bgp bgp bgp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.875 OF 2008 PETITION NO.875 OF 2008 PETITION NO.875 OF 2008 Vijay Khona & Ors. ..Petitioners Vs. Union of India & Ors. ..Respondents Mr.Khokhawala i/b.M/s.Nankani & Associates for the Petitioners. Mr.A.S.Rao for the Respondents. CORAM CORAM CORAM :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & :- DR.S.RADHAKRISHNAN & A.P.BHANGALE, A.P.BHANGALE, A.P.BHANGALE, JJ. JJ. JJ. DATE DATE DATE : 5TH JUNE, 2008 : 5TH JUNE, 2008 : 5TH JUNE, 2008 P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. Rule. Rule is made returnable forthwith. The learned Counsel for the Respondents waives service. By consent taken up for final hearing. 2. By this Petition, the Petitioner is challenging the common order passed by the Appellate Tribunal for Foreign Exchange, New Delhi dated 19th December,2007 whereby the Tribunal had dismissed six Appeals on the ground of non deposit of 80% of the penalty amount within a period of 60 days, as per the order dated 23rd February,2005. 3. By the said order dated 23rd February,2005, the Appellate Tribunal for Foreign Exchange had granted full dispensation for pre-deposit in five Appeals i.e. Appeal No.289/2000, 290/2000, 291/2000, 292/2000 and 293/2000 and as far as partnership firm in Appeal No.288/2000 is concerned, the said firm was directed to make pre-deposit of 80% of penalty amount within a period of 60 days from the date of receipt of the order 23rd February,2005. 4. It appears that an application for stay was made before the Tribunal with regard to the said pre-deposit order and the same has been decided exparte by the Tribunal and it appears that unfortunately on the relevant day, the wife of Counsel had passed away. Under these circumstances, the Petitioner had approached this Court by way of Writ Petition (L) No.1232 of 2005 and Writ Petition (L) No.1259 of 2005 and this Court, by an order dated 2nd May,2005 had set aside the said order of the Appellate Tribunal for Foreign Exchange and had directed the Tribunal to hear the same afresh after affording an opportunity of personal hearing to the Appellants. It appears that the Tribunal had taken up the said matter on 13th September,2007 i.e. after a lapse of almost two and half years. However, no notice was given to the Appellants with regard to the date of hearing and on that day the Tribunal had recorded that neither the Appellants nor their Advocate was present before it and the matter was adjourned to 19th December,2007. 5. It appears that on 19th December,2007, the learned Counsel who was appearing for the Appellant was held-up before this Court and as such, an application was made before the Tribunal for adjournment on 13th December,2007 itself mentioning that Counsel will not be available on 19th December,2007 and the matter may be adjourned to any date beyond 19th December,2007, however, the Tribunal, without taking into account the said application had rejected all the six Appeals, by an exparte order, in the sense that Mr.J.D.Nankani, Counsel appearing for the Appellants was not available and only the junior Advocate had appeared, even though already an exemption was granted with regard to five Appeals. 6. Having regard to the facts and circumstances of the case, we are of the view that the Appellate Tribunal for Foreign Exchange ought to have granted an opportunity of personal hearing to the Petitioners/Appellants. Hence, we set aside the impugned order dated 19th December,2007 passed by the Appellate Tribunal for Foreign Exchange and restore all the aforesaid six Appeal Nos.288/2000, 289/2000, 290/2000, 291/2000, 292/2000 and 293/2000 and direct the Tribunal to hear the aforesaid application filed by the partnership firm afresh, after clearly intimating the Appellants the date of hearing well in advance. The learned Counsel for the Appellants undertakes to remain present before the Tribunal on the day fixed by the Tribunal. Rule is made absolute accordingly. (A.P.BHANGALE,J.) (A.P.BHANGALE,J.) (A.P.BHANGALE,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.) (DR.S.RADHAKRISHNAN,J.)