Securities Appellate Tribunal
Tejo Ratna Kongara vs Sebi on 5 July, 2023
Author: Tarun Agarwala
Bench: Tarun Agarwala
BEFORE THE SECURITIES APPELLATE TRIBUNAL
MUMBAI
Order Reserved On: 15.06.2023
Date of Decision : 05.07.2023
Misc. Application No. 185 of 2023
And
Misc. Application No. 722 of 2023
And
Appeal No. 206 of 2023
Tejo Ratna Kongara
Plot No. 9-B,
H. No. 8-2-293/82/F/9,
Road No. 7, Film Nagar,
Hyderabad- 500 096 ...Appellant
Versus
1.Securities and Exchange Board of India, SEBI Bhavan, Plot No. C-4A, G-Block, Bandra-Kurla Complex, Bandra (East), Mumbai- 400 051
2. Indiabulls Real Estate Ltd.
Plot No. 448-451, Udyog Vihar Phase-V, Gurugram-122 016
3. NAM Estates Pvt. Ltd.
1st Floor, Embassy Point, 150, Infantry Road, Bangalore- 560 052
4. Embassy One Commercial Property Developments Pvt. Ltd.
1st Floor, Embassy Point,
150, Infantry Road,
Bangalore- 560 052 ...Respondents
2
Mr. Somasekhar Sundaresan, Advocate with Mr. Robin Shah and Mr. Udaysingh Kashid, Advocates i/b Bodhi Legal for the Appellant.
Mr. Gaurav Joshi, Senior Counsel with Mr. Ravishekhar Pandey, Ms. Shefali Shankar and Ms. Rasika Ghate, Advocates i/b. MDP & Partners for Respondent No. 1.
Mr. Darius Khambata, Senior Advocate with Mr. Karan Rukhana, Mr. Deepak Dhane and Ms. Aneri Shah, Advocates i/b. Corporate Pleaders, Advocates for Respondent No. 2. Mr. Pesi Modi, Senior Advocate with Mr. Tomu Francis, Mr. Kunal Katariya, Ms. Zarnaab Aswad and Mr. Apoorva Upadhyay, Advocates i/b Khaitan & Co. for Respondent Nos. 3 and 4.
CORAM: Justice Tarun Agarwala, Presiding Officer Ms. Meera Swarup, Technical Member Per: Justice Tarun Agarwala, Presiding Officer
1. The appellant has challenged the order of Securities and Exchange Board of India ("SEBI" for convenience) dated December 15, 2022 whereby the representation in the matter of scheme of amalgamation/ arrangement between Indiabulls Real Estate Limited ("Indiabulls" for convenience) and Embassy Group Companies was decided.
2. The facts leading to the filing of the present appeal is, that Indiabulls Real Estate Limited Respondent No. 2 issued a corporate announcement on January 31, 2020 intimating the 3 merger of Indiabulls and Embassy One Commercial Property Developments Pvt. Ltd. Subsequently, on August 18, 2020 Indiabulls made a disclosure to the Stock Exchange informing that the Board of Directors had approved a proposal of merger of NAM Estates Pvt. Ltd. Respondent No. 3 and Embassy One Commercial Property Developments Pvt. Ltd. Respondent No. 4 with Indiabulls Respondent No. 2. In this regard, Indiabulls subsequently made several disclosures from time to time with regard to the proposed scheme of arrangement.
3. Regulation 11, 37 and 94 of the SEBI (Listing Obligation and Disclosure Requirements) Regulation, 2015 ("LODR Regulations" for convenience) requires that before a scheme of arrangement/amalgamation/ merger is presented before any Court or Tribunal a letter of observation or a no objection certificate is required to be taken from the Stock Exchange indicating that the scheme of arrangement does not in any way violate, override or limit the provisions of the securities laws or requirements of the Stock Exchange.
4. In view of the aforesaid provisions, a draft scheme of arrangement was filed before the Bombay Stock Exchange and the National Stock Exchange of India Limited on February 16, 2021 for obtaining a no objection certificate. Both the Stock 4 Exchanges gave their letter of observation and its comments on the scheme of arrangement and were forwarded to SEBI.
