LexKETAN V. PAREKH versus SPECIAL DIRECTOR, DIRECTORATE OF ENFORCEMENT AND ANOTHER.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B [2011] 14 (ADDL.) S.C.R. 1204 KETAN V. PAREKH v. SPECIAL DIRECTOR, DIRECTORATE OF ENFORCEMENT AND ANOTHER. (Civil Appeal No. 10301 of 2011) NOVEMBER 29, 2011 [G.S. SINGHVI AND SUDHANSU JYOTI MUKHOPADHAYA, JJ.] C LIMITATION ACT, 1963: s.14 - Delay in filing appeal - Condonation of - Imposition of penalty on the appellants for contravening provisions of FEMA - Appellate tribunal directed appellants to pay 50% of penalty as pre-condition of hearing appeal - Writ petition filed before Delhi High Court, dismissed D as non-maintainable - Appeal filed before Bombay High Court uls.35 of FEMA against the order of the appellate tribunal after delay of 1056 days - Bombay High court declining condonation of delay in filing appeal - Plea of appellant that Bombay High Court while computing period of E limitation erred in not taking cognizance of s. 14 and in not excluding the entire period during which writ petition remained pending before Delhi High Court - Tenability of - Held: Not tenable - Existence of good faith is a sine qua non for invoking s. 14 of the Act - Appellants filed writ petition before F wrong forum and came to the forum having jurisdiction to entertain the appeal after delay of 1056 days and sought condonation of delay- Delay was rightly held not condonable since there was no averment in the applications seeking condonation that they had been prosecuting·remedy before G a wrong forum, i.e. the Delhi High Court with due diligence and in good faith - Not only this, the prayer made in the applications was for condonation of 1056 days' delay and not for exclusion of the time spent in prosecuting the writ petitions before the Delhi High Court - This showed that the appellants KETAN V. PAREKH v. SPECIAL DIRECTOR, 1205 DIRECTORATE OF ENFORCEMENT were seeking to invoke s. 5 which cannot be pressed into A service in view of the language of s.35 of the FEMA - Moreover, appellants were well conversant with various statutory provisions including FEMA because several civil and criminal cases were pending against them and they had engaged a group of eminent Advocates to present their cause B before the Delhi and the Bombay High Courts - There was total absence of good faith, which is sine qua non for invoking s.14 of the Act - Foreign Exchange Management Act, 1999 - Delay - Condonation of. Foreign Exchange Management Act, 1999: s.19 - Pre- C deposit of penalty - Dispensation of - Allegation of contravention of provisions of the- Act - Appellate Tribunal directed appellants to deposit 50% of the amount of penalty as a pre-condition of hearing the appeal - On appeal, held: The appellants miserably failed to make out a case, which D could justify an order by the Appellate Tribunal to relieve them of the statutory obligation to deposit the amount of penalty - The appellants had the exclusive knowledge of their financial condition/status and it was their duty to candidly disclose all their assets, movable and immovable including those in E respect of which orders of attachment may have been passed by the judicial and quasi judicial forums - However, instead of coming clean, they tried to paint a gloomy picture about their financial position, which the Appellate Tribunal rightly r~fused to accept - Appellants deliberately concealed the F facts relat!ng to their financial condition - Therefore, the Appellate Tribunal did not commit any error by refusing to entertain their prayer for total exemption. The Special Director of Enforcement, Mumbai passed G an order imposing penalty on the appellants on the ground of contravention of the provisions of the Foreign Exchange Management Act, 1999. The appellants challenged the said order by filing appeals under Section 19 of the Act. They also filed applications under Rule 10 H 1206 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A of the Foreign Exchange Management (Adjudication Proceedings and Appeal) Rules, 2000 read with Section 19 (1) of the Act for dispensing with the requirement of deposit of the amount of penalty. The Appellate Tribunal passed order dated 2.8.2007 and directed the appellants B to deposit 50% of the amount of penalty as a pre- condition of hearing the appeal. The appellants filed writ petitions in Delhi High Court which was dismissed on the ground of non-maintainability. The appellants filed appeals under Section 35 of the Act before the Bombay c High Court. They also filed appl
Excerpt shown. Read the full judgment & AI analysis in Lexace.