Bombay High Court
Jaya Parmanand Patel vs Sudha Chowgule And Ors on 14 September, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
p2.ial.27907.22..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ANJALI Digitally signed by
ANJALI TUSHAR
INTERIM APPLICATION(L)NO. 27907 OF 2022
TUSHAR ASWALE
IN
Date: 2022.09.16
ASWALE 14:26:25 +0530
SUIT NO. 2435 OF 2005
Jaya P. Patel ..Applicant/Orig.Plaintiff No.2
IN THE MATTER BETWEEN
Indu Parmanand Patel & Anr ..Plaintiffs
Vs.
Sudha Chowgule & Ors ..Defendants
Mr.Kuber Wagle a/w Declan Fernandes, Purazar Fouzdar i/b Vigil
Juris, for the Applicant/Orig.Plaintiff No.2.
Mr.Sarosh Bharucha for Maneck Mulla Administrator.
Mr. Ashish Kamat a/w Shruti Katakey, Rhea Parkash i/b Crawford
Bayley & Co, for Defendant No.1.
CORAM:- B. P. COLABAWALLA,J.
DATE :- SEPTEMBER 14, 2022.
P. C.:
Not on Board. With the consent of parties taken on Board.
2 The above Interim Application is filed by Plaintiff No.2 inter alia seeking a modification of the order dated 2 nd August, 2021 to the extent of paragraph 14 thereto so as to restrain the Administrator Aswale page 1 of 5 p2.ial.27907.22..doc from handing over the documents as contemplated therein. 3 The next prayer that is sought is that the order passed by the Administrator dated 17th June, 2022 acting upon the order dated 2 nd August, 2021 be quashed and set aside and be treated as a nullity and non-est. 4 The learned counsel appearing on behalf of the Plaintiffs moved the above matter in view of the fact that the Administrator appointed would now implement the order passed by him on 17 th June, 2022. It is in these circumstances that I have taken up the matter out of turn.
5 I find that by order dated 2 nd August, 2021, the Administrator was directed to supply copies of the proceedings, initiated against Plaintiff No.2 under the provisions of the Foreign Exchange Management Act, 1999 (for short "FEMA") to Defendant No.1. The order further recorded that if any document is not part of the FEMA proceedings or if it is privileged as recognised by any law, the Administrator may refuse to give copies of those document/s. This has been clearly spelt out in paragraph 14 of the order dated 2 nd August, 2021.
Aswale page 2 of 5
p2.ial.27907.22..doc
6 Acting on this order [dated 2 nd August, 2021], the
Administrator has passed the order dated 17 th June, 2022. The Administrator, after hearing the parties and examining the order dated 2nd August, 2021, came to the conclusion that the copies of the FEMA proceedings furnished by Plaintiff No.2 to the Administrator are to be given to Defendant No.1. The only two exceptions noted by the Administrator are (i) any document/s not forming a part of the FEMA proceedings or (ii) if the document/s is privileged as recognized by any law. The Administrator while dealing with the aforesaid exceptions, came to the conclusion that even though the apprehensions of Plaintiff No.2 disclosing the documents mentioned in the order dated 17 th June, 2022 may be justified, no case of privilege was made out. Accordingly, the Administrator directed Plaintiff No.2 to furnish copies of the entire proceedings before the Appellate Tribunal, FEMA to Defendant No.1 within a period of four weeks from 17th June, 2022. 7 In this factual backdrop, the learned counsel appearing on behalf of Plaintiff No.2 submitted that he is seeking a modification of the order dated 2nd August, 2021 because the proceedings before the Appellate Tribunal, FEMA are pending, and in which, an issue regarding confidentiality of the documents is raised. Until that is decided, there cannot be any direction to handover the documents in the FEMA Aswale page 3 of 5 p2.ial.27907.22..doc proceedings to Defendant No.1.
8 I do not find any merit in this argument whatsoever. The direction given by this Court in its order dated 2 nd August, 2021, and more particularly paragraph 14 thereof, has indeed given the power to the Administrator to examine whether any document which is sought for by Defendant No.1 is privileged as recognized by any law. If such a privilege attaches to the document/s, the Administrator could refuse to give copies of such records/documents. In the facts of the present case, the Administrator has clearly found that no privilege is attached to the documents sought for by Defendant No.1, and which the Administrator directed Plaintiff No.2 to handover. Even before me, the learned counsel appearing on behalf of Plaintiff No.2 was not able to point out any provision under which privilege is attached to the documents which have to be handed over by Plaintiff No.2 to Defendant No.1 as per the order of the Administrator. The only argument canvassed was that these documents pertain to private transactions of Plaintiff No.2 and are not relevant for the purposes of adjudication of the present dispute. This argument, in my opinion, does not attach any privilege to the documents. Even otherwise, on perusing the record, I find that it is because of certain dealings of Plaintiff No.2 which resulted in alleged violations of the Foreign Exchange Management Act, 1999 (FEMA), that Aswale page 4 of 5 p2.ial.27907.22..doc notices have been issued [by the authorities under FEMA] against some of the properties which are the subject matter of the present Suit. In these circumstances, it would be unfair to suggest that the documents in the FEMA proceedings are wholly unconnected with the properties involved in the present Suit.
9 For all the aforesaid reasons, I do not find any merit in the above Interim Application and the same is accordingly dismissed. However, there shall be no order as to costs.
10 The Administrator is now directed to act on the order passed by him on 17th June, 2022 and comply with the same within a period of one week from today.
11 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Aswale page 5 of 5