9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (1) TMI 128 - HC - FEMACondonation of delay 166 days - Period of limitation - Section 35 Foreign Exchange Management Act, 1999 - Section 5 of the Limitation Act Order VIII Rule 1 CPC - Appellant is a resident outside Delhi and has limited means - Arrange necessary funds for the purpose of filing the appeal - Due to shifting of the Advocate s office, the file of the writ petition could not be traced - Some delay in tracing out the file - Held that - Following the decision in case of Kailash Versus Nanhku & Ors.(2005 (4) TMI 542 - SUPREME COURT) that the right of appeal is a substantive right whereas the law of limitation is a procedural law and thus the procedural law cannot override the substantive right. If there is sufficient cause for condoning the delay, this Court will exercise its powers and ensure that substantive justice is assured to the parties. The grounds taken for condonation of delay are that after the dismissal of the writ petition, 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 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
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Interpretation of Section 35 of the Foreign Exchange Management Act (FEMA) regarding the limitation period for filing an appeal. 3. Applicability of Section 5 of the Limitation Act to appeals under FEMA. 4. Procedural vs. substantive rights in the context of limitation periods. Detailed Analysis: Issue 1: Condonation of Delay in Filing the Appeal The appellant sought condonation of a 166-day delay in filing the appeal. The delay was attributed to the appellant being a resident outside Delhi with limited means, which caused a delay in arranging necessary funds. Additionally, the shifting of the advocate's office resulted in the misplacement of the writ petition file, causing further delay. The appellant argued that the delay should be condoned to ensure substantive justice, citing precedents that emphasize the importance of procedural laws serving the ends of justice. Issue 2: Interpretation of Section 35 of FEMA Section 35 of FEMA stipulates that an appeal to the High Court must be filed within sixty days from the date of communication of the decision or order of the Appellate Tribunal. The proviso allows the High Court to extend this period by an additional sixty days if sufficient cause is shown, making a total of 120 days. The issue was whether the High Court has the power to condone delays beyond this 120-day period. The court examined precedents, including decisions by the Supreme Court, which indicated that the proviso to Section 35 is mandatory and excludes the application of Section 5 of the Limitation Act, thereby limiting the court's ability to condone delays beyond the specified period. Issue 3: Applicability of Section 5 of the Limitation Act to Appeals under FEMA The respondent argued that Section 5 of the Limitation Act, which allows for the condonation of delays, is excluded by the proviso to Section 35 of FEMA. Precedents such as Singh Enterprises and Goodearth Steels Pvt. Ltd. supported this view, emphasizing that the appeal must be filed within the prescribed period, and the court has no power to condone delays beyond the additional sixty days allowed by the proviso. The court acknowledged these precedents but also considered the broader principles of justice and the procedural nature of limitation laws. Issue 4: Procedural vs. Substantive Rights in the Context of Limitation Periods The court discussed the distinction between procedural and substantive rights, noting that the right of appeal is substantive, while limitation laws are procedural. Citing Thirumalai Chemicals Ltd., the court emphasized that procedural laws should not override substantive rights unless expressly stated. The court also referred to Kailash vs. Nanhku, where the Supreme Court held that procedural rules should not be construed in a manner that leaves the court powerless to address extraordinary situations for the sake of justice. Conclusion: The court concluded that the appellant had been diligently pursuing his remedies and should not be non-suited due to the mandatory nature of the limitation period under Section 35 of FEMA. Drawing on the principles established in Kailash vs. Nanhku, the court held that the delay in filing the appeal should be condoned to serve the ends of justice. The application for condonation of delay was thus allowed, and the appeal was listed for hearing before the Roster Bench. Disposition: The application for condonation of delay was disposed of, and the appeal was scheduled to be listed before the Roster Bench on 9th August, 2012.
|
