TMI Blog2018 (10) TMI 1081X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay. Justice is for both the sides- the appellant and the respondent and such huge delay and thereafter attempts to cover it up would lead to denial of justice to the other side. No ground to condone the delay running into number of years in all the four appeals. The appellant has not been able to give/prove any sufficient cause to do the same. - MP-FE-271/DLI/2017 (COD) & In FPA-FE-48/DLI/2017, MP-FE-270/DLI/2017 (COD) & In FPA-FE-49/DLI/2017, MP-FE-9/DLI/2017 (COD) & In FPA-FE-50/DLI/2017, MP-FE-12/DLI/2017 (COD) & In FPA-FE-51/DLI/2017 - - - Dated:- 12-10-2018 - Smt. Ananya Ray Member For the Appellants : Shri B. Kumar, Sr. Advocate, Shri Naveen Malhotra, Advocate For the Respondent : Shri Rajeev Awasthi, Advocate JUDGMENT FPA-FE-48-51/DLI/2017 1. The present proceedings are with regard to the condonation of delay applications filed by the appellant in all the above four appeals. The details are as under: i. Appeal No. 48/DLI/2019 Order in original No. 14/2009 dated 20.08.2009 (impugned order) Appeal filed on 12.06.2017 Delay of more than 7 and a half years. ii. Appeal No. 49/DLI/2017 Order in original No. 10/2008 dated 19.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be witnesses by two persons; or (d) if the notice or requisition or order cannot be served under clause (a) or clause (b) or clause (c), by publishing in a leading newspaper (both in vernacular and in English) having vide circulation of area or jurisdiction in which the person resides or is known to have last resided or carried on business or personally works or last worked for gain.) f. That without complying with the provisions of Rule 9(a) and 9(b), Rule 9(c) cannot be resorted to as has been done in the present case. That the department/respondent has not clarified whether the order copy was sent by the Registered Post with AD or not. Hence, Rule 9(b) was not followed. With regard to Rule 9(a), the appellants during the hearing and also in their written submissions dated 17.09.2018 has accepted that the copy of the orders were served on the advocate Mr. A. Navaneetha Krishnan who had appeared during the adjudication proceedings, but insisted that it was of no consequences. g. As per the judgment of the Hon‟ble Supreme Court in Tirumalai Chemicals Ltd. [(2011) 6 SCC 739] , the proceedings should be under FEMA (and not FERA). h. Relied on the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an afterthought in order to tide over the immense delay that is there in filing the appeal. f) That at no stage have the appellant informed the respondent/department that they had changed the address nor the new address were ever communicated to the department. g) Therefore, the huge delay in filing the appeal cannot be condoned, and the appeals deserved to be dismissed. 5. I have carefully considered the case, heard both the parties and have gone through the written submissions. The limited question before me is whether the delay in filing of each of the four appeals as brought out in para 1 supra is condonable as per Section 19 of FEMA as quoted above. Sub- Section (2) proviso of Section 19 of FEMA states that the appeal filed after the due period can be entertained if the Tribunal is satisfied that there were sufficient cause for not filing it within that period. So it needs to be seen whether sufficient cause‟ has been given by the appellants to condone the huge delay in each of the appeals above. 6. The appellant through its lawyer Shri Naveen Malhotra have accepted in their written submission dated 17.09.2018 that the advocate who had appeared before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February, 2017 whereas all the orders were passed during the period 2008 and 2009, is an apparent fact. Moreover, as discussed above, provisions of Rule 9(a) and 9(b) of FEMA (Adjudication Proceedings and Appeal Rules 2000) have been followed before resorting to Rule 9(c). 10. The Hon‟ble Supreme Court had in Civil Appeal Nos. 8183-8184 of 2013 dated 13.09.2013 in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy Ors. in the case of a condonation of delay made the following observations; (i) There should be a liberal, pragmatic, justice-oriented, nonpedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. (ii) The terms sufficient cause should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. (iv) No presumption can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. 12. In this case, the facts as discussed above make it clear that they were in receipt of the adjudication order, that notwithstanding that efforts were again made by the respondent to serve the copies in person on the appellant, but because of the appellant leaving her residence/premise without any notice could not enable the said service and the postal endorsement is a proof of the same, and that way back in 2009 and 2010, they were pasted on the last known addresses of the appellant. However, in spite of that the appellant failed to file any appeal, and suddenly in 2017 she filed the appeals and took the plea that she was in jail and hence the delay, while by their own admission, she was sent to jail only in February, 2017, while the impugned order are of 2008 and 2009. I do not find any cause having being given to explain the delay. Following the Hon‟ble Supreme Court‟s decision in Esha Bhattacharjee case ( supra), and in the facts of the case as discussed in previous paras I see no reason for condoning the delay. Justice is for both the sides- the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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