IN THE SECURITIES APPELLATE TRIBUNAL

MUMBAI

 

 

Review Application No. 12/2005

Appeal No. 116/2002

 

Date of Hearing	23.3.2005
Date of Decision	24.3.2005

 

In the matter of:

 

Golden Glade Plantations (P) Ltd.		Appellant � Represented by
	Ms. Venita Baam, Advocate
Versus
Securities & Exchange Board	Respondent �Represented by
of India	Mr. Subhash Jha, Advocate

 

Coram:

����������� Justice Kumar Rajaratnam, Presiding Officer

����������� �

 

Per:� Justice Kumar Rajaratnam, Presiding Officer

 

 

   1.            This is a review petition filed by the appellant against the impugned order dated 13.10.2003.� By the said order, appeal no. 116/2002 was dismissed on merits, however in the absence of the appellant.

   2.            An affidavit has been filed by one of the directors of the petitioner explaining the reason for the non-appearance of the counsel for the appellant on the date of hearing.

   3.            It was submitted that the appellant never deliberately absented himself and his absence was bonafide and for compelling reasons.� The appellant states in his affidavit that he was suffering from typhoid and had to undergo treatment for 10 days from 10.10.03 to 20.10.2003.� A medical certificate marked Exhibit A dated 18.2.2005 issued by Dr. S.D. Galagali has been placed before the Tribunal.� It was further submitted that on that date the appellants� counsel was in a part heard matter before the High Court and was not able to be present.� The appellant further stated in the affidavit the reasons for the delay in filing the review application.� It is best set out in the affidavit of the appellant commencing from paragraph 7 to 15.� Para 7 to 15 are extracted below:

�7.� Further, the Counsel for the Applicant was present for all the hearings and on the hearing of 25^th July 2003, he made his submissions stating that the Applicant was in the process of selling some of his immoveable properties with a view to raise funds
in order to repay the balance investors and/or subscribers. The Applicant further states that in order to obtain the market price for sale of the immovable property, the Applicant had appointed a valuer to give the exact value of the said property in
order to negotiate with the Purchasers. The Applicant craves leave to refer to and
rely upon the said valuation report as and when produced such a positive action on
the part of the Applicant would be beneficial to the investors and/or subscribers, as the funds; received would be utilized to repay the investors and/or subscribers.

8.        The order dated 13^th October 2003 was orally intimated by the Advocate for the Applicant in November 2003. However, a copy of the order dated 13^th October 2003 was procured by the Applicant in July 2004.

9.        Applicant further submits that due to the communication error between the Applicant and the Counsel for the Applicant, the Applicant sought to engage another Advocate to appear on their behalf before the Securities Appellate Tribunal, Mumbai. Accordingly, papers and proceedings pertaining to the above Appeal were in turn sought from the previous Advocate in order to enable the present Advocate to file an Appeal/Revision before the Securities Appellate Tribunal, Mumbai.� These papers and proceedings were only received by the Applicant from the previous Advocate in July 2004. The Applicant accordingly contacted the present Advocate and held a preliminary meeting on 31^st August 2004. Further, the Applicant had to furnish necessary information to the Advocate. The Advocate received the necessary information and certain relevant documents; sometime in the month of September 2004. In order to restore the Appeal 116 of 2002, under Rule 16 of the Securities Contracts (Regulation) (Appeal to Securities Appellate Tribunal) Rules 2000, and under Section 15U-(2) (e), (f) and (g) of the Securities and Exchange .Board of India Act 1992, additional documents were required by their Advocate. The aforesaid documents were received by the Advocate in the month of November 2004.

10.    The Applicant humbly submits that after receipt of documents, a draft of the Appeal for restoration was prepared on 4^th December 2004. The Applicant approved and confirmed the same and instructed the Advocate to file the Appeal. �Further, additional documents were also despatched by courier to the Advocate with an up-to-date repayment list. On 14^th December 2004, the Advocate couriered the Affidavit in support of Condonation of Delay as also the Vakalatnama in order to have the same signed and notarized at Hubli which were received by the Advocate on 20th December 2004.

11.    The Applicant humbly states that on 22ⁿ December 2004, the Hon'ble Securities Appellate Tribunal did not entertain the Appeal on grounds that the earlier Appeal had already being dismissed by an order dated 13^th October 2003. �Further, this Appeal cannot be filed before the same Presiding Officer thereby challenging his order dated 13^th October 2003. Thus a Review Application was required to be filed.

