MUMBAI APPEAL NO.48/2001 In the matter of: Luxury
Foams Ltd.,
Vs. Adjudicating
Officer,
Appearance: Mr.
K.K. Agarwal
Mr.
Ananta Barua
Mr.
Vinay Chauhan
(Appeal arising out of the order dated July 24, 2001, made by the Adjudicating Officer, Securities and Exchange Board of India) ORDER Securities
and Exchange Board of India (SEBI), received certain complaints relating
to the preferential allotment of shares made by one company, namely Websity
Infosys Ltd (the company). The said preferential allotment was made to
the Appellants who belong to the promoter group of the company. SEBI, on
September 19, 2000 issued show cause notice to the company and the Appellants,
asking them to explain their conduct with reference to their alleged failure
to comply with the requirements of the Securities and Exchange Board of
India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997
(the 1997 Regulations) in the matter of the said preferential allotment
of shares made by the company. The company vide its reply dated October
10, 2000 denied violation of any of the provisions of the 1997 Regulations,
mainly on the ground that the preferential allotment in question was exempt
in terms of regulation 3(1)(c) of the 1997 Regulations. Since the company�s
explanation was not found satisfactory, SEBI decided to inquire into the
matter. For the purpose SEBI appointed an Adjudicating Officer under Section
15 I of the Securities and Exchange Board of India Act, 1992 (the Act).
The Adjudicating Officer concluded the inquiry holding the Appellants guilty
of failure to comply with the requirements of section 15 H and imposed
monetary penalty at the rate of Rs. 40, 000 against each of the Appellants,
vide his order dated July 24, 2001. The said order is under challenge in
the present appeal.
The Board
of Directors of the company in their meeting held on October 5, 1999 made
preferential allotment of 41, 81,700 fully paid up equity shares of Rs.
10/- each and 4, 40, 00, 000 partly paid equity shares at the rate of Re.1/-
each, for consideration other than cash, to the following persons belonging
to the promoter group.
According
to the Appellants since acquisition of shares in a preferential allotment
is exempted in terms of regulation 3(1) (c) they are not required to comply
with the requirements of regulations 10, 11 and 12. Shri K.K. Aggarwal,
authorised representative of the Appellants submitted that the entire adjudication
proceeding and the order made by the Respondent is bad in law for the reason
of non inclusion of the necessary party i.e. the issuer company, as most
of the allegations pertaining to failure in filing of Board Resolution
with stock exchanges, not making disclosures of the proposed allotment
in the notice convening the General Meeting, failure to give prior intimation
to the stock exchanges etc. pertain to the company, and the Appellants
had nothing to do with the compliance of such requirements. According to
the learned representative, the Adjudicating Officer ought to have made
the company a party to the whole proceedings and penalty should have been
imposed on the company for the alleged failures, if found justified. He
submitted that for the alleged failure on the part of the company, the
Appellants have been penalised. He submitted that compliance under regulation
3(1) (c) and 3 (3) is required to be made by the Issuer Company and not
the acquirers of shares. The only allegation directed against the Appellants
in the context is that as allottees of the preferential allotment, they
failed to submit a report along with the prescribed fees to SEBI with in
the prescribed time, in contravention of regulation 3(4) and 3 (5). He
read out the provisions of regulation 3(4) and 3(5) and submitted that
the Appellants were under the genuine belief that report under regulation
3(4) was required to be filed by them only if they were allotted shares
which would entitle them to exercise 10% or more voting rights and that
no single acquirer was allotted such number of shares which could entitle
him to exercise the stipulated voting right, the Appellants did not file
the report. Learned representative further submitted that in case the Appellants
were to be considered as acting in concert, holding that they belonged
to the same promoter group, the fact that collectively they were already
holding more than 10% of voting rights and hence there was no change in
the shareholding position requiring reporting in terms of regulation 3(4)
has to be accepted. He also submitted that most of the shares allotted
to them were partly paid shares and therefore did not carry voting right
as provided in the company�s Articles of Association, and as a result there
was no significant change in the voting rights of the Appellants in the
company. Shri Aggarwal further submitted that, as advised by the Respondent
and considering the fact that the Appellants belonged to the promoter group
and they were acting in concert, the requisite report with the filing fee,
was filed with the Respondent, though slightly belatedly.
Shri Aggarwal
contended that the preferential allotment has not resulted into change
in control or management of the company as the allottees are none else
but promoter group companies.
As regards
levy of penalty for the particular lapse on the part of the Appellants,
the learned representative submitted that since the Appellants were acting
in concert, the penalty for the alleged violation should have been levied
only on one entity and not on each one of them separately.
