IN THE OFFICE OF THE ADJUDICATING OFFICER,
SECURITIES & EXCHANGE BOARD OF INDIA, 3rd FLOOR
L & T CHAMBERS
16, CAMAC STREET
KOLKATA – 700 017
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ORDER NO. Adj/Kol/35/04
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FILE NO. EDIFAR/35/2004
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DATE : 29-11-2004
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Passed By : SHRI JAYANTA JASH
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Despatched On : 29-11-2004
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ORDER IN ORIGINAL IN THE MATTER OF FILING OF DOCUMENTS ON THE ELECTRONIC DATA INFORMATION FILING AND RETRIEVAL (EDIFAR) WEBSITE UNDER CLAUSE 51 OF THE LISTING AGREEMENT BY NORBEN TEA & EXPORTS LTD.
N.B. i) This copy is granted free of cost for the use of the person to whom it is issued.
Name and address of the party : Norben Tea & Exports Ltd.
of 15B, Hemant Basu Sarani
Kolkata - 700001
Show cause Notice(s) : One
Number and Date : SEBI/ERO/JJ/2004/7789
July 9, 2004
Notice for Hearing : One
Number and Date : SEBI/ERO/BM/2004/7869
July 27, 2004
Nature of Contravention : Alleged non-compliance of
Clause 51 of the Listing Agreement read with Regulation 17(3) {erstwhile Regulation 18(3) of the SEBI (Central Listing Authority) Regulation, 2003} in the matter of filing of information on the EDIFAR website.
Present during the hearing : A.K. Labh
held on August 16, 2004 at SEBI’s Authorised Representative
Kolkata Office
1.0 ORDER OF APPOINTMENT:
1.1 The undersigned has been appointed as an Adjudicating Officer by Securities and Exchange Board of India in terms of an Order dated June 30, 2004, to conduct an enquiry into alleged non compliance with the requirements of Clause 51 of the Listing Agreement read with Regulation 17(3) {erstwhile Regulation 18(3)} of the SEBI (Central Listing Authority) Regulations, 2003 by M/s Norben Tea & Exports Ltd.
2. SHOW CAUSE NOTICE & HEARING:
2.1 On appointment as Adjudicating Officer, as per the procedure laid down in SEBI (Procedure for holding inquiry and imposing penalty by Adjudicating Officer) Rules, 1995 (hereinafter referred to as the "SEBI Rules") a notice dated July 9, 2004 in accordance with Rule 4 of SEBI Rules, was served on M/s Norben Tea & Exports Ltd. calling upon it to show cause within 15 days as to why an enquiry should not be held against them for the alleged violations mentioned in the Order.
2.2 The company was also called upon to explain by giving a written reply including evidence, if any, within 15 days from the date of service of the notice as to why an inquiry should not be held against them for imposing penalty in accordance with Section 15 A(b) of Securities and Exchange Board of India Act 1992 read with the said Regulations and also the said Rules. The company submitted its reply vide letter dated July 14, 2004.
2.3 The company was also given an opportunity for personal hearing to provide adequate opportunity to present the views in the matter. Accordingly, an opportunity of personal hearing was granted in terms of provisions of sub-rule(3) of Rule 4 of the said Rules to the company vide letter No.SEBI/ERO/BM/2004/7869 dated July 27, 2004. The company was advised to be present before the Adjudicating Officer at SEBI, Eastern Regional Office, L& T Chambers 3rd Floor 16 Camac Street, Kolkata – 700017 on August 16, 2004.
2.4 Shri A.K. Labh, Authorised Representative appeared for the personal hearing on behalf of the company. During the personal hearing, Shri A.K. Labh made submissions in addition to the written reply to the show cause notice.
3. SUBMISSION OF THE COMPANY
3.1 Shri Labh has stated that the company applied to NSE for EDIFAR registration on February 15, 2003. He also submitted that since NSE vide their letter dated March 24, 2003 intimated that certain information like fax number and email id of the MD and Company Secretary got missed, the company filed fresh EDIFAR Registration form to NSE with full details vide its letter March 26, 2003. Shri Labh has stated that thereafter, the company received a letter dated March 26, 2003 from The Stock Exchange, Mumbai intimating the company about their applicability of EDIFAR and compliance of same. The company vide its letter dated March 31, 2003 intimated BSE that the application has already been filed with NSE in this regard. The company again received a second reminder dated April 25, 2003 from BSE regarding the same. The company vide its letter dated May 9, 2003 informed BSE that the entire set of papers have already been sent to NSE. He has stated that the company received user ID and password from Sr. Technical Director, NIC on July 28, 2004 by email. Thereafter, the company started filing their statements under EDIFAR and has filed the documents as on date of the hearing.
