Aashish Jhunjhunwala vs Sebi

Date of Decision: 08.02.2017

Misc. Application No. 21 of 2017 And Appeal No. 22 of 2017

Aashish Jhunjhunwala 7C, Kiran Shankar Roy Road, Hastings Chambers, 2nd Floor, Kolkata- 700 001 ...Appellant

Versus

Securities and Exchange Board of India, SEBI Bhavan, Plot No. C-4A, G-Block, Bandra-Kurla Complex, Bandra (East), Mumbai - 400 051 ...Respondent

Mr. K. C. Jacob, Advocate i/b Corporate Law Chamber India for the Appellant.

Mr. Shyam Mehta, Senior Advocate with Mr. Mihir Mody, Mr. Saurabh Bachhawat and Mr. Nishant Upadhyay, Advocates i/b K. Ashar & Co. for the Respondent.

CORAM: Justice J.P. Devadhar, Presiding Officer Jog Singh, Member Dr. C.K.G. Nair, Member

Per: Justice J.P. Devadhar

Misc. Application No. 21 of 2017

There is delay of 486 days in filing the appeal. By this

Miscellaneous Application, applicant seeks condonation of the said

delay. For the reasons stated in the application, delay is condoned.

Miscellaneous Application is disposed of accordingly. 2

Appeal No. 22 of 2017

1.

This appeal is filed to challenge the order passed by the Whole

Time Member ("WTM" for short) of the Securities and Exchange Board

of India ("SEBI" for short) on August 04, 2015. By the said order the

appellant is directed to disgorge the unlawful gain amounting of

` 98,11,465.32 along with interest thereon @ 10% per annum for the

period from August 13, 2010 to August 04, 2015 within 45 days from the

date of the said order. It is relevant to note that interest @ 10% per

annum is demanded in view of the submissions made by the appellant on

June 25, 2015 requesting imposition of nominal penalty (interest) with a

reasonably long period of payment.

2. Although several contentions are raised in the Memorandum of

Appeal, at the hearing of the appeal, counsel for the appellant restricted

his argument limited to the issue relating to demand of interest @ 10%

per annum for the period prior to insertion of Section 28A i.e. prior to

18.07.2013.

3. Very same issue was considered by this Tribunal in the case of

Dushyant N. Dalal & Anr. v/s SEBI (Appeal No. 182 of 2009 decided on

12.11.2010), wherein it is held that if a person makes illegal gains and

utilizes the same then that person is liable to disgorge the unlawful gains

with interest, even in the absence of any statutory provision to that effect.

That decision of this Tribunal in the case of Dushyant N. Dalal & Anr. is

upheld by the Apex Court on 21.02.2011. 3

4. Thus the only issue canvassed in this appeal stands conclusively

decided against the appellants by the decision of the Apex court in case

of Dushyant N. Dalal & Anr.

5. In these circumstances, we see no merit in the appeal and the same

is hereby dismissed with no order as to costs.

Sd/-

Justice J.P. Devadhar Presiding Officer

Sd/-

Jog Singh Member

Sd/-

Dr. C.K.G. Nair Member 08.02.2017 Prepared & Compared By: PK