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Judgment
G. C. Mishra, Acting Chairman
MP-PMLA-6022/LKW/2019 (Resto.)
An application has been filed by M/s. Bharat Glass Tubes Ltd. (the appellant) for restoration of the appeal no. FPA-PMLA-186/LKW/2011, which was dismissed for default on 19.08.2015. In the said application the following prayers have been made:
a) Recall the Final Order dated 19.08.2015 dismissing Applicant’s appeal for default in appearance;
b) Restore the captioned Appeal to its original number and hear the same on merit;
c) Pass such other and further Order(s) as the Hon’ble Appellate Tribunal may deem fit in the facts and circumstances of the case in the interest of justice.
In the said application, the applicant has inter-alia contended the following:
(i) That vide Order dated 15.03.2013, the Hon’ble Appellate Tribunal after hearing both sides admitted the appeal, issued Notice to learned Respondent for taking instructions. Later on 29.08.2013 after hearing the Appellant’s Counsel, Hon’ble Appellate Authority directed the learned Counsel for the Respondent to file the reply. Thereafter the arguments were heard on several dates, wherein Counsel regularly appeared.
(ii) That on 28.11.2014 this Hon’ble Appellate Tribunal vide Order of the date directed listing of the matter along with other matters arising out of OC No. 76/2010 and thereafter on 16.01.2015, the matter was extensively heard when Applicant undersigned counsel appeared and argued the matter.
(iii)That as the next date of hearing i.e. on 19.03.2015 Counsel’s father Shri Ashok Sapra was not well and a junior counsel appeared and as no hearing took place on the said date on account of Respondent’s Counsel’s non availability she did not note the date being new in profession.
(iv) That due to father’s ailment, Counsel lost track of the matter and same went unattended. Later Counsel’s father Advocate Ashok Sapra left his heavenly abode in January 2017 after prolonged illness and thereafter counsel’s mother unable to bear the loss, became seriously ill and was hospitalized on several occasions. The hospitalization records she shall produce at the time of arguments for perusal of the Appellate Tribunal.
(v) That recently, while reorganizing the office, Counsel perused the file and finding no status enquired from this Hon’ble Appellate Tribunal’s Registry and came to know that consequent to default in appearance, the Hon’ble Appellate Authority vide Order dated 19.08.2015 dismissed the appeal for non-appearance.
(vi) That the default in appearance or delay in filing restoration application is totally inadvertent and occasioned on account of reasons recorded supra which the Hon’ble Appellate Tribunal may appreciate is neither deliberate nor contumacious.
(vii) That all other cognate appeals preferred by various Appellants against contextual Order are still pending and now listed for hearing on 06.05.2019 and 11.07.2019.
(viii) That the Applicant has a good case on merit as the attached property was purchased years before the alleged offence under PMLA purportedly committed on 2009 and as the property at the time of provisional attachment itself was under mortgage to Union Bank of India and therefore the impugned Order being contrary to law propounded by the Hon’ble Appellate Tribunal in the matter of IDBI Bank Ltd., Vs. Deputy Director of Enforcement as reported in 2018SCCOnline ATPMLA16 and in the matter of Naresh Grover Vs. Joint Directorate of Enforcement as reported in (2018)100Taxman.com377(PMLA-AT), New Delhi, Applicant has a meritorious case with bright chance of success, especially as Applicant has neither been named in the FIR nor in the Chargesheet in the predicate offence.
(ix) That no prejudice would be caused to learned Respondent, if the appeal is restored and heard on merit whereas immense prejudice would be caused to the Applicant if appeal is not restored.
(x) That Applicant and undersigned counsel seek unconditional apology for default which has occasioned due to reasons supra and are willing to abide by any condition imposed by this Hon’ble Appellate Authority for restoration of appeal. It won’t be out of place that apart from the instant matter the office of the counsel did not prefer any other matter before this Hon’ble Tribunal.
