Amit Misra vs Sebi

Securities Appellate Tribunal7 July 2020Tarun Agarwala

CitationAppeal No.147 of 2020

Ratio decidendi

The rule this decision rests on

Delay in filing an appeal before the Tribunal may be condoned where the appellant was never served with a certified copy of the impugned order and, on learning of it, acted promptly; the respondent's assertion that the order was deemed served by an unclaimed dispatch does not, on the facts before the Tribunal, defeat that ground. Where the matter is squarely covered by the Tribunal's own earlier decision in the appellant's case, and the Whole Time Member has subsequently reconsidered and exonerated the appellant on the same basis, the impugned order cannot be sustained and may be set aside at the admission stage without calling for a reply. Where an order is set aside on the strength of an earlier decision and subsequent reconsideration, the matter may be remitted to the authority below for fresh decision in light of that earlier decision and the subsequent order, after affording an opportunity of hearing, within a time fixed by the Tribunal.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

BEFORE THE SECURITIES APPELLATE TRIBUNALMUMBAIDate of Decision: 07.07.2020Misc. Application No. 168 of 2020(Delay Application)AndMisc. Application No. 169 of 2020(Exemption Application)AndAppeal No.147 of 2020Amit MisraS-201, Prayag Kunj3, Strachy Road, Civil LinesPrayagraj - 211001 ...AppellantVersusSecurities and Exchange Board of India,SEBI Bhavan, Plot No. C-4A, G-Block,Bandra-Kurla Complex, Bandra (East),Mumbai - 400 051 ...RespondentMr. Amit Agrawal, Advocate with Mr. Sumit Agrawal,Mr. Sahil Raveen, and Ms. Darsha Shetty, Advocates i/bRegstreet Law Advisors for the Appellant.Mr. Pradeep Sancheti, Senior Advocate with Mr. Nishit Dhruva,Mr. Chirag Bhavsar, Mr. Harshad Vyas, Advocates i/by MDP &Partners, for the RespondentCORAM: Justice Tarun Agarwala, Presiding OfficerDr. C.K.G. Nair, MemberJustice M. T. Joshi, Judicial MemberPer: Justice Tarun Agarwala (Oral)21.The present appeal has been filed against the order datedJune 27, 2019 passed by the Whole Time Member ("WTM" forconvenience) of the Securities and Exchange Board of India("SEBI" for convenience) directing the appellant to refund themoney collected along with the interest @ 15%.2. There is a delay of 369 days in filing the appeal andaccordingly a delay condonation Application No. 168 of 2020has been filed for condoning the delay. The ground urged isthat the applicant was never served with a copy of the impugnedorder and that when he came to know about the order, he filedthe appeal at the earliest opportune moment and therefore

according to him there is no delay in filing the appeal. In this

regard, the learned senior counsel Sri Pradeep Sancheti

appearing for the respondent stated that the copy of the

impugned order was sent which came back unclaimed and

therefore according to the respondent the impugned order was

deemed to be served.

3. In this regard, we are of the opinion that the fact remains

that the certified copy of the impugned order was never received

by the appellant. We also find that in a similar matter during

the same time another order of the WTM of SEBI was passed 3

which the appellant had challenged and which appeal was

allowed. In the light of the aforesaid, we are of the opinion that

there was no reason for the appellant in not filing the appeal if

he was aware of that order. We consequently condone the delay

in filing the appeal and allow the application.

4. In so far as the merit is concerned, we are of the opinion

that the matter is squarely covered by a decision of this Tribunal

dated January 17, 2020 passed in the case of the appellant

himself in Appeal No. 409 of 2019 Amit Misra vs. SEBI.

Subsequent to our order, the WTM reconsidered the matter and

found that the appellant was not an officer in default and

consequently exonerated the appellant. In view of the said

decision and for the reasons stated therin, the impugned order

cannot be sustained and is liable to set aside at the admission

stage itself without calling for a reply.

5. For the reasons stated in decision dated January 17, 2020

in Appeal No. 409 of 2019 Amit Mishra vs. SEBI and the

subsequent order of the WTM, the present impugned order

dated June 27, 2019 is set aside and the appeal is allowed and

the matter is remitted to the WTM of SEBI to decide the matter

afresh after considering the order dated17.01.2020 passed by 4

this Tribunal and the order passed by the WTM after giving an

opportunity of hearing. In the circumstances of the case,

party shall bear their own costs. Misc. Application No. 169 of

2020 seeking exemption to file certified copy of the impugned

order is also allowed. The entire exercise shall be carried out by

the WTM within two months from today. The appellant will file

physical copy of the memo of appeal, the court fees, etc with the

registry within two weeks from today.

6. 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 Presiding Officer 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.

Digitally signed by TARUN

TARUN AGARWAL DN: c=IN, st=Uttar Pradesh, 2.5.4.20=a0e08b2d80e9d23c2c 2aa3e16780d684adad6bc9e81 0de2d7b0c28efd35557c9, Justice Tarun Agarwala AGAR postalCode=211001, street=B/ A,NYAYA MARG ALLAHABAD, serialNumber=095f8b286bb0b 1cd07ff676611f4f5e7999727d4 Presiding Officer WAL 04aa38ca422f9d3529bdb8a3, o=Personal, cn=TARUN AGARWAL Date: 2020.07.08 11:00:54 +05'30'

Dr. C.K.G. Nair Member 5

Justice M. T. Joshi Judicial Member 07.07.2020 PK

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