BEFORE THE SECURITIES APPELLATE TRIBUNAL MUMBAI
Date of Decision: 31.08.2020
Misc. Application No. 248 of 2020 (Delay Application) And Appeal No. 248 of 2020
Amrex Marketing Private Limited 26, Belvedere Road, Kolkata -700027 …Appellant
Versus
1. Securities and Exchange Board of India, SEBI Bhavan, Plot No. C-4A, G-Block, Bandra-Kurla Complex, Bandra (East), Mumbai – 400 051
2. Salem Erode Investments Limited 14, Motilal Nehru Road, Kolkata-700 029
3. Ashok Kumar Hamirbasia
4. Akash Hamirbasia
5. Abhey Hamirbasia
Address for Respondent Nos. 3 to 5
5L, Bhupen Bose Avenue Shyambazar Mail, Kolkata700 004
6. Ekta Goswami 2, Ashutosh Mukherjee Lane, Haora Corporation, Salkia, Haora, Kolkata711 106 and working for gain at 14, Motilal Nehru Road, Kolkata700 029
7. M/s Rosy Bhawan Pvt. Ltd. 51, Bhupen Bose Avenue, Kolkata-No. 700 004
8. M/s ICL Fincorp Limited No. 61/1, VGP Complex First Avenue, Ashok Nagar, Chennai600 083
9. M/s Saffron Capital Advisors Pvt. Ltd. H-130, Bhoomi Green, Raheja Estate Kulupwadi, Borivali (East), Mumbai400 066
10. Bombay Stock Exchange Limited (BSE) 25th Floor, P J Towers, Dalal Street, Mumbai – 400 001 …Respondents
Mr. Kazan Shroff, Advocate with Ms. Swapna Roopavate, Ms. Gauri Sakhardande and Mr. Chirag Sarawagi, Advocates i/b Ms. Gauri Sakhardande & Mr. Chirag Sarawagi, Advocates for the Appellant.
Mr. Vishal Kanade, Advocate with Mr. Mihir Mody and Mr. Shehaab Roshan, Advocates i/b K Ashar & Co. for Respondent No. 1.
Mr. Vinay Chauhan, Advocate with Mr. K.C. Jacob, Advocate i/b Corporate Law Chambers India for Respondent Nos. 2 & 8. Mr. Anubhav Ghosh, Advocate i/b The Law Point for Respondent No. 10.
CORAM: Justice Tarun Agarwala, Presiding Officer Justice M. T. Joshi, Judicial Member Per: Justice Tarun Agarwala (Oral)
1. The appellant has filed the present appeal being aggrieved by the disposal of the complaints on the SCORES platform by order dated January 21, 2019 and March 25, 2019. The appeal is accompanied by an application for condonation of delay. The appellant who is the complainant is a private limited company and had filed two complaints requesting Securities and Exchange Board of India (“SEBI” for convenience) to carry out an investigation with respect to the defaults committed by the respondent under Regulation 38 of the SEBI (Listing Obligations and Disclosure Requirements) Regulations 2015 (“LODR Regulations” for convenience). The second complaint was whether respondent no. 1 could issue an open offer during the pendency of the complaint filed by the appellant. Both the complaints were disposed of by a computer generated order.
2. There is delay of 460 days in filing the appeal. The ground urged is, that the appellant was under a bonafide belief that the communication sent by the respondent SEBI disposing of the complaints on the SCORES platform was not appealable and therefore had pursued the remedy by filing a Petition before the National Company Law Tribunal, Kolkata Bench where the matter is pending. It was further urged that in January/February 2020 the appellant came to know that the disposal of the complaints could be challenged by filling an appeal before the Securities Appellate Tribunal (SAT) and after consulting the Advocate the appeal was filed after the easing of the lockdown during the pandemic period.
3. The controversy involved in the present appeal is squarely covered by a decision of this Tribunal in Ashok Dayabhai Shah & Ors Vs. SEBI & Ors. 2019 SCC OnLine SAT 248 which was affirmed by the Supreme Court in Civil Appeal No. 363 of 2020 2020 SCC OnLine SC 82 as well as a decision of this Tribunal in Appeal No. 144 of 2020 in Manish Mittal and Ors Vs. SEBI and Ors. decided on June 25, 2020. Even though, the delay condonation application in the case of Manish Mittal (supra) was rejected by the Tribunal, the facts in the present case are distinguishable. For the reasons stated in the application for condonation of delay, we find that sufficient cause has been explained for condoning the delay. We are of the opinion, that the appellant was under a bonafide belief that the communication given by the respondent was not appealable and therefore in order to advance substantial justice when no negligence or inaction or want of bonafide is imputable to the appellant, we condone the delay. The delay condonation application is allowed.
4. Since the controversy involved is squarely covered by a decision of this Tribunal in Ashok Dayabhai Shah and Manish Mittal (Supra) we accordingly set aside the communication/ order passed by SEBI on the SCORES platform. The appeal is allowed. In view of the observation given by this Tribunal in the case of Manish Mittal (supra) that a fresh complaint could be filed on the SCORES platform we dispose of the appeal with a direction that the appellant shall file a fresh complaint before SEBI annexing the earlier complaint within two weeks from today. If such a complaint is filed, SEBI will decide the same by reasoned and speaking order within two months thereafter. In the circumstances of the case there shall be no order on the costs.
5. The present matter was heard through video conference due to Covid-19 pandemic. At this stage it is not possible to sign a copy of this order nor a certified copy of this order could be issued by the Registry. In these circumstances, this order will be digitally signed by the Presiding Officer on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Parties will act on production of a digitally signed copy sent by fax and/or email.
Digitally signed by TARUN AGARWAL DN: c=IN, o=PUBLIC WORKS DEPARTMENT UTTAR Justice Tarun Agarwala PRADESH, postalCode=221505, st=Uttar Pradesh, TARUN 2.5.4.20=30fcf68685192bbc53e6ff1608a83fb3881de7ac2a b7954d509c85ed6e0f7c41, serialNumber=095f8b286bb0b1cd07ff676611f4f5e799972 Presiding Officer 7d404aa38ca422f9d3529bdb8a3, cn=TARUN AGARWAL AGARWAL Date: 2020.08.31 21:42:11 +05’30’
Justice M. T. Joshi Judicial Member 31.08.2020 PK