In reply to the application for restoration of appeal, the non-applicant (respondent), inter-alia, made the following contentions with a prayer to dismiss the application:
a) That, the instant application for restoration was filed by the Appellant, M/s. Bharat Glass Tube Ltd. before this Hon’ble Appellate Tribunal against the judgment/order dated 19.08.2015……………………
In the recent past, the Hon’ble Supreme Court in Esha Bhattacharjee v. Raghunathjpur Nafar Academy, (2013) 12 SCC 649, while dealing with an issue involving delay of 2449 days had referred various precedents on condonation of delay and cumulatively laid down guidelines on condonation of delay and one of the important said guideline is that:-
Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.
b) In the case of General Manager, Northern Railway Vs Vishva Nath Nangia in 118 (2005), Hon’ble Delhi High Court was pleased to uphold that condonation of delay is not a matter of right. The delay must be properly explained hence there appears no merit in the petition of the appellant for this purpose.
c) That, the above mentioned PAO No. 04/2010 has been confirmed by the Ld. Adjudicating Authority vide its Order dated 06.04.2011 in O.C. No. 76/2010 whereby the Ld. Adjudicating Authority observed that Shri Madhu Koda and his associates through various companies including the appellant company were indulged and knowingly assisted in the process of activity connected with the proceeds of crime and projected it as untainted property under the garb of genuine and bonafide investments. The Ld. Adjudicating Authority confirmed that fact that these properties were involved in money laundering and hence are proceeds of crime and are liable for attachment.
d) That, on subsequent date i.e. 19.08.2015, it was observed by the Ld. Appellate Tribunal that no one on behalf of the appellant was present to represent the case even after taking it up again and again for hearing. Therefore, Ld. Appellate Tribunal dismissed the appeal vide its order in default of appearance of the Appellant or its Counsel.
e) That, the instant application for restoration of appeal was never filed in last 44 months.
f) In view of this, the impugned property has become the case property pending adjudication only before the Spl. Court. In this connection, Para 169 of judgement dated 02.04.2019 delivered by Hon’ble High Court of Delhi into Crl. Appeal 143 of 2018 & others is reproduced below:
“169. In view of above-noted legislative scheme, it must be clarified that if the order confirming the attachment has attained finality, or if the order of confiscation has been passed or, further if the trial of a case for the offence under Section 4 PMLA has commenced, the claim of a party asserting to have acted bonafide or having legitimate interest will have to be inquired into and adjudicated upon only by the special court.”
g) That, it is submitted that the contentions made by the appellant in respect of filing the instant appeal with a delay of about 1325 days is misleading, deliberate, mischievous and intentional.
Heard both sides. During the course of hearing the learned counsel for the applicant submitted that the argument from the side of the appellant was over and the argument from the side of the respondent was yet to be completed. It is also submitted that since the argument from the side of the appellant was already over, there was no need for appearance of the appellant or the advocate of the appellant and the matter should have been decided on merits by the Tribunal. The second important submission made by the learned counsel for the applicant that on 19.03.2015 counsel’s father Shri Ashok Sapra was not well and a junior counsel appeared, and as no hearing took place on the said date on account of respondent’s counsel’s non-availability, she did not note the date being new in profession. The third important submission made by the learned counsel that learned counsel’s father advocate Shri Ashok Sapra died in January, 2017 after prolonged illness, followed by serious illness and hospitalization of her mother on several occasions. The fourth important submission mad by the applicant that no prejudice would be caused to the respondent, whereas there would be immense prejudice to the applicant if the appeal is not restored.
In the said application for restoration it is contended that in support of illness of mother of the counsel, the applicant shall produce the hospitalization records at the time of arguments for the perusal of the Tribunal. No such records have been produced during the course of arguments.
To the contrary the respondent has relied on the judgment of Hon’ble Supreme Court in the matter of “Esha Bhattacharjee v. Raghunathpur Nafar Academy” [(2013) 12 SCC 649], and also relied on the case of “General Manager, Northern Railway vs. Vishva Nath Nangia” in 118(2015) before Hon’ble Delhi High Court & submitted that the appellant has never explained any valid reasons instant application for restoration of appeal and that the reason of non-availability of its counsel, non-filing of the restoration application in last 44 months and that the delay of about 1325 days is misleading, deliberate, mischievous and intentional. During the course of arguments, it was contended by the learned counsel for the respondent that some of the appeals arising out of same ECIR have already been dismissed and that is the reason why now near about four years from the date of the dismissal of the present appeal the applicant is trying to revive the appeal to protect the tainted properties.
Heard both the learned counsels and also gone through the materials available on record and the relevant judgments cited. Before going into the merits of the application it is felt necessary to examine the situations which led to the dismissal of the appeal.
