BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA
Coram: T.C. NAIR, WHOLE TIME MEMBER
Against Kaushik Shah Shares and Securities Pvt. Ltd. in the matter of M/s. ORIENT INFROMATION TECHNOLOGY LTD.
WTM/TCN/IVD ID1/ 49/06/11
Date of hearing : 31-05-2006
Appearance
For Noticee: Mr. Kaushik Shah, M.D., M/s. Kaushik Shah Shares & Securities Pvt. Ltd. Mr. Ravi Kumar Varanasi, Advocate.
For SEBI: Mr. P.K. Nagpal, Chief General Manager.
ORDER
(Under Regulation 13(4) of SEBI (Procedure of Holding Enquiry by Enquiry Officer and Imposing Penalty) Regulations, 2002)
1.1 M/s Kaushik Shah Shares and Securities Pvt. Ltd. (hereinafter referred to as KSL or broker), a company incorporated under the Companies Act, 1956, is a member of the Bombay Stock Exchange (hereinafter referred to as BSE) registered with Securities and Exchange Board of India (hereinafter referred to as SEBI) as Stock Broker, bearing registration no. INB 010939732. KSL was also a sub-broker of M/s Arcadia Share and Stock Brokers Private Ltd. (hereinafter referred to as ASL) who is a member of National Stock Exchange (NSE) registered with SEBI bearing Registration No. INS 230870938 from January 02, 2001 to March 28, 2003.
1.2 SEBI conducted an investigation into the buying, selling or dealings in the scrip Orient Information Technology Ltd. (hereinafter referred to as Orient) inter alia, to ascertain possible violation of the provisions of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Market) Regulations, 1995 (hereinafter referred to as FUTP Regulations) and SEBI (Stock Brokers and Sub Brokers) Regulations, 1992 (hereinafter referred to as Broker Regulations). The scrip of Orient was listed on NSE, Stock Exchange, Mumbai, and the Delhi Stock Exchange at the time of investigation. The trading details of the persons who had traded in the scrip were collected and analyzed along with the data of the volumes contributed by these entities. From these details it was found that Nirjay Securities Pvt. Ltd. (hereinafter referred to as NSL) and KSL along with ASL had actively traded in the shares of Orient during the relevant period. Investigations prima facie revealed that the above trading contributed to an unusual spurt in the traded volumes in the scrip.
1.3 The investigations further found that KSL was found to have traded in the scrip of Orient on the NSE and on BSE it was found to have executed proprietary trades as well as trades for their client Nirjay. Investigations found KSL guilty of violating the provisions of Clause A (1), A (3) and A (4) of the Code of Conduct specified in Schedule II read with Regulation 7 of Broker Regulations and Regulation 4 (b), (c) and (d) of FUTP Regulations as applicable at the time when the alleged acts were committed. It was therefore, alleged that KSL and NSL traded to create artificial market in the scrip which resulted in transactions which were not genuine trade transactions. The maximum volume traded in the scrip was of 3,70,870 shares (as on 31-01-2001) to lowest of 36,042 shares (as on 07-12-2000).
1.4 In view of the above, an enquiry officer was appointed under Regulation 5(1) of SEBI (Procedure for Holding enquiry by Enquiry Officer and Imposing Penalty) Regulations, 2002 (hereinafter referred to as the Enquiry Regulations) to enquire into the alleged acts of commissions and omissions of KSL while transacting in the above mentioned scrip.
Enquiry Report and Recommendation
2.1 The Enquiry Officer, issued a Show Cause Notice (hereinafter referred to as SCN) dated April 30, 2004 under Regulation 6 (1) of Enquiry Regulations to KSL communicating thereby the allegations in respect of the transactions in the scrip of Orient. After considering the replies dated June 08, 2004 and January 18, 2005 from KSL, the Enquiry Officer had conducted the enquiry as per the procedure laid down in Enquiry Regulations and submitted a report dated March 29, 2005. The Enquiry Officer found that KSL had indulged in transactions which were manipulative and fraudulent in nature. The Enquiry Officer had recommended the suspension of certificate of registration granted to ASL for a period of ten days.
2.2 A SCN dated April 12, 2005 was issued to the broker along with a copy of Enquiry Report in terms of Regulation 13 (2) of Enquiry Regulations, calling upon it to show cause as to why action as recommended by the Enquiry Officer should not be taken against it. The broker had replied to the said SCN vide its letter dated May 13, 2005.
2.3 The broker was also given an opportunity of personal hearing before me on May 30, 2006. On the designated day Mr. Kaushik Shah and Mr. Ravi Kumar Varanasi appeared and made submissions on behalf of KSL. Documents showing details of price fluctuations in the scrip on dates when no transactions executed were submitted by them and in addition to this they had also relied on oral arguments, which are by and large reiteration of written reply dated May 13, 2005. In addition to this the broker had also submitted written submissions dated June 15, 2006.
