TMI Blog2010 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... g forum. Delay remains of 66 days which even if section 35 of FEMA, 1999 applied needs to be condoned. Delay condoned. - 3740 of 2006 - - - Dated:- 12-3-2010 - V.C. Daga and K.K. Tated, JJ. Notice of Motion No. 3740 of 2006 in FEMA Appeal (LDG.) No. 2 of 2006 Shri H.R. Shetty, for the Appellant. Shri A.S. Rao, for the Respondent. [Order]. - P.C. : This appeal is filed by the appellant under Section 49(5)(c) of the Foreign Exchange Management Act, 1999 ("FEMA Act" for short) against the order dated 2nd December, 2005 passed by the second respondent (Tribunal) in Appeal No. 533/1991. 2. The factual matrix reveals that the appellant had initially filed Writ Petition No. 546/2006 on 9th January, 2006. The said writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are first initiated, and before a decision is taken by the inferior Court. The right of appeal also carried with it right to seek condonation of delay, if any, in filing the appeal. A pre-existing right of appeal is not destroyed by an amendment unless the amendment is shown to have been made to operate retrospectively by express words of necessary intendment. Reliance is placed on the judgment of Madras High Court in the case of State of Tamil Nadu v. Aristo Paints (P) Ltd. - 1992 (85) STC 54. 5. In rejoinder, Mr. Rao tried to contend that the appeal will be referable to Section 35 of the FEMA Act and not to Section 49(5)(c). Without going into the question raised by Mr. Rao, assuming that he is right, even then the delay is liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) or sub-section (4) of Section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement; Provided that the High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. 9. Having heard both the parties, the learned Counsel for the appellant is right in placing reliance on the judgment of the Madras High Court in the case of Aristo Paints (P) Ltd. (supra), wherein, it is observed that ; The right of appeal is not merely a matter of procedure. It is a matter of substantive right. This righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal continues to exist must, in its turn, necessarily imply that the old law which created that right of appeal must also exist to support the continuation of that right. 10. In the case in hand, one can conveniently turn to Section 49(5) of the FEMA and if contrasted with the provision of Section 35 of the same Act, then it would be clear that under Section 49(5)(c) the appeal is required to be filed within sixty days from the date of commencement of the FEMA Act, if already not filed before the commencement of the said Act. With this if one turns to proviso to clause (c) of sub-section (5) of Section 49, there is no outer limit prescribed for condonation of delay. High Court is given liberty to entertain appeal even after expiry of sixt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s liable to be condoned applying Section 14 of the Limitation Act, 1963. 13. The order impugned in the appeal is dated 2nd December, 2005. The writ petition was filed on 9th January, 2006 which was well within the period prescribed for appeal. The said petition was withdrawn on 7th April, 2006. It is, thus, clear that this petition was pending in this Court for the period from 9th January, 2006 to 7th April, 2006 i.e. for the period of 88 days. The said period is required to be excluded under Section 14 of the Limitation Act since the appellant was prosecuting remedy in wrong forum. Having excluded the said period of 88 days, the question of remaining 66 days is required to be considered for condonation. The said period, obviously, being ..... X X X X Extracts X X X X X X X X Extracts X X X X
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