Ratio decidendi
The rule this decision rests on
Where a party seeking condonation of delay in filing an appeal has sworn to facts that are shown to be false, and the appeal memo and verification clause carry an address the party earlier represented to the Tribunal as its own (and which is the address where summons were served), that party is not entitled to the discretionary relief of condonation of delay; the sworn falsity itself disentitles the applicant from the discretion. Where the appellant's claim of non-service rests on having left the address where summons were served, but the appellant continued to use that address in later filings and in a subsequent agreement, the claim of non-service cannot be believed and the appellant is deemed to have been aware of the service of summons. Where summons were served at an address the appellant continued to use, and were also published in two daily newspapers circulating in the same locality, the appellant is taken to have had knowledge of the proceedings; having such knowledge and choosing not to appeal within the prescribed period, without sufficient cause shown, no ground exists to condone an inordinate delay, and the application for condonation is dismissed along with the appeal and the stay application.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
BEFORE THE SECURITIES APPELLATE TRIBUNALMUMBAIDate of Decision: 19.8.2020Misc. Application No.234 of 2020(Application for Condonation of Delay)Misc. Application No. 235 of 2020(Application for Stay)AndAppeal No.193 of 2020Jiban MitraB 14/101, Larica Township,P.O.- Nabapally, P.S.- Barasat District,North 24 Parganas, Kolkatta - 126.... AppellantVersus1.Recovery OfficerSecurities and Exchange Board of IndiaEastern Regional Office (ERO),The Regional Director, L&T Chambers,3rd Floor, 16 Camac Street,Kolkata - 700017, West Bengal.2. Securities & Exchange Board of IndiaSEBI Bhavan, Plot No.C4-A,G Block, Bandra Kurla Complex,Bandra (E), Mumbai - 51. ...RespondentsMs. Rinku Valanju, Advocate with Ms. Hiral Shah and Mr.Pratham Masurekar, Advocate i/b. R V Legal for theAppellantMr. Abhiraj Arora, Advocate i/b. ELP for the Respondents.2CORAM: Justice Tarun Agarwala, Presiding OfficerDr. C.K.G. Nair, MemberJustice M.T. Joshi, Judicial MemberPer : Justice Tarun Agarwala, Presiding Officer (Oral)1. The present appeal has been filed against an order dated8th November, 2017 directing the Appellant and otherDirectors to refund the money collected jointly and severallyduring the financial years 2009-2010, 2010-2011 and 2011-2012 alongwith interest. The Appellant was also restrainedfrom selling its assets till such time the amount collected wasrefunded and was further restrained from accessing thesecurities market for a period of four years.2. The Appellant had earlier filed Appeal No.49 of 2020on 29th January, 2020 alongwith an application forcondonation of delay which was dismissed as withdrawn byan order of this Tribunal dated 13th July, 2020 with liberty tofile afresh. Now a fresh appeal has been filed alongwith anapplication for condonation of delay of 776 days.3. It is alleged that the Appellant was unaware of theinterim order dated 14th January, 2016 or the final order dated8th November, 2017 passed by the respondent and only cameto know when the Appellant went to its bank on 15 th3November, 2019 when he found that his bank account wasseized pursuant to the Recovery Certificate dated 25thOctober, 2019 issued by the Recovery Officer. The appellantimmediately thereafter filed the appeal.4. It was contended that no summons were ever receivednor the Appellant came to know about the pendency of theproceedings which were published in the newspapers 'TheTimes of India' and 'Anand Bazar Patrika' and that theAppellant only came to know when his bank account wasseized pursuant to the Recovery Certificate.5. It is the case of the Appellant that at the relevantmoment of time when the Appellant was a Director he wasstaying with his parents at Ray Lane, Khamarpara, BansberiaHoogly, West Bengal - 712502 and left his parental house in2012 since his relationship with his parents became strained.It was also stated that between 2013-2016 he was residing atPurba Bankim Pally, Madhyamgram, North, Parganas-700129 and that he applied for change of address in hisvoters card in 2015. In 2016 he started doing a restaurantbusiness in the name of Pizza Lovers and, on this basis,contended that neither