bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9930 OF 2009 Dilip Rasiklal Shah ..Petitioner Vs. Union of India & Ors. ..Respondents Mr.Madhu M.Patel for petitioner. Mr.A.J.Rana, Senior Advocate with M.S.Bhardwaj for respondents. CORAM :- V.C.DAGA & K.K.TATED,JJ. DATE : 19TH MARCH,2010 P.C. Heard. Perused petition. 2. This petition is directed against the order dated 27th March,2009, rejecting the appeal for non compliance of order dated 26th September, 2008, whereby and whereunder, the petitioner was directed to pre- deposit of 5% penalty. The petitioner could not comply with the aforesaid order. The petitioner applied for review of the order dated 26th September, 2008. The said Review Petition came to be dismissed by the impugned order dated 27th March, 2009. 3. The petitioner, not satisfied with the aforesaid order, has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India. The petitioner has produced bank account with Bank of Baroda showing there from that, he does not have any credit balance to pay the amount of penalty. He has also stated on oath that he does not have any property so as to offer it by way of security. He, thus, submits that looking to the financial hardship, the petitioner ought to have been exempted from pre-deposit. On being asked, Mr.Rana tried to support the impugned order. However, he could not take us to logical end. Ultimately, he left to discretion of this Court. 4. The appellate remedy is a substantive right of the petitioner. In the peculiar facts of this case, we are satisfied that the petitioner has no financial capacity to comply with the order of pre-deposit. However, the petitioner has expressed his willingness and undertaken to deposit Rs.5,00,000/- with the Special Director, Enforcement Directorate within six weeks from today. The said undertaking is taken on record. Mr.Rana has no serious objection for accepting this undertaking. 5. In the aforesaid view of the matter, considering the consensus between the parties, statements made therein are accepted. In the circumstances, the amount of pre-deposit stands substituted with that of Rs.5,00,000/-. The order dated 27th March, 2009 whereby the appeal came to be dismissed is hereby quashed and set aside and the appeal is restored to file of the Appellate Tribunal for Foreign Exchange with directions to decide the same on its own merits, subject to compliance of the undertaking and on depositing a sum of Rs.5,00,000/- within six weeks from today. In the event, the petitioner fails to deposit the said amount within six weeks, this petition shall be deemed to have been rejected. So far as the contention on merits are concerned, all of them are kept open for consideration. Any observation by the Appellate Tribunal either in the order directing pre-deposit or dismissal of appeal shall be treated as prima facie. The petition accordingly stands disposed of. (K.K.TATED,J.) (V.C.DAGA,J.)