Bablu Saha & Ors. vs Sebi

Date of Decision: 12.01.2023

Misc. Application No. 1013 of 2022 And Misc. Application No. 1014 of 2022 And Appeal No. 26 of 2023

1.

Bablu Saha Son of Late Mantu Lal Saha Residing at Balagarh Milan Park, Hooghly, West Bengal- 712 104

2. Mr. Tushar Sur Son of Manik Lal Sur Residing at Dharampur, Rajanikanta Dutta Road, Chinsurah, Hooghly, 712 101

3. Mr. Joydip Mukhopadhyay, Son of Umapada Mukhopadhyay Residing at Pandua, Kamarpara, Pandua- 712 149 ...Appellants

Versus

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

2. The Recovery Officer, Eastern Region, Securities and Exchange Board of India L & T, Chamber 16, Camac Street, Kolkata- 700 016, West Bengal

3. Registrar of Companies, West Bengal, Ministry of Corporate Affairs, Nizam Palace, 2nd M S O Building, 2nd Floor 234/4, A.J.C. Bose Road, Kolkata- 700 020 2

4. Official Liquidator 9, Old Post Office Street, Kolkata- 700 001 ...Respondents

Mr. Diptomoy Talukder, Advocate for the Appellants.

Mr. Akash Rebello, Advocate with Ms. Karishma Motla and Mr. Aditya Sarangarajan, Advocates i/b Mansukhlal Hiralal & Co. for the Respondent.

CORAM: Justice Tarun Agarwala, Presiding Officer Ms. Meera Swarup, Technical Member

Per: Justice Tarun Agarwala, Presiding Officer (Oral)

1. We have heard the learned counsel for the appellants. The

present appeal has been filed against the order dated March 02,

2016 passed by the Whole Time Member ("WTM" for

convenience) of the Securities and Exchange Board of India

("SEBI" for convenience) directing the Company and its

directors to refund the money collected through issuance on

non-convertible redeemable debentures. The appellants have

also been restrained from accessing the securities market. There

is a delay of 2339 days in the filing of the appeal.

2. The ground urged is, that 13 criminal cases were initiated

against the appellants which they were contesting and some of 3

the appellants were also in custody and therefore they could not

file the present appeal.

3. In our opinion, the ground urged is not a valid ground for

condoning the inordinate delay. The mere fact that the

appellants were contesting 13 criminal cases is not the ground to

condone the delay in as much as the appellants could have filed

the appeal. Nothing stopped them from not filing the appeal.

Further, nothing has been brought on record to show as to when

the appellants were released and enlarged on bail.

4. In Basawaraj and Anr. vs. Special Land Acquisition

Officer, (2013) 14 SCC 81 the Supreme Court held that the

discretion to condone the delay has to be exercised judicially

based on facts and circumstances of each case and that

sufficient cause cannot be given a liberal interpretation if lack of

bonafide is attributed to a party. The Supreme Court further held

that delay cannot be condoned on equitable ground beyond the

limits permitted expressly by statute.

5. The Supreme Court in Ram Nath Sao and Ors. (supra)

held that the expression "sufficient cause" should receive a

liberal construction so as to advance substantial justice when no 4

negligence or inaction or want of bonafide is imputable to a

party. The same view was reiterated by the Supreme Court in

Madanlal vs. Shyamlal, (2002) 1 SCC 535.

6. In Balwant Singh (Dead) vs Jagdish Singh & Ors, (2010)

8 SCC 685 Supreme Court held that the expression "sufficient

cause" means the presence of legal and adequate reasons. The

decisions cited by the learned counsel for the appellant are of no

avail and, in any case, not applicable in the present

circumstance of the case.

7. This Tribunal is possessed with the exercise of judicial

discretion in condoning the delay if sufficient or adequate

reason is given. It is also a settled proposition of law that the

law of limitation may harshly affect a particular party but it has

to be applied with all its rigour when the statute so prescribes.

The court has no power to extend the period of limitation on

equitable grounds as held by the Supreme Court in Basawaraj

and Anr. (supra). In the instant case we do not find any legal or

adequate reasons to condone the delay.

8. In the light of the aforesaid, we do not find any reason to

condone the inordinate delay in filing the appeal. Sufficient 5

ground has not been made out. The appeal is rejected on the

ground of laches. The application for condonation of delay is

rejected, as a result of which the appeal is also dismissed with

no order as to costs. The misc. application for exemption is also

disposed of accordingly.

9. 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 12.01.2023 PRERNA byMANISH Digitally signed PRERNA MANISH KHARE PK Date: 2023.01.13 KHARE 14:54:57 +05'30'