5. Based on the letter of observation given by Stock Exchanges, the scheme of arrangement was placed for approval before the shareholders of Indiabulls on February 12, 2022. 99.9987% of the shareholders of Indiabulls approved the proposed scheme of arrangement.
6. Thereafter, the scheme of arrangement was filed for approval before the respective National Company Law Tribunal ("NCLT"). The NCLT Bengaluru vide order dated 22.04.2022 approved the scheme of arrangement. A similar application filed before the NCLT, Chandigarh was, however, rejected by an order dated May 09, 2023. An appeal against the order of the NCLT, Chandigarh is, however, pending before the National Company Law Appellate Tribunal ("NCLAT").
7. While a scheme of arrangement was pending approval before SEBI one Dhanekula Dharnish ("DD" for convenience) purchased 20,100 equity shares of Indiabulls between March 2021- March 2022. This DD did not participate in the meeting of the shareholders on February 12, 2022 when the draft scheme 5 of arrangement was approved by 99.9987% of the shareholders of Indiabulls nor raised any objection with regard to the scheme.
8. When the approved scheme of arrangement was filed before the NCLT, Chandigarh, DD filed an intervention application challenging the scheme of arrangement. NCLT, Chandigarh by order dated May 09, 2023 rejected the intervention application of DD on the ground that DD did not meet the threshold limit of 10% of the shareholding for raising objection as stipulated under the proviso to Section 230(4) of the Companies Act, 2013. For facility, paragraph 11 of the order of NCLT, Chandigarh dated May 09, 2023 is extracted hereunder:-
"11. As regards the objector's claim that it should be allowed to step into the shoes of the earlier applicant, i.e., Sh. Dhanekula Dharanish, from whom it has purchased the entire lot of 20,100 equity shares of the applicant company, it is noted that the original applicant did not meet the threshold limit of 10% of the shareholding for raising objections as stipulated under the proviso to Section 230(4) of the Companies Act, 2013. It is also noted that the amalgamation of companies results in competing interests and rights of 6 different stakeholders, and in the interest of pragmatism, each and every stakeholder's whole interests are stated to be affected and cannot be entertained by the Tribunal. In normal circumstances, the provisions of Section 230(4) of the Companies Act lays down that the particular threshold of 10% of shareholding needs to be respected. Otherwise, small shareholders having been very minuscule stake in the company will have the potential to derail any amalgamation process and thereby affect the broader interest of the companies amalgamating. Furthermore, by just buying shares from the earlier objector, on commercial consideration, the right to object does not necessarily pass on to the buyer of the shares. In view of this, we refuse to entertain the prayer of the objector and did not find it appropriate to go into the merits of the objections raised."
9. In addition to the aforesaid, DD also made a representation to SEBI praying that the scheme of arrangement should be rejected and that SEBI should intervene and investigate in the matter. While the representation was pending, DD filed Writ Petition before the Andhra Pradesh High Court which was disposed off by an order dated 27.10.2022 directing SEBI to decide the representation. Based on the aforesaid direction, 7 SEBI heard the submissions of DD and, thereafter, the impugned order was passed on December 15, 2022.
10. While intervention application was filed and heard and representation was filed by DD and heard by SEBI, DD sold his shareholding in Indiabulls to the appellant on December 08, 2022 by means of a share purchase agreement. The appellant has filed the present appeal challenging the order of SEBI by which DD's representation was rejected contending that he has stepped into the shoes of the erstwhile complainant and has a right to continue with the litigation.
11. A preliminary objection was raised by the respondents, namely, that the appeal was not maintainable under Section 15T of the SEBI Act in as much as the appellant was not an aggrieved person. It was urged, that the original complainant DD had sold the shares and that the appellant only acquired the rights of a shareholder but did not acquire any right to continue with the complaint or the litigation. It was urged, that no personal injury or grievance was caused to the appellant which would qualify him to be a "person aggrieved". It was also contended that the transfer of shares by DD to the appellant does not in any manner transfer the cause of action. It was also contended that the appellant is guilty of forum shopping and 8 that he cannot pursue the same cause of action before two different forums. It was also urged, that this Tribunal has no jurisdiction to evaluate or pronounce upon any aspect of the scheme of merger which is the exclusive domain of the NCLT under the Companies Act.