Shri Ananta
Barua, learned representative of the Respondent read out regulation 3(1)(c),
3(3), 3(4) and 3(5). He submitted that exemption from complying with the
requirements of regulations 10, 11 and 12 are available to acquisition
in a preferential allotment only on complying with the provisions of regulation
3(1)(c)(i), and 3(1)(c)(ii), 3(3), 3(4) and 3(5), that since the said requirements
have not been complied with, monetary penalty imposed by the Adjudicating
Officer on each one of the Appellants is in order. For the factual support
in respect of the charge of failure on the part of the Appellants in complying
with the provisions of the regulations, Shri Barua relied on the factual
position disclosed in para 5 of the impugned order. Shri Barua submitted
that exemption under regulation 3(1)(c) is subject to compliance of certain
requirements stipulated there under. In this context he cited this Tribunal
in Arya Holding Ltd V P Sri Ram (2001) 31 SCL 549. With reference to the
Appellants� contention that obligation to comply with the reporting requirements
under the regulations is on the issuer company, Shri Barua stated that
as per the regulation, the duty to report to the stock exchanges, and SEBI
in terms of regulation 3(3), 3(4) and 3(5) is on the acquirer. In this
context he referred to the definition of the expressions "acquirer" and
"person acting in concert" provided in the regulation and stated that in
the light of the admitted facts the Appellants are acquirers.
Refuting
the Appellants� claim that the requirement of regulation 3(3) is to be
complied by the issuer company and not the acquirer, Shri Barua stated
that this Tribunal had held in Yogi Sangwon (India) Ltd V SEBI (2001) 31
SCL 535 that the reporting obligation under the said regulation is on the
acquirer.
Shri Barua
refuted the Appellants� contention that the impugned order is bad in law
for not subjecting the company under adjudication. He stated that the order
is confined to acquisition of shares by the Appellants and therefore there
was no need to consider as to there was any failure on the part of the
company. He submitted that the Appellants having admitted the fact that
they had acted in concert and acquired the shares, and the acquisition
having exceeded the benchmark prescribed in the regulation, the requisite
requirement of the regulation was necessary to be complied with and the
Appellants cannot absolve themselves, stating that they acted in "genuine
belief" that the requirements are not attracted. With regard to the Appellants
contention that if the allottees were to be considered as acting in concert
and part of the promoter group, they were already holding more than 10%
of the company�s shares before the acquisition, and therefore there was
no need to comply with the requirements of the regulation, Shri Barua stated
that the regulation requires reporting even in such cases, that filing
of the report under regulation 3(4) cannot be linked to the change in situation/control
as contended by the Appellants. He stated that from the notice of the General
Meeting dated September 1, 1999 it is clear that the Appellants were holding
more than 10% voting rights in the company and after the preferential allotment
of shares to them their voting rights increased from 32.99 to 77.84 %.
Shri Barua stated that 440 lakh shares issued, which were partly paid also
had voting rights. He further stated that even if it is assumed, that the
partly paid shares did not carry voting rights as canvassed by the Appellants,
in that scenario also voting rights of the Appellants had increased from
their pre-preferential allotment holding of 32.99% to 42.99 %. In this
context Shri Barua referred to the following data provided in para 6 of
the Respondent�s reply:
Shri Barua
submitted that in the light of the factual position, it is evident that
the acquisition made by the Appellants exceeded the prescribed limit, thereby
requiring mandatory submission of report under regulation 3(4). With reference
to imposition of penalty on each Appellant, Shri Barua submitted that the
order is in order as for the violations under the Regulations "the acquirer
/ persons acting in concert" are individually as well as severally liable.
I have
carefully considered the rival contentions and my views there on are as
follows:
Short
delay involved in filing the present appeal is condoned taking into consideration
the factual position stated by the Appellants and also the fact that the
Respondent has not contested the same.
There
is no dispute about the number of shares allotted by way of preferential
allotment by the company, and the quantum of shares allotted to each allottee.
It is also on record that all the allottees are part of the promoter group
and they were acting in concert.
