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TMI Blog2019 (10) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... re being stated hereinafter. 2. The appellant is the agency for investigating the offence of money laundering. During the course of investigation Investigating Officer has located with properties acquired out of the proceeds of crime to the tune of Rs. 137 Crores. Therefore, the Provisional Attachment Orders under Section 5 of the Prevention of Money Laundering Act , 2002 (hereinafter referred to as "the PMLA"), were issued by the Investigating Officer. 3. According to the appellant, the charge against the University in every appeal is that it created global selling degrees, diplomas and certificate of various courses through its established network for which it has not been granted permission by any competent authority. The University engaged several Coordinators functioning all across India for conducting distance education courses. These Coordinators made payments to the University authorities on per student basis, after keeping their commission. 4. As offences under Sections 420, 467, 471, 120B of Indian Penal Code, 1860 (hereinafter referred to as "the IPC"), are scheduled offences, as mentioned in section 2 (1) (y) of the PMLA, the matter was referred to Enforcement Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed by the Petitioner-University; (iii) Soon after it is constituted, the Bench shall then issue notice upon the Petitioner-University and the Petitioner-University shall appear before the Bench and place before it all grievances expressed in the Petition; and (iv) Since the proceedings before the Adjudicating Authority was stayed by this Court by order dated 02-04-2015, the period of attachment prescribed under Sub-Section (1) of Section 5 shall exclude the period spent during the pendency of the case before this Court." 7. According to the appellant, the order of this High Court was complied, a Member (Legal) was appointed as provided under Section 6 of PMLA, and the matter was re-adjudicated and the Provisional Attachment Order was confirmed. Against the said Order, appeals were preferred by the respondents before the Appellate Tribunal, Prevention of Money Laundering (hereinafter referred to as "the Tribunal") on the ground that the said Confirmation Order was not passed by the Judicial Member. The Tribunal passed order on 15.06.2017 and remanded back the matter to the Adjudicating Authority by setting aside the impugned order by directing the Authority to comply with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arup versus Union of India, and Director may take appropriate action to either get the order of the Hon;ble Tribunal stayed, modified, annulled or take appropriate action as deemed fit for giving effect to the Order of the Hon;ble Appellate Tribunal". (d) A letter dated 05.09.2017, was sent to Head Office of the Enforcement Directorate, New Delhi by Enforcement Directorate, Kolkata Zonal Office, seeking instruction regarding filing of appeal in Hon;ble Sikkim High Court or otherwise. (e) The Hon;ble Appellate Tribunal in appeals filed by Rai Foundation and five others directed the respondents vide Order dated 15.09.2017, to file reply within eight weeks and list the matter on 23.03.2017. (f) Shri N.K Matta, Department Counsel vide his opinion dated 09.10.2017, opined that "since it is difficult to give effect to the directions of the Hon;ble Sikkim High Court regarding Judicial Member we may either challenge the Order of the Hon;ble High Court before the Division Bench, with application for condonation of delay or the Central Government may pass an order giving explanation under Section 6 of PMLA that Member Judicial and / or Member Law are same position". (g) Enforcement D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h request to draft a Review Petition. (u) Mr. Karma Thinlay, Central Government Counsel, High Court of Sikkim, vide his letter dated 17.07.2018, opined that there is no provision in Cr.P.C. 1973, for filing a revision petition against an order passed by High Court itself and further stated only recourse is to move the Hon;ble Supreme Court. (v) Letter dated 21.08.2018, sent to Sudesh Joshi, SPP by Enforcement Directorate, Kolkata with request to file review petition. (w) Learned Deputy Legal Advisor, Kolkata Regional Office, vide her opinion dated 23.08.2018, opined to file appeal against the order passed by the Tribunal. (x) That on the basis of the opinion dated 23.08.2018, Department decided to file an appeal before the Hon;ble High Court of Sikkim, and accordingly the Department approached the learned SPP;s of Gangtok for the purpose of filing the instant appeal. Further vide email dated 13.11.2018, learned Counsel Jigme Phunchok Bhutia, SPP was instructed to draft the appeal. (y) That learned Counsel Jigme Phunchok Bhutia, SPP, sent to the draft copy of the appeal for final vetting and sanction to the Regional Office, Kolkata on 23.11.2018." 