Review Application No. 2 Of 2015 In A.No. ... vs Sebi

Date of order reserved : 09/03/2015 Date of decision : 13/03/2015

Review Application No.1 of 2015 In Appeal No.93 of 2014 Shri Dave Harihar Kiritbhai C-2/22, Shanti Nagar, Vejalpur, Ahmedabad, Gujarat - 380 551. ... Applicant / (Org. Appellant)

Versus

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

WITH Review Application No.2 of 2015 In Appeal No.104 of 2014

1.

Shreyanshnath Shares & Financial Services Pvt. Ltd.

64, Panchavati Society, Delvada Road, B/ High School, At- Una, Junagadh, Gujarat - 380 551.

2. Shri Patel Kirtikumar Gopalbhai Director Shreyanshnath Shares & Financial Services Pvt. Ltd.

64, Panchavati Society, Delvada Road, B/ High School, At- Una, Junagadh, Gujarat - 380 551.

3. Shri Chauhan Vijaykumar Babubhai Director Shreyanshnath Shares & Financial Services Pvt. Ltd.

64, Panchavati Society, Delvada Road, B/ High School, At- Una, Junagadh, Gujarat - 380 551.

... Applicants / (Org. Appellants) -2-

Versus

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

WITH

Review Application No.3 of 2015 In Appeal No.180 of 2014

Shri Prakashbhai Ishwarbhai Rana No.217, Gawarno Rajputvado, Cambay 22,Anand, Gujarat - 388 620 ... Applicant / (Org. Appellant)

Versus

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

WITH

Review Application No.4 of 2015 In Appeal No.181 of 2014

1. BMD Exports Pvt. Ltd.

22-A, Suraksha Society, Visnagar, Mehsana, Gujarat - 384 315

2. Shri Jitendrabhai Ramanbhai Patel Director 22-A, Suraksha Society, Visnagar, Mehsana, Gujarat - 384 315

3. Shri Madhavlal Bechardas Patel Director, 22-A, Suraksha Society, Visnagar, Mehsana, Gujarat - 384 315 ... Applicants / (Org. Appellants) -3-

Versus

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

Ms. Chaitra Rao, Advocate i/b Juris Matrix for the Applicants/Original Appellants.

Mr. Kumar Desai, Advocate with Mr. Rushin Kapadia, Advocate i/b K. Ashar & Co. Advocate for the Respondent.

CORAM : A. S. Lamba, Member

Per : A.S. Lamba

1. Review Applications (RAs) have been filed by the Applicants/Original

Appellants, viz. Review Application No.1 of 2015 in Appeal No.93 of 2014,

Review Application No.2 of 2015 in Appeal No.104 of 2014, Review

Application No.3 of 2015 in Appeal No.180 of 2014 and Review Application

No.4 of 2015 in Appeal No.181 of 2014 for reviewing the Order dated

19/12/2014 passed by this Tribunal. The leading case of Dave Harihar

Kiritbhai vs. SEBI was heard in details and it was agreed by learned counsel

for Appellants and Respondent that decision in this case will be applicable to

other also, since facts of all four cases are similar.

2. Main points raised in RAs are:

• Respondent conducted investigation into IPO of RDB and its

subsequent trading on listing day, since RDB scrip witnessed

wide fluctuations in the price.

• Appellant was restrained from trading in securities market vide

ad-interim order of WTM, SEBI dated 28/12/2011. -4-

• Appellant was granted opportunity for personal hearing and

thereafter confirmatory order was issued on 8/10/2012.

• Appellant thereafter received SCN from Adjudication Officer

(A.O.) under Rule 4(1) of SEBI (Procedure for Holding Inquiry

and Imposing Penalties by Adjudicating Officer) Rules, 1995.

• Appellant did not appear before A.O., but informed A.O. that

his replies before WTM, SEBI wherein he was restrained from

trading in securities market may be treated as his reply to SCN.

• Since proceedings from WTM (SEBI) and A.O. are parallel and

separate proceedings, above reply to A.O. in response to SCN

was taken as no reply to proceedings before A.O. and A.O.

decided the matter on basis of material before him.

• Since during hearing of the case by this Tribunal decided on

19/12/2014, it was felt that since documents now being

produced before this Tribunal should have been produced

before A.O., in response to SCN and proper course should have

been to remand the matter to A.O. for reconsideration of same,

on basis of reply of Appellant, but since Appellant had not

requested for remand and had chosen not to appear before A.O.

and had furnished no reply to SCN, although he was provided

opportunity for same and hence there was no violation of

principle of natural justice and hence Tribunal considered the

matter in appeal and decided to uphold the decision of A.O.,

arrived at on basis of documents available and taken into

consideration by A.O. -5-

3. Respondent represented that review is possible only if there is

mistake/error on face of order of if some new facts have come up, which were

not available when order was passed, but in present RA, no such condition is

met. There is no case for review of decision of the Tribunal dated 14/12/2014.

4. Ld. Counsel for Respondent stated that Section 15U(2) states that -

"the SAT shall have, for the purposes of discharging their functions under

this Act, the same powers as are vested in a civil court under the Code of

Civil Procedure, 1908 (5 of 1908) CP, while trying a suit, in respect of

following matters:

(e) reviewing its decisions.

5. Ld. Counsel for Respondent also stated that Hon'ble Supreme Court

had held in Ajit Kumar Rath vs. State of Orissa (1999) 9 Supreme Court Case

596 - "The power (to review) can be exercised on the application of a person

on the discovery of new and important matter or evidence which after the

exercise of due diligence, was not within knowledge or could not be

produced by him at the time when order was made. The power can also be

exercised on account of some mistake or error apparent on the face of record

or for any other sufficient reason." This view was also cited in Ishwar Dutt

vs. Gyan Chand in AIR 1998 Rajasthan 302, wherein it is stated that - "The

scope of the power of review as envisaged under O.47, R.1, CPC is very

limited and the review must be confirmed strictly only to the errors apparent

on face of the record."

6. Similarly, it was stated by Ld. Counsel for Respondent that in Lily

Thomas and others vs. UOI (2000) 6 Supreme Court Case 224 that, "The -6-

review is also not an appeal in disguise. It cannot be denied that justice is a

virtue which transcends all barriers and the rules or procedures or

technicalities of law cannot stand in way of administration of justice. Law

has to bend before justice. Courts find that the error pointed out in the

review petition was under a mistake and the earlier judgment would not

have been passed but for erroneous assumption which fact did not exist and

its perpetration shall result in miscarriage of justice nothing would preclude

the Court from rectifying the error."

7. Ld. Counsel for Respondent argued that none of two tests, viz. error

manifest on face of judgment or discovery of new facts, exist in present case

and hence there is no case for review.

8. This Tribunal has considered the arguments of both Counsel and after

thoughtful consideration is of the view that none of the tests of review is

present in R.A. under consideration and accordingly R.A. is not allowed and

request of Ld. Counsel for Appellant for remanding the case to Respondent

for fresh consideration, after affording opportunity of being heard and

present documents in support before A.O. is not agreed to.

9. All the above Review Applications are accordingly dismissed.

Sd/-

A.S. Lamba Member

13/03/2015 Prepared & compared by-ddg