BEFORE THE SECURITIES APPELLATE TRIBUNAL
MUMBAI
Order Reserved On: 01.02.2019
Date of Decision
: 25.02.2019
Misc. Application No. 414 of 2018
And
Appeal No. 469 of 2018
Synergy Cosmetics (Exim) Limited
806, Saffron Building,
Panchvati to Ambawadi Road,
Ambawadi, Ahmedabad- 380 006
…Appellant
Versus
BSE Limited
25th Floor, P J Towers,
Dalal Street, Fort,
Mumbai- 400 001
…Respondent
Mr. Akshit Jain, Advocate with Ms. Rinku Valanju, Advocate i/b R.V.
Legal for the Appellant.
Mr. Jitendra Motwani, Advocate with Mr. Abhiraj Arora, Mr. Vivek
Shah and Mr. Chirag Shetty, Advocates i/b ELP for the Respondent.
CORAM: Justice Tarun Agarwala, Presiding Officer
Dr. C.K.G. Nair, Member
Per: Justice Tarun Agarwala
1.

The appellant is a listed company and its securities got delisted on
the platform of the respondent on 25.06.2001. The respondent vide its
notice dated 18.10.2016 suspended the trading in securities of the
appellant company for non-compliance of listing requirements. Since no
steps were taken by the appellant company for revocation of the
2
suspension, a show cause notice dated 26.04.2018 was issued calling
upon the appellant to show cause as to why the securities of the appellant
company should not be compulsorily delisted from the platform of the
respondent. The respondent BSE Limited by the impugned order dated
26.06.2018 issued an order compulsorily delisting the securities of the
appellant company. The appellant being aggrieved by the computation of
the fair value of the shares at ` 9.07 per equity share has filed the appeal
under Section 23L of the Securities Contracts (Regulation) Act, 1956
(hereinafter referred to as “SCRA”).

2.

There is a delay of 73 days in filing the appeal. An explanation
has been given by the appellant in the application for condonation of
delay giving reasons for not filing the appeal within the stipulated period.
The application for condonation of delay has been vehemently opposed
by the learned counsel for the respondent contending that the appeal was
required to be filed under Section 21A of the SCRA and not under
Section 23L. It was further contended, that the period for filing the
appeal cannot be extended by the Tribunal under Section 21A and,
therefore, the appeal is not maintainable and is required to be dismissed.
It was further urged, that when a specific provision has been provided for
filing an appeal under Section 21A of the SCRA, the said provision being
specific would govern the provision relating to the filing of the appeal
and would override the general provision, namely, Section 23L on the
basis of the principles involved in the latin maxim ‘generalia specialibus
non derogant’ which means that the general law yields to special law. It
was thus contended that if there are two provisions relating to the filing
3
of the appeal then on the basis on the principle of harmonious
construction, merely, that where there is a specific provision of law
dealing with the same subject would prevail over the general. In support
of his submission, the learned counsel for the respondent has placed
reliance upon the decision of the High Court of Calcutta in Ashoka
Marketing Limited & Anr. Vs. The Calcutta Stock Exchange Limited &
Ors. 2017 SCC Online Cal 15508 decided on 16.11.2017 wherein the
Calcutta High Court held that the provision of Section 21A(2) and
Section 23L operate in different fields and that the provision of Section
23L are not attracted to an appeal filed against the decision of the stock
exchange taken in the delisting process and that such a decision would
attract the provision of Section 21A(2) for the purpose of filling an
appeal.
3.

On the question of principle of harmonious construction the
learned counsel placed reliance upon a decision of Supreme Court in St.
Stephen’s College v. University of Delhi, (1992) 1 SCC 558 and in the
matter of South India Corporation (P) Ltd. Vs. Secretary, Board of
Revenue Trivandrum and Another, (1964) 4 SCR 280.
4.