11. The respondents in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condoned. She also submitted that the Hon;ble Apex Court in the matter of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation : MANU/SC/0487/2013: (2013) 7 SCC 439, has observed that the offences of money laundering are in a calculated manner serious threat to the economy of the country. She submitted that in these appeals more than 100 crores of rupees are involved, therefore, delay in filing the appeals deserves to be condoned. 13. Learned counsel for the appellant further referred the judgment in the matter of Principal Secretary, Transport Department, Government of Sikkim -Vs- Narmaya Das : 2006 ACJ 150, which reads as under: "10. As regards the sufficiency or otherwise of the cause shown in the present case for condonation of delay it is useful to refer to the following decisions of the Hon;ble Supreme Court in Ram Nath Sao Vs Gobardhan Sao. AIR 2002 SC 1201, wherein it has held as follows: "(11) Thus it becomes plain that the expression 'Sufficient Cause; within the meaning of Section 5 of the Act or Order 22, Rule 9 of the code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: "(19) Now it must be taken to be well settled principle of law that before rejecting applications under Section 5 of the Limitation Act and dismissing appeals as barred by lapse of time, the courts of law are required to put a glance as a condition precedent on the merits of the appeals and unless the appeals are found to be hopelessly devoid of merits ordinarily efforts should be made to decide the appeals on merits." In addition to the above, recent decision of the Hon;ble Supreme Court rendered in Divisional Manager, Plantation Division, Andaman and Nicobar V. Munnu Barrick : AIR 2005 SCW 109, leaves no room for doubt that where serious questions of law are raised by appellants the courts should take a liberal view on the application for condonation of delay. 13. .......... It is well settled that laches and delay defeats equity and justice. However, a meritorious matter should not be thrown out on the ground of technical considerations as well as delay when cause of delay has been shown with reasons by the party concerned. It is also well settled that in the matter of condonation of delay the court should adopt liberal approach and the reasons for adopting su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rupees and the appellant has a very good case on merit, therefore, the applications for condonation of delay should be allowed. 15. Mr. Shakeel Ahmed, Mr. Ajay Rathi and Ms. Gita Bista, learned counsel for the respondents vehemently opposed the delay condonation applications. They submitted that provisions of Section 42 of the PMLA clearly mandates that the appeal has to be filed within 60 days but in terms of its proviso further 60 days' grace period can be granted by the High Court (who is appellate authority in terms of Section 42 of the PMLA) to entertain the appeal but not further period not exceeding to 60 days. The proviso to Section 42 of the PMLA makes the position crystal clear that the High Court, being an Appellate Court in terms of Section 42 of the PMLA, has no statutory power to allow the appeal to be presented beyond the further period not exceeding 60 days. The language used in Section 42 of the PMLA and its proviso makes the position clear that the legislature intended the High Court, while acting as an appellate court, to entertain the appeal by condoning delay only upto 60 days after the expiry of 60 days which is the normal period for preferring an appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Member Judicial and three Members (Expert) : Sunil Kumar Samanta Vs. West Bengal Pollution Control Board, (x) AIR 2017 KER 12 : Kavitha G. Pillai Vs. Joint Director, (xi) (2011) 15 SCC 30 : Ketan V. Parekh Vs. Special Director Directorate of Enforcement and Anr., (xii) (2017) 140 SCL 40 (Bombay) : Chhagan Chandrakant Bhujbal Vs. Union of India, (xiii) MANU/RH/0070/2019 : Anoop Bartaria Vs. Deputy Director Enforcement, (xiv) (2007) 2 SCC 322 : D. Gopinathan Pillai Vs. State of Kerala & Anr., and (xv) (2008) 7 SCC 619 : Tata Motors Limited Vs. Pharmaceutical Products of India Ltd. & Anr. 17. I have considered the submissions of learned counsel for the parties. 18. Against the order of the Appellate Tribunal an appeal may be filed in the High Court under Section 42 of the PMLA. Section 42 of the Act is as follows: "42. Appeal to High Court.