Abhey Ram Dahiya & Ors. vs Sebi

Date of Decision : 09.06.2021

Misc. Application No. 617 of 2021 And Appeal No. 378 of 2021

1.

Abhey Ram Dahiya R/o House No. 329, Sector - 21-A, Chandigarh - 160022.

2. Pankaj Dahiya R/o House No. 329, Sector - 21-A, Chandigarh - 160022.

3. Amardeep Singh Dahiya House No. 344, Sector - 2, Panchkula - 134112, Haryana. ...Appellants

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. Rajesh Ranjan, Advocate with Mr. Neeraj Matta, Advocate for Appellants.

Mr. Mustafa Doctor, Senior Advocate with Mr. Anubhav Ghosh and Mr. Manish Chhangani, Advocates i/b The Law Point for the Respondent.

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CORAM : Justice Tarun Agarwala, Presiding Officer Justice M.T. Joshi, Judicial Member

Per : Justice Tarun Agarwala, Presiding Officer (Oral)

1. The present appeal has been filed against an order dated

March 9, 2020 passed by the Whole Time Member ('WTM'

for short) of the Securities and Exchange Board of India

('SEBI' for short) directing the appellant to disgorge the

balance open offer consideration amounting to Rs. 11.82

crore.

2. There is a delay of 352 days in the filing of the appeal

and accordingly an application for condonation of delay has

been filed. We find that no plausible explanation has been

given as to why the appellant could not file the appeal earlier.

However, in view of the order of Supreme Court dated March

23, 2020 and April 27, 2021 in Suo Moto Writ Petition (Civil)

No. 3 of 2020, the delay in the filing of the appeal is

condoned. The application is allowed.

3. The facts leading to the filing of the present appeal is,

that pursuant to the acquisition of shares above the prescribed

threshold, a show cause notice was issued in the year 2001 3

pursuant to which a final order was passed in August 2003

directing the acquirers to make a public announcement for

20% shares. This order was challenged which was dismissed

on April 19, 2006 and affirmed by the Supreme Court in the

year 2015. Thereafter a review application and curative

petition was also dismissed in the year 2017 After the

dismissal of the curative petition, SEBI directed the acquirers

to comply with its order and make an open offer. The same

was not complied by the appellants and they filed an appeal

before this Tribunal. This Tribunal by an order dated August

29, 2018 extended the time for four weeks to make an open

offer.

4. In spite of the aforesaid directions no steps were taken

by the appellants to make the open offer. It transpires a draft

letter of open offer was made before the SEBI in which

certain observations were made by SEBI against which an

appeal was filed before this Tribunal. This Tribunal by an

order dated February 15, 2019 upheld the order of SEBI and

directed the appellant to make an open offer on the increased

capital base. This order of the Tribunal was again upheld by

the Supreme Court on April 5, 2019.

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5. Since the order was not been complied with, the WTM

passed an order June 3, 2019 directing the acquirers /

appellants to comply with the SEBI order of August 1, 2003

and deposit Rs. 11,94,40,349/- in an escrow account. This

order was again not complied and accordingly a final order

dated March 9, 2020 was passed by the WTM which has now

been challenged.

6. Having heard Shri Rajesh Ranjan, the learned counsel

for the appellant we are of the opinion that the appellants are

not entitled for any discretionary relief. Technical arguments

are being raised as to whether the impugned order directing

the appellants to disgorge the balance open offer

consideration could be passed by the WTM under Section

11B of the SEBI Act.

7. We are of the opinion that in the given case, previous

orders are required to be implemented. The appellants do not

have any equity in its favour. More than 17 years have

elapsed and the appellants have not complied with the order

of 2003 which has been affirmed right up to the Supreme

Court.

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8. In view of the aforesaid, the appeal lacks merit and is

dismissed summarily at the admission stage itself with no

order as to costs.

9. The present matter was heard through video conference

due to Covid-19 pandemic. At this stage it is not possible to

sign a copy of this order nor a certified copy of this order

could be issued by the registry. In these circumstances, 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. Parties will act

on production of a digitally signed copy sent by fax and/or

email.

Justice Tarun Agarwala Presiding Officer

Justice M.T. Joshi Judicial Member 09.06.2021 RAJALA Digitally by signed

KSHMI NAIR RAJALAKSHMI H

msb Date: 2021.06.12 H NAIR 19:20:42 +05'30'