It was also contended that if an appeal is preferred under Section
21A(2) the said appeal can be preferred only with the stipulated period
prescribed therein and that the delay in filing the appeal beyond the
stipulated time cannot be condoned by the Tribunal. In support of this
contention the learned counsel placed reliance on a decision of the
Supreme Court in the matter of Singh Enterprises Vs. Commissioner of
Central Excise, Jamshedpur And Others (Civil Appeal No. 5949 of
4
2007), decided on 14.12.2007 and in the matter of S.P. Perumal Vs. V.
Ramasamy and Others (Company Appeal (AT) No. 263 of 2018)
decided on 08.01.2019, the National Company Law Appellate Tribunal,
New Delhi.
5.

We have heard Shri Akshit Jain the learned counsel for the
appellant and Shri Jitendra Motwani the learned counsel for the
respondent
6.

Before dealing with the submissions raised by the learned counsel
for the respondent it would be essential to peruse the provisions of the
SCRA.
7.

Section 21A provides for delisting of securities. For facility, the
said provision is extracted hereunder:
“Delisting of securities.
21A (1) A recognised stock exchange may delist the
securities, after recording the reasons therefor, from
any recognised stock exchange on any of the ground
or grounds as may be prescribed under this Act:
Provided that the securities of a company shall not be
delisted unless the company concerned has been given
a reasonable opportunity of being heard.
(2) A listed company or an aggrieved investor may
file an appeal before the Securities Appellate Tribunal
against the decision of the recognised stock exchange
delisting the securities within fifteen days from the
date of the decision of the recognised stock exchange
delisting the securities and the provisions of sections
5
22B to 22E of this Act, shall apply, as far as may be,
to such appeals:
Provided that the Securities Appellate Tribunal may,
if it is satisfied that the company was prevented by
sufficient cause from filing the appeal within the said
period, allow it to be filed within a further period not
exceeding one month.”
Section 21A(2) provides that a listed company or an aggrieved investor
may file an appeal before the Securities Appellate Tribunal against the
decision of the recognised stock exchange delisting the securities within
fifteen days from the date of the decision. The proviso to Section 21A(2)
states that the Securities Appellate Tribunal may further extend the
period for filing the appeal not exceeding one month, if sufficient cause
is shown.

Thus, a specific provision for filing an appeal has been
provided under Section 21A(2) against the decision of the recognised
stock exchange delisting the securities. We are further of the opinion,
that the Tribunal being a creature of statute has no jurisdiction to condone
the delay beyond this stipulated time provided under the Act. The appeal
is therefore required to be filed within fifteen days from the date of the
decision which can be extended not exceeding one month. After one
month, the Tribunal has no power to extend the period or condone the
delay where an appeal is filed after the stipulated period. In this regard,
provision of Section 22D of the Act will not be helpful which provides
that the provisions of the Limitation Act, 1963 shall, as far as may be,
apply to an appeal made to a Securities Appellate Tribunal.

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8.

A perusal of Section 21A(2) and the proviso makes it clear that a
period of limitation is prescribed which is different from the period
prescribed in the Limitation Act. Therefore, Section 22D of the SCRA
cannot be come to the aid in extending the period of limitation under
21A(2) because the provision of the Limitation Act only apply “as far as
may be”. For facility, the provision of Section 22D of SCRA is extracted
hereunder:
“Limitation.
22D. The provisions of the Limitation Act, 1963 (36 of
1963) shall, as far as may be, apply to an appeal
made to a Securities Appellate Tribunal.”
9.

In view of the aforesaid, we are of the view that when there is a
special provision for filing an appeal within a stipulated period the
provision of Section 5 of the Limitation Act will not apply. Our view is
fortified by a decision of the Supreme Court in Bengal Chemists &
Druggists Association Vs. Kalyan Chowdhury (2018) 3 SCC 41 decided
on 02.02.2018. The Supreme Court held:
“4) A cursory reading of Section 421(3) makes it
clear that the proviso provides a period of limitation
different from that provided in the Limitation Act, and
also provides a further period not exceeding 45 days
only if it is satisfied that the appellant was prevented
by sufficient cause from filing the appeal within that
period. Section 433 obviously cannot come to the aid
of the appellant because the provisions of the
7
Limitation Act only apply “as far as may be”. In a
case like the present, where there is a special
provision contained in Section 421(3) proviso, Section
5 of the Limitation Act obviously cannot apply.”
10.

