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2019 (7) TMI 1878 - HC - FEMAProceedings under FEMA - effect of the adjudication order made during the pendency of the writ appeals - ad-interim relief - Merely because the adjudicating authority has passed an order during the pendency of the writ appeals, it cannot be said that the writ appeals have become infructuous - whether writ appeals should be entertained? - HELD THAT:- As appellants were fully aware about the date fixed for hearing before the adjudicating authority. There is a default on the part of the appellants as they did not appear before the adjudicating authority and they did not move this Court for grant of appropriate interim relief. Knowing fully well that the adjudicating authority is proceeding with the hearing, the appellants took no steps and allowed the adjudicating authority to pass an order. It is not as if immediately after the impugned order was passed, that the adjudicating authority fixed the matter for hearing. The date for hearing was fixed nearly one year after the present appeals were filed. As observed earlier, one of the arguments canvassed on behalf of the respondents that the appeals have become infructuous, cannot be accepted. However, these appeals are continuation of writ proceedings before the learned Single Judge under Article 226 of the Constitution of India. A remedy under Article 226 of the Constitution of India is always discretionary and equitable. The impugned order of the learned Single Judge was passed on 6th October 2017. The present appeals were pending from 17th November 2017. The adjudicating authority granted enough time to the appellants to seek interim relief in these appeals. The hearing was fixed one year after the impugned order of the learned Single Judge. The appellants took the risk of not attending before the adjudicating authority knowing fully well that the appellants were not armed with any ad-interim order of stay of this Court. Thus, due to their own conduct, the appellants allowed the adjudicating authority to pass orders of adjudication. It is not the case of the appellants that they did not receive legal advice. They are represented by Senior Advocates. As pointed out earlier, an efficacious remedy of filing an appeal under Section 19(1) of FEMA is available to the appellants. It cannot be said that the remedy is not efficacious as there is a power vested in the appellate Tribunal to waive the requirement of the deposit of the penalty. Moreover, all contentions which are raised in the appeals can be gone into by the appellate authority. The issues raised by the appellants have not been finally concluded and notwithstanding the observations made by the learned Single Judge, all issues remain open which can be agitated by the appellants in the statutory appeals. It is for the reasons which are recorded above that we are not inclined to entertain the writ appeals and interfere with the proceedings under FEMA. Accordingly, appeals and also pending interlocutory applications are dismissed. We direct that the ad-interim order in terms of paragraph 5 of the order dated 28th March 2019 will continue to operate for a period of one month from today.
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