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TMI Blog2013 (10) TMI 1597X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of section 6(3)(a) of the Foreign Exchange Management Act, 1999 (in short FEMA) read with regulations 6 (2) (ii) and 7 of Foreign Exchange Management (Transfer or Issue of Any Foreign Security) Regulation, 2004. The aforesaid Directors and Chairman-cum-Promoter of the company are found in the impugned order to be responsible for the contravention by the company and as per impugned order they are guilty of the said contraventions by the company in terms of section 42(1) of the FEMA. The Appellants/Applicants have filed applications for condonation of delay applications along with affidavits and affidavit of Shri V.K. Sablok, Director of the company verified on 6-6-2013 before the Notary Public, New Delhi (in short affidavit of Sablok dated 6.6.2013). We have heard the Ld. Counsel & ALA of the parties on applications for condonation of delay and perused the records. 2. Succinctly the facts needed for the disposal of the aforesaid condonation of delay applications are that the impugned order dated 28-2-2011 against which appeals have been filed was received by the appellants on 4-3-201l and the Appellants/Applicants have the right to prefer appeal under sub-section (1) read wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The reasons for filing the appeals after the expiry of limitations of forty five days have been explained in paragraphs 3 to 11 of the affidavit of Sablok dated 6-6-2013. It appears from the said para 3 to 11 that Mr. Sablok, who is responsible, vide Resolution of the Board of Directors of M/s Avantha Holding Limited ( A copy of the relevant extracts from the minutes of the meeting of the Board of Directors of M/s Avantha Holdings Ltd. Co, held on 29-3-2011 at Gurgaon has been filed in this Tribunal) for filing the appeals on behalf of the said company, when impugned order was received to the appellants/applicants, was primarily responsible for three transactions i.e. Business Transfer Agreement (Transaction value of Rs.750 crores) with an American Company, IPO listing before London Stock Exchange (Transaction Value of about 330 million USD) and the listing of Securities before Singapore Stock Exchange (Transaction value of about 300 million Singapore dollars), in process and the same continued during the period till last of August, 2011. The said transactions were of high value and time bound and, therefore, were very crucial for M/s Avantha Holdings Ltd. The details about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent appeals by getting the appeals drafted, finalized and filed on 5th September, 2011. The whole process though completed at fast pace took about 14 days". It has also been explained in the said affidavit of Sablok dated 6-6-2013 that major travels were undertaken by Mr. Sablok during the period of delay in filing the appeals i.e. March, 2011 to August, 2011. The relevant travel receipts, records, etc. are also attached with the affidavit. It is, further explained that Mr. Sablok was fully pre-occupied in this unavoidable work. Due to this heavy preoccupation the appeals could not be filed before this Tribunal within time and were filed belatedly on 5.9.2011. 3. The Ld. Counsel for the appellants relying on the facts stated in the affidavit of Mr. Sablok dated 6-6-2013 has submitted that delay in filing the appeals i.e. appeal Nos. 116/2011 to 118/2011 is acceptable and bona fide for condoning the delay. There is no deliberately and the delay is not very long but is only of 138 days. He has, in support of his contention that the cause for delay in filing the appeals are sufficient, relied on the following judgements:-- 1. Collector, Land Acquisition v. MST Katiji [1987] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so". In the said case of N. Balakrishnan (supra) Hon'ble Supreme Court of India had observed in paragraphs 10 to 13 as under:-- "10 The reason for such a different stance in thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. 11. Rules of limitation are not meant to destroy the right of parties. They are meant to sec that parties do not resort to dilatory tactis, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p in mind that discretion in the section has to be exercised to advance substantial justice. The court has a discretion to condone or refuse to condone the delay as is evident from the words "may be admitted" used in the section. While dealing with the scope of Section 5 of the Limitation Act, this Court in Ramlal v. Rewa Coalfields Ltd. AIR 1962 SC 361 held: "Section 5 of the Limitation Act provides for extension of period in certain cases. It lays down, inter alia, that any appeal may be admitted after the period of limitation prescribed therefor when the appellant satisfies the court that he had sufficient cause for not preferring the appeal within such period. This section raises two questions for consideration. First