Harivallabh Mundra vs Sebi

Date of Decision : 10.08.2020

Misc. Application No. 224 of 2020 (Delay Application) And Appeal No. 162 of 2020

Harivallabh Mundra 45/47, Lohar Chawl, Crawford Market, Mumbai - 400002. ..... Appellant

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. Joby Mathew, Advocate with Mr. Anshuman Sugla, Advocate i/b Joby Mathew & Associates for the Appellant. Mr. Vishal Kanade, Advocate with Mr. Anubhav Ghosh, Advocate i/b The Law Point for the Respondent.

CORAM : Justice Tarun Agarwala, Presiding Officer Dr. C. K. G. Nair, Member Justice M. T. Joshi, Judicial Member

Per : Justice Tarun Agarwala, Presiding Officer (Oral) 2

1.

We have heard Mr. Joby Mathew, the learned counsel

alongwith Mr. Anshuman Sugla, the learned counsel for the appellant

and Mr. Vishal Kanade, the learned counsel alongwith Mr. Anubhav

Ghosh, the learned counsel for the respondent through video

conference.

2. Pursuant to the show cause notice dated October 13, 2017, the

appellant appeared and submitted a reply on October 15, 2019. The

impugned order was passed by the Whole Time Member (hereinafter

referred to as 'WTM') on April 13, 2020 finding the appellant guilty

and restraining him from accessing the securities market for a period

of two years. The appellant being aggrieved by the said order has filed

the present appeal.

3. There is a delay in filing the appeal. For the reasons stated in

the application and considering that the appeal was filed during the

pandemic period, we condone the delay. The delay condonation

application is allowed.

4. Having heard the learned counsel for the parties, we find that

a specific assertion was made by the appellant that he had filed a reply

on October 15, 2019 which has not been considered by the WTM. 3

We find from the impugned order, namely, paragraph 10 that the

WTM has given a specific finding that no reply was filed by the

appellant. When we questioned this fact the learned counsel for the

respondent fairly conceded that the reply of the appellant dated

October 15, 2019 was received by the respondent on October 17,

2019.

5. In view of the aforesaid admission, we are of the opinion that

the impugned order in so far as the appellant is concerned has been

passed without consideration of the reply filed by the appellant and,

therefore, on this short ground the impugned order cannot be sustained

in so far as the appellant is concerned.

6. For the reasons stated aforesaid, the impugned order is quashed

in so far as the appellant is concerned. The appeal is allowed. The

matter is remitted to the WTM to reconsider the matter afresh after

considering the reply of the appellant and after taking into

consideration all other factors and after giving an opportunity of

hearing to the appellant. In view of the aforesaid, parties shall bear

their own costs.

4

7. 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.

TARUN Digitally signed by TARUN AGARWAL DN: c=IN, o=PUBLIC WORKS DEPARTMENT UTTAR PRADESH, postalCode=221505, st=Uttar Pradesh, 2.5.4.20=30fcf68685192bbc53e6ff1608a83fb3881de7ac2ab7954d509

AGARWAL c85ed6e0f7c41, serialNumber=095f8b286bb0b1cd07ff676611f4f5e7999727d404aa38 ca422f9d3529bdb8a3, cn=TARUN AGARWAL Date: 2020.08.10 14:48:12 +05'30' Justice Tarun Agarwala Presiding Officer

Dr. C. K. G. Nair Member

Justice M. T. Joshi Judicial Member 10.08.2020 PTM