The remedy of Appeal may not be inefficacious: Bombay High Court

 on 17 02 2021 on 17 02 1 410 wpl 4055 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J.WRIT PETITIONNO.4055 OF 2021…Schneider Electric President Systems Ltd....Petitionerv s.Securities and Exchange Board of India & Ors....Respondents…Mr.Janak Dwarkadas Senior Counsel a w Mr.Kunal Dwarkadas Ms.SonaliMathur Ms.Trisha Sarkar Mr.Niket Jain and Ms.Ambareen Maujawar i bAZB & Partners for the Petitioner.Mr.Mustafa S. Doctor Senior Counsel a w Mr.Anubhav Ghosh andMr.Ravishekhar Pandey i b The Law Point for the Respondent No.1.Mr.Sumit Agrawal a w Ms.Nidhi Chheda i b Regstreet Law Advisors forRespondents Nos.2 to 32.… CORAM : A.A. SAYED & MADHAV JAMDAR JJ. DATED : 15 FEBRUARY 2021P.C.:The Petition has been filed seeking the following reliefs:(a)That this Hon’ble Court be pleased to issue a writ of certiorari ora writ in the nature of certiorari or any other writ order or directionquashing and setting aside the impugned order dated January 19 2021.Uday.P.Kambli1 4 on 17 02 2021 on 17 02 2 410 wpl 4055 2021.doc(b)That pending the hearing and final disposal of the Petition thisHon’ble Court be pleased to stay the effect and operation of theimpugned order dated January 19 2021 including from requiring thePetitioner to inform the shareholders as also the designated stockexchanged regarding the option to list on a nationwide exchange ordelist the company.2.It is not disputed that the Petitioner has a remedy to challenge theimpugned order of the Securities Exchange Board before the SecuritiesAppellate Tribunal under section 15T of the Securities and Exchange Boardof India Act 1992.3.It is however submitted by the learned Senior Counsel for thePetitioner that that remedy would not be an efficacious remedy since theSecurities Appellate Tribunal has already formed an opinion vide orderdated 26 11 2019 in the earlier round of litigation whereunder the SecuritiesAppellate Tribunal has remitted the matter back to the Securities ExchangeBoard. It is pointed out that the said order dated 26 11 2019 of theSecurities Appellate Tribunal was challenged by the Securities ExchangeBoard before the Supreme Court and while dismissing the Civil Appeal theSupreme Court by order dated 15 10 2020 directed the SecuritiesUday.P.Kambli2 4 on 17 02 2021 on 17 02 3 410 wpl 4055 2021.docExchange Board to decide the matter without being influenced by anyobservations made by the Securities Appellate Tribunal. After remand Securities Exchange Board has now decided the matter by the impugnedorder dated 19 01 2021 which order can be challenged by filing Appeal tothe Securities Appellate Tribunal as indicated in paragraph 2 above. Thedirections of the Supreme Court in the order dated 15 10 2020 in our view should equally apply to the Securities Appellate Tribunal.4.Considering the composition of the Securities Appellate Tribunal(see section 15M of the SEBI Act) which comprises of three members twoof whom are former Judgeswe do not think there is any basisin the apprehension expressed by the learned Senior Counsel that theremedy of the Appeal may not be efficacious. However only to satisfy andallay the concerns of the Petitioner we only say that in the event theAppeal is filed by the Petitioner the same would be decided by theSecurities Appellate Tribunal without being influenced by its earlier orderdated 26 11 2019 and its observations made therein shall be treated asprima facie. We also note that as per section 15Z of SEBI Act an AppealUday.P.Kambli3 4 on 17 02 2021 on 17 02 4 410 wpl 4055 2021.doclies to the Supreme Court from the order of the Securities AppellateTribunal.5.In light of the above the Writ Petition is disposed of with libertyto the Petitioner to approach the Securities Appellate Tribunal.6.Having regard to the facts and circumstances of the case wedirect that no coercive steps be taken by the SEBI against the Petitioner fora period of three weeks from today.(A.A.SAYED J.)Uday.P.Kambli4 4 

Summary: The Counsel for the Petitioner claimed that, an appeal in this case, would not be an appropriate and efficacious remedy because Securities Appellate Tribunal had previously decided that the matter should be reverted back to the SEBI. However, the same was rejected by the High Court on considering the constitution of the SAT, which includes the Presiding Officer (Supreme Court Judge or Chief Justice of High Court) and Judicial Members (High Court Judge). This was observed in the case of Schneider Electric President Systems v. SEBI &amp; Ors., [ Writ Petition (L) No. 4055 of 2021] before Hon’ble Justices, A.A Sayed and Madhav Jamdar.  The Petitioner had prayed to the court to issue a writ of certiorari to quash the order decided on January 19th 2021 and asked for a stay of proceedings is the disposal of the petition is pending to avoid informing the shareholders and the designated stock exchange to list securities on a national exchange or deregister the company. The order of SAT was challenges by SEBI before the Supreme Court but was dismissed. After the matter was reverted back to the SEBI it gave its order on 19th January 2021, which can be further contested through an appeal before the SAT. Taking into account the Petitioner’s contentions and the composition of the SAT, the High Court was of the opinion that, “we do not think there is any basis in the apprehension expressed by the learned Senior Counsel that the remedy of the Appeal may not be efficacious. However, only to satisfy and allay the concerns of the Petitioner, we only say that in the event the Appeal is filed by the Petitioner, the same would be decided by the Securities Appellate Tribunal without being influenced by its earlier order dated 26-11-2019 and its observations made therein shall be treated as prima facie. We also note that as per section 15Z of SEBI Act, an Appeal lies to the Supreme Court from the order of the Securities Appellate Tribunal.”