Kaushik Chattopadhyay vs Securities And Exchange Board Of India

Tarun Agarwala, Presiding Officer

The present appeal has been filed challenging the order dated February 6, 2015 passed by the Whole Time Member (hereinafter referred to as

‘WTM’) of Securities and Exchange Board of India (hereinafter referred to as ‘SEBI’) under Section 11 and 11B of the Securities and

Exchange Board of India Act, 1992. The appellant has also challenged the communication issued by the Assistant General Manager of SEBI in

response to an application filed by the appellant.

There is a delay of 3 years and 122 days in challenging the impugned order dated February 6, 2015 and consequently, Misc. Application has been

filed for condoning the delay.

Before dealing with the delay, it would be essential to give the brief facts which led to the filing of the present appeal. After the passing of the

impugned order dated February 6, 2015, recovery proceedings were initiated and, in pursuance to a recovery order, Appeal No. 3 of 2017 was filed by

the appellant which was allowed by an order dated August 18, 2017 and the recovery order was set aside. Thereafter, the appellant filed Appeal No.

230 of 2018 challenging the order of the WTM of February 6, 2015 alongwith an application for condoning the delay. The said appeal was disposed of

on the ground that the appellant had in the meanwhile received a letter dated July 6, 2018 which was also required to be challenged and, therefore

liberty was sought to withdraw the appeal with liberty to file afresh. Such liberty was accordingly granted by order of this Tribunal dated July 10, 2018.

Thereafter, the present appeal was filed challenging the order dated February 6, 2015 passed by the WTM as well as the communication dated July 6,

2018 issued by the Assistant General Manager.

There is an inordinate delay in filing the present appeal. In so far as the challenge to the order of the WTM dated February 6, 2015 is concerned, no

plausible explanation has been given except the fact that the appellant was making representation before the WTM and before the Recovery Officer.

In our view, such representation / application filed by the appellant before the WTM or before the Recovery Officer will not extend the period of

limitation in so far as challenging the order of the WTM dated February 6, 2015 is concerned. We also find that in the order of this Tribunal dated

August 18, 2017, a submission of the appellant was recorded that they are not contesting the restraint order passed by the WTM. We also note that in

that appeal the appellant had only challenged the order of the Recovery Officer and did not choose to challenge the order of the WTM. Thus, at this

belated stage, it is not open to the appellant to challenge the order of the WTM dated February 6, 2015 at this belated stage. In view of the inordinate

delay, the appeal in so far as questioning the veracity and legality of the order dated February 6, 2015 is concerned cannot be accepted and the appeal

to that extent is dismissed on the ground of laches.

In so far as the challenge to the communication dated July 6, 2018, we find that the officer has only communicated to the appellant that a criminal

complaint has been filed before the District and Session Judge where the appellant may raise his contention with regard to the legality and validity of

those proceedings. The officer has also informed the appellant that a final order of the WTM dated February 6, 2015 has also been passed and that

there is no power with SEBI to review its own orders. In our opinion, there is no infirmity in the said communication made by the officer to the

appellant. We do not find any infirmity in the said communication.

For the reasons stated aforesaid, the appeal is dismissed.