9911796707
TMI Blog2021 (9) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 record that the present litigation is an off shoot of the earlier litigation between the parties. We are talking about the Special Civil Application No.4895 of 2003 filed by the writ-applicants herein in this High Court seeking the following reliefs :- "(A) To issue an appropriate writ, order or direction in the nature thereof and declare sub section (1B) of Section 12 of the Securities and Exchange Board of India Act, 1992 ultra vires the Constitution of India, in so far as it includes Collective Investment Scheme. (B) To issue an appropriate writ, direction or order in the nature thereof and declare Section 11(2)(c) and J11AA of the Securities and Exchange Board of India Act, 1992 ultra vires the Constitution of India. (C) To issue a writ, order or direction of quashing the impugned Regulation (Securities and Exchange Board of India (Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shall refund the amount, if Court also directs upon holding that the petitioner has been liable for refunding the amount stated in the impugned order." 2.4 However, ultimately the said writ-application came to be disposed of as withdrawn vide order dated 23.3.2017 which reads thus :- "1. By way of this petition under Article 226 of the Constitution of India the petitioners - Golden Trees Plantation Ltd. and Another have prayed for the following reliefs; (A) To issue an appropriate writ, order or direction in the nature thereof and declare Sub Section (1B) of Section 12 of the Securities and Exchange Board of India Act, 1992 ultra vires the Constitution of India, in so far as it includes Collective Investment Scheme. (B) To issue an appropriate writ, direction or order in the nature therefore and declare Section 11(2)(c) and 11AA of the Secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls. 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 round of litigation having come to an end with the above referred order, the Securities and Exchange Board of India (for short 'the SEBI') proceeded to pass the following order dated 14.3.2003 :- "23. Upon perusing the documents submitted by the company including the details of the company and the scheme(s), the Articles of Association and Memorandum of Association as well as the names and addresses of the promoters of the company, it is noted that the company is presently running two kinds of schemes i.e. teak memberships scheme and mango membership scheme. Under the teak membership scheme, there are 61,549 investors and a total amount of Rs. 9.18 crores stated to have been mobilised by the company under the said scheme. I have also noted the contents of the teak sapling sale certificate issued by the company and have also perused the prosp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Regulations, the company has failed to comply with the same. Therefore the company has violated the provisions of Section 12(1B) of the SEBI Act, 1992 and Regulation 5(1) read with regulations 68(1), 68(2), 73 & 74 of the Regulations. 29. In view of the same, on the basis of the facts of the case. I, in exercise of powers conferred upon me under Section 11B or the SEBI Act read with Regulation 65 of the Regulations, hereby direct the company, as an existing collective investment scheme. to wind up its existing scheme(s) and refund the money collected under the scheme(s) with returns which are due to the investors as per the terms of offer within a period of one month from the date of the order. failing which the following actions would follow : 1. Initiation of prosecution proceedings. under Section 24 of the SEBI Act, 1992, against the company / its promoters / d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails 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 view of the aforesaid, the writ-applicants have come up before this Court with the present writ-application. 4. Mr. S. N. Soparkar, the learned Senior Counsel assisted by Mr. Jaimin R. Dave, the learned advocate appearing for the writ-applicants vehemently submitted that the impugned notice has been issued without giving any opportunity of hearing to the writ-applicants. Mr. Soparkar would submit that a huge amount to the tune of Rs. 1,068,64,56,000/- (Rupees One Thousand Sixty-eight Crores Sixty-four Lakhs Fifty-six Thousand Only) is sought to be recovered from the writ-applicants. The principal argument of Mr. Soparkar is that on what basis the Recovery Officer has arrived at such mammoth figure is not understood. 5. Mr. Soparkar would submit that his clients have deposited a substantial amount so far in due compliance of the order passed by the SEBI dated 14.3.2003. Mr. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, 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 the SEBI referred to above only says that the Company is directed to wind up its existing scheme and refund the money collected under the scheme (with returns due to the investors in accordance with the terms of the offer). The said order does not say anything or explain as to how the figure is to be arrived at. In other words, the order does not fix any particular liability to be discharged by the writ-applicants. If upon such order recovery is sought to be undertaken of an amount of Rs. 1,068,64,56,000/- (Rupees One Thousand Sixty-eight Crores Sixty-four Lakhs Fifty-six Thousand Only), then it was expected of the concerned authority to at least issue a notice to the writ-applicants and give an opportunity of hearing before arriving at a particular figure. 14. Ms. Raval in a way is right that in view of the alternative remedy available, this Court should not exercise its writ jurisdiction. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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