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Mr. K. Natarahjan vs Sebi

Securities Appellate Tribunal5 June 2017J.P. Devadhar

Ratio decidendi

The rule this decision rests on

Where a penalty order under the SEBI Act does not itself impose any liability for interest on the delayed payment of the penalty, interest may be demanded under Section 28A of the SEBI Act only for the period from July 18, 2013, the date from which that provision operates, and not for any period before that date. Where the Tribunal has already decided, in a connected appeal, that Section 28A cannot be applied to the period before July 18, 2013, and that decision is in force, a recovery officer's communication demanding interest for the earlier period is liable to be quashed and set aside, and the matter restored to the recovery officer for fresh decision on the merits in accordance with law. The fact that the earlier decision has been stayed by the Supreme Court does not affect this result, because the earlier decision's interest determination turned on the presence of an interest term in the disgorgement order, which is not present in the present cases.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

BEFORE THE SECURITIES APPELLATE TRIBUNALMUMBAI

Date of Decision : 05.06.2017

Appeal No. 159 of 2016

K.S. Kasiraman through his daughter and next friend Ms. Jayshree Iyer, residing at 1147 Heavensgate, Lake In The Hills, IL 60156, USA ...Appellant

Versus

Securities and Exchange Board of India Southern Regional Office, Overseas Towers, 7th Floor, 756-L, Anna Salai, Chennai - 600002. ...Respondent

Mr. Rohan Shrivastava, Advocate with Mr. Tushar Shah, Advocate i/b Vaish Associates for the Appellant.

Mr. Rajesh Nagory, Advocate with Mr. Mihir Mody and Mr. Nishant Upadhyay and Mr. Nirav Parmar, Advocates i/b K. Ashar & Co. for the Respondent.

WITH Appeal No. 160 of 2016

Mr. G. Ramakrishnan No. 53, R-Block, 1st Floor, 15th Road, Anna Nagar, Chennai - 600040. ...Appellant

Versus

The Recovery Officer, Securities and Exchange Board of India, SEBI Bhavan, Plot No. C-4A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400 051. ...Respondent

Mr. K.C. Jacob, Advocate with Mr. Ayush Agarwal, Advocate i/b Corporate Law Chambers India for the Appellant.

Mr. Rajesh Nagory, Advocate with Mr. Mihir Mody and Mr. Nishant Upadhyay and Mr. Nirav Parmar, Advocates i/b K. Ashar & Co. for the Respondent. 2

WITH Appeal No. 187 of 2016

Mr. K. Natarahjan F2, Gurukrupa, 10/11, Rajaji Colony, Virugambakkam, Chennai - 600092. ...Appellant

Versus

The Recovery Officer, Securities and Exchange Board of India, SEBI Bhavan, Plot No. C-4A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400 051. ...Respondent

Mr. K.C. Jacob, Advocate with Mr. Ayush Agarwal, Advocate i/b Corporate Law Chambers India for the Appellant.

Mr. Rajesh Nagory, Advocate with Mr. Mihir Mody and Mr. Nishant Upadhyay and Mr. Nirav Parmar, Advocates i/b K. Ashar & Co. for the Respondent.

CORAM : Justice J.P. Devadhar, Presiding Officer Dr. C.K.G. Nair, Member

Per : J.P. Devadhar (Oral)

1.

Appellants in all these appeals are aggrieved by the communications

issued by the Recovery Officer ('RO' for short) of Securities and Exchange

Board of India ('SEBI' for short) all dated January 14, 2016. By the said

communications, the RO has demanded interest from each appellant on the

delayed payment of penalty from the date of the penalty order till payment.

Since the issue raised in these appeals are common, all these appeals are

heard and disposed of by this common order.

3

2. Basic dispute in all these appeals is, where the penalty order does not

contemplate interest liability for the delayed payment of penalty, whether

the RO of SEBI can demand interest under Section 28A of SEBI Act even

for the period prior to the insertion of Section 28A to SEBI Act.

3. This Tribunal in a group of cases, the lead matter being the case of

Mr. Dushyant N. Dalal & Anr. vs. SEBI (Appeal No. 41 of 2014 decided on

March 10, 2017) has, inter alia, held that where the disgorgement order /

penalty order does not contemplate any interest liability, then interest would

be mandatorily leviable u/s. 28A of the SEBI Act, 1992 only from July 18,

2013 and not for the period prior thereto. In all these cases the penalty

orders did not contain any interest liability and the RO by invoking Section

28A has demanded interest for the period prior to July 18, 2013. In these

circumstances, we set aside the impugned communications issued by the RO

of SEBI and restore the matters for fresh decision on merits and in

accordance with law.

4. It is brought to our notice by counsel for SEBI that the decision of

this Tribunal in case of Mr. Dushyant N. Dalal & Anr. (supra) has been

stayed by the Apex Court. Decision of this Tribunal in case of Mr. Dushyant

N. Dalal & Anr. (supra) has no relevance to the present case, because in that

case interest liability has been upheld on ground that the disgorgement order

itself contained interest liability. In fact applicability of Section 28A of

SEBI Act was considered in other cases decided along with the case of

Dushyant Dalal, for example in the case of M/s Alka Securities Ltd. vs.

SEBI (Appeal No. 313 of 2014 decided on March 10, 2017) and it has been

held that interest under Section 28A cannot be imposed for the period prior

to July 18, 2013. Therefore, fact that our decision in case of Mr. Dushyant 4

N. Dalal & Anr. (supra) has been stayed by the Apex Court has no bearing

on the facts of present cases.

5. Accordingly, for the reasons stated above, the impugned

communications issued by the RO of SEBI in all these appeals are quashed

and set aside and the matters are restored to the file of RO for fresh decision

on merits and in accordance with law. All contentions of both sides are kept

open.

6. All the appeals are disposed of in the aforesaid terms with no order as

to costs.

Sd/-

Justice J.P. Devadhar Presiding Officer

Sd/-

Dr. C.K.G. Nair Member

05.06.2017 Prepared and compared by:

msb

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