REPORTED * IN THE HIGH COURT OF DELHI AT NEW DELHI + LPA 2450/2005 and CM Nos.15345-47/2005 and 11793/2007 RESERVED ON : January 14, 2008 DATE OF DECISION : February , 2008 LAKSHMAN C.SAHA ..... Appellant Through : Mr. Mathews J. Nedumpura, Advocate versus SPECIAL DIRECTOR OF ENFORCEMENT & ORS. ..... Respondents Through : Mr. Dalip Mehra, Advocate with Mr. Rajiv Ranjan, Advocate CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MS. JUSTICE REVA KHETRAPAL 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? JUDGMENT : REVA KHETRAPAL, J. 1. This appeal is directed against the order dated 13th September, 2005 passed by the learned Single Judge whereby the learned Single Judge dismissed the writ petition on the ground of non-compliance with the orders dated 31.05.2005 directing the petitioner to deposit 25% of the penalty within six weeks from the date of the order. 2. The facts emerging from the record are that by a detailed order dated LPA 2450/2005 Page 1 of 17 26th February, 1992, the Special Director, Directorate of Enforcement, New Delhi, after recording the evidence of the parties and affording personal hearing to the appellant on a number of dates, that is, 31.05.1990, 02.07.1990, 24.10.1990, 14.11.1990 and 28.11.1990 held that in view of the investigations, it appeared that the appellant had received a total payment of Rs.1,55,87,155/- during the period 1980 to 1987 from one Shri Ranjit Saha, a person resident in India, at the instructions of his uncle Shri Pabitra Saha of Mymensingh, Bangladesh, a person resident outside India. It also appeared that the said Lakshman Saha had made total payments to the tune of Rs.1,51,92,935/- to various persons in India during the said period at the instructions of the said Shri Pabitra Saha of Bangladesh wihthout any general or special permission from the Reserve Bank of India. It was further held that the receipt of total payments of Rs.1,55,87,155/- and the making of payments of Rs.1,51,92,935/- in the manner aforesaid was in contravention of the provisions of Section 9(1)(b) and Section 9(1)(d) respectively of the Foreign Exchange Regulation Act, 1973 and accordingly called for the imposition of a total penalty of Rs.10 lakhs on the appellant to be paid at the office of the Enforcement Directorate, Calcutta Zonal Office, Calcutta by means of a demand draft drawn in the favour of the Deputy Director, Enforcement Directorate, Calcutta Zonal Office, Calcutta within 45 days of the receipt of the order. 3. Aggrieved by the above order of the Directorate of Enforcement, the appellant preferred an appeal before the Appellate Tribunal for Foreign Exchange, being Appeal No.239/1992 alongwith an application praying for dispensing with the requirement of the deposit of the penalty amount of Rs.10 lakhs and for stay of the entire payment thereof during the pendency and till the LPA 2450/2005 Page 2 of 17 disposal of the appeal. On 13th January, 2004, the Appellate Tribunal passed the following order: “APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE NEW DELHI-110 001 Appeal No.239 of 1992 Date: 13.1.2004 Appellant appears in person. Mr. Mahendra Singh, Advocate, propose to appear for the appellant. DLA Dr. Shamsuddin appears for the respondent. Heard both sides on the question of waiver of penalty; having heard either side and on perusal of records, we find no justifiable grounds for waiver of the entire penalty amounts for pre-deposit as prayed for by the appellant. However, 50% of the penalty amounts stand waived for pre-deposit; the appellant is directed to deposit 50% of the penalty amount i.e. Rs.5,00,000/-, within 60 days from today failing which the appeal will stand dismissed for default. For hearing on disposal, the matter be listed on 23.3.2004. Sd/- (O.P. NAHAR) MEMBER Sd/- (SMT. P.N. SANTHAKUMARI) MEMBER Appelant Appellant's Counsel Director, Directorate of Enforcement, New Delhi Deputy Director, Directorate of Enforcement, Kolkota DLA, Directorate of Enforcement, New Delhi Office Folder” 4. Despite the passing of the above order, the appellant failed to make pre- deposit of 50% of the amount of penalty within 60 days and instead filed an application for modification of the order, which was taken up for hearing on 28th May, 2004 and was also dismissed on the same day as not maintainable. Eventually, on 8th September, 2004, the appeal itself was dismissed for non- compliance of the order dated 13.01.2004 directing the appellant to deposit 50% of the amount of penalty, that is, Rs.5 lakhs. A review petition seeking recall/review of the order of the Appellate Tribunal dated 8th September, 2004 met with a similar fate and was also dismissed, resulting in the appellant filing LPA 2450/2005 Page 3 of 17 a writ petition before this Court, being WP(C) No.10109/2005. 