TMI Blog2019 (5) TMI 1470X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary for the Court to dwell on the decisions cited by the learned counsel for the respondent on the question of res judicata and constructive res judicata . The claim of interest was rightly rejected by the respondent. - Appeal No. 278 of 2017 - - - Dated:- 1-2-2019 - Mr Tarun Agarwala, Presiding Officer And Dr. C. K. G. Nair, Member For The Appellant : Mr. Neerav Merchant, Advocate with Mr. Bharat Merchant, Advocate i/b Thakordas Madgavkar For The Respondent : Mr. Gaurav Joshi, Senior Advocate with Ms. Vidhi Jhawar, Advocate i/b The Law Point ORDER Per : Justice Tarun Agarwala, Presiding Officer 1. The appellant M/s. Orcap Securities Ltd. was a corporate member registered with National Stock Exchange ( NSE ). It was also granted registration by Securities and Exchange Board of India ( SEBI ) on July 26, 1995. Since Orcap Securities Ltd. was a registered Company and was engaged in fund based activities, it was not permissible under Rule 8(1)(f) of the Securities Contracts (Regulation) Rules, 1957 to continue fund based business together with broking business. The entity, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . a. for a period from November 11, 2004 to December 7, 2016. The said application was considered and rejected by SEBI by an order dated July 24, 2017 holding that there is no provision for payment of interest under the Act or Statute. Further, SEBI held that the Supreme Court while allowing the appeal by judgment dated December 9, 2015 did not issue any direction for refunding the fee alongwith interest. Further, while challenging the fee continuity benefit, the appellant only claimed the refund of the principal amount and did not claim any interest on the principal amount either before the Tribunal or before the Supreme Court and, therefore, the appellant was estopped from claiming interest. 5. We have heard Mr. Neerav Merchant, the learned counsel for the appellant and Mr . Gaurav Joshi, the learned senior counsel for the respondent at length. Even though the appellant has also prayed for refund of ₹ 10,635/- towards the principal amount, the learned counsel submitted that he is not pressing this relief and is confining his submissions only on the question of payment of interest. 6. The learned counsel for the appellant contended that the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Admitted the final order dated 15-06-2006 passed by the Securities Appellate Tribunal, Mumbai in Appeal no. 396 of 2004, and ( c) Pass any other order / orders as may be deemed fit and proper in the facts and circumstances of the case. The Supreme Court by judgment dated December 9, 2015 allowed the appeal, set aside the judgment of Tribunal and held that the appellants were entitled to be given the benefit of fee continuity. 10. Thus, from the perusal of the memo of appeal filed before SAT and before the Supreme Court of India, the appellant had only claimed refund of the amount deposited towards fee continuity. The appellant did not claim any relief for payment of interest on the principal amount. 11. After the decision of the Supreme Court, the appellant applied for refund alongwith interest. SEBI refunded the principal amount less ₹ 10,635/- and refused to grant interest. The appellant is now questioning the veracity of the impugned order denying to the interest. 12. In this regard, we are of the opinion that the principles of Order II Rule 2 of CPC would be fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of the court is required to be taken. Even without taking leave of the court, a prayer in that behalf can be made. A suit for recovery of possession on declaration of one's title and/ or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be joined and therefor no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit wherefor a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. Damages cannot be granted without payment of court-fee. In a case where damages are required to be calculated, a fixed court fee is to be paid but on the quantum determined by the court and the balance court fee is to be paid when a final decree is to be prepared. 13. In State Bank of India vs. Gracure Pharmaceuticals Ltd. [2014 (3) SCC 595] decided on November 22, 2013 , the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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