BEFORE THE SECURITIES APPELLATE TRIBUNAL
MUMBAI
Misc. Application No. 1 of 2012
With
Misc. Application No. 2 of 2012
And
Appeal No. 7 of 2012

 Date of decision: 25.04.2012 

Norben Tea & Exports Ltd.
Octavius Centre,
15B, Hemant Basu Sarani,
Calcutta – 700 001. … Appellant
Versus

1. Bombay Stock Exchange Limited
   a Stock Exchange recognized under
   Section 4 of the Securities Contracts (Regulation)
   Act, 1956 and having its registered office
   at Floor 25, P.J. Towers, Dalal Street,
   Mumbai – 400 001.
2. Securities and Exchange Board of India
   SEBI Bhavan, Plot No.C-4A, ‘G’ Block,
   Bandra Kurla Complex, Bandra (East),
   Mumbai – 400 051.
3. Stock Brokers Pvt. Ltd.
   a company incorporated under the
   provisions of the Companies Act, 1956,
   having its address at R-410,
   Rotunda Building, Mumbai Samachar
   Marg, Mumbai – 400 001. … Respondents

2
Mr. Avinash B. Avhad, Advocate with Ms. Meena Kshirsagar, Advocate
for the Appellant.
Mr. Somasekhar Sundaresan, Advocate with Mr.Ravichandra Hegde, Advocate
for Respondent No.1
None for Respondent No.2.
None for Respondent No.3.
Coram : P. K. Malhotra, Member & Officiating Presiding Officer
S.S.N. Moorthy, Member
ORDER:
The appellant before us is a compa ny incorporated under the Companies Act,
1956 and is listed with the Bombay Stoc k Exchange (BSE) and National Stock
Exchange Limited (NSE). BSE issued a notice dated January 3, 2002 to all members of
the exchange informing that trading in th e securities of 281 companies listed in the
annexure to the said notice, will be suspended w.e.f. January 7, 2002 until further notice
on account of non-payment of annual listing fee by the companies for the financial year
2001-02. Name of the appellant appears at sr . no. 163 of the said list. The present
appeal has been filed on January 2, 2012 pr aying for setting asid e the said notice and
also for quashing the demands on account of reinstatement fees made by BSE.

2. It is the case of the appellant that notice dated January 3, 2002 was never
   communicated to the appellant and the demand for reinstatement fee is arbitrary and bad
   in law. Although in para IV of the memo of appeal, the appe llant had declared that the
   appeal is filed within the limitation period as prescribed in the Securities Contract
   (Regulations) Act, 1956, the appellant has al so filed an application for condonation of
   delay on the ground that there has been a series of correspondence between the
   appellant and the respondents where the issue remained unresolved and that it is in the
   interest of justice that delay in filing the appeal may be condoned.
3. The application for condonation of de lay is contested by BS E stating that no
   sufficient cause or even a re asonable cause has been shown for condoning the delay of

3
more than 118 months. It is, therefore, pr ayed by the learned counsel of BSE that the
application for condonation of delay should be dismissed and consequently the appeal
would not survive for consideration.

4. Having heard the learned counsel for the parties and having perused the record,
   we are of the view that the delay in filing the appeal is considerable. The onus to show
   that sufficient cause exists for condonati on of delay lies on the appellant. It is
   obligatory upon the appellant to show suffici ent cause due to which it was prevented
   from continuing to prosecute the proceedings before the appropriate appellate forum. In
   the application for condona tion of delay, it is stat ed that the impugned notice dated
   January 3, 2002 suspending the trading in the securi ties of the company w.e.f.
   January 7, 2002 on account of non-payment of listing fee was not communicated to the
   appellant and, therefore, there was no occasi on for the appellant to challenge the same.
   However, we find that as early as on January 28, 2002, the appellant asked BSE to
   quantify the reinstatement fee payable by the ap pellant so that it could issue a demand
   draft for the said amount. On February 1, 2002, BSE quantified th e reinstatement fee
   payable by the appellant and also inti mated the appellant about the compliance
   requirements under the listing agreement. Assuming that the appellant had not received
   notice dated January 3, 2002, it became aware about the same prior to January 28, 2002
   when it asked BSE to quantity the reinstatem ent fee payable by it . The BSE vide its
   letter dated February 1, 2002, informed th e appellant that the revocation of the
   suspension in the securities of the company will be subject to the appellant complying
   with certain formalities mentioned in the lett er including payment of reinstatement fee.
   The appellant was again informed about th e non-payment of reinstatement fee by BSE
   vide its letter dated February 19, 2002. Ho wever, the appellant neither paid the
   reinstatement fee nor challenged the de cision of BSE demanding the same for
   revocation of suspension of trading in the secu rities of the appellant. It is stated by the
   appellant that there was a series of corre spondence between the parties where the issue
   remained unresolved and it did not make the decision of BSE absolute. We do not find
   any merit in this contention of the appellant. The decision of BSE was abundantly clear

4
that revocation of suspension will be subject to, inter alia, payment of reinstatement fee.
In spite of this clear decision, the appellant kept on corresponding with BSE. It is settled
legal proposition that repeated representations will not save the limitation and cannot be
considered sufficient cause for condonation of delay.

5. The liberal construction of the expr ession “sufficient cause” for condonation of
   delay is intended to advance substantial ju stice which itself presupposes no negligence
   or inaction on the part of the appellant to whom want of bona fide is imputable. The
   Hon’ble Supreme Court in the case of Balwant Singh v. Jagdish Singh [(2010) 8 SCC
   685] has observed that even if the term “sufficient cause” has to receive liberal
   construction, it must squarely fall within the concept of reasona ble time and proper
   conduct of the party concerned. The purpos e of introducing liberal construction
   normally is to introduce the concept of reasona bleness as it is understood in its general
   connotation. The Hon’ble Court further observed as under:
   “The law of limitation is a s ubstantive law and has definite
   consequences on the right and obligation of a party to arise. These
   principles should be adhered to and applied appropriately depending
   on the facts and circumstances of a given case. Once a valuable right
   has accrued in favour of one party as a result of the failure of the
   other party to explain the delay by showing sufficient cause and its
   own conduct, it will be unreasonable to take away that right on the
   mere asking of the applicant, particularly when the delay is directly a
   result of negligence, default or inaction of that party. Justice must be
   done to both parties eq ually. Then alone the en ds of justice can be
   achieved. If a party has been thoroughly negligent in implementing
   its rights and remedies, it will be equally unfair to deprive the other
   party of a valuable right that has accrued to it in law as a result of his
   acting vigilantly.”
   It has also been observed in the same judgmen t that delay is just one of the ingredients
   which has to be considered by the Court and in addition to this, the Court must also take
   into account the conduct of the parties, bona fide reasons for condonation of delay and
   whether the said delay could easily be avoided by the applicant acting with normal care
   and caution.
6. Examined in the above perspective, we are of the view that the appellant has
   failed to show any cause, much less a suffi cient cause, for condoning the delay of more

5
than 118 months in filing the appeal. Even the application filed by the appellant does
not contain the correct and true facts. There are no reasons shown as to what steps were
taken during the period and why immediate steps were not taken by the appellant to file
an appeal before the appropriate forum. Ther efore, we have no hesitation in dismissing
the miscellaneous application for condonation of delay. Consequently the miscellaneous
application praying for restraint order and the main appeal do not survive.
The two miscellaneous applications and the appeal stand dismissed with costs
which are assessed at ` 10,000.

Sd/-
P. K. Malhotra
Member &
Officiating Presiding Officer
Sd/-
S.S.N. Moorthy
Member
25/4/2012
Prepared & compared by-ddg