Prashanth D’Souza vs Sebi

Date of Decision: 02.01.2023

Misc. Application No. 1222 of 2022 And Misc. Application No. 1378 of 2022 And Appeal No. 844 of 2022

Sampark Infotainment Pvt. Ltd. Unit No. 211 A, B Wing, 2nd Floor, Kailash Industrial Complex, Vikhroli (W), Mumbai- 400 079 ...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

AND Misc. Application No. 1219 of 2022 And Appeal No. 841 of 2022

Prashanth D'Souza 3202 Belvedere, Lodha Aurum Grande, Kanjurmarg East, Mumbai- 400 042 ...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 2

Mr. Vikram Nankani, Senior Advocate with Ms. Ragini Singh, Mr. Mehul Talera and Krishi Jain, Advocates i/b Ragini Singh & Associates for Appellants.

Mr. Shiraz Rustomjee, Senior Advocate with Mr. Manish Chhangani, Ms. Samreen Fatima and Mr. Sumit Yadav, Advocates i/b The Law Point for Respondent-SEBI.

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

Per: Justice Tarun Agarwala, Presiding Officer (Oral)

1.

Two appeals have been filed against the order dated April

30, 2019 passed by the Whole Time Member ("WTM" for

convenience) of the Securities and Exchange Board of India

("SEBI" for convenience) restraining the appellant-Company

from making an offer directly or indirectly regarding telecom

services in any manner to a Stock Exchange, Clearing

Corporation, Depository and/or any intermediary registered with

SEBI or their related entities, for a period of 2 years for

violation of Regulations 3 and 4 of the SEBI (Prohibition of

Fraudulent and Unfair Trade Practices relating to Securities

Market) Regulations, 2003 ("PFUTP Regulations" for

convenience) read with Section 12A of the SEBI Act, 1992.

2. There is a delay of 1209 days in the filing of the appeal

and accordingly an application for condonation of delay has 3

been filed. A number of grounds have been taken in the

application for condonation of delay but the learned senior

counsel Mr. Nankani has only urged the ground relating to

advice being given by the previous counsel.

3. The learned senior counsel contended that the appellants

were advised by the previous counsel not to prefer any appeal

against the impugned order which was accepted but

subsequently the appellants realized that other proceedings have

been initiated against the appellants, namely, by the

Adjudicating Officer and by the Department of

Telecommunication and accordingly the appellant consulted a

new counsel who advised the appellants to file an appeal. It was

urged, that the in view of the aforesaid, the delay may be

condoned on payment of cost and the appeal should be heard on

merits.

4. The aforesaid application has been opposed by the

respondent contending that no valid or legal ground has been

made out for condoning the inordinate delay.

5. Having heard the learned senior counsel for the parties, we

are of the opinion that the ground urged by the appellants that 4

they acted on the advice of their counsel is not supported by any

evidence as neither name of the previous counsel who gave

them the advice has been given nor any legal opinion or

affidavit of such counsel affirming that such advice of not filing

an appeal was given by him in good faith. In the absence of any

such evidence coming on record to show that the appellants

were advised by their previous counsel not to file an appeal, we

are of the opinion that such ground cannot be taken as the

gospel truth. Prima facie it appears to be an afterthought.

6. Nothing has been stated that the advice given by the

previous counsel was a wrong advice. Even otherwise the

Supreme Court in Lata Mata Din vs. A. Narayanan [AIR 1970

SC 1953] held that mistake of counsel by itself is not a

sufficient ground for condonation of delay unless the mistake

was bonafide which in the instant case is lacking as nothing has

been stated in the application for condonation of delay that the

advice given by the previous counsel was not bonafide.

7. The Delhi High Court in Babu Ram vs. Devinder Mohan

Kaura & Ors. [AIR 1981 Del 14] observed that every mistaken

advice given by the counsel does not constitute sufficient cause

nor does it constitutes good faith and depends on the facts of 5

each case. In the instant case, nothing has been stated by the

appellants that the opinion given by the previous counsel was a

mistaken advice or that it was not bonafide.

8. As regards other proceedings having been initiated against

the appellants, we may also observe that proceedings were

initiated by the Adjudicating Officer much before the passing of

the impugned order passed by the WTM and, therefore, the

appellant was aware that another proceeding of the AO was

underway. Thus, the contention that other proceedings have

been initiated which has had led to the filing of the present

appeal is clearly an afterthought.

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.

6

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

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.

7

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

legal ground to condone this inordinate delay of 1209 days. In

the absence of sufficient and reasonable cause being shown the

inordinate delay cannot be condoned on payment of cost. The

application for condonation of delay has been rejected, as a

result of which both the appeals are dismissed with no order as

to costs. All the misc. applications are disposed of 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

02.01.2023 PRERNA Digitally signed by PRERNA PK MANISH MANISH KHARE Date: 2023.01.09 KHARE 15:33:35 +05'30'