the summons were served upon him4nor had he read the summons in the newspapers andaccordingly the delay in filing the appeal may be condoned.6. Having heard Ms. Rinku Valanju, learned counsel forthe Appellant and Mr. Abhiraj Arora, learned counsel for theRespondent we find that even though the submissions madeby the learned counsel for the Appellant seemed attractive atthe first blush but on a closer scrutiny we find that theAppellant has stated false facts on oath and, therefore, he isnot entitled for any discretionary relief whatsoever.7. The impugned order indicates that the summons weredelivered at his last known address namely Ray Lane,Khamarpara, Bansberia Hoogly, West Bengal - 712502which the Appellant alleges that he had left that premises onaccount of strained relationship with his parents. Wehowever find that the Appellant filed Appeal no.49 of 2020in January, 2020 before this Tribunal. The address of theAppellant in the memo of appeal as well as in the verificationclause was the same, that is, the address of the house of theparents where the summons were delivered. This appeal wasconveniently withdrawn with liberty to file afresh as theAppellant wanted to hide this fact from the Tribunal. Thisconcealment however could not go unnoticed as in the5present appeal the address of the Appellant in the memo ofappeal was changed but in the verification clause the addressremained the same, namely the address of the parents wherethe original summons were served. In this regard, a feebleattempt was made by the learned counsel for the Appellantstating that it is a typographical error which in our opinioncannot be and is an afterthought. The address given in theverification clause is the same address where the summonswere served and, therefore, it cannot be a clerical or atypographical error.8. Apart from the aforesaid, there is another evidence toshow that the Appellant is still using the address of hisparents. It clinches the issue and hits the nail on the headnamely the Leave and License Agreement which wasexecuted by the Appellant on 1st February, 2016 (Exhibit'D'). This document shows the same address, namely, theaddress of the parents where the summons were delivered.9. In the light of the aforesaid, we are of the opinion thatthe contention of the Appellant that he was never served withthe summons as he left the residential house of his parentscannot be believed. The Appellant was continuously usingthe parental address and was thus deemed to be aware of the6service of the summons. The publication of the summons inthe two daily newspapers published in the samelocality/region also proves that the Appellant had knowledgeof the proceedings.10. In view of the aforesaid, we are of the opinion that theAppellant had knowledge of the proceedings but chose not tofile the appeal within the stipulated period. The Appellanthas stated false facts on oath and has tried to mislead theCourt by stating false facts. No sufficient cause has beenshown nor there is any legal ground to condone theinordinate delay in filing the appeal. The Appellant hasshown that there is a delay of 776 days which is incorrect inas much as the delay has been calculated upto 29th January,2020 whereas the delay till the filing of the appeal in August,2020 have to be calculated.11. For the reasons stated aforesaid, the application forcondonation of delay lacks merit and is dismissed as a resultof which the appeal as well as the Misc. Application No.235of 2020 for stay are also dismissed with no order as to costs.12. The present matter was heard through video conferencedue to Covid-19 pandemic. At this stage it is not possible tosign a copy of this order nor a certified copy of this order7could be issued by the registry. In these circumstances, thisorder will be digitally signed by the Presiding Officer onbehalf of the bench and all concerned parties are directed toact on the digitally signed copy of this order. Parties will acton production of a digitally signed copy sent by fax and/oremail.
Justice Tarun Agarwala TARUN Digitally signed by TARUN AGARWAL DN: c=IN, o=PUBLIC WORKS DEPARTMENT UTTAR PRADESH, postalCode=221505, st=Uttar Pradesh, 2.5.4.20=30fcf68685192bbc53e6ff1608a83fb3881de7ac2ab7954d5 Presiding Officer AGARWAL 09c85ed6e0f7c41, serialNumber=095f8b286bb0b1cd07ff676611f4f5e7999727d404aa 38ca422f9d3529bdb8a3, cn=TARUN AGARWAL Date: 2020.08.20 14:44:58 +05'30'
Justice M.T. Joshi Judicial Member
