Arun Panchariya Appeal Nos.134 To 140 Of ... vs Sebi

delay ranging from 130 days to 160 days in the filing of

the appeal and, accordingly, an application for

condonation of delay has been filed in each of the

appeals. Since the issue is common, all the appeals are

being decided together. For facility, the facts stated in

appeal no.134 of 2023 are being taken into

consideration.

2. Appeal no.134 of 2023 is against the order of the

Adjudicating Officer (hereinafter referred to as 'AO')

dated 16th June, 2022. There is a delay of 139 days in

the filing of the appeal. The ground urged in the

application for condonation of delay is that the certified

copy of the order was never supplied or served upon the

appellant and, therefore, the appeal is being filed 8

without a certified copy and the formal delay in the

filing of the appeal may be condoned.

3. The application for condonation of delay has been

vehemently opposed. The respondent contended that

an appeal is required to be filed under Section 15T of

the Securities and Exchange Board of India Act, 1992

within a period of 45 days from the date of receipt of

the order. There is no requirement that the appeal

cannot be filed without the certified copy of the order.

It was urged that the certified copy of the impugned

order was forwarded to the appellant by speed post on

21st June, 2022 at the Dubai address of the appellant

which returned back with the remark 'Returned to

Sender-Unclaimed'. It was also stated that the

appellant was deliberately avoiding service and was

changing his residential address. It was also stated that

the scanned copy of the impugned order was served

through email on 17th June, 2022. It was urged that the 9

appellant became aware when the impugned order was

served through email and thus could have applied for a

certified copy of the impugned order by providing his

current address which he did not do so and, therefore,

in the absence of any plausible explanation the

inordinate delay cannot be condoned and the

application for condonaiton of delay should be rejected

as a result of which the appeal should also be

dismissed.

4. In rejoinder, the learned counsel for the appellant

contended that he appellant was residing in Dubai till

August, 2021 and, thereafter, started residing in U.K.

He had also filed Appeal no.542, 543 and 544 of 2022

before this Tribunal in February, 2022 against different

orders passed by SEBI wherein he had shown his

address of U.K. It was urged that the respondent were

thus aware of his new address and the impugned order

was passed much after. It was contended that since the 10

respondents were aware of his new address, they took

no steps to serve the appellant at his latest address but

continued to send the impugned order to the Dubai

address where he was no longer residing.

5. It was also contended that service of a scanned copy

of the impugned order through email was not a proper

service nor was it in consonance with Rule 7 of the

Securities and Exchange Board of India (Procedure for

Holding Inquiry and Imposing Penalties by

Adjudicating Officer) Rules, 1995.

6. Having heard the learned counsel for the parties, we

find that under Section 15T, an appeal is required to be

filed within 45 days from the date of the receipt of the

order. Section 15T does not contemplate filing of an

appeal within 45 days from the date of the receipt of the

certified copy of the order. However, the Tribunal

under its administrative orders requires an aggrieved

person to file certified copy of the impugned order. 11

However, it is not mandatory and it does not mean that

the appeal cannot be entertained by the Registry of this

Tribunal if it is not accompanied by the certified copy

of the order. An appeal can be filed without the

certified copy of the order and time can be taken to file

the certified copy of the order or to exempt the

aggrieved person from filing the certified copy of the

order. Thus, the contention that the appeal could not be

filed within time because certified copy of the order

was not supplied is not acceptable.

7. We, however, find that admittedly the appellant is

residing abroad. There were difficulties in travelling

during the pandemic period and, therefore, considering

the peculiar facts and circumstances of the present

appeal coupled with the fact that a large number of

orders have been passed against the appellant which

takes time, we are of the opinion that there are bonafide

reasons for condoning the delay. We accordingly 12

condone the delay in the interest of justice. All the

delay condonation applications are allowed.

8. It was urged that the impugned order was passed ex-

parte. The show cause notice was never served nor any

opportunity of hearing was provided to the appellant.

This fact has been opposed by the respondents

contending that the notice was served through email.

9. In this regard, we find that in paragraph no.13 of the

impugned order it has been recorded that the show

cause notice was sent through speed post which

returned back undelivered. In paragraph no.14, it has

been stated that hearing notice was sent to the appellant

vide email dated 25th April, 2022 which was served

upon the appellant.

10. We are of the opinion that from the perusal of the

paragraph nos.13 and 14 of the impugned order that

there was no proper service of show cause notice upon

the appellant. Admittedly, the show cause notice came 13

back undelivered and, thereafter, no attempt was made

to serve through other means, namely, hand-

delivery/attachment/publication etc. The hearing notice

which was sent by email on 25th April, 2022 will not

cure the initial defect of non-service of the show cause

notice. We are of the considered opinion that if the

show cause notice is not served then subsequent

hearing notice will not cure the defect.

11. On a specific query being raised the learned

counsel for the respondent informed that the email that

was sent on 25th April, 2022 was not signed digitally.

Under the proviso to Rule 7 the electronic mail has to

be digitally signed by the competent authority which

admittedly was not done.

12. In view of the aforesaid, we are of the affirmed

view that the matter proceeded ex-parte against the

appellant without serving a show cause notice and

without giving an opportunity of hearing. The 14

impugned order consequently is violative of the

principles of natural justice and cannot be sustained.

All the impugned orders insofar as the appellant is

concerned are quashed. The appeals are allowed. The

matter is remitted to the AO to pass a fresh order after

providing a show cause notice and after providing an

opportunity of hearing to the appellant. All the misc.

applications are accordingly disposed of.

13. In this regard, we find that a large number of orders

have been passed against Mr. Arun Panchariya and

there is an allegation by the respondent that they are

finding it difficult to serve the appellant as he is

residing abroad and frequently changes his address. We

also find that certain orders are being sent through

emails which the appellant refutes and contends that the

appellant did not receive those emails. Upon a specific

query being asked by the Tribunal the learned counsel

for the appellant Mr. Sandeep Wadhwan submitted that 15

he has instructions to receive notices/summons/letters

etc. from SEBI on behalf of the appellant Mr. Arun

Panchariya and would be willing to receive such

notices/summons/ letters etc. in future.

14. In view of the aforesaid statement made by the

learned counsel for the appellant Mr. Sandeep

Wadhwan we direct the AO to serve the show cause

notices upon the appellant as well as to the appellant's

counsel Mr. Sandeep Wadhwan in the present appeals

and in all such matters which are pending before SEBI

or may be initiated by SEBI against Mr. Arun

Panchariya. Shri Wadhawan will become the

authorized counsel to receive notices/summons etc. on

behalf of the appellant till such time his instructions are

withdrawn specifically in writing.

15. In view of the aforesaid, the appellant or the

learned counsel for the appellant will appear before the

AO on 10th April, 2023 on which date the AO will 16

serve the show cause notice upon the appellant or his

learned counsel and from there onwards the matter will

proceed in accordance with law. In the circumstances

of the case, parties shall bear their own costs.

16. 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 this order is also

available from the Registry on payment of usual

charges.

Justice Tarun Agarwala Presiding Officer

Ms. Meera Swarup Technical Member Digitally signed RAJALAKSHMI by RAJALAKSHMI HARISH NAIR HARISH NAIR Date: 2023.03.31

28.3.2023 13:33:44 +05'30'

RHN