5. The said writ petition came up for hearing before a learned Single Judge of this Court on 31st May, 2005 when the following order was passed: “IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 10109/2005 LAKSHMAN C. SAHA ....Petitioner Through Mr. J. Nedumpara Mathews, Adv. Versus SPECIAL DIRECTOR OF ENFORCEMEN ....Respondent Through Mr. Rakesh Tiku, Adv. CORAM: HON'BLE MS. JUSTICE GITA MITTAL ORDER 31.05.2005 Learned counsel for the petitioner submits that inasmuch as by a judicial pronouncement of this court, the proviso to Rule 5 of the notification reserving two posts of the Appellate Tribunal for Foreign Exchange for members of the Indian Legal Service has been held to be unconstitutional and void, the petitioner does not press prayer (iv) and leave is sought to withdraw the same. Leave granted. The writ petition is confined to consideration of prayers (i) to (iii) and (v) to (x). Issue notice to the respondents to show cause why rule nisi be not issued, returnable on 13th September, 2005. Mr. Rakesh Tiku, advocate accepts notice on behalf of the respondents and prays for time to file a reply. Let the reply be filed within four weeks. Rejoinder thereto within two weeks thereafter. List on 13th September, 2005. CM No.7425/2005 Exemption allowed subject to just exceptions. CM No.7423/2005 Issue notice. Mr. Rakesh Tiku, advocate accepts notice on behalf of the respondents. Let the reply be filed within four weeks. Rejoinder thereto within two weeks thereafter. It is directed that in the meantime, subject to the petitioner depositing 25% of the penalty amount within six weeks from today, no coercive action shall be taken for recovery of the amount till the next date of hearing. List on 13th September, 2005. Dasti. Sd/- (GITA MITTAL, J.) MAY 31, 2005” LPA 2450/2005 Page 4 of 17 6. Aggrieved by the order dated 31st May, 2005, the appellant/petitioner filed a review application, being CM No.8235/2005, for modification of the said order to the limited extent of waiver of the condition requiring him to deposit 25% of the penalty imposed within six weeks as a pre-condition for stay of the coercive recovery proceedings on the ground of financial constraints. On consideration of the application, the following order was passed by the learned Single Judge of this Court (HMJ Vikramajit Sen) on July 12, 2005: “IN THE HIGH COURT OF DELHI AT NEW DELHI CM No.8235/2005 in W.P.(C) 10109/2005 LAKSHMAN C. SAHA ....Petitioner Through Mr. J. Nedumpara Mathews, Adv. Versus SPECIAL DIRECTOR OF ENFORCEMEN ....Respondent Through None CORAM: HON'BLE MR. JUSTICE VIKRAMAJIT SEN ORDER 12.07.2005 On 31.5.2005, Ms. Gita Mittal, J. had directed the Petitioner to deposit twenty five per cent of the penalty within six weeks. A perusal of the Order shows that a detailed hearing was granted to the Petitioner on that date. The only intervening change is the change in the Roster. This is not a ground for modifying an Order previously passed, which has not even been complied with. I find no merit in the application. Dismissed. Sd/- (VIKRAMAJIT SEN, J.) JULY 12, 2005” 7. On 13th September, 2005, after perusal of the orders dated May 31, 2005 as well as July 12, 2005 passed on the review petition, the impugned order dismissing the writ petition on the ground that the appellant's case did not warrant the exercise of jurisdiction under Article 226 of the Constitution was passed against which the present appeal has been preferred. LPA 2450/2005 Page 5 of 17 8. We have gone through the records and heard the learned counsel for the appellant who has assailed the order of the learned Single Judge as cryptic and submitted before us that the appellant's failure to comply with the interim order can have only one consequence in law, i.e., that he will not be protected against the prosecution proceedings. Learned counsel for the respondent, on the other hand, sought to support the order on the ground that the appellant was involved in a Hawala transaction involving a sum of Rs.1.55 crores on which he had earned a profit/commission of about Rs.4 lakhs and that there was ample evidence in support thereof as evidenced by the order of the Enforcement Directorate, apart from the appellant's own statement of admission and the statement of the 17 persons to whom payments to the tune of about Rs.1.51 crores had been made without any general or special permission from the Reserve Bank of India. All the recipients had named the appellant as the person from whom payments had been received by them. 9. The limited question which arises for consideration in the present appeal is whether the writ petition of the appellant, being WP(C) No.10109/2005 was liable to be dismissed for non-compliance of the order of pre-deposit of 25% of the penalty amount. 