Sicorp Finlease Ltd. & Ors. vs Sebi

BEFORE THE SECURITIES APPELLATE TRIBUNAL MUMBAI

DATE : 09.02.2016

Review Application No. 6 of 2015 And Misc. Application No. 320 of 2015 In Misc. Application No. 62 of 2015 In Appeal No. 96 of 2015

1.

Sicorp Finlease Ltd.

11, Anand Mangal Shanti Nagar CHS.

Ltd., Jain Mandir Rd., Sector 3, Mira Rd., (E), Thane - 401107.

2. Shirish Shah 4th Floor, Meghdoot, Flat No. 21, 95B, N. S. Road, Marine Drive, Mumbai - 400 002.

3. Sandhya Shirish Shah 4th Floor, Meghdoot, Flat No. 21, 95B, N. S. Road, Marine Drive, Mumbai - 400 002.

4. Pravina Chandrakant Shah 18, Dhootpapeshwer Building, 3rd Floor, Mangalwadi, Girgaun, ..... Applicants Mumbai - 400 023. (Org. Appellants)

Versus

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

With Review Application No. 7 of 2015 And Misc. Application No. 321 of 2015 In Misc. Application No. 116 of 2015 In Appeal No. 159 of 2015

1. Sicorp Finlease Ltd.

11, Anand Mangal Shanti Nagar CHS.

Ltd., Jain Mandir Rd., Sector 3, Mira Rd., (E), Thane - 401107.

2 2. Sandhya Shirish Shah 4th Floor, Meghdoot, Flat No. 21, 95B, N. S. Road, Marine Drive, Mumbai - 400 002.

3. Pravina Chandrakant Shah 18, Dhootpapeshwer Building, 3rd Floor, Mangalwadi, Girgaun, ..... Applicants Mumbai - 400 023. (Org. Appellants)

Versus

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

Mr. Prateek Seksaria, Advocate i/b Rinku Valanju for the Applicants. Mr. Kevic Setalvad, Senior Advocate with Mr. Mihir Mody, Mr. Saurabh Bachhawat, Advocates i/b K. Ashar & Co. for the Respondent.

CORAM : Jog Singh, Member

Per : Jog Singh (Oral)

1. These Review applications are preferred by SEBI (original respondent)

for reviewing order dated September 4, 2015. For the sake of easy reference,

order dated September 4, 2015 is reproduced hereinbelow :-

"1. By way of present appeal, the appellant is challenging impugned order dated 18.08.2010 passed by the WTM under Sections 11, 11B and 11(4) of the Securities and Exchange Board of India Act, 1992 read with Regulation 10 and Regulation 44(f) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997, directing the acquirers, including the appellants, to make public announcement to the shareholders of the target company within a period of 45 days from the date of that order. Second order is dated 31.10.2011 passed by the Adjudicating Officer seeking to impose a penalty of Rs. 1 crore on the acquirers in question for not complying with the WTM's order dated 18.08.2010. This order is passed under Section 15I (2) of the Securities and Exchange Board of India Act, read with Rule 5 of the Adjudication Rules.

2. Heard both the learned counsel for the parties.

3. At the outset Mr. Desai, learned counsel for SEBI submits that there are two independent orders emanating from different 3

provisions of law and hence separate appeals should be filed. Mr. Prateek Seksaria, learned counsel for appellant, in all fairness submits that he would confine the present appeal only to the WTM order dated 18.08.2010. He, therefore, seeks liberty to file fresh appeal in respect of the other order. Accordingly, an opportunity to file separate appeal in respect of second impugned order dated 31.10.2011, if so advised and as per law.

4. Also heard leaned counsel for the parties on the question of condonation of delay in approaching this Tribunal after 54 months of the impugned order. Mr. Seksaria, learned counsel for the appellant has pointed out and drawn our attention towards another order dated 19.07.2010 passed in respect of G.G. Automotive Gears Limited wherein the same appellant has also been prohibited to deal in securities for a period of three years from the date of that order. However, by order 18.08.2010 the appellant was directed along with others to make open offer in the case in hand. Prima facie, these two orders are contradictory and could not have run concurrent. In view of this the appellants sought a clarification from SEBI which clarified on 15.10.2010 that the appellant could take necessary steps for complying the order dated 18.08.2010. The appellant further sought clarification on 22.03.2011 as to whether he alone could proceed with the open offer in exclusion of other parties or was required to make collective public announcement. On this letter admittedly there is no response from the SEBI. In the meanwhile, recovery proceedings have also been initiated against the appellants.

5. After hearing both the learned counsel for the parties, this Tribunal is inclined to condone the delay in filing the present appeal subject to a cost of Rs. 10,000 to be paid to the other side.

6. Misc. Application 116 of 2015 accordingly stands allowed."

2. Incidentally, there is a delay of 13 days in filing the review applications

by SEBI before this Tribunal. Mr. Prateek Seksaria, learned counsel for the

Original appellants fairly states that he does not have any objection for

condonation of delay. Accordingly, miscellaneous application nos. 320 and 321

of 2015 are allowed.

3. Heard Shri Kevic Setalvad, learned senior counsel for the Review

Applicant (Original respondent) on the review application nos. 6 and 7 of 2015.

It is brought to the notice of this Tribunal by Shri Setalvad that the grounds

contained in paragraph 13 of the miscellaneous application no. 116 of 2015 are

not sufficient to condone the delay of more than 4 years in filing the appeals in

question.

4 4. After hearing the rival contentions of the parties, it is noted that applicant

wrote a letter dated March 22, 2011 to SEBI specifically seeking clarification as

to whether he alone could go ahead with the open offer in question in

compliance with SEBI's order. Admittedly, there is no reply to this letter by

SEBI till date. No reason is forthcoming from SEBI for such an inordinate

delay of four years in responding to the appellants said letter dated March 22,

2011. Therefore, considering the facts and circumstances of the matter in totality

and also keeping in view the interest of natural justice, this Tribunal condoned

the delay by order dated September 4, 2015 and decided to hear these two

appeals on merit. The Tribunal does not find any error of law or fact apparent

on the face of the order sought to be reviewed by SEBI. Therefore, the two

review applications are liable to be rejected.

5. However, there can be no disagreement with the argument advanced by

Mr. Setalvad that when a glaring mistake is brought to the notice of the

Tribunal, by way of a review, the same should be gracefully considered by the

Tribunal by recalling the order under review. But the case in hand does not

require any review to recall the order condoning the delay in question.

Accordingly, the review applications are dismissed. Registry is directed to

place main appeals before the appropriate bench for hearing on April 6, 2016.

6. Accordingly, review application nos. 6 and 7 of 2015 and miscellaneous

application nos. 320 and 321 of 2015 stand disposed of.

Sd/-

Jog Singh Member 09.02.2016 Prepared & Compared by PTM