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2012 (7) TMI 641 - HC - FEMACondoning delay, taking recourse to the power of this Court under section 52(2) proviso of the Foreign Exchange Regulation Act, 1973 (FERA) - held that - the application under Section 5 of the Limitation Act for condonation of delay for a period exceeding sixty days, as mentioned in the proviso of Section 6 of the General Clauses Act, is not entertainable. In other words, the High Court cannot condone delay for a single day exceeding sixty days, as mentioned in the said section, simply because, the High Court is not conferred with such power. If there is no power question of granting relief does not arise. - the views taken by the earlier Division Bench is the correct position of law. The earlier Division Bench in the case of Union of India and Anr. vs- M/s. SMP Exports Pvt. Ltd. and Ors. and other three matters, held that Court s power to condone delay against the judgment and order of the Appellate Tribunal is governed by the provision of section 35 read with proviso of FEMA, even if the appeal has been preferred in relation to contravention of any provision of FERA after repeal.
Issues Involved:
1. Whether the High Court can condone delay in appeals under FEMA using the powers under FERA. 2. Applicability of Section 6 of the General Clauses Act in relation to the transition from FERA to FEMA. 3. Whether the right to file an appeal includes the right to file a belated appeal. Detailed Analysis: 1. Whether the High Court can condone delay in appeals under FEMA using the powers under FERA: The core issue is whether the High Court can condone delays in appeals under the Foreign Exchange Management Act, 1999 (FEMA) by resorting to the powers under the Foreign Exchange Regulation Act, 1973 (FERA), which was repealed by FEMA. The Division Bench noted that the power to condone delay under FERA was unlimited, whereas under FEMA, the High Court's power to condone delay is restricted to a maximum of 60 days beyond the initial 60 days period. The court concluded that the language in Section 35 of FEMA clearly indicates a legislative intent to exclude the application of Section 5 of the Limitation Act, thereby limiting the High Court's power to condone delays beyond the specified period. 2. Applicability of Section 6 of the General Clauses Act in relation to the transition from FERA to FEMA: The court examined whether Section 6 of the General Clauses Act, which deals with the effects of repeals, could be applied to allow the High Court to use the broader condonation powers under FERA. The court held that Section 6 does not apply if the new legislation shows a contrary intention. The court noted that Section 49 of FEMA, particularly subsections (3), (4), and (6), indicates a clear legislative intent to limit the condonation of delay to the periods specified in FEMA. Therefore, Section 6 of the General Clauses Act does not help in extending the High Court's power to condone delays beyond what is prescribed in FEMA. 3. Whether the right to file an appeal includes the right to file a belated appeal: The court distinguished between the right to file an appeal and the right to file a belated appeal. It held that while the right to file an appeal within the prescribed period is a substantive right, the right to file a belated appeal is a procedural right. The court stated that the right to apply for condonation of delay is not a substantive right but a procedural one, which is contingent upon the court's discretion. This discretion is limited by the specific provisions of FEMA, which restrict the period for condonation of delay to a maximum of 60 days beyond the initial period. Conclusion: The court concluded that the High Court does not have the power to condone delays beyond the period specified in Section 35 of FEMA. The provisions of FERA regarding the condonation of delay do not apply once FERA has been repealed and replaced by FEMA. The court emphasized that the legislative intent in FEMA is to limit the power of condonation of delay, and this intent overrides the general provisions of the General Clauses Act. The reference was answered accordingly, and the matters were sent back to the appropriate Bench to deal with the applications for condonation of delay, taking note of these observations.
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