Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
[
th
% Date of decision: 20 November, 2012
+ LPA No.756/2012
MULTI FASHION PVT. LTD. & ORS. ..... Appellants
Through: Mr. Mayank Goel & Mr. L. R. Luthra,
Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Neeraj Chaudhari & Mr. Ravjyot
Singh, Advs. For UOI.
CORAM :-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
D. MURUGESAN, CHIEF JUSTICE
1. The appellants had filed W.P.(C) No.80/2008, from which this appeal
th
arises, impugning the order dated 11 October, 2007 of the Appellate
Tribunal for Foreign Exchange dismissing the appeal preferred by the
appellants for the reason of the failure of the appellants to pre-deposit 10%
of the penalty amount i.e. Rs.15 lacs as directed. The learned Single Judge
while issuing notice of the writ petition directed the appellants to deposit
some amount to show their bona fide . In pursuance thereto a sum of Rs.3
lacs was deposited by the appellants. The appellants thereafter deposited a
further sum of Rs.3 lacs. The writ petition was listed before the learned
th
Single Judge on 25 November, 2008 when the appellants sought time and
assured that the balance amount of Rs.9 lacs would be deposited within two
th
months. Accordingly, the writ petition was disposed of vide order dated 25
November, 2008 directing that upon the appellant depositing Rs.9 lacs
LPA No.756/2012 Page 1 of 4
within two months, the Appellate Tribunal would hear the appeal of the
appellants on merits.
2. It appears that the appellants did not deposit the said amount of Rs.9
lacs within the time granted by the learned Single Judge. No application also
was filed seeking extension of time. After more than four years, CM
No.16874/2012 was filed seeking condonation of delay of 1095 days in
depositing the amount. The learned Single Judge, vide impugned order dated
rd
3 October, 2012 has dismissed the said application holding that the time of
two months for depositing the balance amount had been granted at the
request of the appellants and that no cogent explanation for the delay had
been furnished and that the appellants had displayed a complete lack of
alacrity bordering on sloth.
3. We find no reason for interfering with the discretion, validly, in
consonance with well established principles, exercised by the learned Single
Judge in refusing to condone the delay. It cannot be lost sight of that as per
th
the adjudication order dated 8 January, 2004, penalty of Rs.150 lacs is due
from the appellants. Though the appellants preferred the statutory appeal
thereagainst but failed to comply with the condition of pre-deposit, leading
th
finally to the dismissal of the said appeal on 11 October, 2007. The
appellants thereafter filed the writ petition in which though the learned
Single Judge refused to interfere with the order of pre-deposit but granted
th
time till 30 January, 2009 for making such deposit whereupon the appeal,
th
even though already stood dismissed on 11 October, 2007, was directed to
LPA No.756/2012 Page 2 of 4
be heard. The appellants however still did not make the pre-deposit and
waited for a further period of four years.
3. It is often found in the present day that such appellants do not make
pre-deposit and allow their appeals to be dismissed, in the hope that the
Governmental Agencies in their lethargy and red-tapism would not take
steps for recovery of the adjudicated amount. Moreover when they find the
Agencies to be ultimately enforcing recovery, they attempt to have their
appeals re-activated. Such conduct has but to be deprecated.
4. It is also worth noticing that the appellants were directed to make pre-
deposit of only 10% i.e. Rs.15 lac out of the adjudicated amount of 150 lacs,
way back in the year 2004. The appellants cannot, after having enjoyed the
said monies for the last eight years, be permitted to, at their own sweet will
determine as to when they would want to have their appeal heard. No litigant
has a right to so abuse the process of law.
5. As aforesaid, no error had been found by this Court in the order of the
Appellate Tribunal requiring the appellants to make a pre-deposit of 10%of
the adjudicated amount. That order has attained finality. This Court had only
in exercise of its power of judicial review extended the time for making the
said pre-deposit and directed the appeal to be heard thereafter. The
appellants having not availed of the time which they had themselves sought
and having also not made out any ground for condonation of delay, the order
of the learned Single Judge is just and equitable.
LPA No.756/2012 Page 3 of 4
6. The counsel for the appellants has relied on Tukaram Kana Joshi Vs.
M.I.D.C. MANU/SC/0933/2012 to contend that the exercise of discretion in
considering an application for condonation of delay must be fair and just and
in order to promote justice and not to defeat it. However we find that the
said judgment was rendered in a case where the delay had occurred in
making the claim by some of the individuals seeking compensation for the
land taken by the respondent authority without resorting to any procedure
prescribed by law. The Apex Court in the same judgment has also observed
that the relief of condonation of delay depends upon the facts of each case.
The facts of the present case, which is under the Foreign Exchange
Regulations Act, 1973, as aforesaid do not call for any indulgence to the
appellants. The overall consideration of facts would show that the appellants
were not diligent in complying with the orders.
