S.K. Khandelwal v. The Special Director of Enforcement; Gautam Thapar v. The Special Director of Enforcement

1. By these two appeals the appellants challenge the common order dated IS''^ October, 2013 passed by the Appellate Tribunal for Foreign Exchange dismissing the applications ofthe appellants seeking condonation of delay in filing the appeals before the Appellate Tribunal. The appellants Q also challenge the order dated 18'^ December, 2015 whereby the review petitions against the order dated 15^^ October, 2013 were dismissed and the Appellate Tribunal declined to condone the delay.

2. Briefly the facts are that the Special Director, Enforcement Directorate Mumbai imposed atotal penalty of^14 crores out ofwhich ?10 crores was to be paid by the company M/s. Avantha Holdings Ltd. (in short the company); ^1 crore by S.K. Khandelwal the full-time Director; ?1 crore by B. Hariharan the Director; ?1 crore by V.K. Sablok another Director and ?1 crore by Gautam Thapar, Chairman and Promoter of the company. Though V.K. Sablok filed the appeals on his behalf as Director and as authorized representative ofthe company and B. Hariharan another Director also filed the appeal after receipt ofcopy ofthe order ofthe Special Director without waiting for the certified copy however the present appellant did not file the appeals immediately resulting in delay of 348 days in filing the appeal before the Appellate Tribunal.

3. The Appellate Tribunal condoned the delay of 138 days in filing of the appeal by the company, B. Hariharan and V.K. Sablok vide order dated CRL.A. 248/2016 &CRL.A. 253/2016 page 2of[4] O October, 2013 but it declined to condone the delay in the two appeals filed by the appellants herein i.e. S.K. Khandelwal and Gautam Thapar on theground that the delay was inordinate.

4. The explanation of the appellants before the learned Appellate Tribunal was that though the order had been received by the company, however the appellants had applied for the certified copies and since no certified copies were available despite a lapse of considerable time they were constrained to file the appeals without the certified copies. It is no O gainsaying that the appeals could have been preferred on the basis of the order sent by the Special Director to the company based on which appeals were filed by the company and the two Directors but not by the Chairman and Promoter and full-time Director of the company. Another reason assigned by the appellants before the Appellate Tribunal was that in the meantime Gautam Thapar, the Chairman and Promoter ofthe company was very busy and thus could not file the appeals.

5. Though the second explanation cannot be accepted but the fact that till the filing of the appeal by the two appellants i.e. S.K. Khandelwal and ^ Gautam Thapar certified copies of the order were not received is an explanation which warrants consideration. Considering the fact that the impugned order passed by the Special Director dated 28 February, 2011 has already resulted in entertainment of three appeals by the Appellate. Tribunal and an explanation has been rendered by the appellants which appeals though could have been filed even in the absence ofcertified copies which eventually were filed, this Court deems it fit to set aside the order dated IS^*" October, 2013 and the order dated 18'^ December, 2015 limited to CRL.A. 248/2016 &CRL.A. 253/2016 page 3 of[4] o o u the extent of rejecting the applications filed by the appellants seeking condonation of delay in filing appeals before the Appellate Tribunal for Foreign Exchange.

6. The appeals filed by S.K. Khandelwal and Gautam Thapar against the order dated 28^^ February, 2011 passed by the Special Director, Enforcement Directorate Mumbai will be now heard by the learned AppellateTribunal on merits subject to each ofthe appellants herein depositing a cost of?50,000/to the Prime Minister's Relief Fund within two weeks. The proof of deposit of ?50,000/- each will be shownto the AppellateTribunal.

7. Appeals are disposedof MUKTA GUPTA, J. FEBRUARY 09, 2018 'ga' CRL.A. 248/2016 & CRL.A. 253/2016 page 4 of[4]