The Respondent
in para 5 of his order has stated the factual position in this regard as
under:
"From the records it is seen that WSL (the company) made a preferential allotment for 41, 81, 700 fully paid up shares and 4, 40, 00, 000 partly paid up shares on 5th October, 1999. The preferential allotment was done by WSL to 11 Co.�s � M/s. Luxury Foams Ltd., M/s. Echo Chemicals Pvt. Ltd., M/s. Yare Engineering Pvt. Ltd., M/s. TMS Board & Industries Pvt. Ltd., M/s. Cook Fast foods Pvt. Ltd., M/s. Econo Commercial Evaluators Pvt. Ltd., M/s. Ajay Roadways Pvt. Ltd., M/s., castle Builders Pvt. Ltd., M/s. Dilli Soaps & Chemicals Pvt. Ltd., M/s. Rai Chemicals Pvt. Ltd., M/s, CMC Marketing Pvt. Ltd., (herein after referred to as acquirers). All these 11 companies are promoter group companies and are considered as "Persons Acting in concert". As a result of this allotment the holding of these companies increased from 9.90% to 23.25%. The fully paid up capital (?) of WSL prior to the preferential allotment was 2, 38, 18, 300 and after the preferential allotment the full paid up capital (?) was 2, 80, 00, 000. The allegation is that these 11 Acquirers (the Appellants) acting in concert acquired the shares of the company in violation of regulation 10 of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997."
As per
section 181 of the Companies Act, 1956 (restriction on exercise of voting
right of member who have not paid calls etc), "notwithstanding anything
contained in this Act, the Article of a company may provide that no member
shall exercise any voting right in respect of any shares registered in
his name on which any calls or other sums presently payable by him have
not been paid or in regard to which the company has and has exercised any
right of lien."
According
to section 87(1) of the Companies Act, 1956, subject to the provisions
of section 89 and sub section 2 of section 92, (a) every member of a company
limited by shares and holding any equity share capital therein shall have
a right to vote, in respect of such capital, on every resolution placed
before the company; and (b) his voting right on a poll shall be in proportion
to his share of the paid up equity capital of the company (emphasis
supplied).
From the
above it is clear that the member / shareholder cannot exercise voting
right in respect of any shares registered in his name in case of any calls
or other sums presently payable by him have not been paid or in regard
to which the company has and has exercised any right of lien. There is
nothing on record to show that any call was made and the Appellants failed
to pay the amount. In the instant case, the Appellants version that since
the 4, 40, 00, 000 shares have been allotted to them on partly paid basis,
those shares do not carry any voting rights is contrary to the legal position
flowing from section 87(1)(b). The Respondent�s version that "the shares
have the potentiality of carrying voting right after making full payment"
is also not correct.
In the
light of the legal position regarding voting rights attached to the partly
paid shares in terms section 181 and 87 of the Companies Act, it is difficult
to subscribe to the Appellants version that 440 lakh equity shares of Rs.10
lakh issued but partly paid, have no voting rights and as such should be
excluded for the purpose of computing the percentages prescribed in regulation
10 etc., is not tenable. In any case since the Appellants have not contested
the factual position that the shares acquired by them in the preferential
allotment, taken as a whole is above the percentage prescribed in regulation
10, I do not think that it necessary for considering the present appeal,
one should independently work out precisely the voting rights acquired
by the Appellants. The fact that the Appellants had acquired shares / voting
rights which taken together with shares / voting rights held by them entitled
them to exercise 15% or more of the voting rights in the company, remains
un disputed. It is also a fact that the Appellants had not made any public
announcement to acquire shares of the company in accordance with the Regulation
before making the said acquisition. The argument that the preferential
allotment has not resulted into any change in control of management of
the company, as all the allottees are promoter group companies is of no
help to the Appellants as regulation 10 is on acquisition per se and not
linked to control of management.
The Appellants� main contention is that they are not required to make any public announcement as the acquisition of shares by them is by way of preferential allotment and such acquisition is exempt in terms of regulation 3(1)(c), from complying with the requirements of regulations 10, 11 and 12. In this context the observation made by the Respondent in para 5.6 of the impugned order need be looked into, as he has imposed penalty based on his perception of the law as reflected therein: Thus,
I find that the acquirers have acquired the shares without making an open
offer."
