Order against Medusa Associates Pvt Ltd

 

 

1. Wiezmann Capital Ltd, a merchant banker, filed a draft open offer document dated April 21, 2001 for acquiring 640,000 shares of Ketaki Estate & Finance Ltd (hereinafter referred to as ‘KEF’), on behalf of the acquirer Shri Jithendernath Alluri and persons acting in concert with him viz., Smt. Rajeshwari Alluri, Smt. Chintalapati Laxmidevi and Smt. Swati Alluri. KEF is listed public company having its registered office at Mumbai. As per the aforesaid draft offer document the acquirers, vide Memorandum of Understanding dated March 12, 2001, agreed to acquire 1,636,530 equity shares of KEF from the persons who were part of promoter group viz., Expert Hotel & Properties Pvt Ltd, Fundamental Finvest Pvt Ltd, G.S. Modi, M. Chand Distributing Co. Pvt Ltd, Narayan Distributors Pvt Ltd, New Ways Finance Pvt Ltd, Nikat Finlease Ltd, Rajhans Exports Pvt Ltd, RKM Securities Pvt Ltd, Saraf Credit & Portfolio Pvt Ltd, Sincere Management Services Pvt Ltd, Subam Capital Services Pvt Ltd, Tyagi Trading Pvt Ltd, Prabhat Management Services Pvt Ltd, RRP Management Services Pvt Ltd, Joginder Associates Pvt Ltd, R.K. Bansal Finance Ltd, Sunlog Credit Pvt Ltd, Medusa Associates Pvt Ltd, (hereinafter collectively referred to as ‘the sellers’). The aforesaid agreement to acquire shares and the consequential change in control and management of KEF triggered the open offer for which the aforesaid offer document was filed. As per Para No.4.15 of the aforesaid offer document, chapter II of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 (hereinafter referred to as ‘SAST’ Regulations) were not complied by the sellers. Based on the aforesaid information with respect to the non-compliance of SAST Regulations by the sellers it was decided to launch adjudication under Sec. 15A(b) of SEBI Act, 1992 against the sellers.
    
2. SEBI appointed Smt. Poonam Bamba as the Adjudicating Officer under Rule 3 of SEBI (Procedure For Holding Inquiry And Imposing Penalties By Adjudicating Officer) Rules, 1995 read with Section 15 I of SEBI Act, 1992 to inquire into and adjudge the failure of Medusa Associates Pvt. Ltd., (hereinafter referred to as ‘MAL’ for the sake of brevity) to make disclosures of its share holding in KEF to the company, in violation of Regulations 6(1) & (3) and 8(1) and (2) of the SEBI (SAST) Regulations, 1997 under 15A(b) of the SEBI Act, 1992, vide order dated May 02, 2001. 
   
    
3. In view of the launching of the amnesty scheme by SEBI in the year 2002, the matter was kept in abeyance. Subsequently, Shri S.V. Krishna Mohan was appointed as Adjudicating Officer in the place of Smt Poonam Bamba vide order dated March 18, 2004 as the sellers did not avail the amnesty scheme. Thereafter, vide the order dated December 07, 2004 the undersigned has been appointed as Adjudicating Officer in the matter.
   
4. Notice dated July 10, 2001 was issued to MAL under Rule 4(1) SEBI (Procedure For Holding Inquiry and Imposing Penalties By Adjudicating Officer) Rules, 1995 communicating the alleged violation of provisions of SEBI (SAST) Regulations, 1997 as detailed under:

Sl. No (1)	SAST Regulation (2)	Due date for compliance as per regulation (3)	Actual date of compliance (4)	Delay (no. of days) (4)-(3)
1	6(1) & (3)	20.04.1997	-	(not complied)
2	8(1) & (2)	21.04.1997	-	(not complied)
3	8(1) & (2)	21.04.1998	-	(not complied)
4	8(1) & (2)	21.04.1999	-	(not complied)
5	8(1) & (2)	21.04.2000	-	(not complied)
6	8(1) & (2)	21.04.2001	-	(not complied)

 

1. The notice also called up on MAL to show cause as to why an inquiry in terms of the adjudication rules should not be conducted against it. However, MAL did not reply to the notice. In the above circumstances the then Adjudicating Officer was of the view that an inquiry should be held in the matter and accordingly notice of inquiry dated October 16, 2002 was issued to MAL, fixing the date for inquiry on October 30, 2002. However, the said notice was returned undelivered by the postal authorities. Subsequently, vide letter dated November 23, 2002, MAL submitted that it would avail amnesty scheme announced by SEBI.