10. Relying upon the provisions of Section 52(2) of the Foreign Exchange Regulation Act, 1973, which are pari materia with Section 19(1) of the Foreign Exchange Management Act, 1999, the appellant contended that where the pre- deposit of the penalty amount would cause “undue hardship” to the person appealing against the order of the adjudicating authority levying any penalty, the Appellate Tribunal may dispense with such deposit. For the facility of reference, the said provisions are extracted below: LPA 2450/2005 Page 6 of 17 FERA 1973 FEMA 1999 52. Appeal to Appellate Board (2) Any person aggrieved by such order my, on payment of such fee as may be prescribed and after depositing the sum imposed by way of penalty under section 50 and within forty- five days from the date on which the order is served on the person committing the contravention, prefer an appeal to the Appellate Board: Provided that the Appellate Board may entertain any appeal after the expiry of the said period of forty-five days, but not after ninety days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time: Provided further that where the Appellate Board is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, in its own discretion, dispense with such a deposit either unconditionally or subject to such conditions as it may deem fit. 19. Appeal to Appellate Tribunal (1) Save as provided in sub- section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority, other than those referred to in sub-section (1) of section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal: Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government: Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty. 11. A bare glance at the provisions of Sub-Section (2) of Section 52 is sufficient to show that the pre-condition for the right to prefer an appeal to the Appellate Board is the deposit of the sum imposed by way of penalty under Section 50. The second proviso to Sub-Section (2), however, provides that where the Appellate Board is of the opinion that the deposit to be made will LPA 2450/2005 Page 7 of 17 cause “undue hardship” to the appellant, it may, in its own discretion, dispense with such deposit either unconditionally or subject to such conditions as it may deem fit. 12. In a recent judgment, the Supreme Court in the case of Indu Nissan Oxo Chemicals Ind. Ltd. vs. Union of India and Ors. 2008 AIR SCW 151 while dealing with a similar provision in Section 129E of the Customs Act (52 of 1962) held that while dealing with the application for waiver of deposit pending appeal, twin requirements for consideration, i.e., consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue, have to be kept in view. Undue hardship is a matter within the special knowledge of the applicant for waiver of deposit pending appeal and has to be established by him. A mere assertion about undue hardship would not be sufficient. For hardship to be “undue”, it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it. 13. Reference is also invited to a decision rendered by the Supreme Court in the case of Union of India and Anr. vs. Adani Exports Ltd. and Anr. 2007 AIR SCW 7134, wherein the relevant aspects while considering the prayer for dispensation of pre-deposit have been highlighted thus: “The three aspects to be focussed while dealing with such applications are (a) prima facie case (b) balance of convenience and (c) irreparable loss.” It was further laid down by the Supreme Court in the said decision that even when the Tribunal decides to grant full or partial stay relating to pre- deposit, it has to impose “such conditions as may be necessary to safeguard LPA 2450/2005 Page 8 of 17 the interest of the revenue. This is an imperative requirement of Section 129E of the Act.” 14. A Division Bench of the Delhi High Court in Keramos vs. CEGAT, New Delhi (2003) 153 ELT 301 (Delhi) while dealing with a similar provision in Section 35E of the Central Excise Act, 1944 noted as under: “The provisions are mandatory in nature and failure to deposit the amount in question renders the appeal incompetent. The factors to be kept in mind while considering an application for waiver of deposit are well established. These are a prima facie case in favour of the applicant, the balance of convenience qua deposit or otherwise, irreparable loss, if any, to be caused in case waiver is not granted and safeguarding of public interest.” 