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TMI Blog2017 (8) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to pay penalty of Rs. 3,00,000/-. 2. The facts in issue are as under: On the basis of an information that Shri N.Pandu Ranga, who is the petitioner herein, received payment of Rs. 6 lakhs from a person in India, under the instructions of a person residing outside India, he was summoned under Section 37 of FEMA read with Section 131 of the Income Tax Act, 1961. Accordingly, the petitioner appeared before the Assistant Director on 21.07.2005 and gave a statement. In the said statement, the petitioner interalia stated that he was running a dry cleaning shop by name "Omsai Top"; that his son Shri Vijay settled in Eastham, 16, Caulfield Road, E6, London and was working in a company for the past 3 - 4 years; that at the time of sending his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. It was further stated that his daughter is working in LSEC, Hyderabad and has nothing to do with the amount received by him and that except the above amount, he did not receive any other amount. After considering the explanation given by the petitioner, the Deputy Director, Directorate of Enforcement (Foreign Exchange Management Act), Government of India, Bangalore rejected the plea taken by the petitioner and imposed penalty of Rs. 3,00,000/-. Challenging the same, the present writ petition is filed. 3. Pending writ petition, the writ petitioner died and his legal representatives are brought on record. 4. Though various grounds are raised more particularly, with regard to the jurisdiction of the authority in passing the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial institutions and secured creditors, stay granted by the High Court would have serious adverse impact on the financial health of such bodies/institutions, which ultimately prove detrimental to the economy of the nation. Therefore, the High Court should be extremely careful and circumspect in exercising its discretion to grant stay in such matters. Of course, if the petitioner is able to show that its case falls within any of the exceptions carved out in Baburam Prakash Chandra Maheshwari v. Antarim Zila Parishad (AIR 1969 SC 556), Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. (2003) 2 SCC 107 and some other judgments, then the High Court ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of an efficacious remedy by way of appeal under Section 35 of FEMA this will enable him to defeat the provisions of the statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fees or deposit of some amount of penalty or fulfillment of some other conditions for entertaining the appeal. (See para 13 at page 408 of the report). It is obvious that a writ court should not encourage the aforesaid trend of by-passing a statutory provision. 45. In view of this Court's jurisdiction under Article 136 of the Constitution, we give liberty to the appellant, if so advised, to file an appeal before an appropriate High Court within the meaning of Explanation to Section 35 of FEMA and if ..... X X X X Extracts X X X X X X X X Extracts X X X X
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