It is seen from the record on dated 21.08.2014 that the arguments were concluded by the learned counsel for the appellant and posted to 29.08.2014 for further arguments on the prayer made by the learned counsel for the respondent. The said arguments were made before the Full Bench consisting of Justice Anil Kumar, Chairperson and Two Members. On 29.08.2014, no one was present on behalf of the appellant and one of the Member of the Bench was absent so the matter was adjourned to 29.10.2014. On 29.10.2014, the appeal was adjourned at the request of learned counsel for the respondent. On 28.11.2014, the arguments were partly heard before the Full Bench and listed on 16.01.2015 for further arguments. The matter was again adjourned on 16.01.2015 and posted to 19.03.2015 on which date none appeared for the appellant but in the interest of justice no adverse order was passed and the Full Bench adjourned the matter to 30.04.2015. The matter was again listed before the Full Bench on 30.04.2015, on which date no one was present on behalf of the appellant and again in the interest of justice no adverse order was passed by the Full Bench and the appeal was posted to 19.08.2015. On this date the matter was listed before the Division Bench but no one from the side of the appellant was present on first call, the matter was passed over and again taken up at 01:50 P.M. but no one was present on behalf of the appellant and the case was dismissed in default.
Thereafter, on 02.05.2019 the present application for restoration of appeal has been filed by Ms. Shikha Sapra, advocate. Subsequent to the filing of the application for restoration of appeal, Shri Suryakant Singhla Advocate filed Vakalatnama dated 21.11.2019 on behalf of M/s. Bharat Glass Tube Ltd., the appellant. In the said Vakalatnama the name of Ms. Shikha Sapra, Advocate, the present applicant does not appear. The application for restoration of appeal has been filed by Ms. Shikha Sapra as an Advocate, not as an advocate for the appellant. Nowhere in the application it is stated that Ms. Shikha Sapra is filing the application on behalf of M/s. Bharat Glass Tube Ltd. But Ms. Shikha Sapra, learned advocate had Vakalatnama in original appeal FPA-PMLA-186/LKW/2011 which was dismissed for default.
Admittedly the restoration application has been filed without any application for condonation of delay. The appeal was dismissed for default on
19.08.2015. The application for restoration has been filed on 02.05.2019. There is a delay of about 1350 days. In the said application it is pleaded at Para No(s). 5, 6, & 7 that:
“5. That as the next date of hearing i.e. on 19.03.2015 Counsel’s father Shri Ashok Sapra was not well and a junior counsel appeared and as no hearing took place on the said date on account of Respondent’s Counsel’s non availability she did not note the date being new in profession.
That due to father’s ailment, undersigned Counsel lost track of the matter and same went unattended. Later Counsel’s father Advocate Ashok Sapra left his heavenly abode in January 2017 after prolonged illness and thereafter counsel’s mother unable to bear the loss, became seriously ill and was hospitalized on several occasions. The hospitalization records I shall produce at the time of arguments for kind perusal of the Hon’ble Appellate Tribunal.
That recently, while reorganizing the office, Counsel perused the file and finding no status enquired from this Hon’ble Appellate Tribunal’s Registry and come to know that consequent to default in appearance, the Hon’ble Appellate Authority vide Order dated 19.08.2015 dismissed the appeal for non appearance.”
It is submitted in the aforesaid Paras of the application that on dated 19.03.2015 a junior counsel appeared and as no hearing took place on the said date on account of respondent’s counsel non-availability. She did not note the date of hearing being new in profession. This submission made in the application without any support. There is nothing on record to support the contention of the applicant that a junior counsel appeared on that particular
date. Even if the date could not be noted on the same day, the same could have been done subsequently on the next date or within a week thereafter.
It is seen from the record that the appellant M/s. Bharat Glass Tube Ltd. through its authorized signatory Shri K.S. Vipani engaged Shri Piyush Kumar, Shikha Sapra (the applicant) and Reena Rawat as Advocates for the appellant. The same Vakalatnama was executed on 23.05.2011. It is also seen from the orders that these advocates were appearing in the appeal. But on the day when the appeal was dismissed for default and on earlier dates i.e. on dated 30.04.2015 and 19.03.2015 the appeal remained unrepresented from the side of the appellant. The matter was part-heard before the Full Bench. In other words, though the arguments of the appellant were concluded but the argument from the side of the respondent and reply from the side of the appellant was yet to be made. So, the presence of the appellant/advocate of the appellant was necessary. The Full Bench gave scope to the appellant twice before the date of the Impugned Order to remain present. No adverse order was passed in the interest of justice.