12. On the other hand, the contention of the appellant is, that his representation was decided by SEBI against which he has a right to file an appeal under Section 15T of the SEBI Act and that he is an aggrieved person. It was urged, that the appellant had acquired the shares held by the original complainant and pursuant to the share purchase agreement all rights attached to the shares including the right to litigate vest with the appellant and, therefore, the appellant has the right to take appropriate steps to protect the value of the shares. It was also urged, that the scheme of arrangement is also regulated by SEBI under the LODR Regulations and Circulars issued by SEBI. Any contravention of the requirements contained in the LODR Regulations can be adjudicated by SEBI alone and, therefore, NCLT has no jurisdiction to adjudicate any violation of the securities laws. It was urged, that any failure by SEBI to exercise its jurisdiction in a just fair and reasonable manner would be subject to the jurisdiction of this Tribunal whose 9 powers are coextensive with that of SEBI. It was also urged, that the forum of non-conveniens applies when two forums have jurisdiction and that in the instant case NCLT has no jurisdiction to adjudicate any violation of the securities laws and, therefore, this principle of forum non-conveniens is not applicable.
13. Having heard the learned counsel for the parties, the issue that comes to the fore is, whether the appellant is an aggrieved person as provided under Section 15T of the SEBI Act. For facility, Section 15T of the SEBI Act is extracted herein:-
"15T. Appeal to the Securities Appellate Tribunal.
(1) Save as provided in sub-section (2), any person aggrieved,-
(a) by an order of the Board made, on and after the commencement of the Securities Laws (Second Amendment) Act, 1999, under this Act, or the rules or regulations made thereunder; or
(b) by an order made by an adjudicating officer under this Act; or
(c) by an order of the Insurance Regulatory and Development Authority or the Pension Fund Regulatory and Development Authority, may prefer an appeal to a Securities Appellate Tribunal having jurisdiction in the matter.[***]] 10 (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Board or the adjudicating officer or the Insurance Regulatory and Development Authority or the Pension Fund Regulatory and Development Authority, as the case may be, is received by him and it shall be in such form and be accompanied by such fee as may be prescribed:
Provided that the Securities Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1), the Securities Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Securities Appellate Tribunal shall send a copy of every order made by it to the Board, or the Insurance Regulatory and Development Authority or the Pension Fund Regulatory and Development Authority, as the case may be, the parties to the appeal and to the concerned adjudicating officer. (6) The appeal filed before the Securities Appellate Tribunal under sub-section (1) shall 11 be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within six months from the date of receipt of the appeal."
14. A perusal of the aforesaid provision would indicate that any person being aggrieved by any order of the Board i.e. SEBI can prefer an appeal before this Tribunal under Section 15T of the SEBI Act. In the instant case, SEBI has passed an order deciding the representation and, therefore, the aggrieved person can file an appeal.
15. In the instant case, we find that DD had filed a representation complaining about the scheme of arrangement. This representation was disposed off by the impugned order and, therefore, in our view DD is the aggrieved person, if any, but DD has not filed the present appeal. The appellant having purchased the shares from DD in our opinion is not an aggrieved person who can file an appeal.
16. The appellant by purchasing the shares from DD does not step into the shoes of DD. He does not and cannot by law purchase the litigation. By purchasing the shares from DD, the appellant becomes a shareholder of the Company and derives such rights which a shareholder of a Company gets but such 12 right does not include the right to litigate or to continue with the complaint. In our view, the transfer of shares from DD to the appellant does not and cannot include the transfer of a cause of action. The complaint is personal and comes to an end when DD transfers the shares.