- Any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal to him on any question of law or fact arising out of such order: Provided that the High Court may, if it is satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e PMLA, in a case titled as Ketan V. Parekh Vs. Special Director, Directorate of Enforcement and Anr., reported in (2011) 15 SCC 30. The Hon'ble Supreme Court of India held as under:- "18. The question whether the High Court can entertain an appeal under Section 35 of the Act beyond 120 days does not require much debate and has to be answered against the appellants in view of the law laid down in Union of India v. Popular Construction Co., (2001) 8 SCC 470 , Singh Enterprises v. CCE, (2008) 3 SCC 70, CCE & Customs v. Punjab Fibres Ltd., (2008) 3 SCC 73, Consolidated Engg. Enterprises v. Irrigation Deptt., (2008) 7 SCC 169, CCE & Customs v. Hongo India (P) Ltd. , (2009) 5 SCC 791 and Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23." 22. In similar cases which came before the Hon;ble Supreme Court in which the Hon;ble Supreme Court has clearly held that delay cannot be condoned where legislation has made its intention clear that 'not exceeding; and 'but not thereafter; etc. 23. In Simplex Infrastructure Ltd. Vs. Union of India : (2019) 2 SCC 455, the Supreme Court has held that delay beyond the three months plus thirty days under Section 34 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and no further time can be granted beyond this total period. The Supreme Court held as under: "4. A cursory reading of Section 421(3) makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. Section 433 obviously cannot come to the aid of the appellant because the provisions of the Limitation Act only apply "as far as may be". In a case like the present, where there is a special provision contained in Section 421(3) proviso, Section 5 of the Limitation Act obviously cannot apply. 5. Another very important aspect of the case is that 45 days is the period of limitation, and a further period not exceeding 45 days is provided only if sufficient cause is made out for filing the appeal within the extended period. According to us, this is a peremptory provision, which will otherwise be rendered completely ineffective, if we were to accept the argument of the learned counsel for the appellant. If we were to accept such argument, it would mean that notwi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 646 : (1981) SCC (Cri) 574] . In that case, a transfer petition was filed under Section 25 CPC, 1908 in this Court. A preliminary objection was taken stating that in view of Sections 21 and 21-A of the Hindu Marriage Act, 1955, Section 25 would not be applicable. This was turned down by this Court stating that Section 21 would not apply to substantive provisions of the Code as apart from procedural provisions. Equally, Section 21-A of the Hindu Marriage Act, 1955 only dealt with transfers "in certain cases". This being so, the wide and plenary power conferred on this Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one civil court in one State to another civil court in any other State was held not to be entrenched upon by Sections 21 and 21-A of the Hindu Marriage Act. We fail to see how this judgment, in any manner, furthers the proposition sought to be canvassed on behalf of the appellant, which is that Section 5 of the Limitation Act would continue to apply even after a second period of 45 days is peremptorily laid down. This judgment, therefore, does not carry the matter any further. 8. Reliance placed on Partap Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of 45 days, being a grace period given by the legislature which cannot be exceeded, alone would apply, provided sufficient cause is made out within the aforesaid grace period. As has been held by us above, it is the second period, which is a special inbuilt kind of Section 5 of the Limitation Act in the special statute, which lays down that beyond the second period of 45 days, there can be no further condonation of delay. On this ground therefore, the aforesaid judgment also stands distinguished. 12. One further thing remains - and that is that the learned counsel for the appellant pointed out the difference between the expression used in the Arbitration Act as construed by Popular Construction [Union of India v. Popular Construction Co., (2001) 8 SCC 470] and its absence in the proviso in Section 421(3). For the reasons given above, we are of the view that this would also make no difference in view of the language of the proviso to Section 421(3) which contains mandatory or peremptory negative language and speaks of a second period not exceeding 45 days, which would have the same effect as the expression "but not thereafter" used in Section 34(3) proviso of the Arbitration Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days." 27. In view of the above discussion, this Court is of the view that the High Court cannot breach statutory mandate and cannot make the provisions of Limitation Act applicable. Consequently, the appeals filed by the appellant are held not maintainable as the same have been filed beyond the prescribed period of limitation as provided under Section 42 of the PMLA. 28. The applications for condonation of delay in filing the appeals are rejected. Consequently, all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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