Consideration of Issues 3.1 I have carefully considered the facts of the case, the findings of the Enquiry Officer and the reply of the Broker including the documents and submissions made during the personal hearing and also the written submissions submitted after the hearing. My findings are as under; a. With regard to the finding that the trades executed by KSL were cross deals and these transactions were structured and synchronized, the broker submitted that it had executed these transactions on the exchange terminal in the nature of cross deals and by doing this it had not violated the provisions prescribed by SEBI and Stock Exchanges. It was found that NSL used to sell shares through the member KSL at BSE on last day of settlement, which were purchased by KSL by acting as a client and the same shares were sold by it at NSE through ASL and these shares were purchased by NSL. Further it has been alleged that on the last day of settlement of NSE, the transactions were reversed i.e. NSL sold shares through ASL which were brought by KSL as a client and then KSL sold the shares through its broking firm at BSE which were purchased by NSL. KSL submitted that this practice was prevalent in the market. It further submitted that the purpose of these transactions was not to manipulate the prices or the volumes. The reply of KSL is not convincing as the manner in which the trades were executed is not proper and the same resulted in creation of false market in the scrip. The said conduct defeats the objective of screen based trading. Further the Enquiry Officer found that ASL had executed 35 deals involving a total of around 28 lakhs shares for both KSL and NSL. KSL the trading member on the BSE, was the counter party client for the same trades on the NSE, in furtherance both KSL and NSL had taken counter positions at both the exchanges. The quantity ordered, price quoted and time at which order was entered into the system at both the exchanges i.e. NSE and BSE exactly matched. An inference can easily be drawn that these transactions were structured and synchronized as the proximity of timing of putting in the buy and sell orders, exact matching of price and quantity of shares and matching of trades almost on every occasion between themselves. The Enquiry Officer had rightly stated that these trades cannot be said to be a mere coincidence as these had happened on a continous basis. KSL also contended that the trades entered by it are cross deals and these deals are valid in terms of SEBI Circular No. SMDRP/POLICY/CIR-32/99 dated September 14, 1999. KSL had executed cross trades on NEAT system of NSE at the prevailing market price, which were in accordance with the said circular. I am of the view that the deals entered by KSL may be cross deals but the manner in which these deals have been entered is not proper and resulted in creation of false market. These deals were structured in such a manner that the trade matched there and then only. The time difference in these deals is of a few seconds only. I appreciate the findings of the Enquiry Officer about the benefits of screen based trading. She has rightly stated that this enables investors to transact in a fair and transparent manner. This mechanism is to ensure matching of the orders through screen, on the basis of best offer price, wherein the sellers would realize the best price of their securities within the circuit filters prescribed by SEBI. But in light of the above citied circular I am of the view that broker might have technically not violated the abovesaid circular but the manner in which the trades were entered would defeat the objective of the said circular and the trading system. b. With regard to the finding that the transactions entered by KSL are synchronized transactions the broker submitted that this is only a presumption of the Enquiry Officer. The Enquiry Officer found that these synchronized trades were executed on the screen of the exchange by KSL and NSL, because these were arranged deals with a prior understanding. The Enquiry Officer had rightly disregarded the argument of the broker that the identity of the other trading client is not known to each other, by saying that the frequency of trades and the perfect matching of the time, order and price to the extent of two decimal places in one scrip only cannot be a mere co-incidence. The details of transactions are as follows:
The pattern of trading of KSL shows that the very purpose of impersonal trading has been defeated through putting of trades which were structured transactions entered with the aid of NSL. I have gone through the findings of the Enquiry Officer regarding the genuineness of the trades and I appreciate the case referred to in this regard i.e Nirmal Bang Securities (P) Ltd. Vs. SEBI, wherein Hon’ble SAT held that:- “…BEB has been charged for synchronized deals with First Global. I have examined the data provided by the parties on this issue. I find many transactions between BEB and FGSB. There are many instances of such transactions. I find the scrip, quantity and price for these orders had been synchronized by the counter party brokers. Such transactions undoubtedly create an artificial market to mislead the genuine investors. Synchronized trading is violative of all prudential and transparent norms of trading in securities. Synchronized trading on a large scale, can create false volumes. The argument that the parties had no means of knowing whether any entity controlled by the client is simultaneously entering any contra order elsewhere for the reason that in the online trading system, confidentiality of counter parties is ensured, is untenable. It was submitted by the Appellants that it was not possible for the broker to know who the counter party broker is and that trades were not synchronized but it was only a coincidence in some cases. Theoretically this is OK. But when parties decide to synchronize the transaction the story is different. There are many transactions giving an impression that these were all synchronized, otherwise there was no possibility of such perfect matching of quantity price etc. As the Respondent rightly stated it is too much of a coincidence over too long a period in too many transactions when both parties to the transaction had entered buy and sell orders for the same quantity of shares almost simultaneously. The data furnished in the show cause notice certainly goes to prove the synchronized nature of the transaction which is in violation of regulation 4 of the FUTP Regulations. The facts on record categorically establishes that BEB had indulged in synchronized trading in violation of regulation 47 of the FUTP Regulations. In a synchronized trading intention is implicit.” Taking the above into consideration in the context of the present case as reported by the Enquiry Officer, the possibility of perfect matching would not have been possible had the trades executed by KSL been genuine. One or two deals on the exchange may be synchronized but trades to the extent of such large volumes i.e. 35 deals had some malafide intent. The greater the number of synchronized trades, the larger are their chances of not being genuine in nature. Therefore, I agree with the views of the Enquiry Officer that it is quite implicit that synchronized trades executed on the screen of the exchange, have an inherent element of intent involved in them and I find broker guilty on this count.
