SEBI’s order of arrest and detention set aside for being arbitrary and illegal

Bombay High Court: Setting aside the order of arrest of an individual defaulter, a bench comprising of Ranjit More and Anuja Prabhudessai, JJ held that the order of the recovery officer of SEBI to be arbitrary, illegal and sheer abuse of power. In the instant case the SEBI officer had committed the petitioner to civil imprisonment for a period of six months or until the dues are paid, for defaulting on payment of monetary penalty imposed on him by SEBI in the past. 

The Counsel for the petitioner contended that that SEBI officer had failed to comply with the provisions of arrest under Rule 73 of the IT Act, 1961 and had not even written down the reasons for arrest as stipulated under Rule 74. The Counsel for SEBI argued that the writ petition was not maintainable as  the petitioner had the alternate remedy of approaching the Securities Appellate Tribunal. It was also contended that despite giving several opportunities to the defaulter to repay the dues, the petitioner had not complied which had necessitated the order of arrest and detention.

The Court observed that it was a well settled principle of law that the existence of an alternate remedy would not serve as an absolute bar for not exercising writ jurisdiction. Relying on the judgment of the Supreme Court in Jolly George Varghese v Bank of Cochin (1980) 2 SCC 360, the Court held that mere non-payment of dues does not amount to neglect or refusal to pay. The operative condition would be the failure to take steps to pay an amount due in spite of having the means to do so or dishonestly transferring property to obstruct execution of certificate. The Court ordered the release of the Petitioner and remitted the matter back to the tax recovery officer with directions to decide it afresh in accordance with the provisions of law.  Vinod Hinigorani vs. The Securities & Exchange Board of India, 2015 SCC OnLine Bom 166510-3-2015

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