It is not pleaded in the restoration application that the appellant did not appear in any other case before any other Court and remain absent during the said period of 1350 days when the applicant could not perform her professional work.
The applicant who is not the appellant herself could have intimated the appellant about her compulsion/situation of not appearing in the appeal.
Further, the other two counsels who have signed the Vakalatnama and represented the appellant in the appeal on various occasions could have appeared on 19.03.2015, 30.04.2015 & 19.08.2015.
The appellant though engaged another set of lawyers, after filing of the present restoration application, has not filed any application for condonation of delay/affidavit to support the restoration application filed by the applicant. No doubt in an appeal, the presence of the appellant is not required on each and every date. But the appellant should remain vigilant about the status/stage of the appeal. The appellant is a company and could have employed at least one person to follow the appeal. No reason has been cited by the applicant as to why the appellant did not follow the appeal or to know the status of the appeal for a period of 1350 days.
It is contended by the applicant that on 19.08.2015 the learned counsel for the respondent was not present. The said ground does not absolve the applicant from not attending the appeal on 19.08.2015 and on two prior occasions. It may be mentioned here that Shri Vikas Pathak, advocate was appearing for respondent on various dates including dated 15.03.2013 when Shri Vikas Pathak accepted the notice of the appeal on behalf of the respondent. Even on dated 21.08.2014 when the arguments were concluded by the learned counsel for the appellant the same advocate Mr. Vikas Pathak appeared and remain present for the respondent.
It is one of the grounds of the applicant that the application should be allowed since certain other appeals which arise out of the same impugned order are pending. During the course of arguments the learned counsel for the respondent submitted that there were 25(Twenty-Five) appeals filed against the same order, out of which 19 appeals have already been dismissed. At any point of time it was never pleaded by the appellant or its advocate that this appeal be taken up, argued and decided alongwith other appeals arising out of the same order. This appeal has been filed separately and is continuously posted and heard separately. It was also not pleaded by the appellant at any point of time that the appellant’s case would be prejudiced if the appeal is heard and decided independently. Therefore, this ground is also not sufficient to restore the appeal.
The learned counsels for both the parties have relied upon the judgment of the Hon’ble Supreme Court passed in the matter of “Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy & Ors. (2013) 12 SCC 649”, and submitted that the Hon’ble Supreme Court in the aforesaid matter laid down guidelines on Condonation of Delay.
I have gone through the aforesaid judgment of Hon’ble Supreme Court. Their Lordships have referred various judgments of Hon’ble Court and summarized certain guidelines for Condonation of Delay. It is understood from the said guidelines that all the principles are to be read together while considering an application for condonation of delay. Each application for condonation of delay is to be considered based on the facts and circumstances of each case. No doubt a liberal, pragmatic, justice oriented, non-pedantic approach has to be made with respect to an application for condonation of delay to advance justice. For that reason there must be sufficient cause to be understood in the proper spirit, etc. in proper perspective to the obtaining fact-situation. The other factors to be considered as to whether there is any gross negligence, lack of bonafideness, reasonableness, inordinate delay, conduct, behaviour, attitude of the applicant and others while considering an application for condonation of delay.
The Hon’ble Supreme Court in the aforesaid case has summarized the principles on the basis of the judgments referred therein. The relevant portions of the said judgment are reproduced below:
“10. In this context, we may refer with profit to the authority in Oriental Aroma Chemical Industries Limited v. Gujarat Industrial Development Corporation and another, where a two-Judge Bench of this Court has observed that the law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. Thereafter, the learned Judges proceeded to state that this Court has justifiably advocated adoption of liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate.
In Improvement Trust, Ludhiana v. Ujagar Singh and others, it has been held that while considering an application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. It has been further stated therein that each case has to be weighed from its facts and the circumstances in which the party acts and behaves.
A reference to the principle stated in Balwant Singh (dead) v. Jagdish Singh and others would be quite fruitful. In the said case the Court referred to the pronouncements in Union of India v. Ram Charan, P.K. Ramachandran v. State of Kerala and Katari Suryanarayana
v. Koppisetti Subba Rao and stated thus:-
“25. We may state that even if the term “sufficient cause” has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of “reasonableness” as it is understood in its general connotation.
