9911796707
TMI Blog2009 (6) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 and Rs. 15,00,000/- (Rs. Fifteen lakh only) each against appellants in appeal Nos. 94/2003 96/2003 for contravention of the provisions of Section 16(1)(a) read with 68 of FER Act, 1973 on the reasons that appellants failed to receive balance foreign currency equivalent to Rs. 6.25 crores from one Jagpaul Singh Gill resident of Canada with whom an agreement for sale of 20,000 fully paid up equity shares for Rs. 100/- each of the appellant's Company entered into upon receipt of Rs. 1 crore but remaining amount is not received. While disposing off the application for dispensation of pre-deposit penalty in these appeals; this Tribunal by order dated 20.10.2003 allowed dispensation of pre-deposit penalty. Presently these appeals are taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .11.2001 recorded u/s. 40 of FERA, 1973 r/w. Section 49(3) 49(4) of FEMA, 1999. (3) Agreement dt. 16.11.1995 between M/s. Mandalia Developers Pvt. Ltd. and Shri J. Paul Gill. (4) Agreement dt. 03.02.1989 between M/s. Mandalia Developers Pvt. Ltd and Hemadri Associates. (5) Xerox copy of the cheque No. 120611 dt. 17.11.1995 issued by Shri J. Paul gill in favour of Smt. Pushpa H. Rawal from his NRE A/c. No.42 maintained at Development Co operative Bank Ltd. Nariman Point. Mumbai - 21. 5. The appellants in their reply controverted the allegations that who were not agreeing the adjudication proceedings were held and impugned order is passed and holding the appellants guilty. 6. This is an admitted position that an agreement is made by and betwe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RBI for purchase of equity shares. 9. The provisions of Section 16 primarlarily imposes an obligation on the person who has a right to receive any foreign currency from a non-resident person that the receiver will do or refrain from doing anything which has an affect of delaying the receipt or thereby payment does not come into being the provisions of Section 16 are reproduced hereunder for better understanding:- 16. Duty of persons entitled to receive foreign exchange, etc. - (1) No persons who has a right to receive any foreign exchange or to receive from a person resident outside India a payment in rupees shall, except with the general or special permission of the Reserve Bank, do or refrain from doing anything, or take or refrain from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement. There is nothing on record. In case non-resident person tailed to take permission from RBI the appellants are required to demand performance of the agreement by giving proper notice. That has not been done nor any damages for breach of contract were demanded. It is well-settled that whenever either of the contractual party fails to proceed ahead as per contractual obligations the opposite side will make a positive demand for performance by giving a proper notice for this purpose. This has not been done by the appellants in these appeals. Nor the appellants have brought on record either of the approvals, if any, obtained in pursuance of clause 3 of the agreement. 11. Therefore, the liability of not performing contractual obligations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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