Judgment:
1. Despite service the appellant is not present. When this case came up for hearing before us on 14.12.2007 we passed the following order: No one is present on behalf of the appellant. Learned Counsel for the respondent informs us that she has received a communication from the appellant informing her that the appellant wants 6 to 8 weeks time to attend to the case. Since the appellant had been served for today there is no reason why its representative should not have been present to make a request for an adjournment. We deprecate the practice of seeking adjournments by addressing letters. However, in the interest of justice one last opportunity is granted to the appellant to do the needful.
Adjourned to February 1, 2008 for preliminary hearing. Fresh notice be sent to the appellant for the date fixed and a copy of this order be also sent along with it. To come up alongwith Appeal no.176 of 2007.
2. A copy of the order was sent to the appellant alongwith the notice on 19.12.2007 by speed post. Since the appellant has not put in appearance we are left with no options but to decide the appeal on merits after hearing the learned Counsel for the respondent.
3. This appeal is directed against the order dated December 6, 2004 passed by the adjudicating officer levying a penalty of Rs.50,000/- on the appellant for its failure to appoint a common share transfer agency for demat and physical shares under Regulation 53A of the Securities and Exchange Board of India (Depositories and Participants) Regulations, 1996 (for short the regulations). Regulation 53A prescribes the manner in which the share registry work of a company is to be handled. It provides that all matters relating to transfer of securities, maintenance of records of holders of securities, handling of physical securities and establishing connectivity with the depositories shall be handled and maintained at a single point i.e.
either in-house by the issuer or by a transfer agent registered with the Securities and Exchange Board of India (hereinafter called the Board). The appellant is a public company registered under the Companies Act, 1956 and its shares are held both in the physical form as well as in the demat form. The adjudicating officer has found that records of holders of securities had not been maintained at a single point. The records pertaining to the shares held in physical form were maintained by the appellant company itself and those held in the demat form were handled by Mas Securities Limited-a share transfer agent registered with the Board. This is in violation of Regulation 53A of the regulations. There is nothing on the record to show that the findings recorded by the adjudicating officer are vitiated in any manner. Be that as it may, there is considerable delay in filing the present appeal and the appellant has made wrong statements in the application seeking condonation of delay. The impugned order was passed on December 6, 2004 and it must have been sent to the appellant soon thereafter. It is averred in para 2 of the application that the appeal filed is within the period of limitation as the impugned order had come to the knowledge of the appellant only in the middle of August 2005.
This is not correct.There is on record an application filed by the appellant before the adjudicating officer seeking review of the order.
This application is dated 7.1.2005. It is, thus, clear that the appellant knew about the impugned order at least on that day. The appeal was presented on 27.9.2005. If the averment made in para 2 of the application was correct, the appeal would have been within time but it is not so. The appellant knew of the impugned order on 7.1.2005 on which date it filed a review application before the adjudicating officer. Since the averment made in the application is false to the knowledge of the appellant, we are satisfied that it has not approached this Tribunal with clean hands. In the circumstances, we are not inclined to condone the delay. Consequently, the application and the appeal are both dismissed with costs which are assessed at Rs.50,000/-.