is, what is sufficient cause; and the second, what is the meaning of the clause "within such period"? What the first question we are not concerned in the present appeal. It is the second question which has been decided by the Judicial Commissioner against the appellant. He has held that "within such period" in substance means during the period prescribed for making the appeal. In other words, according to him, when an appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pality [l972] 1 SCC 366 and G. Ramegowda, Major v. Special Land Acquisition Officer [1988] 2 SCC 142 this court observed that the expression "sufficient cause" in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate in action or lack of bona fide is not imputable to the party seeking condonation of delay. Law of limitation been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy [1993] 7 SCC 123 this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactics, the court should normally condone the delay. However, in such a case the court should also keep in mind the constant litigation expenses incurred or to be incurred by the opposite party and should compensate him accordingly. In that context the court observed; It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said period with frequent travels and hectic transitional work both in Delhi and outside and consequently he could not pay attention to the filing of memorandum of appeals within the prescribed limitation of forty five days. In dealing with such busy schedule of affairs in ordinary course such delay may happen in filing appeals which should not be reckoned as intentional delay. The delay appears not to be occurred deliberately or on account of culpable negligence or on account of mala fide in filing the appeals No. 116/2011,117/2011 and 118/2011 on 5-9-2011. Mr. Sablok was busy with heavy pre-occupation in three transactions discussed in preceding paras till the last week of August, 2011 and thereafter the appeals have been filed on 5-9-2011. After the last week of August, 2011 till the date of filing the appeals i.e. there is a very short gap which might have been taken in natural course in proceeding with preparing appeals and consulting the counsel. As such the delay has been explained substantially, and making a justice oriented approach, we are of the view that there is sufficient cause for condoning the delay in filing appeal Nos. 116/2011,117/2011 and 118/2011. 6. Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inod Sablok enclosed with appeal No.14/2012. Only a minor change that in place of "Mr. S.K. Khandelwal who is also a Director in the said Company" occurring in para 3 of the said affidavit in Appeal No. 14/2012 the words " Mr. Gautan Thaper, who is Chairman and Promoter of the said Company" are occurring in para 3 of the affidavit of Mr. Vinod Sablok in appeal No.15/2012. 8. From the perusal of the contents of the said paras 3 & 4 in both the affidavit dated 06-07-2012, it appears that the impugned order was received in the company and on the basis of the impugned order the penalty imposed was deposited, both on behalf of the company and its directors and Mr. S.K. Khandelwal, Director of the Company was apprised of the said penalty and impugned order and similarly Mr. Gautam Thaper, Chairman and Promoter of the company was also apprised of the said penalty and impugned order. They gave instructions respectively to file the appeal Nos. 14/2012 and 15/2012. It is obvious from the affidavit of Sablok dated 6-6-2013 that he was busy with the transactions of the company only upto last week of August, 2011. He filed appeals No.116/2011, 117/2011 and 118/2011 on 5-9-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Gautal Thaper is wholly un-satisfactory and appears to be a story cooked after thought. A person who filed three appeals on 5-9-2011 arising from the same impugned order how forget to file the remaining two appeals on that date in spite of directions to file them and discovered that those appeals No. 14/2012 and 15/2012 have not been filed only on the date the hearing notice of the said three appeals already filed received to the appellants. It appears unbelievable and concocted story that such incident was discovered when such notice was received. The fact that Mr. Sablok a law knowing person after directions to file the remaining two appeals has done gross negligence in filing the two appeals in 2012 after filing the three appeals in 2011. The explanation given for the delay in filing these two appeals of 2012 after filing three appeals of 2011 reflects thorough negligence on the part of Mr. Sablok. In the case of Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [Civil Appeal Nos. 2970-2971 of 2012, dated 9-4-2012] the Hon'ble Supreme Court of India has observed as under:-- "What needs to be emphasized is that even though a liberal and justice oriented approa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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