Securities Appellate Tribunal
Shri Suresh Kumar Aggarwal & Ors. vs Sebi on 23 April, 2019
Author: Tarun Agarwala
Bench: Tarun Agarwala
BEFORE THE SECURITIES APPELLATE TRIBUNAL
MUMBAI
Date of Decision: 23.4.2019
Misc. Application No.84 of 2018
And
Appeal No.95 of 2018
1.Shri Suresh Kumar Aggarwal
2. Ms. Aarti Goel
3. Ms. Preeti Goel
4. Shri Manish Goel
5. Manish Goel (HUF)
6. Shri Lokesh Kumar Goel
7. Lokesh Kumar Goel (HUF)
8. Ms. Santosh Kumari BJ-3, East Shalimar Bagh, Delhi - 110088. .... Appellants Versus Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400051. ... Respondent Mr. Pesi Modi, Senior Advocate with Mr. Neville Lashkari, Advocate i/b. Intellect Law Partners for the Appellants. Mr. Pradeep Sancheti, Senior Advocate with Mr. Abhiraj Arora, Mr. Vivek Shah and Ms. Misbah Dada, Advocates for the Respondent.
CORAM: Justice Tarun Agarwala, Presiding Officer Dr. C.K.G. Nair, Member Justice M.T. Joshi, Judicial Member 2 Per : Justice Tarun Agarwala (Oral)
1. The present appeal has been filed against the impugned order dated 24th April, 2015 passed by the Adjudicating Officer imposing a penalty for violating Section 12 A of the Securities and Exchange Board of India Act, 1992 (referred to herein after as 'SEBI Act') and Regulations 3 and 4 of the Securities and Exchange Board of India (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 2003 (referred to hereinafter as 'PFUTP Regulations').
2. The appeal is accompanied by an application for condoning the delay of 1029 days in filing the present appeal. The grounds urged in the application is that the appellants had instructed the Director of their broker firm, Mr. Narendra Goushal, to file the appeal who intimated the appellants that the necessary appeals had been filed but subsequently when the appellants received the letter of demand dated 7th February, 2018 they enquired from Mr. Narendra Goushal who after enquiry intimated that since entire professional fee was not paid hence the appeal could not be filed. The 3 appellants has thus prayed that the appellants had acted bonafide and in good faith and the delay in filing the appeal was neither deliberate nor were they negligent and, therefore, the delay may be condoned and appeal may be heard on merits.
3. In support of his submission, the learned counsel for the appellant has relied upon the following decisions.
1. Decision of this Tribunal in Meeta Bipin Kumar Shah vs. SEBI, Misc. Application No.410 of 2018 in Misc. Application No.173 of 2018 and Appeal No.208 of 2018 decided on 14th January, 2019.
2. Decision of this Tribunal in M/s. Capetown Mercantile Company (P) Ltd. vs. SEBI [(2011) SCC Online SAT 83] decided on 21st July, 2011.
3. Decision of this Tribunal in Shri Sanjay Jethilal Soni vs. SEBI, Misc. Application No.41 of 2014 in Appeal No.58 of 2014 decided on 7th May, 2014.
4. D.D. Vaishnav vs. State of Madhya Pradesh and Others [(2009) 16 SCC 777] decided on 27th January, 2009.
5. Noted Infotech Private Limited vs. SEBI [(2008) 8 SCC 431] decided on 4th August, 2008. 4
6. Ram Nath Sao alias Ram Nath Sahu and Others vs. Gobardhan Sao and Others [(2002) 3 SCC 195] decided on 27th February, 2002.
7. Decision of this Tribunal in Jindal Dyechem Industries Pvt. Ltd. vs. Multi Commodity Exchange of India Limited, Misc. Application No.220 of 2018 And Appeal No.268 of 2018 decided on 24th January, 2019.
8. Perumon Bhagvathy Devasom vs. Bhargavi Amma (Dead) By LRs and Ors. [(2008) 8 SCC 321] decided on 11th July, 2008.
4. The said application had been opposed by the respondent contending that the reason given is a mere afterthought and in any case no sufficient cause has been shown for the Tribunal to condone the delay.
5. Having heard the learned counsel for the parties, we find that there is an inordinate delay of 1029 days in filing the appeal. By no stretch of imagination we find that the appellants were pursuing the matter diligently. The contention that they were under the impression that the appeal had been filed is not bonafide but an afterthought. The name of the Advocate through whom the appellants had 5 filed the appeal or the name of the Advocate to whom the professional fees was not paid has not been indicated. No documents have been filed to show whether any action was taken against Mr. Narendra Goushal, Director of his brokerage firm who misled the appellants in believing that the appeals had been filed. It is common knowledge that when appeals are filed, necessary affidavits/vakalatnamas of the appellants are required to be filed. Nothing has been stated by the appellants to show that they had signed the memo of appeal or had instructed the Advocate to file the appeal.
6. In the absence of the aforesaid, we do not find any sufficient cause to condone the delay. In Balwant Singh (Dead) vs. Jagdish Singh, (2010) Vol.8 SCC 685 the Supreme Court explained that the expression "sufficient cause" meant presence of legal and adequate reasons. In the instant case, we find that there is no legal and adequate reason. The ground mentioned in the application is not bonafide but an afterthought. The Tribunal is, therefore, of the opinion that such application for condonation of delay cannot be allowed as a matter of right on payment of costs in a routine manner especially in the absence of adequate and 6 legal reasons. The decisions cited by the learned counsel for the appellant are distinguishable on facts and are not applicable in the peculiar facts and circumstances of the present appeal.
7. For the reasons stated aforesaid, the application for condonation of delay is rejected, as a result, the appeal is also dismissed.
Sd/-
Justice Tarun Agarwala Presiding Officer Sd/-
Dr. C. K. G. Nair Member Sd/-
Justice M.T. Joshi Judicial Member 23.4.2019 Prepared and compared by RHN