Ratio decidendi
The rule this decision rests on
Where a party was in jail and was not given a reasonable opportunity to respond to a show cause notice and interim order, a confirmatory order that is founded on the non-appearance of that party cannot stand as against him, and he must be permitted to seek recall of the order and be heard before the authority. A delay in filing an appeal is condoned where the appellant has been pursuing a remedy in a writ petition before the High Court in good faith, the High Court has dismissed the writ with liberty to approach the Tribunal, and the High Court has asked that the delay be condoned on account of that proceeding.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
BEFORE THE SECURITIES APPELLATE TRIBUNALMUMBAIDate of Decision :16.10.2020Misc. Application No.344 of 2020AndAppeal No.336 of 2020Sri Manoranjan Roy2/233/B/3 Sree Colony,Netaji Nagar, Kolkata 700092. ...AppellantVersusSecurities and Exchange of IndiaSEBI Bhavan, Plot No. C-4A, G-Block,Bandra Kurla Complex,Mumbai - 400 051. ...RespondentMr. Bishwajit Bhattacharyya, Senior Advocate with Mr.Abhijit Bhattacharyya, Ms. Narayani Bhattacharyya andMr. Chandrachur Bhattacharyya, Advocatesfor the Appellant.Ms. Nidhi Singh, Advocate with Ms. Kinjal Bhatt,Advocate i/b.Vidhii Partners for the Respondent.CORAM: Justice Tarun Agarwala, Presiding OfficerDr. C.K.G. Nair, MemberJustice M.T. Joshi, Judicial MemberPer : Justice Tarun Agarwala, Presiding Officer21.The appellant has filed the present appeal beingaggrieved by the ex-parte interim order cum showcause notice dated 25th July, 2018 and the confirmatoryorder dated 21st July, 2019 passed by the Whole TimeMember. There is a delay of 312 days in filing theappeal and accordingly an application for condonationof delay application has been filed. From a perusal ofthe application we find that the appellant had filed awrit petition before the Hon'ble Calcutta High Courtwhich was dismissed as withdrawn by an order dated9th September, 2020 giving liberty to the appellant tofile an appeal before this Tribunal. A request was alsomade by the Calcutta High Court to condone the delayon account of filing writ petition before the CalcuttaHigh Court. In view of the aforesaid, cause shown issufficient and the delay is condoned and the delaycondonation application is accordingly allowed.2. We have heard Mr. Bishwajit Bhattacharyya,Senior Advocate assisted by Mr. AbhijitBhattacharyya, Ms. Narayani Bhattacharyya and Mr.3Chandrachur Bhattacharyya, Advocatesfor the Appellant and Ms. Nidhi Singh, Advocateassisted by Ms. Kinjal Bhatt, Advocate for theRespondent.3. It was urged that the appellant was arrested on acriminal charge on 9th November, 2017 andconsequently he was never served with a show causenotice or the interim order and only came to knowrecently when his accounts were seized pursuant to theconfirmatory order dated 21st July, 2019. It was alsocontended that the appellant had ceased to be a directoron August 27, 2013 and, therefore, cannot be chargedof the offences as pointed out in the impugned order.4. On the other hand, the learned counsel for therespondent contended that summons were duly servedat the residential address of the appellant and since theappellant failed to appear the interim order dated 25thJuly, 2018 was automatically confirmed as containedin para no.26 of the interim order.45. Considering the aforesaid, prima facie we find thata reasonable opportunity was not given to the appellantas he was in jail. However, we leave it at that andpermit the appellant to file a recall application beforethe whole time member. If such an application is filedwithin four weeks from today the whole time memberwould consider the application and pass appropriateorders after giving an opportunity of hearing to theappellant. Any observation made by us will not comein the way of the authority in passing the order. Wemay also point out that the impugned order dated 21stJuly, 2019, namely, the confirmatory order, does notapply to the appellant and only applies to the othernoticees. In view of the aforesaid, the appeal isdisposed of with no order as to costs.6. The present matter was heard through videoconference due to Covid-19 pandemic. At this stage itis not possible to sign a copy of this order nor acertified copy of this order could be issued by theregistry. In these circumstances, this order will be5digitally signed by the Presiding Officer on behalf ofthe bench and all concerned parties are directed to acton the digitally signed copy of this order. Parties willact on production of a digitally signed copy sent by faxand/or email.
Justice Tarun Agarwala Presiding Officer TARUN Digitally signed by TARUN AGARWAL DN: c=IN, o=PUBLIC WORKS DEPARTMENT UTTAR PRADESH, postalCode=221505, st=Uttar Pradesh, 2.5.4.20=30fcf68685192bbc53e6ff1608a83fb3881de7ac2ab795
AGARWAL 4d509c85ed6e0f7c41, serialNumber=095f8b286bb0b1cd07ff676611f4f5e7999727d4 04aa38ca422f9d3529bdb8a3, cn=TARUN AGARWAL Date: 2020.10.16 16:20:23 +05'30'
Justice M.T. Joshi Judicial Member
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