IN THE SECURITIES APPELLATE
TRIBUNAL
MUMBAI
APPEAL NO. 93/2005
Date of decision: December 18, 2006
Kosha Investments Ltd., ����������������������������������������������������������������� Appellant
����������� Verses
Securities
& Exchange Board of India ����������������������������������������� Respondent
Shri. Harish Talsania,
Advocate for the appellant.
Mr.
Kumar Desai, Advocate along with Ms. Daya Gupta, Advocate for respondent.
CORAM
����������� Justice N. K. Sodhi,
Presiding Officer
C. Bhattacharya, Member
����������� Per: Justice N. K. Sodhi, Presiding Officer (Oral)
�����������
����������� This appeal under section 15T of the Securities and
Exchange Board of India Act, 1992 (hereinafter called the Act) arises out of
the adjudication proceedings initiated against the appellant resulting in the
imposition of penalty of Rs.18, 75, 69,585/- under section 15H of the Act for
its failure to make a public announcement to acquire shares of Snowcem India Ltd (for short the target company) at a
minimum price.� Facts, in so far as they
are necessary for the disposal of this appeal, are stated hereunder.
����������� Securities and Exchange Board of India (for short the
Board) by its order dated January 27, 2004 held that the appellant herein had
acquired shares of the target company in violation of Regulation 11 of the
Securities and Exchange Board of India�
(Substantial Acquisition of Shares and Takeovers) Regulations, 1997,
(hereinafter called the Regulations) and by the same order directed the
appellant to make a public announcement in terms of Regulation 11(1) of the
Regulation taking June 29, 1999 as the reference date for calculation of the
offer price.� The appellant had further
been directed to make the public announcement within 45 days from the date of
that order.� Instead of complying with
the order, the appellant filed Appeal No. 64 of 2004 before this Tribunal which
was dismissed on 8.8.2005 and the order of the Board was upheld.� During the pendancy of the Appeal the
operation of the order impugned therein had not been stayed.� We are informed that against the order of
this Tribunal the appellant has filed an appeal in the Supreme Court which
stands admitted.� Their Lordships have
not stayed the operation of the order of the Tribunal nor that of the
Board.� It is, thus, clear that the
finding recorded by the Board that the appellant had violated Regulation 11 of
the Regulations stands affirmed by this Tribunal.� Since the provisions of Regulation 11 had
been violated adjudication proceedings were initiated under Chapter VIA of the
Act and the adjudicating officer has by the impugned order imposed the
aforesaid penalty.
����������� Having heard the learned counsel for the parties, we are
clearly of the opinion that the earlier finding of the Board having been
affirmed by this Tribunal, the adjudication proceedings initiated against the
appellant were a mere formality and that penalty had to follow.� (See SEBI Vs Shriram
Mutual Fund AIR 2006 SC 2287).� As
already observed the appellant had violated Regulation 11 of the Regulations
while acquiring shares of the target company and since that finding already
stands affirmed, no fault can be found with the order of the adjudicating
officer imposing penalty on the appellant.�
Since January 2004 the appellant has not come out with the public
announcement and this failure on its part is a continuing wrong for which
penalty deserves to be levied.� We have
also perused the impugned order and find that sufficient opportunity was
provided to the appellant to put forth its defence in the adjudication
proceedings.� The appellant had filed a
detailed reply to the show cause notice controverting all the allegations
leveled therein but failed to appear during the course of the proceedings
despite three opportunities granted on its own request.� It appears that the appellant did not
seriously pursue the matter before the adjudicating officer.
����������� Before concluding we may mention that the learned counsel
appearing for the appellant at the outset made a request for an adjournment in
the case.� He stated that he had been
engaged only on 16th of this month when his clients had handed over
the brief to him.� He has not filed his vakalat in the registry.�
Be that as it may, he has not addressed any arguments in the
appeal.� When this case came up for
hearing on 11.7.2006 Mr. Vijay Nene, Advocate had
appeared for the appellant and he informed us verbally that an appeal against
the order of this Tribunal dated 8.8.2005 had been filed in the Supreme Court
which stood admitted and that the appellant would make efforts to have the
operation of that order stayed.�
Thereafter, the case was being adjourned from time to time.�� On 13.12.2006, the learned counsel for the
appellant was not available and on his request the case was adjourned for
today.� Today, a new counsel has appeared
who is seeking adjournment.� We do not
find any justification to adjourn the case any further, more so when the matter
already stands covered against the appellant in so far as this Tribunal is
concerned.� We are left with an
impression that the appellant is not serious in pursuing this appeal and is
only trying to prolong the same.� In this
background, we have turned down the request for adjournment.
����������� For the reasons recorded above, we find no merit in the
appeal and the same stands dismissed with no order as to costs.
Sd/-
Justice N. K. Sodhi
Presiding Officer
Sd/-
C. Bhattacharya
Member