, he relies
upon a Division Bench judgement of this Court in Union of India Vs. Classic
Credit Ltd., LPA No. 123/2008 decided on 20th October, 2008.
5. In the opinion of this Court, a writ petition should not ordinarily be
entertained if the petitioner has an alternative effective remedy by way of an appeal.
Relevant portion of Section 35 of the Foreign Exchange Management Act, 1999
reads 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:........."
6. In Raj Kumar Shivhare (supra) the Supreme Court has held as under:-
"18. The argument that under Section 35 only appeals from final
order can be filed has been advanced on a misconception of the
clear provision of the section itself. The section clearly says that
from "any decision or order" of the Appellate Tribunal, appeal
can be filed to the High Court on a question of law.
xxxx xxxx xxxx xxxx
20. Under Section 35 of FEMA, the legislature has conferred a
right of appeal to a person aggrieved from "any" "order" or
"decision" of the Appellate Tribunal. Of course such appeal will
have to be on a question of law. In this context the word "any"
would mean "all".
xxxx xxxx xxxx xxxx
22. The word "any dispute" is somewhat akin to "any order" or
"any decision". Any dispute, occurring in Section 51 of the
English Arbitration Act, 1975 has been interpreted to have a
wide meaning to cover all situations where one party makes a
request or demand and which is refused by the other party [see
Ellerine Bros. (Pty) Ltd. v. Klinger [(1982) 1 WLR 1375 : (1982)
2 All ER 737 (CA)] ].
xxxx xxxx xxxx xxxx
26. In the instant case also when a right is conferred on a person
aggrieved to file appeal from "any" order or decision of the
Tribunal, there is no reason, in the absence of a contrary
statutory intent, to give it a restricted meaning. Therefore, in our
judgment in Section 35 of FEMA, any "order" or "decision" of
the Appellate Tribunal would mean all decisions or orders of the
Appellate Tribunal and all such decisions or orders are, subject
to limitation, appealable to the High Court on a question of law.
xxxx xxxx xxxx xxxx
31. When a statutory forum is created by law for redressal of
grievance and that too in a fiscal statute, a writ petition should
not be entertained ignoring the statutory dispensation. In this
case the High Court is a statutory forum of appeal on a question
of law. That should not be abdicated and given a go-by by a
litigant for invoking the forum of judicial review of the High
Court under writ jurisdiction. The High Court, with great
respect, fell into a manifest error by not appreciating this aspect
of the matter. It has however dismissed the writ petition on the
ground of lack of territorial jurisdiction.
xxxx xxxx xxxx xxxx
39. In the instant case none of the aforesaid situations are
present. Therefore, principle laid down in Ratan case [(2003) 5
SCC 399] applies in the facts and circumstances of this case. If
the appellant in this case is allowed to file a writ petition despite
the existence of an efficacious remedy by way of appeal under
Section 35 of FEMA this will enable him to defeat the provisions
of the statute which may provide for certain conditions for filing
the appeal, like limitation, payment of court fee or deposit of
some amount of penalty or fulfilment of some other conditions for
entertaining the appeal. (See para 13 at SCC p. 408.) It is
obvious that a writ court should not encourage the aforesaid
trend of bypassing a statutory provision."
(emphasis supplied)
7. This Court is of the opinion that in view of the subsequent judgment of the
Supreme Court in Raj Kumar Shivhare (supra), the Division Bench judgment of
this Court in Classic Credit Ltd. (supra) offers no assistance to the petitioners.
8. Consequently, present writ petition and application are dismissed but with no
order as to costs. However, petitioners are given liberty to file appropriate
proceedings in accordance with law. Rights and contentions of all parties are left
open.
MANMOHAN, J
FEBRUARY 17, 2016
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