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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.2343 OF 2007

Dabhol Power Company

….Petitioner

V/s.

Union of India & Ors.

…Respondents

----

Mr. Rohan Sathaye a/w Mr. Guru Shanmugam i/b M & M Legal Ventures for

Petitioner

Mr. Parag A Vyas a/w Ms Karuna Yadav for Respondent Nos.1 to 4

----

CORAM : K.R. SHRIRAM &

A.S. DOCTOR, JJ

DATED : 28^th JULY 2022

P.C. :

1

Paragraph 23 of the impugned order dated 21^st August 2007 reads as

under:

“23. For the reasons stated hereinabove, these appeals are

dismissed on the grounds of limitation because these appeals

are preferred after an inordinate delay of more than 90 days

which cannot be condoned under the Section 52(2) Foreign

Exchange Regulation Act, 1973.”

2

Apex Court in Thirumalai Chemicals Ltd. Vs. Union of India & Ors.

1

after holding that a limitation provision is procedural, held that irrespective

of the fact that the adjudicating officer had passed the orders with reference

to the violation of the provisions of FERA, as the appeal against such order

was to the Appellate Tribunal constituted under FEMA, necessarily Section

1. (2011) 6 Supreme Court Cases 739

Meera Jadhav

MEERA

MAHESH

JADHAV

Digitally

signed by

MEERA

MAHESH

JADHAV

Date:

2022.08.01

15:01:17

+0530

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19(2) of FEMA alone will apply and it is not possible to import the

provisions of Section 52(2) of FERA. The Appellate Board stood dissolved

and ceased to function when FEMA was enacted. Apex Court held that

Section 52(2) can apply only to an appeal to the Appellate Board and not to

any Appellate Tribunal. Paragraphs 42 to 49 of Thirumalai Chemicals Ltd.

(Supra) read as under:

“42. The appellate Board under FERA, it may be noted stood

dissolved and ceased to function when FEMA was enacted.

Therefore, any appeal against the order of the adjudicating

officer made under FERA, after FEMA came into force, had to

be filed before the Appellate Tribunal constituted under

FEMA and not to the Appellate Board under FERA. Section

52 of FERA stipulates the limitation for an appeal against the

orders of the adjudicating officer to the Appellate Board. It

provides the period of limitation as 45 days but the Board

may entertain an appeal after the expiry of 45 days but not

beyond 90 days.

43. Under FEMA, an appeal lies to the appellate tribunal

constituted under that Act and Section 19(2) provides that

every appeal shall be filed within 45 days from the date on

which a copy of the order of the adjudicating authority is

received. The appellate is however empowered to entertain

appeals filed after the expiry of 45 days if it is satisfied that

there was sufficient cause for the delay in filing the appeal.

44. Though both Section 52(2) of FERA and Section 19(2) of

FEMA provide a limitation of 45 days and also give the

discretion to the appellate authority to entertain an appeal

after the expiry of 45 days, if the appellant was prevented by

sufficient cause from filing an appeal in time, the appellate

authority under FERA could not condone the delay beyond

45 days whereas under FEMA, if the sufficient cause is made

out, the delay can be condoned without any limit.

45. The question we have already pointed out is whether

Section 52(2) of FERA or Section 19(2) of FEMA will govern

the appeal. As noticed above, any provision relating to

limitation is always regarded as procedural and in the

absence of any provision to the contrary, the law in force on

the date of the institution of the appeal, irrespective of the

date of accrual of the cause of action for the original order,

will govern the period of limitation. 26. Section 52(2) can

apply only to an appeal to the appellate Board and not to any

appellate tribunal. Therefore, irrespective of the fact that the

adjudicating officer had passed the orders with reference to

the violation of the provisions of FERA, as the appeal against

Meera Jadhav

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