-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 2576 OF 2008 Riyaz Ahmed A.L. Mulla ... Petitioner vs. Union of India & Anr. ... Respondents Mr. M.M. Vashi, instructed by M/s. M.P. Vashi & Associates, for the petitioner. Mr. S.S. Pakale with Mr. Y.R. Mishra for respondent No.1. CORAM: P.B. MAJMUDAR & J.P . DEVADHAR, JJ. DATE: NOVEMBER 26, 2008. P.C. Leave to delete respondent No.2 from the array of parties is granted. With the consent of the learned counsel appearing in the matter, the matter is taken up for hearing today. 2. Rule. Learned counsel appearing for respondent No.1 waives service of rule. 3. By filing this petition, the petitioner has challenged the order passed by the Appellate Tribunal for Foreign Exchange, New Delhi dated 16th September, 2008 in Appeal No. 333 of 1999. By the impugned order, the -2- Tribunal has directed the petitioner to deposit the amount in question by way of pre-deposit of penalty. It is submitted by the learned counsel for the petitioner that considering the facts and circumstances of the case, the Tribunal should have passed an order dispensing with pre-deposit of penalty as the petitioner has good case to argue in appeal. It is also his case that the petitioner has no means to pay the amount of pre-deposit of penalty, as he is carrying small poultry business in partnership where the annual income is Rs. 70,000/-. Mr.Vashi, learned counsel for the petitioner, has submitted that it is a rarest of rate case and, therefore, the order of the Tribunal is required to be set aside and the petitioner should be allowed to defend his appeal without asking him to deposit any amount towards pre-deposit. 4. Mr. Pakale, learned counsel for the respondent, on the other hand, has submitted that this cannot be said to be a rarest of rare case in which the entire amount of pre-deposit as ordered by the Tribunal is to be set aside. 5. We have heard the learned counsel for the parties and gone through the order. Regarding merits of the case, the Tribunal made some observations in paragraph 4 of the order to which we are not concerned in the present proceedings. It is, however, required to be noted that the appeal of the petitioner is pending before the Tribunal since 1999. It is surprising as to how the application for dispensing with the pre-deposit filed by the -3- petitioner was not decided for such a long time. Now when the appeal has reached final hearing after such a considerable period in September, 2008, the impugned order has been passed by the Tribunal. 6. Considering the said aspect, we are of the opinion that the order of the Tribunal is required to be interfered with by permitting the petitioner to defend his appeal. Considering the facts and circumstances of the case, the petitioner is directed to deposit a sum of Rs. 4,00,000/- (Rupees Four lakhs only) towards penalty before the Tribunal on or before 26th January, 2009. In case the said amount is deposited, the appeal of the petitioner may not be dismissed on the ground of non-compliance of the order of pre-deposit passed by the Tribunal. After deposit of the aforesaid sum, the Tribunal is directed to dispose of the appeal on merits latest by 30th April, 2009. 7. Rule is accordingly partly made absolute to the aforesaid extent. There shall be no order as to costs. P. B. MAJMUDAR, J. J.P. DEVADHAR, J.