3.2 Shri Labh on behalf of the company has submitted that Quarterly results have been regularly intimated to the respective Stock Exchanges within prescribed time limit and regularly published in newspapers. He also submitted that the company had no intention of non-disclosure of any information to put the investors in difficulty in taking instant decision.
3.3 Shri Labh has stated that the company use to comply with the general provisions of the listing agreement at par regarding filing of documents/reports with the exchange on time. However, he submitted that the delay in EDIFAR filing was due to procedural formalities and has requested to condone the same.
4. FINDINGS:
4.1 I have carefully considered the reply filed by the company and also from the submissions made by them during the personal hearing. It is observed that the company applied to NSE for EDIFAR registration on February 15, 2003. Since NSE vide their letter dated March 24, 2003 intimated that certain information like fax number and email id of the MD and Company Secretary got missed, the company filed fresh EDIFAR Registration form to NSE with full details vide its letter March 26, 2003. It is observed that the company received user ID and password from Sr. Technical Director, NIC on July 28, 2004 by email and thereafter the company started filing their statements under EDIFAR and has filed the documents as on date.
4.2 Under clause 51 of the Listing Agreement the company was required to upload the following financial statements/documents with effect from quarter ended September 2002 in the EDIFAR website.
· Financial Statements comprising of Balance Sheet, Profit and Loss Account and full version of annual report, half yearly financial statements including cash flow statements and quarterly financial statements
· Corporate Governance report
· Shareholding pattern statement
· Action taken against the company by any regulatory agency
4.3 It is observed from the records that the company uploaded the information on EDIFAR site on July 29, 2004, i.e. after receiving the show cause notice dated July 4, 2003 vide which it was advised to show cause as to why the Adjudication Proceedings should not be initiated against the company for failing to comply with the requirements of Clause 51 of the Listing Agreement.
4.4 During the hearing Shri Labh informed that the company has filed the following statements under EDIFAR as on date.
4.5 On going through the EDIFAR website it is found that the company’s name appears in the EDIFAR website and financial information has been uploaded though it has been delayed.
4.6 It is observed from the submission of Shri Labh that the company has regularly intimated Quarterly results to the respective Stock Exchanges within prescribed time limit and regularly published the same in newspapers. He also submitted that the company had no intention of non-disclosure of any information to put the investors in difficulty in taking instant decision.
4.7 Shri Labh has stated that the company use to comply with the general provisions of the listing agreement. He submitted that the delay in EDIFAR filing was due to procedural formalities and has requested to condone the same.
4.8 The information as specified in Clause 51 of the Listing Agreement is of immense importance as it would help the investors to have information on the company and its management and also to have information on the functioning of the company. The company was required to upload the information from the quarter ended September 2002. The company started filing their statements under EDIFAR on July 28, 2004. Hence there was a delay of more than a year and a half to upload the information on the EDIFAR. Therefore submissions made by Shri Labh on behalf of the company cannot be accepted.
5. CONCLUSION
From the facts as stated above it is established that there has been non-compliance of Clause 51 of the Listing Agreement with respect to uploading of information on EDIFAR website and are liable to be penalized.
6. ORDER
6.1 In respect of the said contravention Regulation 18(3) of the CLA Regulation prescribes penalty under sub section (b) of Section 15A of SEBI Act .
While imposing penalty I have considered the contentions of the company that the delay in EDIFAR filing was due to procedural formalities. I have considered the reply of the company. I have considered the submission of the company that it has regularly intimated Quarterly results to the respective Stock Exchanges within prescribed time limit and regularly published the same in newspapers. I have also considered the submission of the company that it had no intention of non-disclosure of any information to put the investors in difficulty in taking instant decision. I have also considered the fact that the file does not contain evidence of extra effort taken by the company in receiving user ID for filing required statements under EDIFAR even after the due date. I have also considered the fact that the company has now uploaded information on the EDIFAR Website as stated during the hearing on August 16, 2004 though there has been considerable delay in uploading information. I have considered all the factors as specified in section 15(J) of the SEBI Act while adjudging quantum of penalty. Considering the facts and circumstances of the case and taking into account the contentions of the company, I consider that:
- a penalty of Rs. 20,000/- (Rupees Twenty Thousand) only be imposed in the company.
6.2 As such I hereby impose a penalty of Rs. 20,000/- (Rupees Twenty Thousand) only on the company. Hence the penalty amount of Rs. 20,000/- which shall be paid by the company by way of Demand Draft in favour of “SEBI – Penalties Remittable to Government of India”, Mumbai may be forwarded to Ms. Neelam Bharadwaj, Deputy General Manager, Securities and Exchange Board of India Mittal Court, ‘B’ Wing, 1st Floor, 224, Nariman Point, Mumbai – 400 021 within 45 days of receipt of this order.
| Date: December 29, 2004 |
(JAYANTA JASH ) |
| Place: KOLKATA |
Adjudicating Officer |