Regulation- 3(1) Nothing contained in Regulations 10, 11 and 12 of these Regulations shall apply to (a) Xxxxxxxx (i) Board Resolution in respect of the proposed preferential allotment is sent to all the stock exchanges on which the shares of the company are listed for being notified on the notice board; Regulation 3(3): - In respect of acquisitions under clauses (c) (e) (h) and (i) of sub-regulation (1), the stock exchange where the shares of the company are listed shall, for information of the public, be notified of the details of the proposed transactions at least 4 working days in advance of the date of the proposed acquisition, in case of acquisition exceeding 5% of the voting share capital of the company. Regulation 3(4): - In respect of acquisitions under clauses (a), (b), (c), (e) and of sub regulation (1), the acquirer shall within 21 days of the acquisition, submit a report along with supporting documents to the Board giving all details in respect of acquisition which (taken together with shares or voting rights, if any, held by him or by persons acting in concert with him) would entitle such person to exercise 15% or more of the voting rights in a company. "acquirer means any person who, directly or indirectly acquires or agrees to acquire shares or voting rights in the target company, or acquires or agrees to acquire control over the target company either by himself or with any person acting in concert with the acquirer" "Person acting in concert" has been defined in regulation 2(1)(e) as under: "Person acting in concert" comprises: - (1) persons who, for a common objective or purpose of substantial acquisition of shares or voting rights or gaining control over the target company, pursuant to an agreement or understanding (formal or informal), directly or indirectly co-operate by acquiring or agreeing to acquire shares or voting rights in the target company or control over the target company. (2) Without prejudice to the generality of this definition, the following persons will be deemed to be persons acting in concert with other person in the same category, unless the contrary is established: (i) a company, its holding company, or subsidiary of such company or company under the same management either individually or together with each other; Provided that sub-clause (ix) shall not apply to a bank whose sole relationship with the acquirer or with any company, which is a holding company or a subsidiary of the acquirer or with a relative of the acquirer, is by way of providing normal commercial banking services such activities in connection with the offer such as confirming availability of funds, handling acceptances and other registration work. (x) any investment company with any person who has an interest as director, fund manager, trustee, or as a shareholder having not less than 2% of the paid-up capital of that company or with any other investment company in which such person or his associate holds not less than 2% of the paid up capital of the latter company. Note: For the purpose of this clause �associate� means: (a) any relative of that person within the meaning of section 6 of the Companies Act, 1956 (1 of 1956); and
"���.. it is clear from the provisions of regulation 3(1)(c) cited above that an acquisition pursuant to a preferential allotments simplicitor will not be eligible for exemption unless the requirements stipulated in clauses (i) and (ii) are complied with. In this context it is pertinent mention that since the law specifically provided that the exemption is subject to compliance of certain requirements specified there in, to avail the exemption it is absolutely necessary to comply with the specified requirements. It is therefore necessary to examine whether the appellants had fulfilled the requirements of clauses (i) and (ii) of regulation 3(1)(c)".
"The acquirer has submitted that "As per Proviso (i) of Regulation 3(1)(c), in order to exempt a preferential issue from making public announcement, a copy of Board Resolution in respect of proposed preferential allotment is to be sent to all the stock exchanges on which shares of WSL were listed for being notified on the notice board. It is thus clear that it is only an intimation regarding proposed allotment of shares on preferential basis that has to be given to the Stock Exchanges. Therefore, if WSL has informed the Stock Exchanges about decision of the Board to meet again on a particular date to consider issue of shares on preferential basis, it is a good communication of intention of WSL to allot shares on preferential basis. The format might be different, that too happened because of lack of experience in dealing with such matters by WSL but the message was loud and clear and well communicated to the Stock Exchanges and hence the regulation was complied with. Therefore, the nature of mistake being technical may kindly be condoned." From the records and from the submissions of the acquirer, I find that W.S.L the Target Company have not enclosed a copy of the Board Resolution about the preferential allotment along with their letter dt.9.8.99 to the Exchanges. They have only sent a letter stating that the Board of Directors in their meeting held on 7.8.99 had decided to meet again on 1.9.99 to consider issue of equity shares valuing upto Rs.75 crores to promoter / non-promoters on preferential basis.
Regarding
compliance of regulation 3(1)(c)(ii) the Appellants� stand is that the
company had made full disclosures of the identity and class of the proposed
allottees in the Notice of General Meeting scheduled on September 30, 1999.
It is seen from the impugned order that the Appellants had informed the
Adjudicating Officer that "class of proposed allottees was given as body
corporates and inclusion of entire proposed allotment in the promoters
group under para 6 of item no.2 of the Explanatory Statement clearly showed
that WSL planned to issue shares to the promoters on preferential basis".
The Appellants have not filed a copy of the said notice in the proceedings.
However the Adjudicating Officer has recorded that "In para 1, under item
no.2 of the explanatory statement, it is stated that ��.". "The company
has planned to issue equity shares to promoters / non-promoters
on private placements, by issuing shares on preferential basis���". That
means the shares can be allotted to either the promoters or to non-promoters.