12. However, the Review Application along with the Affidavit in support of Condonation of Delay and Vakalatnama were courier on 27^th December 2004, to the Applicant in order to have the same signed and notarized at Hubli. The same was received by the Advocate on 6^th January 2005.��� Thereafter the Review Application along with the Affidavit in support of Condonation of Delay and Vakalatnama came to be filed on 7^th January 2003 before the Hon'ble Securities Appellate Tribunal, Mumbai.� On 25^th January 2005, the Advocate received the notice from the Hon'ble Tribunal that the Matter was scheduled to be placed on board for admissions on 10^th�� February 2005.

13) Further, the Applicant has already started the process of winding up, by repaying the, investors��� and/or��� subscribers��� along��� with��� benefits.��� The��� Applicant submits that prior to 13^th October 2003, the total amount paid to the investors was to the tune of Rs. 1,84,675/- (Rupees One Lakh Eighty Four Thousand Six Hundred Seventy Five Only) and an additional sum of Rs. 72,350/- (Rupees Seventy Two Thousand Three Hundred Fifty Only) was paid to 400 investors and/or subscribers, by November 2004, thus aggregating to Rs. 2,57,025/- (Rupees Two Lakhs Fifty Seven Thousand Twenty Five Only).�� However, from December 2004 till 17^th February 2005, a further sum of Rs. 28,045/- (Rupees Twenty Eight thousand and forty five only) have been further paid to 54 investors and/or subscribers.�� Hereto annexed and marked as Exhibit "B� is a copy of the refund schedule to the 454 investors and/or subscribers from 1999- 2005.

14.� The Applicant humbly states that 454 investors and/or subscribers have been repaid till date. Hereto annexed and marked as Exhibit "C" is a copy of the
Statement of Accounts of ING Vysya Bank for the period March 1999 to January 2005.

15.� The Applicant humbly submits that this delay was neither deliberate nor intentionally caused by the Applicant.� To meet the ends of justice it would be
equitable and fair that the Applicant be given an opportunity of being heard. No harm or prejudice would be caused to any party save and except the Applicant. In these circumstances this Honourable Tribunal is humbly approached for our considerate approach.�

   4.            The learned counsel for the appellant submitted that the appeal must be restored on file otherwise grave injustice will be done to the appellant.

   5.            Mr. Jha, the learned senior counsel for the appellant submitted that the delay in filing the review application and the reasons given are not sufficient to restore the appeal on board.

   6.            I have given my anxious consideration to the facts of the case.� It cannot be forgotten that this is a first appeal under the statute and if any delay is caused by the counsel for the appellant that should not hurt the cause of the appellant.� The appellant has made out a case for repayment to all the investor who wish to exit.� The learned counsel submitted that the appellant is even willing to dispose of the immovable property of the appellant company to discharge all liabilities.

   7.            It is common ground that the Tribunal has power to review its decisions.� Section 15U(2)(e) of the SEBI Act deals with reviewing its decisions and Section 15U(2)(g) deals with setting aside any order of dismissal of any application for default or any order passed by it ex parte.� This is reiterated in the Regulations.

   8.            Taking into account the ultimate interest of the investor public no useful purpose will be served by dismissing the appeal without giving the appellant an opportunity to repay the investor public.� There is no method contemplated under the provisions of the Act to execute any order of repayment made by SEBI.� The only course open for SEBI is to prosecute the appellant for not complying with the order of repayment.� That will not help the investors under the scheme.� What we need is a flexible approach by which the appellant company is made to repay the investors.

   9.            It is also stated that the appellant has repaid 454 investors till date and is willing to make efforts to repay the investors by selling the immovable property of the appellant.

10.            Taking all these factors into account, it would be appropriate to restore the appeal and to be heard on merits.� Accordingly, after hearing the appellant and the respondent, the delay in filling the review petition stands condoned and the appeal is restored on file on the condition that the appellant deposits a sum of Rs. 2 lakh with the respondent within 3 weeks from the receipt of this order.

11.            No order as to costs.

 

 

Place: Mumbai

Date: 24.3.2005

 

 

//SR4056