Barun Kumar De vs Sebi

Date of Decision: 12.08.2021

Misc. Application No. 763 of 2021 And Misc. Application No. 764 of 2021 And Appeal No. 534 of 2021

Barun Kumar De 48/51, Purna Chandra Mitra Lane, Swiss Park, Tollygunge, Kolkata- 700 033 ...Appellant

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. Recovery Officer, SEBI, Eastern Region, Kolkata L&T Chambers, 3rd Floor, 16, Camac Street, Kolkata- 700 017

3. The Registrar of Companies, North East Region, 5th Floor, Prithvi Planet, Behind Hanuman Mandir, Ulubari, G.S. Road, Guwahati- 781 007, Assam

4. Amrit Projects (N.E.) Limited 58, G.S. Road, Shima Plaza, 2nd Floor, Ulubari Chariali, Guwahati, Kamrup, Assam- 781 007 ...Respondents 2

WITH Misc. Application No. 765 of 2021 And Misc. Application No. 766 of 2021 And Appeal No. 535 of 2021

Barun Kumar De 48/51, Purna Chandra Mitra Lane, Swiss Park, Tollygunge, Kolkata- 700 033 ...Appellant

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. Recovery Officer, SEBI, Eastern Region, Kolkata L&T Chambers, 3rd Floor, 16, Camac Street, Kolkata- 700 017

3. The Registrar of Companies, Kolkata Circle, Nizam Palace, 2nd MSO Building, 2nd Floor, 234/4, A.J.C.B. Road, Kolkata- 700 020

4. Amrit Projects Limited Amrit Dham, Nityanand Nagar, Bakultala, Howrah, West Bengal- 711 109 ...Respondents

Mr. Ratnanko Banerji, Senior Advocate with Mr. Kanishk Kejriwal, Mr. Samik Sarkar, Ms. Yamini Mookherjee, and Mr. Saurodip Banerjee, Advocates for the Appellants.

Mr. Abhiraj Arora, Advocate with Ms. Rashi Dalmia and Mr. Karthik Narayan, Advocates i/b ELP for the Respondent (SEBI).

3

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 the order dated

February 23, 2016 as well as the Recovery Certificate dated

October 23, 2019. There is a delay of 1894 days in the filing of

the appeal and accordingly an application for condonation of

delay has been filed.

2. The ground urged is, that the appellant is a senior citizen

being 81 years old and has a long medical history, namely, that

he is suffering from chronic ailments including bronchial

asthma, hypertension and cardiovascular ailments. It has also

been contended that the appellant was hospitalized from time to

time from January 10, 2018 to January 19, 2018 and from

March 11, 2019 to March 21, 2019 and again on March 30,

2020 to April 12, 2020. It was also contended that his wife was

also suffering and was hospitalized from time to time. In view

of this assertion, it was contended that the delay may be

condoned and the matters may be heard on merit. 4

3. Having considered the application for condonation of

delay and the grounds mentioned therein, we find that the

impugned order was passed on February 23, 2016. Nothing has

come before us to show that the applicant could not take

adequate steps to file the appeals during that period. All the

illnesses which has been shown are from 2018 onwards and that

too intermittently. Consequently, we are satisfied that sufficient

grounds have not been made out to condone this inordinate

delay.

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

negligence or inaction or want of bonafide is imputable to a 5

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. For the reasons stated aforesaid, the application for

condonation of delay does not show sufficient cause and is

rejected, as a result of which the appeals are also dismissed with 6

no order as to costs. Since the appeals have been taken up, the

urgency applications are disposed of.

9. The present matters were 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 12.08.2021 RAJALA Digitally by signed

PK KSHMI NAIR RAJALAKSHMI H

Date: 2021.08.13 H NAIR 11:00:58 +05'30'