Kaushik Chattopadhyay vs Sebi

Date of Decision : 26.02.2020

Misc. Application No. 256 of 2018 And Appeal No. 308 of 2018

Kaushik Chattopadhyay 23, Abhay Mukherjee Lane, Belgaria, Kolkata - 700 056. ..... 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. Paras Parekh, Advocate with Mr. Robin Shah, Advocate i/b Parinam Law Associates for the Appellant.

Mr. Shyam Mehta, Senior Advocate with Mr. Abhiraj Arora, Mr. Vivek Shah, Advocates i/b ELP the Respondent.

CORAM : Justice Tarun Agarwala, Presiding Officer Dr. C. K. G. Nair, Member Justice M. T. Joshi, Judicial Member 2

Per : Justice Tarun Agarwala, Presiding Officer (Oral)

1.

The present appeal has been filed challenging the order dated

February 6, 2015 passed by the Whole Time Member (hereinafter

referred to as 'WTM') of Securities and Exchange Board of India

(hereinafter referred to as 'SEBI') under Section 11 and 11B of the

Securities and Exchange Board of India Act, 1992. The appellant

has also challenged the communication issued by the Assistant

General Manager of SEBI in response to an application filed by the

appellant.

2. There is a delay of 3 years and 122 days in challenging the

impugned order dated February 6, 2015 and consequently, Misc.

Application has been filed for condoning the delay.

3. Before dealing with the delay, it would be essential to give the

brief facts which led to the filing of the present appeal. After the

passing of the impugned order dated February 6, 2015, recovery

proceedings were initiated and, in pursuance to a recovery order,

Appeal No. 3 of 2017 was filed by the appellant which was allowed

by an order dated August 18, 2017 and the recovery order was set 3

aside. Thereafter, the appellant filed Appeal No. 230 of 2018

challenging the order of the WTM of February 6, 2015 alongwith an

application for condoning the delay. The said appeal was disposed of

on the ground that the appellant had in the meanwhile received a

letter dated July 6, 2018 which was also required to be challenged

and, therefore liberty was sought to withdraw the appeal with liberty

to file afresh. Such liberty was accordingly granted by order of this

Tribunal dated July 10, 2018. Thereafter, the present appeal was

filed challenging the order dated February 6, 2015 passed by the

WTM as well as the communication dated July 6, 2018 issued by the

Assistant General Manager.

4. There is an inordinate delay in filing the present appeal. In so

far as the challenge to the order of the WTM dated February 6, 2015

is concerned, no plausible explanation has been given except the fact

that the appellant was making representation before the WTM and

before the Recovery Officer. In our view, such representation /

application filed by the appellant before the WTM or before the

Recovery Officer will not extend the period of limitation in so far as

challenging the order of the WTM dated February 6, 2015 is

concerned. We also find that in the order of this Tribunal dated 4

August 18, 2017, a submission of the appellant was recorded that

they are not contesting the restraint order passed by the WTM. We

also note that in that appeal the appellant had only challenged the

order of the Recovery Officer and did not choose to challenge the

order of the WTM. Thus, at this belated stage, it is not open to the

appellant to challenge the order of the WTM dated February 6, 2015

at this belated stage. In view of the inordinate delay, the appeal in so

far as questioning the veracity and legality of the order dated

February 6, 2015 is concerned cannot be accepted and the appeal to

that extent is dismissed on the ground of laches.

5. In so far as the challenge to the communication dated July 6,

2018, we find that the officer has only communicated to the appellant

that a criminal complaint has been filed before the District and

Session Judge where the appellant may raise his contention with

regard to the legality and validity of those proceedings. The officer

has also informed the appellant that a final order of the WTM dated

February 6, 2015 has also been passed and that there is no power

with SEBI to review its own orders. In our opinion, there is no

infirmity in the said communication made by the officer to the

appellant. We do not find any infirmity in the said communication. 5

6. For the reasons stated aforesaid, the appeal is dismissed.

Sd/-

Justice Tarun Agarwala Presiding Officer

Sd/-

Dr. C. K. G. Nair Member

Sd/-

Justice M. T. Joshi Judicial Member 26.02.2020 Prepared & Compared by PTM