Jonaki Bakeri & Anr. vs Sebi

2. Hirva A. Bakeri 415, Bodkadev, Ahmedabad-380 054. ...Appellants

Versus

Securities and Exchange Board of India SEBI Bhavan, Plot No.C4-A, G Block, Near Bank of India, Bandra Kurla Complex, Bandra East, Mumbai, Maharashtra -400051. ...Respondent

Mr. Somasekhar Sundaresan with Mr. Bijal H. Chhatrapati, Mr. Pulkit Sukhramani and Ms. Vidhi Jhawar, Advocates i/b. J. Sagar Associates for the Appellants.

Mr. Kumar Desai, Advocate with Mr. Abhiraj Arora and Ms. Rashi Dalmia, Advocates i/b ELP for the Respondent.

With Misc. Application No.291 of 2019 2

And Appeal No.234 of 2019

1. Achal Anil Bakeri 415, Bodkadev, Ahmedabad-380 054.

2. Achal Anil Bakeri (HUF) 415, Bodkadev, Ahmedabad-380 054.

3. Rupa Achal Bakeri 415, Bodkadev, Ahmedabad-380 054.

4. Pavan Bakeri 13, Sadma Society, Navrangpura, Ahmedabad -380 009.

5. Hansa Bakeri 13, Sadma Society, Navrangpura, Ahmedabad -380 009.

6. Sanskrut Tradecom Private Limited 414, Sargam Marg Opp. Cee, Bokadev, Ahmedabad -380 054. ...Appellants

Versus

Securities and Exchange Board of India SEBI Bhavan, Plot No.C4-A, G Block, Near Bank of India, Bandra Kurla Complex, Bandra East, Mumbai, Maharashtra -400051. ...Respondent

Mr. Somasekhar Sundaresan with Mr. Bijal H. Chhatrapati, Mr. Pulkit Sukhramani and Ms. Vidhi 3

Jhawar, Advocates i/b. J. Sagar Associates for the Appellants.

Mr. Kumar Desai, Advocate with Mr. Abhiraj Arora and Ms. Rashi Dalmia, Advocates i/b ELP for the Respondent.

CORAM: Justice Tarun Agarwala, Presiding Officer Justice M.T. Joshi, Judicial Member

Per : Justice Tarun Agarwala, Presiding Officer

1. Two appeals have been filed against a common

order dated 20th July, 2017 whereby the Adjudicating

Officer („AO‟ for short) has imposed a penalty of

Rs.50,00,000 to be paid jointly and severally for

violation of Regulation 11(2) of the Securities and

Exchange Board of India (Substantial Acquisition of

Shares and Takeovers) Regulations, 1997 (hereinafter

referred to as the „SAST Regulations‟)

2. There is a delay of 577 days in the filing of the

appeal and, accordingly, an application for

condonation of delay has been filed. The ground urged

is that a similar order in the case of Tarun Jiwarajka

was passed by the Securities and Exchange Board of 4

India (hereinafter referred to as „SEBI‟) imposing a

similar penalty for violation of Regulation 11(2) of the

SAST Regulations which was set aside by this

Tribunal in appeal no.265 of 2015 Tarun Jiwarajka &

Ors. vs. SEBI dated 28th May, 2018 and, therefore, on

this ground the delay should be condoned. In addition

to the aforesaid, it was also urged that the appellants

were travelling and it took some time to engage an

advocate, procure the documents and, thereafter, file

the appeal and, therefore, the delay should be

condoned. The respondent has vehemently opposed

the condonation of the delay on the ground that no

sufficient cause has been shown for condoning the

delay.

3. In support of the contention raised by the learned

counsel reliance was made on a decision of the

Division Bench of the Delhi High Court in the case of

Prem Chand Bansal & Sons vs. Income Tax Officer,

1998 SCC Online Delhi 756 wherein the court found 5

that sufficient cause was shown for condoning the

delay on account of change in view of the law by

different judgments.

4. We have heard Mr. Somasekhar Sundaresan with

Mr. Bijal H. Chhatrapati, Mr. Pulkit Sukhramani and

Ms. Vidhi Jhawar, Advocates for the appellants and

Mr. Kumar Desai, Advocate with Mr. Abhiraj Arora

and Ms. Rashi Dalmia, Advocates for the Respondent.

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

are of the opinion that sufficient cause has not been

shown by the appellants. The grounds that the

appellants were travelling and took time to appoint an

advocate and procure documents are totally vague

grounds which have been asserted without any

documentary evidence. There is delay of 577 days

which has not been explained. Further, we find that

after the passing of the impugned order the appellants

paid the penalty amount though they now state that

they have paid it under protest. We find that the 6

judgment of the Delhi High Court is totally

distinguishable and is not applicable in the instant case

in as much as the present appeal has been filed much

after the decision of Tarun Jiwarajka which was

decided on 28th May, 2018 and the present appeal was

filed on 2nd April, 2019. We are further of the opinion

that merely because a decision of the Tribunal has

come into existence which may suit the appellants will

not give a right to the appellants to file an appeal

belatedly. We are of the opinion that no due diligence

was shown by the appellants in fighting his case and in

filing the appeal within a reasonable time. The

appellants have abandoned his/her legal pursuit and

submitted to the order of the authority. Considering

the aforesaid, we find that no sufficient cause has been

shown to condone the delay. The grounds urged are

neither legal ground nor has sufficient cause been

shown.

7

6. 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.

7. 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 party. The same

view was reiterated by the Supreme Court in Madanlal

vs. Shyamlal, (2002) 1 SCC 535.

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

(2010) 8 SCC 685 Supreme Court held that the 8

expression "sufficient cause" means the presence of

legal and adequate reasons. The decisions cited by the

learned counsel for the appellants are of no avail and,

in any case, not applicable in the present circumstance

of the case.

9. 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

find any legal or adequate reasons to condone the

delay.

10. For the reasons stated aforesaid, the applications

for condonation of delay is rejected as a result of which 9

the appeals are also dismissed with no order as to

costs.

11. 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 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 RAJALAK Digitally signed 23.2.2021 by RAJALAKSHMI SHMI H HDate:

NAIR RHN 2021.02.24 NAIR 11:10:42 +05'30'