15. In S. Vasudeva vs. State of Karnataka and Ors. AIR 1994 SC 923, it was held that under Indian conditions the expression “undue hardship” is normally related to economic hardship, but it is now well established that “undue hardship” means something which is not warranted by the conduct of the claimant or is very much disproportionate to it. Undue hardship is caused when hardship is not warranted by the circumstances. (see Indu Nissan Oxo Chemicals Ind. Ltd. vs. Union of India and Ors. 2008 AIR SCW 151). 16. In Oxford English Dictionary, the meaning of word “undue hardship” is given as unwarranted or inappropriate because excessive or disproportionate. Strouds Judicial Dictionary gives the following meaning to the word “undue hardship” as per judicial decisions cited therein: “For a hardship to be undue it must be shown in my opinion that the particular burden to the applicant to have to observe or perform the requirement is out of proportion to the nature of requirement itself and the benefit which the applicant would derive from compliance with it. (Re Walsh (1944) VLR 147). Again in Liberian Shipping Corpn Pegorus v. Kingsons (1967) 2 KB 86 it is given as But even if a claimant has been at fault himself, it is an undue hardship, if the consequences LPA 2450/2005 Page 9 of 17 are out of proportion to his fault.” 17. In Bank of Baroda vs. Appellate Tribunal for Foreign Exchange, a Single Judge of this Court after noticing the legal provisions and the judicial pronouncements with regard to pre-deposit of amount involved in disposal of an appeal under Section 19 of the Foreign Exchange Management Act, 1999 observed as follows: “7. From the foregoing judicial pronouncements, as noted above, the position, which emerges is that the Tribunal while considering any application for waiver of deposit is to take into account firstly the existence of a prima facie case In case, it is found that a party has a very strong prima facie case, and/or where the errors in the impugned order are writ large on the record, in such a case, it would be competent for the court in the exercise of its jurisdiction to grant waiver of pre-deposit since in such a case requiring a pre-deposit itself would amount to undue hardship. What is a prima facie case is well settled? It refers to an arguable or triable case. The Tribunal once it comes to the conclusion on perusal of the pleadings, documents and on hearing of the parties that there is a good prima facie case to be considered, the next step in exercise of discretion is determining the quantum of waiver to be granted. In determination of the quantum of waiver, factors, such as, balance of convenience, financial hardship of the parties, its capacity to pay or secure the amount and irreparable loss are to be considered. The said discretion is to be exercised in accordance with well settled principles for exercise of judicial discretion.” 18. In the instant case, the primary challenge of the appellant to the order of the Tribunal and of the learned Single Judge is that financial hardship will be caused to him in case dispensation of penalty is not granted to him. However, in order to satisfy ourselves, we have considered the prima facie merits of the appellant's case and keeping in view the overwhelming evidence produced by the respondent before the Special Director, Enforcement, we are satisfied that the direction given by the Appellate Tribunal for pre-deposit of 50% of the amount of penalty as pre-condition for the disposal of the appeal was justified. Despite this, the learned Single Judge, on a writ petition filed by the appellant LPA 2450/2005 Page 10 of 17 assailing the order, not only issued notice of the writ petition but scaled down the amount of pre-deposit to 25% of the penalty as a pre-condition for the consideration of the writ petition. The appellant, however, failed to comply even with the said condition and thus his writ petition came to be dismissed by the order of the learned Single Judge, which is under challenge before us. 19. While considering the effect of non-compliance of the order passed under Section 129(1) of the