 

1.  Subsequently, one more notice of inquiry, was issued to MAL by Shri S.V. Krishna Mohan, the then Adjudicating Officer vide letter dated June 21, 2004, fixing August 12, 2004 as the date of inquiry, on noticing that MAL did not avail the amnesty scheme. The said notice of inquiry was sent by registered post with acknowledgement due however, the same was returned undelivered. Subsequently, another notice of inquiry dated December 14, 2004 was issued by the undersigned fixing January 6, 2005 as the date of inquiry. However, the said notice of inquiry was returned undelivered by the postal authorities. In these circumstances, the undersigned requested the Northern Regional Office of SEBI at New Delhi to affix the fresh notice of inquiry in terms of Rule 7(c) of Securities and Exchange Board of India (Procedure for Holding Inquiry and Imposing Penalty by Adjudicating Officer) Rules, 1995. As per the said notice of inquiry dated January 5, 2005, January 20, 2005 was fixed as the date of hearing. Vide letter dated January 18, 2005, Shri Piyoosh Gupta, Regional Manager of the Northern Regional Office of SEBI at New Delhi informed the undersigned that at the address of MAL, presently a new building is being constructed and there was even no place to paste the notice.

 

1.  In the above circumstances, the undersigned decided in terms of Rule 4(7) of SEBI (Procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995 to proceed with the inquiry based on the record available at his end as all the efforts to serve the notice on MAL were proved futile.

 

1. The relevant Regulations in the instant matter are as follows:

6(1) Any person, who holds more than five per cent shares or voting rights in any company, shall within two months of notification of these regulations disclose his aggregate shareholding in that company, to the company.

 

6(3) A promoter or any person having control over a company shall within two months of notification of these regulations disclose the number and percentage of shares or voting rights held by him and by person(s) acting in concert with him in that company, to the company.

 

8(1) Every person, including a person mentioned in regulation 6 who hold more than fifteen percent shares or voting rights in any company, shall, within 21 days from the financial year ending March 31, make yearly disclosures to the company, in respect of his holdings as on 31^st March.

 

8(2) A promoter or ever person having control over a company shall, within 21 days from the financial year ending March 31, as well as the record date of the company for the purposes of declaration of dividend, disclose the number and percentage of shares or voting rights held by him and by persons acting in concert with him, in that company to the company.

 

1. Upon careful perusal of the Regulations, the undersigned is inclined to give MAL the benefit of doubt for the alleged violation of Regulation 6(1) SEBI (SAST) Regulations, 1997 for the reason that there is no information available on record pertaining to the number and percentage of shares of KEF held by MAL nor MAL stated its quantum of holding in KEF at the relevant time. It merely stated that it would avail the amnesty scheme.

 

1. However, MAL did not dispute that it was part of the promoter group. Therefore, MAL was under obligation under regulation 6(3) not only to disclose its own holding to KEF by April 20, 1997 but it was also required to disclose the number and percentage of shares of KEF held by persons acting in concert with it. In the instant case that would mean the shareholding of all the promoters of KEF. There is nothing on record to suggest that MAL made the disclosure in the aforesaid manner. Therefore, the undersigned finds MAL violating the provisions of regulation 6(3) of SEBI (SAST) Regulations, 1997.

 

1. The aforesaid finding is applicable mutatis mutandis in respect of regulation 8(2) also. Therefore, violation of regulation 8(2) of SEBI (SAST) Regulations, 1997 is also established as there is nothing on record to suggest that MAL has made the annual disclosure for the years 1997-2001.

