2018 (10) TMI 1081 - AT - FEMA

Condination of delay as per Section 19 of FEMA - delay in filing appeal - sufficient cause for not filing it within specified period - Held that - On 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. 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 decision in Esha Bhattacharjee case (2015 (1) TMI 1053 - SUPREME COURT), and in the facts of the case as discussed in previous paras see no reason for condoning 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.

Issues Involved:
1. Condonation of delay in filing appeals.
2. Validity of service of adjudication orders.
3. Applicability of Rule 9 of FEMA (Adjudication Proceedings and Appeal Rules 2000).
4. Interpretation of "sufficient cause" under Section 19 of FEMA.

Detailed Analysis:

1. Condonation of Delay in Filing Appeals:

The primary issue in the appeals is whether the significant delay in filing each of the four appeals can be condoned under Section 19 of the Foreign Exchange Management Act (FEMA), 1999. The appeals were filed with delays ranging from seven and a half to nine years. Section 19 mandates that appeals must be filed within 45 days of receiving the adjudicating authority's order, with the possibility of extension if "sufficient cause" is demonstrated.

The appellant argued that the delay was due to the orders not being served properly and being in jail since February 2017. However, the tribunal noted that the appellant was jailed only in February 2017, while the impugned orders were passed in 2008 and 2009, indicating no sufficient cause for the delay.

2. Validity of Service of Adjudication Orders:

The appellant contended that the adjudication orders were not served properly as they were pasted on premises where the appellant did not reside, and that they were served in prison. The appellant also accepted that the orders were served on their advocate during the adjudication proceedings but argued that the advocate was not a "duly authorised person."

The respondent countered that the orders were served through the advocate appearing in personal hearings, which is a standard procedure. Additionally, efforts were made to serve the orders via Registered Post AD to the last known addresses, which were returned with postal remarks "No Such Addressee." The orders were also pasted on the last known addresses under proper mazhar (witnessed report).

The tribunal found that the orders were indeed served on the advocate, who was a duly authorised person, and that the respondent followed the required procedures under Rule 9 of FEMA before resorting to pasting the orders.

3. Applicability of Rule 9 of FEMA (Adjudication Proceedings and Appeal Rules 2000):

Rule 9 outlines the methods for serving notices, requisitions, or orders, including personal delivery, registered post, affixing on premises, and publication in newspapers. The appellant argued that Rule 9(a) and 9(b) were not followed before resorting to Rule 9(c).

The respondent provided evidence that the orders were sent by Registered Post AD and subsequently pasted on the last known addresses under proper mazhar. The tribunal concluded that the respondent complied with Rule 9(a) and 9(b) before resorting to Rule 9(c).

4. Interpretation of "Sufficient Cause" under Section 19 of FEMA:

The tribunal examined whether the appellant demonstrated "sufficient cause" for the delay. The appellant's arguments included improper service of orders and being in jail since February 2017. However, the tribunal found no evidence disproving the service of orders and noted that the appellant did not inform the respondent of any change of address.

The tribunal referred to the Supreme Court's observations in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy, emphasizing a liberal, pragmatic approach to condonation of delay but also noting the importance of bona fides and the need to avoid dilatory tactics. The tribunal found no sufficient cause for the delay and highlighted the appellant's lack of effort to inform the respondent of any address change.

Conclusion:

The tribunal dismissed all four appeals on the grounds of limitation, concluding that the appellant failed to provide sufficient cause to condone the significant delay. The tribunal emphasized that justice must be balanced for both parties and that the appellant's actions constituted an attempt to cover up the delay, leading to a denial of justice to the respondent.

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