Saurashtra Kutch Stock Exchange Ltd. v. Securities and Exchange Bd. of India
2012-03-14
H.L.GOKHALE, R.M.LODHA
body2012
DigiLaw.ai
JUDGMENT : 1. Saurashtratra Kutch Stock Exchange Limited is in appeal under Section of the Securities Contracts (Regulation) Act, (for short, 'the Act') against the judgment and order dated July, passed by the Securities Appellate Tribunal (for short, 'the Appellate Tribunal') whereby its appeal was dismissed. 2. The appellant was granted recognition in as Stock Exchange under the Act. The recognition was renewed from time to time; the last of such renewal being in 2006. On February,, the appellant was issued show cause notice by the Securities and Exchange Board of India (SEBI) to show cause as to why its recognition be not withdrawn under Section(1) of the Act. The show cause notice indicated diverse failures and non-compliances on the part of the appellant. The appellant responded to the show cause notice. The full time member of SEBI, vide his order dated July,, ordered withdrawal of recognition of the appellant and further directed that the trading members of the appellant shall cease to be its trading members and therefore liable to be de-registered as stock brokers and, therefore, their certificate of registration granted by SEBI shall stand automatically cancelled. The appellant was restrained from transferring or alienating any moveable or immovable property of the Exchange including Bank Account in any manner till further directions by SEBI in this regard. The appellant was also restrained from using the expression 'stock exchange' or any variant in its name or in its subsidiary's name. 3. The appellant challenged the above order before the Appellate Tribunal. The Appellate Tribunal dismissed the appeal on July,. 4. The appellant challenged the order dated July, 2007 passed by the Appellate Tribunal as well as the order dated July, passed by the full time member of SEBI by filing a Special Civil Application under Article of the Constitution of India before the Gujarat High Court. Diverse grounds were raised in challenging these orders. The appellant took up the position before the High Court that the remedy of appeal against the order dated July, 2007 cannot be said to be appropriate redressal of the grievances of the appellant and the matter should be considered by the High Court.
Diverse grounds were raised in challenging these orders. The appellant took up the position before the High Court that the remedy of appeal against the order dated July, 2007 cannot be said to be appropriate redressal of the grievances of the appellant and the matter should be considered by the High Court. Inter alia, a specific plea was raised by the appellant before the High Court that the full time single member of SEBI had no jurisdiction to cancel or withdraw recognition granted to it and withdrawal of recognition under Section of the Act by the whole time single member of SEBI was unjust, arbitrary and de hors the provisions of the statute. 5. The High Court dismissed the Special Civil Application vide order dated November , and considered the submission of the appellant in the following manner:- "Section A is reproduced hereunder :- 29A. Power to delegate. The Central Government may, by order published in the Official Gazette, direct that the powers (except the power under section) exercisable by it under any provision of this Act shall, in relation to such matters and subject to such conditions, if any, as may be specified in the order, be exercisable also by the Securities and Exchange Board of India or the Reserve Bank of India constituted under section of the Reserve Bank of India Act, (2 of). Notification dated 13th September, issued by the Central Government reads as under :- In exercise of powers conferred by Section 29A of the Securities Contracts (Regulation) Act, (42 of), the Central Government hereby directs that the powers exercisable by it under section, sub-section (1),(2),(3) and (4) of section, section, sub-section (2) of section A, section, sub-section (2) of section, section and sub-section (2) of section of the Act shall also be exercisable by the Securities and Exchange Board of India. Section 19 of the SEBI Act, 1992 reads as under :- The Board may, by general or special order in writing delegate to any member, officer of the Board or any other person subject to such conditions, if any, as may be specified in the order, such of its powers and functions under this Act (except the powers under section) as it may deem necessary.
Thus, the above notification dated 13th September, issued in exercise of power under Section A of the SCR Act of, read with Section of the SEBI Act, would mean that the Board may in writing delegate its power to any member of the Board and, therefore, the power exercised by the full-time member of the Board under Section of the SEBI Act,, or even withdrawal or recognition under Section of the SCR Act of , cannot be said to be unjust or arbitrary or de hors the provisions of the statute and, therefore, the contention of Mr. Shelat that no remedy of appeal is available to the petitioner cannot be accepted." 6. As regards appellant's contention of non- consideration for renewal of recognition, the High Court observed in para of its order that there was efficacious alternative remedy available to the appellant. 7. Not satisfied with the order of the High Court, the appellant preferred Special Leave Petition which came to be dismissed by this Court on March,. After the dismissal of the Special Leave Petition, the appellant preferred the present Civil Appeal under Section of the 1956 Act against the order dated July, passed by the Appellate Tribunal. 8. In para of the Civil Appeal, the following question of law has been framed:- "Whether the whole time single member of SEBI has no jurisdiction to cancel or withdraw recognition granted to a Stock Exchange on the principle that Delegate cannot further delegate its power, and whether the order under challenge is without jurisdiction?" 9. In our view, it is not necessary to go into the above question as we find that this very question was raised by the appellant before the High Court in extra-ordinary jurisdiction under Article of the Constitution of India. The High Court, as noted above, in its order dated November 19, held that the withdrawal of recognition under Section of the Act by the full time member of SEBI under Section of the Securities and Exchange Board of India Act, cannot be said to be de hors the provisions of the Act. Special Leave Petition from the above order of the High Court came to be dismissed by this Court on March 10,. The same question cannot be allowed to be reopened in the present Appeal. 10. Mr.
Special Leave Petition from the above order of the High Court came to be dismissed by this Court on March 10,. The same question cannot be allowed to be reopened in the present Appeal. 10. Mr. Manoj Swarup, learned counsel for the appellant, vehemently contended that the finding of the High Court on the above issue was not final as the High Court found that efficacious alternative remedy was available to the appellant under Section-F of the Act. We are unable to accept the submission of the learned counsel for the appellant. We have carefully considered the order of the High Court and we find that the finding by the High Court on the above issue is express and unambiguous and the Special Leave Petition therefrom has already been dismissed by this Court. 11. At this stage, Mr. Manoj Swarup, learned counsel for the appellant, submits that as regards the subsidiary company floated by the appellant in the name and style of SKSE Securities Limited (for short, 'subsidiary') is concerned, in the counter affidavit filed on behalf of the respondent No.-SEBI the functioning of the subsidiary and the sub-brokers of subsidiary has not been challenged and, therefore, this Court may clarify the position in this regard. 12. In the counter affidavit filed by the respondent No. 1 (SEBI), it is stated that the appellant and its subsidiary are two different legal entities. While maintaining this, it has been stated in the counter affidavit that the impugned order does not prohibit functioning of subsidiary in any manner and the sub-brokers of the subsidiary can continue to trade on BSE and NSE. It has also been stated in the counter affidavit that the withdrawal of recognition of the appellant in no way affects the functioning of the subsidiary which has registered volumes to the tune of Rs. 950 crores in BSE since withdrawal of recognition. In view of the categorical statement made by SEBI in the counter affidavit, the apprehension of the appellant that there is threat to the functioning of the subsidiary or sub-brokers on withdrawal of appellant's recognition is wholly unfounded and mis-conceived. 13. Civil Appeal is dismissed with no order as to costs.