Section 23L provides a provision for an aggrieved person to file an
appeal to the Securities Appellate Tribunal. For facility, the said
provision is extracted hereinunder:-
“Appeal to Securities Appellate Tribunal.
23L. (1) Any person aggrieved, by the order or
decision of the recognized stock exchange or the
adjudicating officer or any order made by the
Securities and Exchange Board of India under 4B [or
sub-section (3) of section 23-I], may prefer an appeal
before the Securities Appellate Tribunal and the
provisions of sections 22B, 22C, 22D and 22E of this
Act, shall apply, as far as may be, to such appeals.
(2) Every appeal under sub-section (1) shall be filed
within a period of forty-five days from the date on
which a copy of the order or decision is received by
the appellant and it shall be in such form and be
accompanied by such fee as may be prescribed:
Provided that the Securities Appellate Tribunal may
entertain an appeal after the expiry of the said period
of forty-five days if it is satisfied that there was
sufficient cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the
Securities Appellate Tribunal may, after giving the
parties to the appeal, an opportunity of being heard,
8
pass such orders thereon as it thinks fit, confirming,
modifying or setting aside the order appealed against.
(4) The Securities Appellate Tribunal shall send a copy
of every order made by it to the parties to the appeal
and to the concerned adjudicating officer.
(5) The appeal filed before the Securities Appellate
Tribunal under sub-section (1) shall be dealt with by it
as expeditiously as possible and endeavour shall be
made by it to dispose of the appeal finally within six
months from the date of receipt of the appeal.”
A perusal of the aforesaid provisions indicates that any person aggrieved
by an order or decision of the recognized stock exchange or adjudicating
officer or any order made by Securities and Exchange Board of India
may prefer an appeal before this Tribunal within forty five days. The
proviso to Section 23L further indicates that the appeal can be entertained
after the expiry of the forty five days if the Tribunal is satisfied that there
was sufficient cause for not filing the appeal within the stipulated period.
Thus, a wide discretion is given to the Tribunal to condone the delay after
forty five days for which purpose the provision of Section 24D would
apply.

11.

In this regard, at this stage it may be pointed out that Section 21A
and Section 23L were both inserted in the SCRA by the Securities Laws
(Amendment) Act, 2004, w.e.f. 12.10.2004. Both the provisions came
into force simultaneously w.e.f. 12.10.2004. Section 21A and Section
23L provides a provision for filing an appeal against the decision of a
9
stock exchange.

