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TMI Blog2021 (9) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... ICE ILESH J. VORA Appearance: Mr. Jaimin R Dave(7022) for the Petitioner(s) No. 1,2,3,4 Ms. Hirva R Dave(10742) for the Petitioner(s) No. 1,2,3,4 Ms. Dharmishta Raval(707) for the Respondent(s) No. 1,2 CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 1. By this writ-application under Article 226 of the Constitution of India the writ-applicants have prayed for the following reliefs :- "(a) To quash and set aside the demand notice dated 05.11.2020 bearing Certificate No.RC3134/2020 at ANNEXURE-A passed by the Respondent No. 2; (b) Pending hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay implementation and operation of demand notice dated 05.11.2020 bearing Certificate No.RC3134/2020 at ANNEXURE-A and restrain respondents from taking any coercive action against the Petitioners herein; (c) Any other and further relief, which is just and proper, may kindly be granted as may be deemed expedient by this Hon'ble Court in the facts and circumstances of the case. (d) Award cost of the present petition." 2. The facts giving rise to this writ-application may be summarised as under :- 2.1 It appears from the materials on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat came to be passed in the Special Civil Application No.4895 of 2003 referred to above is dated 21.4.2003. The same reads thus :- "1. Notice returnable on 07-05-2003. Notice to Attorney General of India. During the course of hearing, Mr. R.P. Bhatt, learned Senior Advocate appearing for the petitioners, states that the review application of the order dated 05-04-2003 on behalf of the petitioning-Company shall be withdrawn as not pressed. 2. Notice as to interim relief. In the meantime, by way of ad-interim relief, the impugned order dated 14-03-2003 shall stand stayed." 2.3 The second order that came to be passed on 21.7.2003 reads thus :- "Rule returnable on 22nd Sept. 2003. Notice to learned Attorney General of India. After having heard the learned Senior Counsel Shri R. P. Bhatt for the petitioner and learned Advocate General Shri S. N. Shelat, the ad-interim relief granted earlier shall stand confirmed considering the peculiar facts and circumstances and considering the three celebrated principles governing grant of refusal of interlocutory order in terms of provisions of Order 31(1) of Code of Civil Procedure. In the event of the petition failing, the Petitioner shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r order(s) or direction(s) which this Hon'ble Court deems fit and proper passed in favour of humble petitioner. 2. Today, when the present petition is taken up for final hearing, Shri Shelat, learned Senior Advocate appearing on behalf of SEBI has placed reliance upon the decision of the Hon'ble Supreme Court in the case of M/s. P.G.F. Ltd. and Ors Vs. Union of India and Anr reported in AIR 2013 SC 3702 by which the provisions of which vires are under challenge have been held constitutionally valid. The aforesaid is not disputed by Ms. Manisha Lav kumar, learned Advocate appearing on behalf of the petitioners. 3. Under the circumstances and in view of the decision of the Hon'ble Supreme Court in the case of M/s. P.G.F. Ltd. and Ors (Supra) the challenge under constitutional validity of the provisions of SEBI, which are under challenge, fails. 4. In view of the above, Ms. Manisha Lavkumar, learned Advocate appearing on behalf of the petitioners seeks permission to withdraw the present petition. Permission is accordingly granted. The present petition is dismissed as withdrawn. Rule is discharged. Ad-interim relief granted earlier stands vacated forthwith." 2.5 Thus, the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estment scheme in as much as, there is a pooling of resources, Investments are made with a view to profit, property is managed on behalf of the investors and the Investors do not have day to day control. However details of the ownership of the land on which the saplings are stated to have been planted, have not been provided. Having regard to the above. I am of the considered view that the schemes floated by the company fall squarely within the definition Collective Investment Scheme as defined under Section 11AA of SEBI Act. 27. I have further noted that several complaints have been made by the investors to the effect that the company was not redressing the grievances of the investors with regard to the return of the dues. Despite forwarding the same to the company, it has failed to take any steps to redress the same. 28. I have noted that although several press releases and newspaper advertisements/notices were issued by SEBI from time to time in all the leading newspapers of India bringing to the notice or the investors and the persons concerned, the various instructions issued by SEBI from time to time as well as the statutory requirements as contained under the Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther interest, all costs, charges and expenses incurred in respect of all the proceedings taken for recovery of the said sum, within 15 (fifteen) days of the receipt of this notice (Payment shall be made either by way of Demand Draft to be drawn in favour of the Securities and Exchange Board of India (SEBI) payable at Ahmedabad (or) by way of EFT/NEFT/RTGS to A/c No. 012210210000013 of Bank of India, Bandra Kurla Complex Branch) [IFS Code - BKID0000122]), failing which the recovery shall be made in accordance with the provisions of Section 28A of the Securities and Exchange Board of India Act, 1992 as amended by the Securities Laws (Amendment) Act, 2014 read with Section 220 to Section 232 of the Income Tax Act, 1961 and the Second Schedule to the said Act and the rules made thereunder. 3. If payment is made in aforesaid Bank Accour, you are also directed to forward the details and confirmation of the payment so made (as per Annexure-A) to Recovery Division, SEBI, Western Regional Office, Ahmedabad. Date : November 05, 2020 Sd/- illegible Recovery Officer Kirtikumar Jadhav Recovery Officer & Dy. General Manager Securities and Exchange Board of India Ahmedabad" 3. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty concerned with a direction to give an opportunity of hearing to the writ-applicants and thereafter determine an appropriate amount, if at all any amount is to be paid by the writ applicants. 9. On the other hand, this writ-application has been vehemently opposed by Ms. Dharmishta Raval, the learned counsel appearing for the respondents. Ms. Raval would submit that this writ-application may not be entertained as the writ applicants have an alternative remedy to prefer an appeal before the Securities Appellate Tribunal under Section 15(T) of the SEBI Act. 10. Ms. Raval would submit that without prejudice to her aforesaid preliminary contention even otherwise the writ applicants have no case on merits. 11. Ms. Raval seeks to rely upon the exhaustive reply filed on behalf of the respondents. In such circumstances referred to above, Ms. Raval prays that there being no merit in the present writ-application, the same be rejected. 12. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for our consideration is whether the recovery notice is sustainable in law. 13. The order dated 14.3.2003 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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