Mohammad Rashid vs Sebi

Date of Decision: 17.07.2023

Misc. Application No. 541 of 2023 And Misc. Application No. 542 of 2023 And Misc. Application No. 543 of 2023 And Appeal No. 612 of 2023

Mohammad Rashid Moh. Khokran Street, Near Madeena Masjid, Moradabad, Uttar Pradesh- 244 001 ...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. Pawan Kumar Bahal, Advocate with Mr. J P Pathak and Mr. Shailendra Verma, Advocates for the Appellant.

Mr. Ravishekhar Pandey, Advocate with Ms. Shefali Shankar, Ms. Rasika Ghate and Mr. Amarpal Singh Dua, Advocates i/b. MDP & Partners, Advocates for the Respondent.

CORAM: Justice Tarun Agarwala, Presiding Officer Ms. Meera Swarup, Technical Member

Per: Justice Tarun Agarwala, Presiding Officer (Oral) 2

1.

The present appeal has been filed against the order dated

February 15, 2022 passed by the Adjudicating Officer ("AO"

for convenience) of the Securities and Exchange Board of India

("SEBI" for convenience) imposing a penalty.

2. An urgency application has been filed. Since the appeal

has been taken up for admission, the urgency application is

disposed off. The exemption application is also allowed.

3. There is a delay in the filing of the appeal. According to

the appellant, there is only a delay of 63 days in the filing of the

appeal. It is contended that the appellant came to know of the

impugned order only when the attachment of the bank account

was made known to the appellant on December 24, 2022. Prior

to that the appellant was not aware of the passing of the

impugned order.

4. On the other hand, the Registry has placed a note

contending that there is a delay of 376 days in the filing of the

appeal. The appeal was presented through email on April 12,

2023 and the physical copy was submitted on June 21, 2023 and

the Court fee was filed on July 05, 2023.

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5. The learned counsel for the respondent contended that he

has received instructions to state that the impugned order was

duly delivered at the residence of the appellant as shown in the

memorandum of appeal. On the same address the recovery

certificate and notice of demand dated July 08, 2022 was also

served as well as the attachment of the bank accounts served on

December 22, 2022. It was urged, that the appellant has stated

false facts to the effect that they have not received the copy of

the impugned order. It was urged, that the copy of the

impugned order, the notice of demand and the attachment order

was all sent at the same address which is depicted in the

memorandum of appeal.

6. The learned counsel for the appellant conceded that the

impugned order may have been received by some person in the

family but contended that the appellant was unaware of the

nuances of law as he was a driver and only consulted his

advocate when his bank account was ceased.

7. Having heard the learned counsel for the parties, we are of

the opinion that the impugned order was duly served at the

address which is given in the memorandum of appeal. The fact

that the appellant came to know of the impugned order only 4

when the bank accounts was attached is incorrect as the

appellant had due knowledge when the impugned order was

delivered at the address of the appellant and further when the

notice of demand dated July 08, 2022 was duly served.

8. Since no plausible explanation has been given, we are of

the opinion that there is an inordinate delay in the filing of the

appeal.

9. 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.

10. 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 5

party. The same view was reiterated by the Supreme Court in

Madanlal vs. Shyamlal, (2002) 1 SCC 535.

11. 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.

12. 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 not find any legal or

adequate reasons to condone the delay.

13. In view of the aforesaid, we do not find any merit in the

application for condonation of delay. The application is

rejected on the ground of undue delay, as a result of which the 6

appeal fails and is dismissed with no order as to costs. The

misc. application for stay is disposed off accordingly.

14. 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.

Certified copy of this order is also available from the Registry

on payment of usual charges.

Justice Tarun Agarwala Presiding Officer

Ms. Meera Swarup Technical Member PRERNA Digitally by PRERNA signed 17.07.2023 MANISH MANISH KHARE PK Date: 2023.07.19 KHARE 10:46:11 +05'30'