17. In LIC vs. Escorts Limited (1986) 1 SCC 264 the Supreme Court enumerated the proprietal rights of a shareholder, as follows:-
"84. On an overall view of the several statutory provisions and judicial precedents to which we have referred we find that a shareholder has an undoubted interest in a company, an interest which is represented by his shareholding. Share is movable property, with all the attributes of such property. The rights of a shareholder are (i) to elect directors and thus to participate in the management through them; (ii) to vote on resolutions at meetings of the company; (iii) to enjoy the profits of the company in the shape of dividends; (iv) to apply to the court for relief in the case of oppression; (v) to apply to the court for relief in the case of mismanagement; (vi) to apply to the court for winding up of the company; and (vii) to share in the surplus on winding up."13
18. The Supreme Court clearly held that rights of the shareholders are to elect directors and to participate in the management through them or to vote on a resolution or to enjoy the profits of the company in the shape of dividends etc. Such rights of a shareholder does not include a right to continue a complaint or a litigation. In view of the aforesaid, the appellant not being the original complainant in our opinion cannot be an aggrieved person in the facts of the present case to be an aggrieved person under Section 15T of the SEBI Act.
19. In Bar Council of Maharashtra v. M.V. Dabholkar and Ors. (1975) 2 SCC 702, the Supreme Court held:-
"28. Where a right to appeal to courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words "a person aggrieved"
may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved"...The test is whether the words "person aggrieved" include "a person who has a genuine 14 grievance because an order has been made which prejudicially affects his interests".
20. The Supreme Court held that the test of an aggrieved person is that person who has a genuine grievance because an order has been made which prejudicially affects his interests. In the instant case, we do not find that the appellant has a genuine grievance nor do we find that it affects his interests. On the other hand, we find that he has purchased a litigation. In similar circumstances, this Tribunal in Sukumar Chand Jain v. SEBI & Ors. (2008) SCC Online SAT 50 held:-
"...not only did he purchase the shares and become a shareholder of the target company for the first time after the public announcement, he also traded in those shares subsequently and his portfolio had swollen to 6190 shares as on September 29, 2007. Obviously, the appellant had purchased the shares only to litigate with the target company. We are satisfied that he has not approached the Tribunal with clean hands and must fail on this short ground."
(Emphasis Supplied)
21. In view of the aforesaid, we are of the view that by buying shares from the earlier objector/ complainant on commercial consideration the right to object does not 15 necessarily pass on to the buyer of the shares, namely, to the appellant. In our opinion, no personal injury or grievance was caused upon the appellant to qualify him as a person aggrieved. In Radheyshyam Agarwal v Bank of Rajasthan Limited, (2012) SCC Online SAT 171, this Tribunal held:-
"3. ...We are of the view that the preliminary objection raised by learned senior counsel for the Board that the appellant is not an "aggrieved person" within the meaning of Section 15T of the Securities and Exchange Board of India Act, 1992 (the Act) and hence appeal is not maintainable needs to be upheld. The appellant before us is only a shareholder and that by itself will not make him a person aggrieved. The impugned order does not wrongfully deprive the appellant of any of his rights and no such case has been made out by the appellant in the appeal. Under identical situation, similar view has been taken by this Tribunal in the case of Mr. Bharatbhai Baldevbhai Shah v. Securities and Exchange Board of India, (Appeal No. 142 of 2008 decided on October 6, 2009)."
22. Section 230 of the Companies Act provides a self- contained scheme for sanctioning a compromise or arrangement. In case of a proposed merger, Section 230(3) 16 requires notice of a meeting called to vote on the scheme in pursuance of an order of NCLT to be sent to all the shareholders along with the supporting documents, including the valuation, etc. Section 230(4) provides for persons holding not less than ten percent of the shareholding to object to the scheme. Section 230(5) directs that all relevant Government agencies are notified of an involvement of the approval of the scheme. Section 230(6) of the Act provides that once the scheme is approved by a majority of the shareholders representing three fourths of its members, such scheme would be binding on all members, including dissenting members. Section 230(7) provides that, after approval, the NCLT shall pass an order to sanction the scheme.