At this stage, we also need to take a look at the
provisions of Securities Contracts (Regulation) (Appeal to Securities
Appellate Tribunal) Rules, 2000 (hereinafter referred to as the Rules of
2000) which have been framed in exercise of the powers conferred by
Section 30 read with Section 22A of the SCRA, 1956. Rule 2(b) of the
Rules of 2000 defines “appeal” as under:-
“2(b) “appeal” means an appeal filed under section
21A or section 22A or section 23L of the Securities
Contracts (Regulation) Act, 1956 or under sub-rule (5)
of rule 19 or sub rule (5) of rule 20 of the Securities
Contracts (Regulation) Rules, 1957;]”
Rule 3 provides the period of limitation for filing an appeal. For facility,
the said provision is extracted hereunder:“Limitation for filing appeal.
3 [(1)] Where a recognised stock exchange acting in
pursuance of any power given to it by its bye-laws,
refuses to list the securities of any company, the
company shall be entitled to be furnished with reasons
for such refusal and may,—
(a) within 15 days from the date on which the
reasons for such refusal are furnished to it, or
(b) where the stock exchange had omitted or failed to
dispose of, within the time specified in sub-section
(1A) of section 73 of the Companies Act, 1956
(hereinafter in this rule referred to as the
“specified time”), the application for permission
for the shares or debentures to be dealt with on
10
the stock exchange, within 15 days from the date
of expiry of the specified time or within such
further period, not exceeding one month, as the
Appellate Tribunal may, on sufficient cause being
shown, allow, appeal to the Securities Appellate
Tribunal having jurisdiction in the matter against
such refusal, omission or failure, as the case may
be.
[(2) Every appeal shall be filed within a period of
forty-five days from the date on which a copy of the
order, against which the appeal is filed, of a
recognised stock exchange withdrawing admission to
dealings or suspending admission to dealings which
continues for a period exceeding three months in any
security/units or other instruments of a “collective
instrument scheme”, as defined under the Securities
and Exchange Board of India Act, 1992 (15 of 1992),
is received by the appellant:
Provided that the Appellate Tribunal may entertain an
appeal after the expiry of the period of forty-five days
if it is satisfied that there was sufficient cause for not
filing it within that period.]”
A perusal of the aforesaid Rule 3 makes it apparently clear, that an appeal
against the decision of a stock exchange shall be filed within forty five
days and that the period beyond forty five days can be condoned if
sufficient cause is shown to the Tribunal.

12.

Having given our thoughtful consideration in the matter and upon
perusing the provisions of Section 21A and Section 23L, we are of the
opinion that the provision of Section 23L are wide enough to embrace an
11
appeal filed against a decision of delisting. Section 23L cannot be given
a narrow interpretation so as to exclude the exercise which are covered
by Section 21A. The argument of the respondent that, if the matter is
covered by Section 21A then Section 23L would be inapplicable by
necessary implication especially when there is a specific provision cannot
be accepted. There is no doubt that when there is a specific provision
then it must be governed by that provision and not by the general
provision (in terms of the latin maxim “generalia specialibus non
derogant”) i.e. to say whenever a specific remedy is made available in
law, the other remedy, more general in nature, necessarily gets excluded.
In our view, this principle of a specific remedy would exclude the general
remedy would not be applicable in the instant case. This sound principle
of jurisprudence, namely, that a special provision on a matter excludes
the matter of a general provision on that matter cannot be applied in a
situation when there are two provisions dealing with remedies in filing an
appeal. When there is a plurality of remedies, the principle of specific
provision excluding the general provision by necessary implication will
not be applicable.

In the instant case, there is no conflict between the
two provisions namely Section 21A and Section 23L. Even if the two
remedies happen to be inconsistent, they continue for the person
concerned to choose from, until he elects one of them. In this regard, the
doctrine of election will come into play and the aggrieved person has the
remedy either to file an appeal under Section 21A or under Section 23L.

13.

In Bihar State Co-operative Marketing Union Ltd., Vs. Uma
Shankar Sharan and Anr. AIR 1993 SC 1222 the question which was
12
considered was whether a matter, if it comes within the scope of Section
40 of the Bihar and Orissa Co-operative Societies Act, 1935 has to be
excluded from the purview of Section 48 of the Act. The Supreme Court
held that both the provisions were applicable for the purpose of filing an
appeal and that both the provisions were held to be available to the
appellant. The Supreme Court held:-
“6.

Validity of plural remedies, if available under the
law, cannot be doubted. If any standard book on the
subject is examined, it will be found that the debate is
directed to the application of the principle of election,
where two or more remedies are available to a person.
Even if the two remedies happen to be inconsistent,
they continue for the person concerned to choose from,
until he elects one of them, commencing an action
accordingly. In the present case there is no such
problem as no steps under S.40 were ever taken by the
appellant. The provisions of S.48 must, therefore, be
held to be available to the appellant for recovery of the
loss.”
The said decision is squarely applicable in the instant case and
consequently the decision of the Calcutta High Court in the matter of
Ashoka Marketing Limited & Anr. Vs. The Calcutta Stock Exchange
Limited & Ors. 2017 SCC Online Cal 15508 decided on 16.11.2017
stands impliedly overruled.

