Kamal Jitendra Katkoria vs Sebi
- CitationAppeal No. 96 of 2017
Ratio decidendi
The rule this decision rests on
The ratio decidendi must be stated here, since the judgment gives reasons for refusing condonation of delay and for the consequent disposal. A party seeking condonation of delay in filing an appeal must offer a reasonable explanation for the delay; the bare fact that a party later learns of decisions or material that were already publicly available cannot supply that explanation where the party offers no reason for not having consulted them earlier. The correctness of an impugned order must be assessed by reference to the reasons contained in that order and not by reference to subsequent events, and therefore material or notices issued after the order cannot furnish a ground for condoning delay in appealing it. Where a miscellaneous application for condonation of delay is dismissed, an appeal depending on it does not survive and is liable to be disposed of as infructuous.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Date of Decision : 11.10.2017
Misc. Application No. 109 of 2017 And Appeal No. 96 of 2017
Kamal Jitendra Katkoria C/o Flat No. 704, Building No. 2, H-Wing, Mody Park, Pruthvi Classique, Iraniwadi, Kandivali (West), ...Appellant Mumbai - 400 067.
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. Deepak Dhane, Advocate for the Appellant.
Mr. Gaurav Joshi, Senior Advocate with Mr. Mihir Mody and Mr. Nishant Upadhyay, Advocates i/b K. Ashar & Co. for the Respondent.
CORAM : Justice J.P. Devadhar, Presiding Officer Jog Singh, Member Dr. C.K.G. Nair, Member
Per : Dr. C.K.G. Nair, Member (Oral)
1.
This Appeal and Miscellaneous Application seeking condonation of
delay of 984 days in filing the Appeal are preferred by the appellant in order
to challenge the order dated May 26, 2014 passed by the Whole Time
Member ('WTM' for short) of Securities and Exchange Board of India
('SEBI' for short). By the said order the Appellant was restrained from
accessing the securities market and also prohibited from buying, selling, and
otherwise dealing in securities market, directly or indirectly for a period of 2
three years from the date of the order for violating the provisions of
regulations 3(a),(b),(c) and 4(1) of SEBI (Prohibition of Fraudulent and
Unfair Trade Practices relating to Securities Market) Regulations, 2003 read
with section 12A (a),(b),(c) of Securities and Exchange Board of India Act,
1992.
2. Shri Gaurav Joshi, Learned Senior Counsel appearing on behalf of
the Respondent SEBI objected to allowing the Miscellaneous Application
on the ground that the appellant has not given any justifiable reason for
condoning the delay. He further stated that the three year restraint imposed
on the Appellant got over on May 25, 2017 and thus the appeal has become
infructuous.
3. Although the appeal has become infructuous on account of the
Appellant undergoing restraint order for 3 years, Shri. Deepak Dhane,
Learned Counsel appearing on behalf of the Appellant insisted on arguing
the Miscellaneous Application and seek condonation of delay on the
following grounds:-
(a) Appellant came to know about two orders of this Appellate
Tribunal in the matters of Dipak Patel vs. SEBI and Sujit
Karkera vs. SEBI dated November 9, 2012 and December 17,
2012 respectively wherein it is held that front-running related
charges could be applied only to intermediaries and not to
other entities trading in the securities market.
(b) On January 18, 2017 SEBI has issued a show cause notice to
the Appellant with a view to confirm the impounding order
dated March 17, 2016 and along with that notice statements of
Colin P. Shah and Pradip Shah have been furnished which are 3
mutually contradictory. Thus, the order passed against the
Appellant is based on mutually contradictory statements, it is
necessary to condone the delay in filing the appeal against the
order of SEBI.
4. We do not find any merit in the submissions of the Applicant /
Appellant. The orders of this Tribunal in case of Dipak Patel (supra) and in
case of Sujit Karkera (supra) are on the website of SAT since 2012.
Therefore, the Applicant who was not aggrieved by the impugned order
dated May 26, 2014 cannot contend that he became aggrieved by the
impugned order on perusal of the aforesaid orders which were on the SAT
website since 2012. In the absence of any explanation given for not perusing
the SAT website even after the impugned decision, the Applicant cannot
seek condonation of delay.
5. Similarly, argument based on the statements annexed to the show
cause notice dated January 18, 2017 issued after the order impugned in the
appeal cannot be a ground condoning the delay in filing the appeal.
Correctness of our order has to be seen in the context of the reasons set out
in the order and not on the basis of subsequent events. Moreover, the said
show cause notice was issued on January 18, 2017, whereas, the present
appeal is filed after delay of two months from the date of receiving the said
show cause notice dated January 18, 2017. As the Applicant has failed to
give any reasonable explanation, we see no reason to condone the delay in
filing the appeal.
6. In our opinion, Appeal with the Miscellaneous Application seeking
condoning the delay of 984 days is filed on the eve of completing the
restraint order is in gross abuse of the process of law. Accordingly, the 4
Miscellaneous Application is dismissed with costs quantified at ` 25,000/-.
Appellant is directed to pay the cost of ` 25,000/- to SEBI within 15 days
from today.
7. In view of the dismissal of the Miscellaneous Application, the Appeal
does not survive. Accordingly the Appeal is disposed of as infructuous with
no costs.
Sd/-
Justice J.P. Devadhar Presiding Officer
Sd/-
Jog Singh Member
Sd/-
Dr. C.K.G. Nair Member 11.10.2017 Prepared and compared by:msb
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