RAJKUMAR SHIVHARE Vs. UNION OF INDIA

JUDGEMENT

(1.) THE issue which arises before the Court in these proceedings is whether an Appellant who files an appeal before the High Court under Section 35 of the Foreign Exchange Management Act, 1999 can seek an exclusion of time under Section 14 of the Limitation Act, 1963.

(2.) A notice to show cause was issued to the Appellant on 12 January 2005 under Section 3(C) of the Foreign Exchange Management Act, 1999 ("the FEMA"). Upon adjudication, a penalty was imposed on the Appellant under Section 13(2) by an order dated 29 February 2008. The Appellant moved the Appellate Tribunal constituted under Section 19. The Tribunal dismissed an application for dispensing with a predeposit of the penalty by its order dated 17 July 2008. The Appellant thereupon instituted proceedings under Article 226 of the Constitution before the Delhi High Court. The Delhi High Court dismissed the Petition by a judgment dated 24 September 2008 holding that it had no territorial jurisdiction and that by virtue of the provisions of Section 35, it was not entertaining the Petition. In appeal, the Supreme Court by its judgment dated 12 April 2010 held that an appeal under Section 35 can be preferred against any order or decision of the Appellate Tribunal which should mean all decisions or orders of the Tribunal. The Supreme Court rejected the contention that an Appeal under Section 35 can be filed only from a final order or judgment of the Tribunal and not from an interlocutory order. While dismissing the Appeal preferred by the Appellant, the Supreme Court observed thus :

(3.) COUNSEL appearing on behalf of the Appellant submitted that the observations contained in the judgment of the Supreme Court would indicate that the provisions of Section 14 of the Limitation Act, 1963 would apply. Since the Appellant was bona fide pursuing his case under Article 226 of the Constitution before the Delhi High Court and then its Appeal before the Supreme Court, the time taken in those proceedings would according to the Appellant have to be excluded.