TMI Blog2013 (1) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... llant 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 - Crl. M.A. 4671/2011 (delay) in CRL.A. 493/2011 - - - Dated:- 6-7-2012 - MS. MUKTA GUPTA J. Appellant: Mr. Shamik. S. Sanjanwala, Adv. Respondent: Mr. Jatan Singh, CGSC with Mr. Tushar Singh, Adv. for R-1. Mr. Mukesh Gupta, APP for State. HON'BLE MS. JUSTICE MUKTA GUPTA 1. By this application the Appellant seeks condonation of delay of 166 days in filing the present appeal. 2. The Foreign Exchange Appellate Tribunal (in short The Tribunal) vide its order dated 2nd February, 2007 in Appeal No. 121/1999 directed the Appellant to deposit a sum of Rs. 7,00,50,000/- as pre-deposit failing which the appeal would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) clearly provide that after the expiry of the period of 60 days, the Court has no power to condone the delay and that there is a complete exclusion of Section 5 of the Limitation Act. 5. Heard learned counsel for the parties. Section 35 of the Foreign Exchange Management Act 1999 (in short FEMA) provides as under: Appeal to High Court. 35. 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 on any question of law arising out of such order: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. Explanation . In this section "High Court" means (a) the High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and (b) where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for enforcing cause of action accrued earlier, but they are prospective in the sense that neither have the effect of reviving the right of action which is already barred on the date of their coming into operation, nor do they have effect of extinguishing a right of action subsisting on that date. Bennion on Statutory Interpretation 5th Edn.(2008) Page 321 while dealing with retrospective operation of procedural provisions has stated that provisions laying down limitation periods fall into a special category and opined that although prima facie procedural, they are capable of effectively depriving persons of accrued rights and therefore they need be approached with caution. 32. Limitation provisions therefore can be procedural in the context of one set of facts but substantive in the context of different set of facts because rights can accrue to both the parties. In such a situation, test is to see whether the statute, if applied retrospectively to a particular type of case, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is nevertheless a right, even though it arises under an Act which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal for fresh consideration in accordance with law on the basis of the findings recorded by us. We order accordingly. 8. In Kailash (supra) the three Judge Bench of the Hon ble Supreme Court while considering the time prescribed under Order VIII Rule 1 CPC held that under Order VIII Rule 9 in spite of the time limit having expired for filing of the written statement, the Court is not powerless to permit written statement being filed if the Court requires such a written statement. It held that unless compelled by specific language of the Statute the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless in meeting extraordinary situations for ends of justice. It was held: 26. The text of Order VIII, Rule 1, as it stands now, reads as under: - "1. Written statement.-- The defendant shall, within thirty days from the date of service of summons on him, present a written statement of his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable.... Justice is the goal of jurisprudence -- Processual, as much as substantive." 29. In The State of Punjab and Anr. v. Shamlal Murari and Anr. : [1976]2SCR82, the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that "Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice." In Ghanshyam Dass and Ors. v. Dominion of India and Ors. : [1984]3SCR229, the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle. 30. It is also to be noted that though the power of the Court under the proviso appended to Rule 1 of Order VIII is circumscribed by the words -- "s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion. The delaying tactics adopted by the defendants in law courts are now proverbial as they do stand to gain by delay. This is more so in election disputes because by delaying the trial of election petition, the successful candidates may succeed in enjoying the substantial part, if not in its entirety, the term for which he was elected even though he may loose the battle at the end. Therefore, the judge trying the case must handle the prayer for adjournment with firmness. The defendant seeking extension of time beyond the limits laid down by the provision may not ordinarily be shown indulgence. 9. The reliance of the Petitioner on Thirumalai Chemicals Ltd. is misconceived, as the Court was dealing with Section 19 FEMA where no upper limit is prescribed for the period of limitation and on sufficient cause delay of any number of days can be condoned. In the present case the grounds taken for condonation of delay are that after the dismissal of the writ petition in view of the decision in Raj Kumar Shivhare 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 hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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