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2013 (1) TMI 128 - HC - FEMACondonation of delay – 166 days - Period of limitation - Section 35 Foreign Exchange Management Act, 1999 - Section 5 of the Limitation Act – Order VIII Rule 1 CPC - Appellant is a resident outside Delhi and has limited means - Arrange necessary funds for the purpose of filing the appeal - Due to shifting of the Advocate’s office, the file of the writ petition could not be traced - Some delay in tracing out the file - Held that:- Following the decision in case of Kailash Versus Nanhku & Ors.(2005 (4) TMI 542 - SUPREME COURT) that the right of appeal is a substantive right whereas the law of limitation is a procedural law and thus the procedural law cannot override the substantive right. If there is sufficient cause for condoning the delay, this Court will exercise its powers and ensure that substantive justice is assured to the parties. The grounds taken for condonation of delay are that after the dismissal of the writ petition, the Petitioner had to arrange for funds and thereafter file of the writ petition got misplaced in the office of the counsel. It may be noted that the Appellant was pursuing his remedies with due diligence as immediately after the order of the Tribunal dated 2nd February, 2007 he filed a writ petition before the High Court of Gujarat in May, 2007 and on the return of the said petition for want of territorial jurisdiction a writ petition was filed before this Court on 29th September, 2007. Thus, a party who has been all through pursuing his remedies cannot be non-suited on the count that the period of limitation prescribed under Section 35 of the FEMA is mandatory. Hence delay condoned. In favour of assessee
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