23. In the instant case, the shareholders of the Company approved the scheme. The appellant as a shareholder did not object to the scheme nor participated in the discussion or in the voting and, therefore, cannot turn around and contend that the scheme is incorrect and against the interest of the shareholders. The representation of DD alleges that the draft scheme of arrangement, the valuation report, financial statements and abridged prospectus filed by Indiabulls Estate Limited suffer from non-disclosure of material information. Through this 17 representation DD sought an independent valuation to be undertaken pursuant to SEBI Circular dated March 10, 2017. The principal grievance of the appellant is, that the impugned order has mechanically disposed of the complaint without giving any material reasons. It was contended that the scheme of arrangement is regulated by SEBI under the LODR Regulations and Circulars issued by SEBI and that any contravention of the requirements contained under the LODR Regulations can be adjudicated by SEBI alone and not by NCLT.
24. In this regard, it would be relevant to peruse Regulation 11, 37 and 94 of the LODR Regulations, which are extracted hereunder:-
Scheme of Arrangement.
11. The listed entity shall ensure that any scheme of arrangement /amalgamation /merger /reconstruction /reduction of capital etc. to be presented to any Court or Tribunal does not in any way violate, override or limit the provisions of securities laws or requirements of the stock exchange(s):
Provided that this regulation shall not be applicable for the units issued by Mutual Fund 18 which are listed on a recognised stock exchange(s).
Draft Scheme of Arrangement & Scheme of Arrangement.
37. (1)Without prejudice to provisions of regulation 11, the listed entity desirous of undertaking a scheme of arrangement or involved in a scheme of arrangement, shall file the draft scheme of arrangement, proposed to be filed before any Court or Tribunal under sections 391-394 and 101 of the Companies Act, 1956 or under Sections 230- 234 and Section 66 of Companies Act, 2013, whichever applicable, along with a non-refundable fee as specified in Schedule XI, with the stock exchange(s) for obtaining the No-objection letter, before filing such scheme with any Court or Tribunal, in terms of requirements specified by the Board or stock exchange(s) from time to time.
(2)The listed entity shall not file any scheme of arrangement under sections 391-394 and 101 of the Companies Act, 1956 or under Sections 230-234 and Section 66 of Companies Act, 2013 ,whichever applicable, with any Court or Tribunal unless it has obtained the No-
objection letter from the stock exchange(s). (3)The listed entity shall place the No-objection letter of the stock exchange(s) before the Court 19 or Tribunal at the time of seeking approval of the scheme of arrangement:
Provided that the validity of the No-objection letter of stock exchanges shall be six months from the date of issuance, within which the draft scheme of arrangement shall be submitted to the Court or Tribunal.
(4)The listed entity shall ensure compliance with the other requirements as may be prescribed by the Board from time to time. (5)Upon sanction of the Scheme by the Court or Tribunal, the listed entity shall submit the documents, to the stock exchange(s), as prescribed by the Board and/or stock exchange(s) from time to time.
(6) Nothing contained in this regulation shall apply to draft schemes which solely provide for merger of a wholly owned subsidiary with its holding company:
Provided that such draft schemes shall be filed with the stock exchanges for the purpose of disclosures.
(7) The requirements as specified under this regulation and under regulation 94 of these regulations shall not apply to a restructuring proposal approved as part of a resolution plan by the Tribunal under section 31 of the Insolvency Code, subject to the details being disclosed to the recognized stock exchanges 20 within one day of the resolution plan being approved.
Draft Scheme of Arrangement & Scheme of Arrangement.
94. (1) The designated stock exchange, upon receipt of draft schemes of arrangement and the documents prescribed by the Board, as per sub-regulation (1) of regulation 37, shall forward the same to the Board, in the manner prescribed by the Board.
(2) The stock exchange(s) shall submit to the Board its No-Objection Letter on the draft scheme of arrangement after inter-alia ascertaining whether the draft scheme of arrangement is in compliance with securities laws within thirty days of receipt of draft scheme of arrangement or within seven days of date of receipt of satisfactory reply on clarifications from the listed entity and/or opinion from independent chartered accountant, if any, sought by stock exchange(s), as applicable.
