Bombay High Court: Petitioner raised a challenge to the communication dated 13-09-2021, issued by SEBI, appointing KPMG Assurance and Consulting Services (‘KPMG’) as the Forensic Auditor regarding financial statements of Respondent 4, Shirpur Gold Refinery Ltd. for financial years 2018-2019 to 2020-2021. The report submitted by KPMG was also under challenge. The Division Bench of A.S. Chandurkar and Rajesh S. Patil, JJ., held that as the challenge to the communication dated 13-09-201 was raised belatedly for which there was no justifiable explanation and the fact that an interim order passed by SEBI on 25-04-2023 had gone unchallenged, it was not inclined to entertain petitioner’s challenge to the communication dated 13-09-021 issued by SEBI and the report dated 21-03-2023 submitted by KPMG. The Court disposed of the writ petition and stated that petitioner was free to pursue the matter before SEBI in accordance with law.
Counsel for petitioner submitted that KPMG was not eligible to be called upon to submit a Forensic Report as it did not satisfy the eligibility criteria prescribed under the tender issued by SEBI. KPMG was not registered as required by Section 2(1)(ca) of the Chartered Accountants Act, 1949 and it also did not have any FRN registration or CIN number. It was submitted that KPMG on 21-03-2023 submitted a Project Aurum Report which could not be called a Forensic Report and there was no reference to any Unique Document Identification Number in the said report which was mandatory. Further, in the list of firms registered with Respondent 3, Institute of Chartered Accountants of India, KPMG’s name as a registered firm was not indicated.
Counsel for respondents submitted that the petition suffered from delay and laches and KPMG was appointed as forensic auditor on 13-09-2021. After inspection of the relevant records, KPMG submitted its report and thereafter, SEBI passed an interim order on 25-04-2023 and issued a show cause notice to petitioner. The interim order was appealable under the Securities and Exchange Board of India Act, 1992 but petitioner did not file any appeal challenging the said order and replied to the show cause notice raising similar grounds of defence therein.
The Court opined that the writ petition was not liable to be entertained on the grounds that a belated challenge was raised to the communication dated 13-09-2021 and the consequent report submitted by KPMG. The Court noted that after KPMG was appointed as the Forensic Auditor pursuant to the communication dated 13-09-2021, it submitted its report on 21-03-2023. SEBI considered the report, passed an interim order, and issued a show cause notice on 25-04-2023, and this interim order was not challenged by availing any statutory remedy. The Court also noted that petitioner submitted his reply to the show cause notice on 04-04-2024 and the matter was under consideration by SEBI and the present writ petition was filed only on 15-04-2024.
The Court took note of the fact that petitioner had already questioned the appointment of KPMG as forensic auditor and opined that as petitioner raised all these grounds while replying to the show cause notice dated 25-04-2023, he ought to pursue the same in accordance with law.
The Court held that as the challenge to the communication dated 13-09-201 was raised belatedly for which there was no justifiable explanation and the fact that an interim order passed by SEBI on 25-04-2023 had gone unchallenged, it was not inclined to entertain petitioner’s challenge to the communication dated 13-09-021 issued by SEBI and the report dated 21-03-2023 submitted by KPMG. The Court stated that as petitioner filed reply to the show cause notice and had already questioned the appointment of KPMG as Forensic Auditor and the Report, he was free to pursue the matter before SEBI in accordance with law.
The Court disposed of the writ petition and stated that all grounds of challenge raised by petitioner to the communication dated 13-09-2021 issued by SEBI and the report dated 21-03-2023 submitted by KPMG were kept open.
[Amit Goenka v. SEBI, 2024 SCC OnLine Bom 2624, decided on 14-08-2024]
Advocates who appeared in this case :
For the Petitioner: Pradeep Sancheti, Senior Advocate with Vikramaditya Deshmukh, Shreni Shetty, Antara Kalmbi i/by ANB Legal
For the Respondents: Mustafa Doctor, Senior Advocate with Vidhi Shah Ajmera, Mihir Mody with Harshavardhan Melanta, Shreyas Menkudale i/by K. Ashar & Co., Advocates; Sagar Divekar with Abhimanyu Mhapankar, Advocates; Siddhesh Bhole with Advocate Riddhi Natekar i/by SSB Legal and Advisory
