Harshad Shah vs V.K. Chopra, Wholetime Member Securities and Exchange Board of India on 17 December 2008

BEFORE THE SECURITIES APPELLATE TRIBUNAL MUMBAI

Appeal No.80 of 2008

Date of Decision : 17.12.2008

Harshad Shah ...... Appellant

Versus

V.K. Chopra, Wholetime Member Securities and Exchange Board of India

...…Respondent

Mr. Zal T. Andhyarujina Advocate for the Appellant. Dr. Poornima Advani Advocate with Ms. Harshada Nagare Advocate for the Respondent.

Coram : Justice N.K. Sodhi, Presiding Officer Utpal Bhattacharya, Member

Per : Justice N.K. Sodhi, Presiding Officer (Oral)

We have heard the learned counsel for the parties at some length. The primary grievance of the appellant as projected by his learned counsel is that he had not been served with a show cause notice. A plea to this effect has been taken in the memorandum of appeal. No reply has been filed by the respondent. Be that as it may, the original record has been placed before us and it is contended by the learned counsel for the respondent Board that the show cause notice had been sent by registered post acknowledgement due. We have seen the original envelope in which the notice was sent. There are reports of the postal authority that the appellant had not been found at the given address. There is also a report on the envelope stating “Not Known”. Another surprising factor is that the original envelope in which the show cause notice is alleged to have been sent is found in the file of the respondent Board. It is open and

.2. there is no show cause notice inside. If the notices have been served, the original envelope with a postal address thereon could not have been with the respondent Board. In view of these circumstances we are not satisfied with regard to the service of the show cause notice on the appellant. It is true that the appellant appeared subsequently before the whole time member on 28.9.2007 and filed his written submissions but this would not cure the defect of non service of the show cause notice. It is also true that in the written submissions the appellant had not made a grievance that he had not been served with a show cause notice whereas such a grievance has been made in the memorandum of appeal to which there is no reply on behalf of the respondent Board. Lest there is any miscarriage of justice, we deem it appropriate to remit the case back to the Board for a fresh decision in accordance with law after serving a copy of the show cause notice on the appellant. We order accordingly. The appeal is accordingly allowed and the impugned order qua the appellant set aside with no order as to costs.

Sd/-

Justice N.K. Sodhi

Presiding Officer

Sd/-

Utpal Bhattacharya

Member

17.12.2008 RHN