 

1. However, violation of regulation 8(1) of the SEBI (SAST) Regulations, 1997 is not established as it pertains to annual disclosure by persons who hold more than 15% of the target company’s equity and the material on record does not provide information on the shareholding of MAL. The above findings are summarized in table below.

 

1. SEBI came out with ‘SEBI Regularization Scheme, 2002 for Non compliance with Regulations 6 and 8 of the SEBI (SAST) Regulations, 1997’. This scheme was open from 01.10.02 to 31.12.02 and subsequently extended till 20.02.03. It is unambiguous from the material made available to the undersigned by SEBI that MAL did not participate in the aforesaid amnesty scheme. The violations being thus established as above, only the quantum of penalty to be imposed on MAL remains to be decided.

 

1. The information on holding of the promoter in the target company is vital to the investors as it has bearing on the control and management. When there is more than one promoter, it is imperative that the information on their individual and aggregate shareholding is made available to the investors, through the stock exchanges. However, when the collective shareholding of the promoters is not disclosed, as in the instant case, then investors are forced to take investment decisions on insufficient information. That would be the anti- thesis of the spirit of SEBI (SAST) Regulations, 1997.

 

1. In this context the order dated March 20, 2002 of the Hon’ble SAT in the appeal no. 48 of 2001 in the matter of Luxury Foams Ltd. vs SEBI may be cited. The relevant portion is reproduced here for ready reference.

 

“In this context, the object of the regulation should be remembered. It is meant for “information disclosure” to the investors. Had one of the appellants complied with the requirements of disclosing the acquisition of shares made by him and the remaining 10 appellants, it would have been considered sufficient, as such an action would have met with the object for which the regulation is put in place. But since there is a failure in this regard, imposition of penalty on each one of the appellants –acquirers-is legally in order.”

 

1. From the above, it is clear that the duty to make disclosure under Regulation 6(3) & 8(2) of SEBI (SAST) Regulations, 1997 is joint and several in nature and if there is a violation, the liability for penalty is also joint and several in nature.

 

1. Section 15A(b) of Securities and Exchange Board of India Act, 1992 prescribes a punishment of five thousand rupees for every day during which the violation continues, if any person who is required under the Act or any rules or regulations made thereunder to file any return or furnish any information, books or other documents within the time specified therefor in the regulations, fails to file return or furnish the same within the time specified therefor in the regulations. With effect from October 29, 2002, the aforesaid punishment has been increased to one lakh rupees for each day or one crore rupees whichever is less.

 

1. To determine the quantum of penalty under Section 15A(b), the undersigned considered the following factors as provided in the section 15J of SEBI Act, 1992 viz.(a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default ; (b) the amount of loss caused to an investor or group of investors as a result of the default and; (c) the repetitive nature of the default.

 

1. As regards the disproportionate gain or unfair advantage there are no quantifiable figures available on record with respect to the default of the company. There are also no figures or data on record to quantify the amount of loss caused to an investor or group of investors as a result of the default. However, the default in disclosure to the company was repetitive in nature as the disclosures were not made consecutively for several years.

 

1. Therefore in exercise of the powers conferred under section 15-1(2) of the SEBI Act, 1992, read with Rule 5 of the Securities and Exchange Board of India (procedure for Holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, the undersigned hereby imposes a penalty of Rs 65,000/- (Rupees sixty five thousands only) on Medusa Assocaites Pvt. Ltd. for the aforesaid violations. MAL shall pay the said amount of penalty by way of demand draft in favour of “SEBI- Penalties Remittable to Government of India”, payable at Mumbai within 45 days of receipt of this order. The said demand draft should be forwarded to Shri S.V. Muralidhar Rao, General Manager, Division of Corporate Restructuring, Mittal Court, 1^st floor, “B” Wing, 224, Nariman Point, Mumbai 400 021.

 

1. In terms of Rule 6 of the SEBI (Procedure for holding Inquiry and Imposing Penalties by Adjudicating Officer) Rules, 1995, copies of this order are sent to MAL and also to SEBI.

 

Date: January 27, 2005                                  A. Chandra Sekhar Rao

Place: Mumbai                                                   Adjudicating Officer