The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved.
If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.”
Recently in Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, the learned Judges referred to the pronouncement in Vedabai v. Shantaram Baburao Patil wherein it has been opined that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Thereafter, the two-Judge Bench ruled thus: -
“23. What needs to be emphasized is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.
What colour the expression “sufficient cause” would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.” Eventually, the Bench upon perusal of the application for condonation of delay and the affidavit on record came to hold that certain necessary facts were conspicuously silent and, accordingly, reversed the decision of the High Court which had condoned the delay of more than seven years.”
I have examined the application for restoration of appeal, reply and rejoinder thereto and heard the oral submissions made by both the parties. The application for restoration of appeal has no merit on the grounds discussed above and summarized below.
(i) The application has not been filed by the appellant nor any Affidavit in support of the application filed by the applicant, the erstwhile advocate of the appellant.
(ii) The application for restoration of appeal has been filed after a period of 1350 days.
(iii) The application for restoration of appeal has been filed without any application for condonation of inordinate delay in filing restoration application.
(iv) There is no prayer in the application for restoration of appeal to condone the inordinate delay of 1350 days.
(v) The grounds of illness of parents of the applicant has not been supported with any documents even though it was undertaken by the applicant that the relevant records shall be produced at the time of arguments (Para 6 of the application).
(vi) No sufficient reasons have been explained by the applicant except stating about her father’s illness & death in 2017 and illness of her mother subsequent to the death of father. There is no proper explanation for 1350 days delay in filing the application except the above.
(vii) Even the other two counsels engaged by the appellant did not appear continuously for three dates.
(viii) The appeal was then a part-heard matter. The Full Bench of this Tribunal, in the interest of justice, did not pass any adverse order and thus gave proper opportunity to the appellant to hear the appeal on merit.
(ix) Before the conclusion of argument the matter has been placed before Division Bench from Full Bench. Prior to the date of passing of the order dated 19.08.2015, the then Hon’ble Chairperson Justice Anil Kumar tenure was over in the month of July, 2015.
(x) There is an unexplained inordinate delay of 1350 days that attracted the doctrine of prejudice in favour of the respondent.
(xi) Even the liberal construction to the extent possible is considered then also the application for restoration of appeal does not merit consideration as neither there is any application for condonation of delay nor any prayer for condoning the delay in the main application nor sufficient reasons have been given to condone the inordinate delay.
(xii) The applicant was not the only advocate engaged in the appeal. There are two other advocates who not only signed the Vakalatnama but also personally present for the appellant on different dates. So, the ground of the appellant that she could not appear on the date 19.08.2015 and could not track the appeal is not accepted.
(xiii) There is nothing on record that the appellant had made any effort to know the status of the appeal by employing a person of the company.
(xiv) The respondent has acquired the benefit and valuable rights due to dismissal of the appeal almost four years back and therefore, prejudice would be caused if the appeal is restored to file.
The Hon’ble Supreme Court in case of “Lanka Venkateswarlu (D) By Lrs Vs. State of A.P. & Ors. reported in 2011 SCCL.COM 154” has observed in so many words as under:
“The concepts such as “liberal approach”, justice oriented approach”, “substantial justice” cannot be employed to jettison the substantial law of limitation. Whilst considering applications for condonation of delay under section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers.”
Law Courts never tolerate an indolent litigant since delay defeats equity — the Latin maxim vigilantibus et non dormentibus jura subveniunt (the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right. Wood, V.C. in Manby v. Bweicke (1857) 3 K&J 342. The litigant does not stand to benefit by approaching the Court of law with an appropriate application at a belated stage. The legislature has in this, as in every civilized country that has ever existed, though fit to prescribe certain limitations of time after which persons may suppose themselves to be in a peaceful possession of their property, and capable of transmitting the estates of which they are in possession, without any apprehension of the title being impugned by litigation in respect of transactions which occurred at a distant period, when evidence in support of their own title may be most difficult to obtain.
There is an inordinate delay in filing the restoration application which is not accompanied with either any application for condonation of delay or any prayer in the restoration application to condone the inordinate delay.
In the light of discussion made above and after considering the judgments of Hon’ble Supreme Court and for the reasons recorded above, I do not find any merit in the application for restoration of appeal. Accordingly the same is dismissed.