Udayan Banerjee vs Securities And Exchange Board Of India

Tarun Agarwala, Presiding Officer

The present appeal has been filed against the order dated July 27, 2018 passed by the Whole Time Member (“WTM” for convenience) of the Securities and Exchange Board of India (“SEBI” for convenience) directing the appellant and other entities including the Company to refund the money collected by the Company jointly and severally along with interest @ 15% per annum to the investors. The WTM further restrained the appellant from selling its assets and further restrained him from accessing the securities market till the expiry of 4 (four) years from the date of completion of refunds to the investors.

There is a delay of 1306 days in the filing of the appeal and accordingly an application for condonation of delay was filed praying to condone the delay.

Having heard the learned counsel for the appellant, we find that no reason whatsoever was given in the application for condonation of delay and accordingly by our order dated September 02, 2022 we had directed the appellant to file a supplementary affidavit.

The application for condonation of delay as well as the supplementary affidavit does not give any cogent reason for condoning the inordinate delay. A bunch of medical prescription has been filed for the period 2009-2021 indicating that the appellant is suffering from various illnesses. We have perused the prescriptions given by various Doctors and we find that there is no serious illness which has confined the appellant to bed rest or admitted in a hospital. The Doctors has basically prescribed general medical relating to stomach disorder, diabetes, cholesterol etc.

The impugned order was passed on July 27, 2018 which was duly received on July 30, 2018. The appeal was filed on April 06, 2022. No explanation has been given as to why the appeal could not be filed from 2018-2022. In the absence of any sufficient cause being shown and in the absence of any cogent reason being provided, we are of the opinion that the inordinate delay cannot be condoned.

In Basawaraj and Anr. vs. Special Land Acquisition Officer, (2013) 14 SCC 81 the Supreme Court held that the discretion to condone the delay has to be exercised judicially based on facts and circumstances of each case and that sufficient cause cannot be given a liberal interpretation if lack of bonafide is attributed to a party. The Supreme Court further held that delay cannot be condoned on equitable ground beyond the limits permitted expressly by statute.

The Supreme Court in Ram Nath Sao and Ors. (supra) held that the expression “sufficient cause” should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. The same view was reiterated by the Supreme Court in Madanlal vs. Shyamlal, (2002) 1 SCC 535.

In Balwant Singh (Dead) vs. Jagdish Singh & Ors. (2010) 8 SCC 685 Supreme Court held that the expression “sufficient cause” means the presence of legal and adequate reasons. The decisions cited by the learned counsel for the appellant are of no avail and, in any case, not applicable in the present circumstance of the case.

This Tribunal is possessed with the exercise of judicial discretion in condoning the delay if sufficient or adequate reason is given. It is also a settled proposition of law that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds as held by the Supreme Court in Basawaraj and Anr. (supra). In the instant case we do not find any legal or adequate reasons to condone the delay.

For the reasons stated aforesaid, in view of the inordinate delay the application for condonation of delay is rejected, as a result of which the appeal relating to the order of the WTM dated July 27, 2018 is also dismissed. The appellant has also challenged the Recovery Certificate dated May 27, 2022 which has been issued pursuant to the non-compliance of the order of the WTM dated July 27, 2018. We do not find any error in the issuance of the Recovery Certificate.

For the reasons stated aforesaid, the appeal fails and is dismissed.

This order will be digitally signed by the Private Secretary on behalf of the bench and all concerned parties are directed to act on the digitally signed copy of this order. Certified copy of this order is also available from the Registry on payment of usual charges.