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TMI Blog2023 (2) TMI 16X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of fact. To avoid such a scenario, the enactment itself provides for further remedies under Section 19 of FEMA before the Appellate Tribunal and thereafter, under Section 35 of the Act, by way of filing a further Appeal before the High Court against the order passed by the Appellate Tribunal. These remedies have been provided to enable an aggrieved person to contest the order passed by the Adjudicating Authority, both on facts and on law. These appellate remedies cannot be bypassed and the doors of the High Court cannot be knocked straight away under Article 226 of the Constitution of India. In the present case, there is no lack of jurisdiction for the Special Director of Enforcement to pass the impugned order, there is no violation of principles of natural justice and this Court does not find any special circumstances to disregard the alternative remedy and to decide the dispute in this Writ Petition. Apart from these reasons, we have already held that the case requires determination of disputed facts based on documents and it will be fit and proper if this exercise is done before the Appellate Tribunal. We are inclined to relegate the petitioners to the Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Enforcement Directorate. On enquiry, it was found that on 29.08.1981, Bank of Ireland sent a telex message to IOB informing them that they intend to put through some major transactions in the near future, on behalf of their clients M/s.Eastern Suburbs Limited through Dublin A/C No.216 with IOB. In continuation to the same, 12 cheques were issued. These cheques were issued by the Russion Bank in favour of M/s.Eastern Suburbs Limited. 4 out of the 12 cheques were cleared and it was credited to A/C No.216. As a result of the same, the non-convertible funds were credited to the convertible non-resident rupee account of the Bank of Ireland. The IOB through their letter dated 06.12.1991, requested the Bank of Ireland to furnish the particulars of M/s.Eastern Suburbs Limited. On receiving the reply from the Bank of Ireland, IOB realised that some fraud has been committed and hence during December 1991, IOB reported the details of the transactions to RBI. This was done by IOB since they realised that the source of the proceeds were out of nonconvertible account of the Russian Bank. 3.3. Show Cause Notices were issued by the Enforcement Directorate to IOB, Canara Bank, Bank of Irelan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the respondents in W.P.Nos.1316 and 1317 of 2010. 5. Mr.Benjamin George, learned counsel appearing on behalf of the petitioners submitted that the adjudication order passed by the 1st respondent is without jurisdiction. He further submitted that it was the IOB which was the whistle blower, who exposed the fraud and unfortunately, the bank and its employees have been punished by imposing penalty. The learned counsel further submitted that the Writ Petitions were entertained long back and it cannot be rejected at this stage on the ground of availability of an alternative remedy. 6 . Per Contra, the learned Special Public Prosecutor appearing on behalf of the Directorate of Enforcement submitted that the adjudication order was passed after considering the objections given by the bank and its employees and the order passed by the Special Director of Enforcement, is well within the power and jurisdiction of the said authority. The learned counsel further submitted that this Court in exercise of its writ jurisdiction cannot get into disputed facts, more particularly when there is an effective alternative remedy available under Section 49(5)(a) r/w Section 19 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 10 . The Adjudicating Authority has passed the order after giving sufficient opportunity to all the parties concerned. Hence, the impugned order dated 12.03.2009 does not suffer from violation of principles of natural justice. 11 . The learned counsel appearing on either side made submissions touching upon the merits of the case. If we are to deal with the merits of the case, we have to necessarily get into disputed questions of fact. There is no absolute bar in High Court entering into disputed questions of fact and it will depend upon the facts of each case. The law on this issue has been succinctly put by the Apex Court in NTPC Ltd. v. Mahesh Dutta reported in (2009) 8 SCC 339 . 12 . In the instant case, on going through the materials placed before us and after carefully considering the order passed by the Special Director of Enforcement, we find that we have to necessarily deal with a lot of documents and get into disputed questions of fact. To avoid such a scenario, the enactment itself provides for further remedies under Section 19 of FEMA before the Appellate Tribunal and thereafter, under Section 35 of the Act, by way of filing a further Appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim protection till the appeal is filed before the Appellate Tribunal. After the appeal is filed, it is left open to the Appellate Tribunal to decide upon the continuation of the interim order. c) The period that was spent during the pendency of these Writ Petitions shall be taken into account and given credit under Section 14 of the Limitation Act and if the appeal is filed within the time stipulated by this Court in Clause (a), the appeal shall be entertained and the same shall be dealt with on merits. d) It is left open to the petitioners to raise all the grounds before the Appellate Tribunal and the same shall be considered on its own merits and in accordance with law and the order passed in these Writ Petitions will not have any bearing upon the final decision to be taken by the Appellate Tribunal and ; e) If the petitioners do not file the appeal within the time limit fixed by this Court before the Appellate Tribunal, it shall be deemed that the petitioners are not availing the appellate remedy and the order passed by the Special Director of Enforcement, dated 12.03.2009 shall become final. No costs. Consequently, connected miscellaneous petitions are closed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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