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Judgment
G. C. Mishra, Acting Chairman
MP-PMLA-8332/KOL/2021 (COD)& MP-PMLA-8333/KOL/2021 (Stay) In FPA-PMLA-3935/KOL/2021
The learned counsel for the appellantMr. SomnathPatnaik, Advocate submitted that he has received the replies filed by the respondent(ED) to the
application for condonation of delay and to the application for stay. The learned counsel for the appellant has also filed rejoinders to the replies filed by
the respondent in stay application as well as in application for condonation of delay and the same are available on record.
Before proceeding to pass any orders on stay application and on the merit of admitting the appeal, it is necessary to decide the application for
condonation of delay in filing the appeal.
It is pleaded by the appellant/applicant that the Hon’ble High Court Orissa vide its order dated 17.02.2021 in W.P.(C) No. 5429/2021 has been
pleased to direct the appellant to file this appeal within a period of three weeks and this appeal is being presented within the said period.
Mr. SomnathPatnaik, the learned counsel for the appellantsubmitted that the earlier counselengaged by the appellant made the appellant to understand
that since the simultaneous proceedings for confiscation of the scheduled properties is going on before the Authorized Officer, Special Court,
Bhubaneswar under the Special Courts Act filed by the State Vigilance Department, hence there may be no need of preferring an appeal challenging
the final attachment order passed by the Adjudicating Authority and the appellant was made to understand by his then learned advocate that since the
properties in question is in zima of the appellant as handed over to him by the State Vigilance Authorities, hence the final order of attachment passed
by the Adjudicating Authority need not be challenged.
It is inter-alia pleaded that because of such misdirected legal advice and for this reason of believing his advocate, the appellant did not prefer the
appeal. But the appellant has been actively participating in all the proceedings instituted by the State Vigilance Department and also has appeared
before the Special Court under the PMLA, 2002. The appellant neither intentionally nor willfully nor on his own volition has not preferred the present
appeal and that to advance substantial justice, it is necessary to condone the delay.
It is also contended by the learned counsel for the appellant that the appellant has filed this appeal on getting the eviction notice dated 19.02.2021
received by the appellant on 22.02.2021 issued in the present case against the appellant.
During the course of hearing, it is submitted by the learned counsel for the appellant that the appellant is relying on the following judgments passed by
the Hon’ble Supreme Court of India:
(i) DandaRajeshwariVs. BodavulaHanumayamma and others reported in AIR 1997 SC 1541.
(ii) Collector, Land Acquisition, Anantanag and Anr. Vs. Mst. Katiji and Ors. reported in AIR 1987 SC 1353
(iii) Lala Mata Din Vs. A Narayanan in Civil Appeal No(s). 2410 & 2411 of 1966.
On the aforesaid grounds and also on the grounds stated in the rejoinder to the application and also relying on the judgments cited above, the learned
counsel for the appellant has submitted that the appellant had sufficient reasons in not filing the appeal within the stipulated period.
On the other hand, the learned counsel for the respondent (ED) submitted that the Provisional Attachment Order was confirmed by the Adjudicating
Authority on 29.08.2014 and as per the Section 26(3) of the PMLA, 2002the appellant was required to file the present appeal within 45 days from the
date on which a copy of the said confirmation order is received. However, in the present case there is a huge delay of more than 6 years in filing the
present appeal by the appellant and the grounds taken by the appellant is not sufficient for condoning the delay as it is a settled principle of law that
everyday of delay is required to be sufficiently explained in an application for condonation of delay and further submitted that the Hon’ble High
Court of Orissa in the Writ Petition filed by the present appellant bearing no. W.P.(C) No.5429/2021 has been pleased to pass the order dated
17.02.2021 that the delay in filing the appeal has not been condoned and directed the appellant to file an appeal within a period of three weeks. The
learned counsel for the respondent submitted that the submissions of the appellant’s counsel that because of misdirected legal advice and for
believing advocate the appellate did not prefer the appeal till date, is a lame excuse for such a huge lapse on his part. The appellant remains liable for
all his actions and inactions and ignorance of law is not an excuse as the appellant himself was an Executive Engineer.
