* IN THE HIGH COURT OF DELHI AT NEW DELHI 5 + 8014/2007 & CM APPL No.15136/07 y + 7 S.K. JAIN ..... Petitioner versus Through Mr. Arvind K. Nigam, Senior Advocate with Mr. Pawan Narang and Mr. Anish Dhingra, Advocates l UNION OF INDIA & ANR ..... Respondents Through Mr. A.S. Chandhiok, ASG with Mr. A.K. Panda, Senior Advocate, Mr. N. Matta and Mr. Bhagat Singh, Ms. Rajdeepa Behura and Mr. C.S. Chauhan, Advocates W.P.(C) 8015/2007 & CM APPL No. 15138/2007 J.K. JAIN ..... Petitioner -Through Mr. Pawan Narang and Mr. Anish · Dhingra, Advocates versus UNION OF INDIA & ANR ..... Respondents Through Mr. Chandhiok, ASG with Mr. A.K. Panda, Senior Advocate, Mr. N. Matta and Mr. Bhagat Singh, Ms. Rajdeepa Behura and Mr. C.S. Chauhan, Advocates + W.P.(C) 8016/2007 & CM APPL No. 15140/2007 B.R. JAIN versus ..... Petitioner Through Mr. Pawan Narang and Mr. Anish Dhingra, Advocates ,_,_ · UNION OF INDIA& ANR ..... Respondents Thnmgh Mr. A.S. Chandhiok, ASG with Mr. A.K. Panda, Senior Advocate, Mr. N. Matta and Mr. Bhagat Singh, Ms. Rajdeepa Behura and Mr. C.S. Page 1 ofS Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 42 + 0/o Chauhan, Advocates And W.P.(C) 4058/2007 & CM APPL No.· 7629/2007 S.K. JAIN versus ..... Petitioner Through Mr. Pawan Narang and Mr. Anish Dhingra, Advocates UNION OF INDIA & ANR ..... Respondents CORAM: Through Mr. A.S. Chandhiok, ASG with Mr. A.K. Panda, Senior Advocate, Mr. N. Matta and Mr. Bhagat Singh, Ms. Rajdeepa Behura and Mr. C.S. Chauhan, Advocates · HON'BLE DR. JUSTICE S.MURALIDHAR ORDER 28.01.2010 1. These four petitions are directed against the common order dated 7th ySeptember 2009 passed by the Appellate Tribunal For Foreign Exchange ('Tribunal') dismissing the applications filed by the Petitioners for waiver of pre-deposit in Appeal Nos. 98, 99, 100 and 101 of 2007 pending before the Tribunal. 2. The facts of the case relevant to the present proceedings have been set out in some detail in the impugned order and are, therefore, not repeated. The Tribunal held that the Petitioners had not clearly brought out their financial position and therefore, it was constrained to make a surmise about their financial capacity to make pre-deposit. The Tribunal required the Petitioners to make pre-deposit of the .entire penalty as directed in the adjudication order WP (C)Nos. 8014, 8015, 8016 & 4058(200? Page2of5 within thirty days. It may be stated here that the penalty amount varies in each case. It is Rs.6.8 crores in relation to Shri S.K. Jain [Petitioner in WP (Civil) No. 8014/2007], Rs.3 crores in the case ofMr. J.K. Jain [Petitionerin WP (Civil) No. 8015/2007], Rs. 6 crores in the case of Mr. B.R. Jain [Petitioner in WP (Civil) No. 8016/2007] and Rs. 2.5 crores in the case of Mr. S.K. Jain [Petitioner in WP (Civil) No. 4058/2007]). 3. The Tribunal was required to consider the case of the Petitioner under e 4_ Section 52 (2) of the Foreign Exchange Regulation Act 1973 ('FERA'). In para 9 of the impugned order it is observed by the Tribunal that it was obliged, in terms of Section 19 ( 1) of the Foreign Exchange Amendment Act ('FEMA'), "to impose conditions while dispensing· of pre-deposit of the penalties so as to ensure recovery of the penalty, if sustained." . This · observation does not reflect the correct legal position. Recently, by an order dated 1st December 2009 in LPA No. 323 of 2009 (Sterlite Industries (I) v. Special Director of Enforcement), a Division Bench of this court accepted the contention made by the DRI itself, in cases where the proceedings had commenced prior to the· enactment of FEMA, that the Petitioners' applications for waiver of pre-deposit should be considered in the light of Section 52 (2) FERA. The present Petitioners' applications also · require to be considered likewise. 4. Pursuant to the order dated 18th November 2009 passed by this Court each of the Petitioners has filed an affidavit dated 23rct January 2010 setting out· the details of the immovable and movable assets of the petitioners and their family members. This also includes the details of the. telephone bills, credit WP (C)Nos. 8014, 8015, 8016 & ,, , '.: .. "·:·.·.-:.: ... ,e::,::.;..) Page 3 of5 card bills and electricity bills which have been paid in the recent past. 5. Learned counsel for the DRI states that some more particulars require to be furnished by the Petitioners to facilitate verification. For e.g. they need to give the location and extent of the immovable assets, the account numbers of the Petitioners in various banks where the cash and bank balances are held, the names of the companies and number of shares held in each of them. J 6. This Court is of the considered view that with the Petitioners having now ( been furnished a number of documents in support of their contention that they do not have the financial capacity to make pre-deposit of the entire penalty amount prior to the hearing of these appeals; the Tribunal should rehear their applications for waiver of pre-deposit on the basis of these affidavits. The Tribunal will also deal with applications under Section 52 (2) FERA as explained in the order dated 1st December 2009 in LP A No.323 of '2069 (Sterlite Industries (I) Limited v. Special Director of Enforcement). . 7. Accordingly, the impugned orders are set aside. The Petitioners' applications for waiver of pre-deposit will now be listed before the Tribunal on 2nd March 2010. By that date the Petitioners will file before the Tribunal copies of the affidavit dated 23rd January 2010 filed by them in this Court in these. proceedings. Additionally, each of the Petitioners will file a further affidavit before the Tribunal by the aforementioned date giving the further details as sought by the Respondents as noted hereinbefore. 8. The Tribunal will proceed to hear the Petitioners' applications afresh and WP (C)Nos. 8014, 8015, 8016 & 405812007 Page 4 of5 pass a reasoned order on the question of waiver of pre-deposit within a ·period of three months thereafter. 9 .. The writ petitions and the pending applications are disposed of with the above directions. 10. Order dasti. A certified copy of the order be sent to the Tribunal within one week. JANUARY 28, 2010 rk . S.MURALIDHAR, J ' L J: /' 1 LL, S1 Wf 11 Me. L. / r:::__f'l\ '9 ( ( b f=Dl . . WP (C)Nos. 8014, 8015, 8016 & 4058/2007 Page5'of5