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2005 DIGILAW 330 (CAL)

TRAVELS AND RENTALS PVT. LTD. v. UNION OF INDIA

2005-05-13

J.K.BISWAS

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J. K. BISWAS ( 1 ) THE writ petitioners are aggrieved by the order of the appellate tribunal for foreign exchange dated February 1, 2005 directing them to file separate appeals with requisite fees to be paid separately. ( 2 ) PROVISIONS of the Foreign Exchange Management (Adjudication proceedings and Appeal) Rules, 2000, Rule 10, provide that for an appeal presented to the appellate tribunal in terms of provisions of the Foreign exchange Management Act, 1999, Section 19, the appellant is to pay a fee of rupees ten thousand. ( 3 ) IN this case a show-cause notice dated May 31, 2002 was issued by the adjudicating authority in terms of provisions of the Foreign Exchange regulation Act, 1973. The show-cause was issued against the company. Subsequently by attracting provisions of Section 68 of that Act the adjudicating authority directed four natural persons to show cause why steps should not be taken against them also, as the persons responsible to the company for the conduct of its business at the time contravention of provisions of the Act was committed by it. ( 4 ) THE adjudication proceeding ended in a single order dated december 15, 2004. Having found the company guilty of contravention of provisions of the 1973 Act, and having found the other persons deemed to be guilty in terms of Section 68 of that Act, the adjudicating authority imposed penalties separately on all of them. ( 5 ) WHILE communicating the order the adjudicating authority informed that an appeal would lie against his order before the appellate tribunal and a fee of rupees ten thousand was to be paid for preferring such appeal. ( 6 ) SINCE the company and the other persons on whom the penalties were imposed felt aggrieved, they jointly preferred a single appeal accompanied by a fee of rupees ten thousand. They simultaneously filed an application for interim relief: it is pending decision. At such stage the appellate tribunal gave the impugned directions. ( 7 ) COUNSEL submits that since all the petitioners were entitled to join in one appeal, the appellate tribunal was wrong in directing them to file separate appeals with separate fees. It seems to me that he is correct. At such stage the appellate tribunal gave the impugned directions. ( 7 ) COUNSEL submits that since all the petitioners were entitled to join in one appeal, the appellate tribunal was wrong in directing them to file separate appeals with separate fees. It seems to me that he is correct. ( 8 ) BY referring me to provisions of Sections 49, 50 and 61 of the 1973 Act Counsel for the respondents argues that the proceeding before the appellate tribunal being a quasi judicial proceeding the underlying principles of Order I, Rule 1 of the Code of Civil Procedure, 1908 would apply. He argues that since separate orders, like separate decrees, were passed by the adjudicating authority imposing penalties separately, separate causes of action arose requiring filing of separate appeals with separate fees by the petitioners. According to him, they were not entitled to join in a single appeal. ( 9 ) WITH due respect, I am unable to agree with him. The petitioners felt aggrieved by a common order whereby the adjudicating authority directed them to pay penalty, though at different amounts. In my view, by applying the underlying principles of Order 1, Rule I and Order 2, Rule 3 of the Code of Civil Procedure, 1908, it must be held that in the context of commonness in the causes of action the petitioners were entitled to join in a single appeal. ( 10 ) THERE is no valid reason why they should be required to file separate appeals when all of them are aggrieved by the same order made in a single proceeding, and they have a single opponent. Asking them to file separate appeals is nothing but to encourage definitely avoidable multiplicity of proceeding; the rule of convenience, what multifariousness is, does not make it imperative. The Courts and Tribunals never encourage such a procedure; they always strive to curb multiplicity of proceeding. ( 11 ) FILING of separate appeals in the case would only increase the size of the fund into which the amounts collected on account fee find their way. I venture to say that for such purpose, persons entitled to present one appeal cannot be compelled to file more than one appeal. The appellate tribunal would be required to give only such service as would be necessary for a single, appeal, even if five appeals are filed by these petitioners. I venture to say that for such purpose, persons entitled to present one appeal cannot be compelled to file more than one appeal. The appellate tribunal would be required to give only such service as would be necessary for a single, appeal, even if five appeals are filed by these petitioners. The fee is collected precisely for giving commensurate service, and not for eking out the revenue of the State. ( 12 ) IT cannot be disputed that all the petitioners are principally aggrieved by the decision of the adjudicating authority that the company committed contravention of provisions of the 1973 Act. In case findings against the company are upset by the Appellate Tribunal, it goes without saying that the other persons, involved by attraction of Section 68 of that act, would get out honourably, and with their hands down. Therefore, the argument regarding requirement of filing separate appeals seems to me to be entirely alien to the scope and ambit of the order of the adjudicating authority. ( 13 ) FOR these reasons I think that the Appellate Tribunal was wrong in directing filing of separate appeals with separate fees. Accordingly, I allow the writ petition, and set aside the directions given by the appellate tribunal at items (i) and (v) of its order dated February 1, 2005. The Appellate Tribunal is directed to decide the appeal on merits. Needless to say that the application for interim relief filed by the petitioners shall be taken up first by the appellate tribunal for giving appropriate decision. ( 14 ) IN the facts and circumstances of the case, I am not inclined to make any order for costs in the writ petition. Hence there will be no order for costs in it. ( 15 ) INCIDENTALLY, I put it on record that question whether the petitioners were at all liable to pay a fee of rupees ten thousand, or whether they were entitled to maintain the appeal by paying a fee of rupees two thousand only, has not been gone into by me, and hence the petitioners would be free to agitate this question before the appellate tribunal, which will be free to give its decision in accordance with law. ( 16 ) ALL parties shall act on a signed xerox copy of this dictated order and also on a certified xerox copy thereof, both to be supplied urgently on the usual undertakings.