Nimisha Saraf vs Sebi

BEFORE THE SECURITIES APPELLATE TRIBUNAL MUMBAI Date of Decision : 07.02.2022 Misc. Application No. 70 of 2022 (Stay Application) And Appeal No. 55 of 2022 Nimisha Saraf 8/3, Alipur Road, Civil Lines, Delhi - 110054. ....Appellant Versus Securities & Exchange Board of India SEBI Bhavan, Plot No. C-4A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400 051. ... Respondent Mr. Deepak Gupta, Advocate with Mr. Omansh Gupta, Advocate for the Appellant. Mr. Abhiraj Arora, Advocate with Mr. Karthik Narayan, Mr. Harshvardhan Nankani, Mr. Shourya Tanay, Mr. Anshu Mehta, Advocates i/b ELP for the Respondent. CORAM : Justice Tarun Agarwala, Presiding Officer Justice M. T. Joshi, Judicial Member Per : Justice Tarun Agarwala, Presiding Officer (Oral) 2 1. We have heard the learned counsel for the parties. We are of the opinion that the controversy involved in the present appeal is squealy covered by the decision of this Tribunal in Global Earth Properties and Developers Pvt. Ltd. vs. SEBI Appeal No. 212 of 2020 decided on September 14, 2020. 2. A contention was made by the appellant that the present proceedings initiated by Adjudicating Officer (hereinafter referred to as 'AO') was an abuse of the process of law in as much as the transaction is question was already considered and decided by the AO in another matter and, therefore, the same issue cannot be decided in the present proceedings.

It was urged that the once there has been a finality on an issue, the AO become functus officio and, therefore, cannot reopen the same issue again questioning the veracity of the same transaction. In support of his submission, the learned counsel has relied upon a recent decision of this Tribunal in Vital Communications Ltd. vs. SEBI Appeal No. 318 of 2019 decided on December 20, 2021. 3. Having heard the learned counsel for the appellant on this issue, we are of the opinion that the controversy that was decided by the AO in the earlier round was with regard to the transaction made by the counter party to whom notices were issued. It was open to the AO to also issue notice in the same proceedings to the appellant but it was 3 also open to initiate separate proceedings against the appellant which in the instance case has been done. Therefore, the principles of res judicata and the decisions relied upon by the appellant are not applicable. We are of the opinion that the AO does not become functus officio and has the power to issue a show cause notice to the appellant. 4. In view of the aforesaid, the appeal fails and is dismissed with no order as to costs.

5. 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 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 RAJALA Digitally by signed Judicial Member 07.02.2022 KSHMI NAIR RAJALAKSHMI H Date: 2022.02.09 PTM H NAIR 09:44:56 +05'30'