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14.

The contention that there has to be a harmonious construction of the
two Rules would not applicable in the instant case as there is no conflict in
the two provisions. The principle of harmonious construction would be
applicable when there is a conflict between two provisions. The Rule of
construction is well settled namely, that when there are, in an enactment,
two provisions which cannot be reconciled with each other, they should be
so interpreted, that if possible, effect should be given to both. This is
known as harmonious construction. A familiar approach in such cases is
to find out which of the two apparently conflicting provisions is more
general and which is more specific and to construe the more general one
so as to exclude the more specific. The question as to the relative nature
of the provisions general or special has to be determined with reference to
the area and extent of their application either generally or specially in a
particular situation. The principle is expressed in the maxim ‘generalia
specialibus non derogant’ which means general things do not derogate
from special things and ‘generalia specialibus derogant’ which means that
special things derogate from general things i.e. to say if a special
provision is made on a certain matter, that matter is excluded from the
general provision.

15.

There is another aspect. Securities and Exchange Board of India
(Delisting of Equity Shares) Regulation, 2009 (hereinafter referred to as
the Regulation of 2009) have been framed in exercise of the powers
conferred by Section 31 read with Section 21A of SCRA. Under Chapter
V, Regulation 22 provides compulsorily delisting of the equity shares of a
company by a recognized stock exchange. Regulation 23 provides that
14
after the equity shares of a company are delisted, the stock exchange shall
appoint an independent valuer for determining the fair value of the
delisted equity shares. The promoter of the company, if aggrieved by the
determination of the fair value can only file an appeal under Section 23L
and not under Section 21A of SCRA. In the instant case, a composite
order under Regulation 22 and 23 of the Regulation of 2009 has been
passed by the stock exchange. Thus, an appeal determining the fair value
can be challenged in an appeal filed under Section 23L of the SCRA.

16.

In the light of the aforesaid, when two provisions deal with the
remedies of filing an appeal the doctrine of election will come into play
and it is open to an appellant to file an appeal either under Section 21A or
under Section 23L. We consequently hold that an appeal can be filed
against delisting of the securities under Section 23L. The appeal filed by
the appellant is thus maintainable.

17.

There is a delay of 73 days in filing the appeal. It has been urged
that the reason for the delay is that the appellant company has its
registered office at Ahmedabad, in Gujarat and it took them some time to
find a specialized lawyer dealing in securities market. Thereafter, it took
some time to collect, compile as well as collate various documents as
required by the advocate.

It was also urged that the appellant is in
financial difficulties and that they had to pool the resources to file the
appeal which also took time.

It was contended that they are not
aggrieved by the order of delisting but are only aggrieved by the
determination of the fair value as determined by the independent valuer at
15
` 9.07 per equity share for which purpose they approached the respondent
to provide the details with regard to the determination of the fair value. It
was contended that since no information was supplied the present appeal
was filed along with an application for condoning the delay.

18.

Having heard the learned counsel for the parties, on this aspect we
are of the opinion that sufficient cause has been explained by the
appellant which is adequate as well as satisfactory and, therefore, we are
of the opinion, that the delay of 73 days in filing the appeal should be
condoned. The Supreme Court in Ram Nath Sao alias Ram Nath Sahu
& Ors. Vs. Gobardhan Sao & Ors (2002) 3 SCC 195 held that the
expression “sufficient cause” should receive a liberal construction so as
to advance substantial justice when no negligence or inaction or want of
bonafides is imputable to a party. Consequently, the delay in filing the
appeal is condoned and the application for condonation of delay is
allowed.

19.

List the appeal for admission on 28.02.2019.

Sd/Justice Tarun Agarwala
Presiding Officer
Sd/Dr. C.K.G. Nair
Member
25.02.2019
Prepared & Compared By: PK