(3)The stock exchange(s), shall issue No- objection letter to the listed entity within seven days of receipt of comments from the Board, after suitably incorporating such comments in the No-objection letter:
21
Provided that the validity of the No-objection letter of stock exchanges shall be six months from the date of issuance.
(4)The stock exchange(s) shall bring the objections to the notice of Court or Tribunal at the time of approval of the scheme of arrangement.
(5)Upon sanction of the Scheme by the Court or Tribunal, the designated stock exchange shall forward its recommendations to the Board on the documents submitted by the listed entity in terms of sub-regulation (5) of regulation 37.
25. A perusal of Regulation 37 indicates that any listed company desirous of undertaking a scheme of arrangement shall file a draft scheme of arrangement for obtaining an observation letter or no objection letter before filing such scheme before any Court or Tribunal and that the listed entity shall place the observation letter or no objection letter of the Stock Exchange before the Court of Tribunal at the time of seeking approval of the scheme of arrangement. Regulation 94 provides that the designated Stock Exchange upon receipt of the draft scheme of arrangement shall submit to SEBI its observation letter or no objection letter or objection letter ascertaining that the draft 22 scheme of arrangement is in compliance with the securities laws or it is otherwise. If the draft scheme of arrangement is in consonance and in compliance with the securities laws, the Stock Exchange would issue such objection letter or no objection letter to SEBI and thereafter the Stock Exchange shall issue observation letter or no objection letter to the listed entity along with the receipt of comments from SEBI after incorporating such comments in the observation letter or no objection letter. Regulation 11 provides that the listed entity shall ensure that any scheme of arrangement to be presented to any Court or Tribunal does not in any way violate the securities laws or the requirements of the Stock Exchange and, therefore, it becomes essential for the listed company to first file the draft scheme of arrangement before the Stock Exchange so that the Stock Exchange could consider as to whether the draft scheme of arrangement is in compliance with the securities laws. In terms of the aforesaid provisions, SEBI issued a Circular dated March 10, 2017. In paragraph 2 of the said Circular, SEBI had acknowledge that NCLT has the exclusive powers to sanction the scheme of arrangement and that SEBI had a limited role to play only with regard to the issuance of letter of observation or no objection certificate.
23
26. Having perused Section 230 of the Companies Act, 2013 and Regulations 11, 37 and 94 of the LODR Regulations, we are of the opinion, that the LODR Regulations as well as the Circular of SEBI dated March 10, 2017 does not contemplate the encroachment of NCLT's exclusive authority to sanction or reject the given scheme of arrangement. SEBI's/ Stock Exchange's role is limited to issue observation/ no objection letter to any proposed scheme of arrangement to the extent that the draft scheme of arrangement violates or does not violate any provisions of the securities laws.
27. We are also of the view, that while considering that this draft scheme of arrangement does or does not violate or override or limit the provisions of the securities laws or requirements of the Stock Exchange, the Stock Exchange and/ or SEBI cannot examine the fraud carried out by the Company in the scheme, documents or scrutinize the valuation report or determined the share exchange ratio as in our opinion, such aspect can only be considered by the NCLT while approving or disapproving the scheme of arrangement. We are of the opinion, that only a limited role is required by SEBI and Stock Exchange while issuing an observation letter/ no objection certificate.
24
28. We are also of the view, that any observation made by the Stock Exchange or SEBI as the case may be, it is only the listed Company who can be aggrieved of. A shareholder cannot be aggrieved by issuance of a letter of observation/ no objection certificate. In our view, it is not open to a shareholder to complain about the scheme of arrangement before the SEBI or to the Stock Exchange nor is it open to the shareholder to make a representation and /or file an appeal before this Tribunal under Section 15T of the SEBI Act. In our opinion, if a shareholder is aggrieved by the scheme of arrangement the remedy available is to object when the matter is placed for consideration before the shareholders of the Company and, thereafter, may object before NCLT under Section 230(4) of the Companies Act. The contention that the scheme of arrangement is regulated by SEBI under the LODR Regulations is patently erroneous and cannot be accepted.