Customs Act, 1962 for deposit of the penalty amount, the Hon'ble Supreme Court in Navin Chandra Chhotelal vs. Central Board of Excise & Customs and Ors. (1971) 1 SCC 289 held that where pre- deposit was not made in compliance with the provisions of the Section or with any order that may be passed thereunder, the Appellate Authority is fully competent to reject the appeal for non-compliance with the statutory provisions and in such a case the Appellate Authority cannot proceed to hear an appeal on merits. Paragraphs 18 and 19 of the judgment are apposite and are extracted below: “18. No doubt Section 129 does not expressly provide for the rejection of the appeal for non-compliance with the requirement regarding the deposit of penalty or duty, but when sub-section (1) of Section 129 makes it obligatory on an appellant to deposit the duty or penalty pending the appeal and if a party does not comply either with the main sub- section or with any order that may be passed under the proviso, the Appellate Authority is fully competent to reject the appeal for non-compliance with the provisions of Section 129(1). That is exactly what the first respondent has done in this case. Accepting the contention of Mr. Trevedi will mean that the appeal will have to be kept on file for ever even when the requirement of Section 129(1) has not been complied with. Retention of such an appeal on file will serve no purpose whatsoever because unless Section 129(1) is complied with, the Appellate Authority cannot proceed to hear an appeal on merits. Therefore, the logical consequence of failure to comply with Section 129(1) is the rejection of appeal on that ground. 19. No doubt, the rejection of the appeal by the first LPA 2450/2005 Page 11 of 17 respondent will mean that the appellant is bound by the order of the third respondent levying penalty. Such a result has been brought about only by the default of the appellant in complying with the order of the first respondent to deposit half the amount of penalty. Therefore, it follows that the rejection of the appeal by the first respondent was legal and the order of the High Court dismissing the writ petition is valid.” 20. A Constitution Bench of the Hon'ble Supreme Court in the case of Anant Mills Co. Ltd. vs. State of Gujarat and Ors. (1975) 2 SCC 175 while examining the right of a person to file a statutory appeal held that it was perfectly within the power of the legislature while granting the right of appeal to impose conditions for the exercise of such right. In paragraph 40 of its judgment, the Constitution Bench held as follows: “40. After hearing the learned Counsel for the parties, we are unable to subscribe to the view taken by the High Court. Section 406(2)(e) as amended states that no appeal against a rateable value or tax fixed or charged under the Act shall be entertained by the Judge in the case of an appeal against a tax or in the case of an appeal made against a rateable value after a bill for any property tax assessed upon such value has been presented to the appellant, unless the amount claimed from the appellant has been deposited by him with the Commissioner. According to the proviso to the above clause, where in any particular case the Judge is of opinion that the deposit of the amount by the appellant will cause undue hardship to him, the Judge may in his discretion dispense with such deposit or part thereof, either unconditionally or subject to such conditions as he may deem fit. The object of the above provision apparently is to ensure the deposit of the amount claimed from an appellant in case he seeks to file an appeal against a tax or against a rateable value after a bill for any property tax assessed upon such value has been presented to him. Power at the same time is given to the appellate Judge to relieve the appellant from the rigour of the above provision in case the Judge is of the opinion that it would cause undue hardship to the appellant. The requirement about the deposit of the amount claimed as a condition precedent to the entertainment of an appeal which seeks to challenge the imposition or the quantum of that tax, in our opinion, has not the effect of nullifying the right of appeal, especially when we keep in view the fact that discretion is vested in the appellate Judge to dispense with LPA 2450/2005 Page 12 of 17 the compliance of the above requirement. All that the statutory provision seeks to do is to regulate the exercise of the right of appeal. The object of the above provision is to keep