7. The appeal is accordingly dismissed.
No costs.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
NOVEMBER 20, 2012
pp
LPA No.756/2012 Page 4 of 4
[
th
% Date of decision: 20 November, 2012
+ LPA No.756/2012
MULTI FASHION PVT. LTD. & ORS. ..... Appellants
Through: Mr. Mayank Goel & Mr. L. R. Luthra,
Advs.
Versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Neeraj Chaudhari & Mr. Ravjyot
Singh, Advs. For UOI.
CORAM :-
HON’BLE THE CHIEF JUSTICE
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
D. MURUGESAN, CHIEF JUSTICE
1. The appellants had filed W.P.(C) No.80/2008, from which this appeal
th
arises, impugning the order dated 11 October, 2007 of the Appellate
Tribunal for Foreign Exchange dismissing the appeal preferred by the
appellants for the reason of the failure of the appellants to pre-deposit 10%
of the penalty amount i.e. Rs.15 lacs as directed. The learned Single Judge
while issuing notice of the writ petition directed the appellants to deposit
some amount to show their bona fide . In pursuance thereto a sum of Rs.3
lacs was deposited by the appellants. The appellants thereafter deposited a
further sum of Rs.3 lacs. The writ petition was listed before the learned
th
Single Judge on 25 November, 2008 when the appellants sought time and
assured that the balance amount of Rs.9 lacs would be deposited within two
th
months. Accordingly, the writ petition was disposed of vide order dated 25
November, 2008 directing that upon the appellant depositing Rs.9 lacs
LPA No.756/2012 Page 1 of 4
within two months, the Appellate Tribunal would hear the appeal of the
appellants on merits.
2. It appears that the appellants did not deposit the said amount of Rs.9
lacs within the time granted by the learned Single Judge. No application also
was filed seeking extension of time. After more than four years, CM
No.16874/2012 was filed seeking condonation of delay of 1095 days in
depositing the amount. The learned Single Judge, vide impugned order dated
rd
3 October, 2012 has dismissed the said application holding that the time of
two months for depositing the balance amount had been granted at the
request of the appellants and that no cogent explanation for the delay had
been furnished and that the appellants had displayed a complete lack of
alacrity bordering on sloth.
3. We find no reason for interfering with the discretion, validly, in
consonance with well established principles, exercised by the learned Single
Judge in refusing to condone the delay. It cannot be lost sight of that as per
th
the adjudication order dated 8 January, 2004, penalty of Rs.150 lacs is due
from the appellants. Though the appellants preferred the statutory appeal
thereagainst but failed to comply with the condition of pre-deposit, leading
th
finally to the dismissal of the said appeal on 11 October, 2007. The
appellants thereafter filed the writ petition in which though the learned
Single Judge refused to interfere with the order of pre-deposit but granted
th
time till 30 January, 2009 for making such deposit whereupon the appeal,
th
even though already stood dismissed on 11 October, 2007, was directed to
LPA No.756/2012 Page 2 of 4
be heard. The appellants however still did not make the pre-deposit and
waited for a further period of four years.
3. It is often found in the present day that such appellants do not make
pre-deposit and allow their appeals to be dismissed, in the hope that the
Governmental Agencies in their lethargy and red-tapism would not take
steps for recovery of the adjudicated amount. Moreover when they find the
Agencies to be ultimately enforcing recovery, they attempt to have their
appeals re-activated. Such conduct has but to be deprecated.
4. It is also worth noticing that the appellants were directed to make pre-
deposit of only 10% i.e. Rs.15 lac out of the adjudicated amount of 150 lacs,
way back in the year 2004. The appellants cannot, after having enjoyed the
said monies for the last eight years, be permitted to, at their own sweet will
determine as to when they would want to have their appeal heard. No litigant
has a right to so abuse the process of law.
5. As aforesaid, no error had been found by this Court in the order of the
Appellate Tribunal requiring the appellants to make a pre-deposit of 10%of
the adjudicated amount. That order has attained finality. This Court had only
in exercise of its power of judicial review extended the time for making the
said pre-deposit and directed the appeal to be heard thereafter. The
appellants having not availed of the time which they had themselves sought
and having also not made out any ground for condonation of delay, the order
of the learned Single Judge is just and equitable.
LPA No.756/2012 Page 3 of 4
6. The counsel for the appellants has relied on Tukaram Kana Joshi Vs.
M.I.D.C. MANU/SC/0933/2012 to contend that the exercise of discretion in
considering an application for condonation of delay must be fair and just and
in order to promote justice and not to defeat it. However we find that the
said judgment was rendered in a case where the delay had occurred in
making the claim by some of the individuals seeking compensation for the
land taken by the respondent authority without resorting to any procedure
prescribed by law. The Apex Court in the same judgment has also observed
that the relief of condonation of delay depends upon the facts of each case.
The facts of the present case, which is under the Foreign Exchange
Regulations Act, 1973, as aforesaid do not call for any indulgence to the
appellants. The overall consideration of facts would show that the appellants
were not diligent in complying with the orders.
7. The appeal is accordingly dismissed.
No costs.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J
NOVEMBER 20, 2012
pp
LPA No.756/2012 Page 4 of 4