I find from the above, the trades entered by KSL in the scrip of Orient, generated considerable volumes and this fact has not been denied by the broker. At this juncture it is relevant to note the observation of the U.S Courts in Hyne’s Case that “proof of manipulation is generally not based on a single activity but rather on a course of conduct showing an intentional interference with the normal functioning of the market for a security. Indeed the manipulation is usually the result of acts, practices and course of conduct that deceive the market place…….”.
Taking the above replies into consideration it makes clear that the broker itself is not sure of the nature of its transactions and is trying to change its stands. KSL in letter dated May 13, 2005 submits that it has no co-relationship with NSL. It further submits that it was taking the rate difference prevailing on the closing days of the settlement and shifting its position and taking advantage of rate prevailing on two exchanges, it was always holding the delivery of the scrip of Orient and shifting the position from one market to another market on the closing days of the settlement in the respective Stock Exchanges. In addition KSL submitted that it never had a naked position in the market and always there was delivery in hand. The fact that KSL is changing its defense once by saying that it was doing arbitrage and again shifting its stand to by saying that it was not engaged in arbitrage. By this KSL is trying to confuse its behavior on transactions undertaken. Enquiry Officer found in its enquiry that KSL had earned profits from these transactions to the extent of Rs. 7,75,866.60/- and Nirjay admittedly incurred losses. ASL had also lost Rs. 9 lakhs by bad debt from Nirjay and that their arbitration case is pending before NSE against Nirjay. From this it becomes clear that orders were placed by KSL and NSL at BSE and NSE in the same scrip, which resulted in generation of large volumes. The orders were placed in such a manner that trades matched with each other time and again. The observations that these orders were entered into by both the parties at around the same time, for the same quantity and at the same price, clearly indicate that the counter parties were aware of these transactions in advance. The co-ordinated and synchronized manner in which these trades were executed prove that there was a tacit understanding between KSL and NSL to manipulate the scrip of Orient.
The trades of KSL during the period of investigation had led to volume generation. Volumes in a particular scrip raise demand for the scrip in the securities market. The greater the liquidity, higher is the investor’s attraction towards investing in such a scrip. Another contention raised by the broker is that the Enquiry Officer has not produced any evidence on record to prove that the investors had made losses due to the transactions carried out by it on behalf of the clients. I find that there is no such requirement and in any case it is not possible to quantify loss to investors in the instant case. The broker has also referred to the order of SEBI in the matter of JM Morgan Stanley Retail Services Pvt. Ltd. The Enquiry Officer has rightly found that the case referred to is not based on the same facts. In the present case action is initiated upon a detailed investigation into the irregularities in the trading of the scrip of Orient, which involves larger public interest. The conduct of KSL is detrimental to the interest of investors and the safety and integrity of the securities market.
4.1 In view of the above factual conclusions arrived at by me, I find that the broker has violated Regulations 4 (b) (c) and (d) of FUTP Regulations as applicable at the time when the act was committed and Clause A (1), A (3) and A (4) of the Code of Conduct specified in Schedule II read with Regulation 7 of Broker Regulations. 4.2 From the aforesaid, I find that the broker has failed to explain the necessity of executing structured trades within the same exchange or in two exchanges. In the facts and circumstances of the case, I am therefore, not inclined to differ with the enquiry officer. Order 5.1 In view of the above and in exercise of the powers conferred to upon me by Section 19, of SEBI Act, 1992 read with Regulation 13 (4) of the said Regulations, I hereby impose a penalty of suspension of Certificate of Registration of Kaushik Shah Shares & Securities Pvt. Ltd., member, BSE Ltd., bearing SEBI Registration No. INB 010939732 for a period of seven days.
5.2 This order shall come into force immediately after the expiry of 21 days from the date of this order.
|