The learned counsel for the respondent (ED) has relied on the following judgments in support of the aforesaid submissions:
(i) Amina Bi Kaskar (D) Thr. Lr. Versus Union of India &Ors. in Civil Appeal No.4252 of 2018 passed by the Hon’ble Supreme Court of India;
(ii) State Bank of India, Main Branch, Kanpur Versus The Deputy Director, Directorate of Enforcement, Lucknow in FPA-PMLA-450/LKW/2013
passed by the Hon’ble Appellate Tribunal, Prevention of Money Laundering Act at New Delhi.
On the basis of aforesaid submissions, the learned counsel for the respondent has prayed for dismissal of the condonation of delay application and
consequently dismissal of appeal.
Heard both sides and gone through the CoDapplication, reply filed by the respondent and the rejoinder to the said reply filed by the appellant. The
admitted facts are that the impugned order is passed on 29.08.2014 and that the eviction notice has been issued on 19.02.2021 which is received on
22.02.2021 and that the respondent (ED) did not issued any notice during the intervening period, post 29.08.2014 upto 18.02.2021 and that there is a
huge delay of more than 6 years in filing the appeal. During the course of hearing the learned counsel for the appellant was asked specifically to state
the delay in terms of no. of days in filing the appeal and that the learned counsel for the appellant could not say nor pleaded in the CoD application, as
to on which date the appellant had received the copy of the impugned order. From the facts placed above it appears that there is a delay of about 2370
days in filing the appeal. The explanations offered by the appellant inter-aliaare as below:
a) He has been pursuing different proceedings in different courts of law;
b) The counsel he had engaged gave legal advice that there is no need to file appeal against the present impugned order;
c) The appellant had been made to understand by his counsel that the property in question is in zima of the appellant as handed over by the State
Vigilance Authorities; hence there is no need to challenge the attachment order;
d) The Hon’ble High Court of Orissa has directed the appellant to file this appeal within three weeks period which he has done.
The appeal is supposed to have been filed within 45 days from the date of the receipt of the copy of the impugned order. The appellant has failed not
only to plead in the application but also could not say during the course of hearing today as to on which date the appellant has received the impugned
order. So, the aforesaid no. of days of delay is calculated from the date 30.08.2014 till the date of filing of the appeal. The reasons cited by the
appellant in not filing the appeal on time are on flimsy grounds which cannot be accepted as sufficient grounds/reasons. There is a huge delay in filing
the appeal. The judgments cited by the appellant are neither applicable to the present facts and circumstancesof the case nor the judgments cited by
the respondent are also applicable to support their stand.It also appears from the order dated 17.02.2021 that the Hon’bleJudge of High Court of
Orissa has not condoned the delay.
There is a huge delay of 2370 days in filing the appeal and the delay has not been explained properly and sufficiently by the appellant. The appellant
has been most negligent and irresponsible in pursuing hisremedy. The Condonation of Delay application lacks bonafide on the part of the appellant and
does not disclose any sufficient cause for Condonation of Delay. In the present appeal, the appellant is a qualified engineer and retired as Executive
Engineer and there was no diligence on his part to know the statutory provision of filing an appeal under PMLA, 2002 and that ignorance of law is not
an excuse. In the circumstances, the provisions of Limitation Act cannot be so liberally construed so as to frustrate the very purpose the provisions of
Limitation Act. In this regard, reference can be made to a judgment of the Hon’ble Supreme Court of India in the case of P.K. Ramchandran vs.
State of Kerala reported in J.T. 1997 (8) S.C. 189. This judgment has been followed by his Lordship Justice Swatanter Kumar when he was Judge of
Hon’ble Punjab & Haryana High Court, in his judgment in the matter of SanjeevBabbar vs. Dev Papers Pvt. Ltd. in Civil Revision No. 5038/1997
dated 12.02.1998.
In the light of above discussions, I am of the considered view that this is not a fit case where the huge delay can be condoned even for the sake of
advancing substantial justice. Therefore, the Condonation of Delay application is dismissed. Consequently, the appeal and the stay application are also
dismissed.
In the circumstances, there is no order as to cost.