Kaushik Sharad Shah vs Sebi

Date of Decision : 12.05.2021

Misc. Application No. 433 of 2021 (Delay Application) And Misc. Application No. 588 of 2021 (Exemption from filing certified copy) And Appeal No. 358 of 2021

Kaushik Sharad Shah Saanvi Heights, B Wing, Flat No. 902, Near Suntex City, Opp. Vishal Sweets, Ram Mandir (West), Mumbai - 400104. ...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

Ms. Rinku Valanju, Advocate for the Appellant.

Mr. Vishal Kanade, Advocate with Mr. Nishit Dhruva, Mr. Chirag Bhavsar, Advocates i/b MDP & Partners for the Respondent.

CORAM : Justice Tarun Agarwala, Presiding Officer Justice M. T. Joshi, Judicial Member 2

Per : Justice Tarun Agarwala, Presiding Officer (Oral)

1.

The present appeal has been filed against the order dated

August 2, 2019 passed by the Adjudicating Officer (hereinafter

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

(hereinafter referred to as 'SEBI') imposing a penalty upon the

appellant. The appeal was filed on March 27, 2021. Since there is a

delay in the filing of the appeal by 551 days, the appellant has also

filed an application for condonation of delay.

2. The ground urged is that the appellant has been ill since 2017

and suffering from multiple diseases and undergoing several

treatments. It was contended that his heart is weak and is not even fit

for bypass surgery, since he is undergoing treatment for the same

since 2017. It is further contended that in 2019, he had a brain stroke

and also suffering from high diabetes. The appellant has multiple

calculi in his gall bladder and is also suffering from iron deficiency.

In this regard, medical certificates have also been annexed in support

of his submission. On account of these facts, it has been stated that

the delay may be condoned.

3. Having heard the learned counsel for the appellant, we find

that there is an inordinate delay in the filing of the appeal. We find 3

that immediately after the passing of the impugned order on August

2, 2019, the appellant had filed an application for settlement which

was denied and replied by the respondent vide a letter dated

December 19, 2019. In spite of this, no effort was made by the

appellant to file the appeal. We find from a perusal of the medical

certificates, most of them are of August 2020, much after the expiry

of the limitation period and in any case, the medical certificate does

not show that his disease was serious in nature.

4. 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 judicial ly 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.

5. 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].

4

6. In Balwant Singh (Dead) vs. Jagdish Singh & Ors. [(2010)

8 SCC 685], Supreme Court held that the expression "sufficient

cause" means the presence of legal and adequate reasons. The

decisions cited by the learned counsel for the appellant are of no

avail and, in any case, not applicable in the present circumstance of

the case.

7. 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.

8. For the reasons stated aforesaid, application for condonation

of delay is rejected, as a result of which the appeal is also dismissed

with no order as to costs.

9. 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 5

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 12.05.2021 Digitally signed RAJALA byRAJALAKSHMI PTM KSHMI HDate:

NAIR

H NAIR 08:06:27 +05'30' 2021.05.17