However pt.1 of item No.2, it is stated that "It is proposed to issue 4,
81, 81, 700 equity shares to the following body corporates as per details
given below��..". From the records it is seen that these body corporates
belong to the promoter group companies. This fact should have been disclosed
in pt. No.1 of item No.2. Hence I accept the observations of the SEBI investigations
as contained para 2.0 above and find that the acquirer / WSL has not made
proper disclosure on the count". For the reason stated by the Adjudicating
Officer I agree with his finding in this regard.
In the
absence of any material produced before me by the Appellants, proving proper
compliance of the requirements of regulation 3(1)(c)(i) and 3(1)(c)(ii),
the Respondent�s version based on the facts discussed in the report that
the requirements of the said regulations have not been complied with by
the Appellants, have to be accepted. The Appellants� argument that compliance
of regulation 3(1)(c) is required to be made by the company making preferential
allotment and for the failure, if any, in this regard, the company is liable
and not the acquirer, is not acceptable. It is to be noted that regulation
3 provides exemption from complying with the requirements of regulation
10, 11, 12 in respect of certain type of acquisitions stated in the said
regulation. The requirement of compliance in terms of regulation 10, 11,
12 is by the acquirer. So if the acquirer is keen to avail of the exemptions,
it is for him to satisfy as to whether the preconditions required to be
complied with to avail exemption have been complied with or not. It is
to be noted that the impugned order, is directed against the Appellants
on account of their failure to comply with requirements of regulation 10
etc., and not directed against the company for not fulfilling the preconditions
so as to qualify the preferential allotment to be exempted. Since the adjudication
is directed against the Appellants failure, there is no need for subjecting
the company to the adjudication. Therefore in my view the Appellants version
that by not arraying the company in the adjudication proceedings, the order
is bad in law, is baseless.
In the
light of the facts on record, it is clear that the preferential allotment
made to the Appellants has failed to qualify to avail exemption in terms
of regulation 3.
The Adjudicating Officer�s finding that compliance of the requirements of sub-regulations (3), (4) and (5) of regulation 3 is a pre-requisite for availing exemption under regulation 3 is not legally tenable. Compliance of the requirements of the said sub regulations is required only if the acquisition comes under the exempted category. This Tribunal had clearly stated the legal position in this regard in J.M. Financial & Investment Consultancy Services Ltd V Shri Ananta Barua, Adjudicating Officer ((2001) 30 SCL 357: (2001) 41 CLA 263) decided on March 16, 2001. In the said appeal the Tribunal was considering the scope and applications of regulation 3(1)(e). In that context the Tribunal held:
Even though
the acquisition of shares by the Appellants attracted, regulation 10, they
have failed to make the public announcement as required there under. Failure
to make such a public announcement is punishable in terms of section 15H(ii)
of the Act. According to the said section:
"If any person, who is required under the Act or any rules or regulations made there under, fails to � (i) xxxxxxxxxxxxxxx
The Adjudicating
Officer has imposed penalty as provided in section 15H(ii). In this connection
the Appellants had submitted that since the Respondent has clubbed the
total number of shares acquired by all the persons acting in concert and
has come to the conclusion that their total acquisition exceeded the limit
prescribed, and that the failure being only one relatable to the preferential
allotment made by the company, the penalty, if at all to be imposed could
have been imposed only against one and not against all those acquirers
belonging to the promoter group.
In this
connection it is to be noted that in terms of regulation 10, it is acquirer
who
is required to make the public announcement. In terms section 15H "if
any person" fails to comply with the requirements of the Act etc.,
he is liable to penalty. It is on record that in the preferential allotment
made by the company, each Appellant had acquired shares, that each Appellant
belongs to the promoters group and according to their own admission they
acted in concert. Thus in my view each Appellant for the purpose of acquisition
had acted in league with the remaining others, say acted in concert. So
each one of them could be considered as an acquirer that since his acquisition
along with the shares acquired by those persons acting in concert with
him, exceeded the prescribed limit, warranted public announcement under
regulation 10. 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. It is to be noted that even
though section 15H(ii) provides for a penalty not exceeding five lakh rupees
against each person for failure to comply with the statutory requirements
stated there in, the Adjudicating Officer has taken care to impose only
a total sum of four lakhs forty thousand rupees. He has equally apportioned
the said amount, among the Appellants by imposing forty thousand rupees
on each one of them, obviously with a view to avoid complications in recovering
the penalty amount. Therefore it cannot be said that the penalty imposed
by the Adjudicating Officer is unauthorised or unjustified or disproportionate.
In the
light of the above discussions, I am of the view that the impugned order
is to be sustained.
Accordingly
the appeal is dismissed.
(C.ACHUTHAN)
Place:
Mumbai
PRESIDING OFFICER Date: March 20, 2002 |
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