Shri Suresh Kumar Aggarwal & Ors. vs Sebi

Date of Decision: 23.4.2019

Misc. Application No.84 of 2018 And Appeal No.95 of 2018

1.

Shri Suresh Kumar Aggarwal

2. Ms. Aarti Goel

3. Ms. Preeti Goel

4. Shri Manish Goel

5. Manish Goel (HUF)

6. Shri Lokesh Kumar Goel

7. Lokesh Kumar Goel (HUF)

8. Ms. Santosh Kumari BJ-3, East Shalimar Bagh, Delhi - 110088. .... Appellants

Versus

Securities and Exchange Board of India SEBI Bhavan, Plot No.C-4A, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400051. ... Respondent

Mr. Pesi Modi, Senior Advocate with Mr. Neville Lashkari, Advocate i/b. Intellect Law Partners for the Appellants.

Mr. Pradeep Sancheti, Senior Advocate with Mr. Abhiraj Arora, Mr. Vivek Shah and Ms. Misbah Dada, Advocates for the Respondent.

CORAM: Justice Tarun Agarwala, Presiding Officer Dr. C.K.G. Nair, Member Justice M.T. Joshi, Judicial Member 2

Per : Justice Tarun Agarwala (Oral)

1. The present appeal has been filed against the impugned

order dated 24th April, 2015 passed by the Adjudicating

Officer imposing a penalty for violating Section 12 A of the

Securities and Exchange Board of India Act, 1992 (referred

to herein after as 'SEBI Act') and Regulations 3 and 4 of the

Securities and Exchange Board of India (Prohibition of

Fraudulent and Unfair Trade Practices relating to Securities

Market) Regulations, 2003 (referred to hereinafter as

'PFUTP Regulations').

2. The appeal is accompanied by an application for

condoning the delay of 1029 days in filing the present appeal.

The grounds urged in the application is that the appellants

had instructed the Director of their broker firm, Mr. Narendra

Goushal, to file the appeal who intimated the appellants that

the necessary appeals had been filed but subsequently when

the appellants received the letter of demand dated 7th

February, 2018 they enquired from Mr. Narendra Goushal

who after enquiry intimated that since entire professional fee

was not paid hence the appeal could not be filed. The 3

appellants has thus prayed that the appellants had acted

bonafide and in good faith and the delay in filing the appeal

was neither deliberate nor were they negligent and, therefore,

the delay may be condoned and appeal may be heard on

merits.

3. In support of his submission, the learned counsel for the

appellant has relied upon the following decisions.

1. Decision of this Tribunal in Meeta Bipin Kumar

Shah vs. SEBI, Misc. Application No.410 of 2018 in

Misc. Application No.173 of 2018 and Appeal No.208

of 2018 decided on 14th January, 2019.

2. Decision of this Tribunal in M/s. Capetown

Mercantile Company (P) Ltd. vs. SEBI [(2011) SCC

Online SAT 83] decided on 21st July, 2011.

3. Decision of this Tribunal in Shri Sanjay Jethilal Soni

vs. SEBI, Misc. Application No.41 of 2014 in Appeal

No.58 of 2014 decided on 7th May, 2014.

4. D.D. Vaishnav vs. State of Madhya Pradesh and

Others [(2009) 16 SCC 777] decided on 27th January,

2009.

5. Noted Infotech Private Limited vs. SEBI [(2008) 8

SCC 431] decided on 4th August, 2008. 4

6. Ram Nath Sao alias Ram Nath Sahu and Others vs.

Gobardhan Sao and Others [(2002) 3 SCC 195] decided

on 27th February, 2002.

7. Decision of this Tribunal in Jindal Dyechem

Industries Pvt. Ltd. vs. Multi Commodity Exchange of

India Limited, Misc. Application No.220 of 2018 And

Appeal No.268 of 2018 decided on 24th January, 2019.

8. Perumon Bhagvathy Devasom vs. Bhargavi Amma

(Dead) By LRs and Ors. [(2008) 8 SCC 321] decided on

11th July, 2008.

4. The said application had been opposed by the

respondent contending that the reason given is a mere

afterthought and in any case no sufficient cause has been

shown for the Tribunal to condone the delay.

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

find that there is an inordinate delay of 1029 days in filing

the appeal. By no stretch of imagination we find that the

appellants were pursuing the matter diligently. The

contention that they were under the impression that the

appeal had been filed is not bonafide but an afterthought.

The name of the Advocate through whom the appellants had 5

filed the appeal or the name of the Advocate to whom the

professional fees was not paid has not been indicated. No

documents have been filed to show whether any action was

taken against Mr. Narendra Goushal, Director of his

brokerage firm who misled the appellants in believing that

the appeals had been filed. It is common knowledge that

when appeals are filed, necessary affidavits/vakalatnamas of

the appellants are required to be filed. Nothing has been

stated by the appellants to show that they had signed the

memo of appeal or had instructed the Advocate to file the

appeal.

6. In the absence of the aforesaid, we do not find any

sufficient cause to condone the delay. In Balwant Singh

(Dead) vs. Jagdish Singh, (2010) Vol.8 SCC 685 the

Supreme Court explained that the expression "sufficient

cause" meant presence of legal and adequate reasons. In the

instant case, we find that there is no legal and adequate

reason. The ground mentioned in the application is not

bonafide but an afterthought. The Tribunal is, therefore, of

the opinion that such application for condonation of delay

cannot be allowed as a matter of right on payment of costs in

a routine manner especially in the absence of adequate and 6

legal reasons. The decisions cited by the learned counsel for

the appellant are distinguishable on facts and are not

applicable in the peculiar facts and circumstances of the

present appeal.

7. For the reasons stated aforesaid, the application for

condonation of delay is rejected, as a result, the appeal is also

dismissed.

Sd/-

Justice Tarun Agarwala Presiding Officer

Sd/-

Dr. C. K. G. Nair Member

Sd/-

Justice M.T. Joshi Judicial Member

23.4.2019 Prepared and compared by RHN