Madhya Pradesh High Court
The Special Directorate Of Enforcement ... vs M/S Cyno Pharma Thr. Ramesh S. Shah And ... on 11 January, 2016
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FEMA. No.1/2010
11.01.2016
Shri R.L.Jain, learned Senior Counsel along with Ms.
Veena Mandlik, learned Counsel for the appellant.
Shri Vijay Assudani, learned Counsel for the
respondents.
Heard on the question of admission as well as on I.A. No.4934/2010, an application for condonation of delay.
2. The appeal is filed under Section 35 of the Foreign Exchange Management Act, 1999 (hereinafter referred as 'The Act of 1999') is barred by 113 days.
3. Learned Senior Counsel for the appellant submitted that order dated 29.09.2009 was served on 05.11.2009 and the present appeal has been filed on 28.04.2010 in stead of on or before 04.01.2010. He submitted that due to official procedure there was delay of 113 days in filing the appeal and prays that delay of 113 days be condoned.
4. In reply, Shri Vijay Assudani, learned Counsel for the respondents has drawn our attention to Section 35 of the Act of 1999, which reads as under :-
35. 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 arising out of such order :
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed
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within a further period not exceeding sixty days."
5. I.A.No.4934/2010, is an application for condonation of delay that, department was prevented of sufficient cause for making an appeal under Section 35 of the Act of 1999, is barred by 113 days. As per proviso to Section 35, if we allow the application then, we can condone the delay of 60 days only. It is well settled that recourse to the Court against order impugned cannot be made beyond the period prescribed in Section 35 of the Act of 1999. A party aggrieved by an order may file an appeal within a period of 60 days from the date of communication of the decision or order of the appellate tribunal to him on any question of law arising out of such order, which may be condoned by the court if sufficient cause is shown, but not thereafter. Appeal in question is barred by 113 days.
6. The delay cannot be condoned after a period of 60 days as per the proviso of Section 35 of the Act of 1999. The proviso to Section 35 is analogous to Section 5 of the Limitation Act. Section 5 does not put any limitation with respect to the period, but proviso to Section 35 gives discretion to the court to condone the delay for a sufficient cause but the discretion is limited to a maximum period of 60 days.
7. In the present case, it is not in dispute that the appeal is barred by 113 days, ie., beyond the maximum period of 60 days and the same cannot be condoned.
8. Thus, I.A.No.4934/2010, has no merit and is
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accordingly, dismissed.
9. Consequently, FEMA No.1/2010, is also dismissed as barred by time.
(P.K.Jaiswal) (Jarat Kumar Jain)
Judge Judge