29. There is another aspect, namely, the principles governing the doctrine of election. The 'doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by is actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have 25 had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both.
30. In New India Assurance Company Ltd. Vs. Bidami & Ors. decided on 17.04.2014 in Special Leave to Appeal (Civil) No.(s). 1271/2010 the Hon'ble Supreme Court held:-
"In view of the settled position of law, it is clear that the claimants cannot be allowed to take double benefit of two claims filed under two different statutes i.e. under the Motor Vehicles Act, 1988 and the Workmen's Compensation Act, 1923. The claimant has to choose one forum only and after choosing a forum, he cannot be allowed to choose another forum to get more benefits. The claimants cannot claim double benefit under both the enactments. The appellants-claimants have got compensation by invoking the provisions of the Act of 1923. Therefore, the subsequent claim filed by the claimants under the Act of 1988 was liable to be rejected and the same was rightly rejected by the Tribunal."
31. In Mr. Ashwani Minda & Anr. Vs. U-Shin Ltd. & Anr. (Delhi High Court) decided on 12.05.2020 the issue was 26 whether a party has the right to approach the Court for seeking interim relief under Section 9 of the Arbitration and Conciliation Act, 1996 when the arbitral tribunal/ arbitrator has already declined to give the same interim relief. The Delhi High Court, held:-
"the parties have consciously chosen to tread on a particular path and they cannot now turn back because they have been unsuccessful. The Court said that the Doctrine of Election will bar the applicant from seeking interim relief as the same issue has been raised before the Emergency Arbitrator. All the issues have been conclusively dealt by the arbitrator vide detailed order and applicants cannot be permitted to take a second bite at the cherry."
"When the Petitioner has already invoked the mechanism of the emergency arbitrator and invited a detailed and well-reasoned order by the Emergency Arbitrator, it is not for them to take a second bite at the cherry. Therefore, Part-I of the Act has been ousted by the action of the parties themselves, and this petition is sans merit."
32. In National Insurance Company Vs Mastan & Anr. decided on 09.12.2005 in Appeal (Civil) No. 7381 of 2005 the Supreme Court held:-
27
"The doctrine of election' is a branch of 'rule of estoppel', in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both."
33. In Sanjay Kanoria v. SEBI in Appeal No. 776 of 2022 decided on 02.02.2023 this Tribunal held that when an identical issue was pending before the Hon'ble Delhi High Court, the same could not be prosecuted before the Hon'ble Tribunal also and therefore dismissed the appeal on the short ground that the appellant could not be permitted to pursue the same remedy at two different forums. This Tribunal held:-
"During the course of the argument the Tribunal was informed that on an identical issue a writ petition has been filed before the Delhi High Court which is still pending consideration."
"We are of the opinion that the appellant cannot pursue the same remedy at two different forums. The appeal is dismissed at this stage."
34. In the instant case, we find that DD had filed an intervention application before the NCLT, Chandigarh objecting 28 to the scheme of arrangement. This application was rejected by NCLT by its order of May 09, 2023. We are of the opinion, that when DD had approached an appropriate forum before the NCLT, Chandigarh it was no longer open to DD or to the appellant to pursue the same grievance before another forum, namely, before SEBI. In our opinion, DD and or the appellant could not pursue the grievance before SEBI. The doctrine of election clearly postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. In the instant case, having approached NCLT, Chandigarh it was no longer open to DD and or the appellant to file a representation before SEBI.
35. In view of the aforesaid, we are of the view, that the appeal is not maintainable in as much as the appellant is not an aggrieved person. The preliminary objections raised by the respondents are allowed, as a result of which the appeal is dismissed as not maintainable. The misc. applications are disposed off accordingly.
36. This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of 29 this order is also available from the Registry on payment of usual charges.
Justice Tarun Agarwala Presiding Officer Ms. Meera Swarup PRERNA Digitally by PRERNA signed Technical Member 05.07.2023 MANISH MANISH KHARE Date: 2023.07.05 PK KHARE 14:21:39 +05'30'