SAHARA INDIA REAL ESTATE EXCH.COR.LD.&AN Vs SECURITIES & EXCH.BOARD OF INDIA
Bench: ALTAMAS KABIR,SURINDER SINGH NIJJAR,J. CHELAMESWAR
Case number: C.A. No.-008643-008643 / 2012
Diary number: 39650 / 2012
Advocates: GAURAV KEJRIWAL Vs
K J JOHN AND CO
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s). 8643 OF 2012
SAHARA INDIA REAL ESTATE EXCH.COR.LD.&AN Appellant (s)
VERSUS
SECURITIES & EXCH.BOARD OF INDIA Respondent(s)
WITH
W.P.(C)No.527 of 2012
O R D E R
1. This appeal is directed against the judgment
and order dated 29th November, 2012, passed by
the Securities Appellate Tribunal, in Appeal
No.221 of 2012, holding that the same was
premature and was not, therefore, maintainable.
2. In earlier appeals, being C.A.No.9813 of
2011 and C.A.No.9833 of 2011, this Court was
concerned with the powers of the Securities and
Exchange Board of India (SEBI) under Section
55A(b) of the Companies Act, 1956, to administer
various provisions relating to issue and
transfer of securities to the public by listed
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2 companies or companies which intend to get their
securities listed on any recognised Stock
Exchange in India and also the question whether
Optionally Fully Convertible Debentures, offered
by the appellants, should have been listed on
any recognised Stock Exchange in India, being
Public Issue under Section 73 read with Section
60B and allied provisions of the Companies Act.
The said appeals were heard and finally disposed
of on 31st August, 2012, with the following
directions:-
“1. Saharas (SIRECL & SHICL) would refund the amounts collected through RHPs dated 13.3.2008 and 16.10.2009 along with interest @ 15% per annum to SEBI from the date of receipt of the subscription amount till the date of repayment, within a period of three months from today, which shall be deposited in a Nationalized Bank bearing maximum rate of interest.
2. Saharas are also directed to furnish the details with supporting documents to establish whether they had refunded any amount to the persons who had subscribed through RHPs dated 13.3.2008 and 16.10.2009 within a period of 10 (ten) days from the pronouncement of this order and it is for the SEBI (WTM) to examine the correctness of the details furnished.
3. We make it clear that if the documents produced by Saharas are not found genuine or acceptable, then the SEBI (WTM) would proceed as if the Saharas had not refunded any amount to the real and genuine subscribers who had invested money through RHPs dated 13.3.2008 and 16.10.2009.
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4. Saharas are directed to furnish all documents in their custody, particularly, the application forms submitted by subscribers, the approval and allotment of bonds and all other documents to SEBI so as to enable it to ascertain the genuineness of the subscribers as well as the amounts deposited, within a period of 10 (ten) days from the date of pronouncement of this order.
5. SEBI (WTM) shall have the liberty to engage Investigating Officers, experts in Finance and Accounts and other supporting staff to carry out directions and the expenses for the same will be borne by Saharas and be paid to SEBI.
6. SEBI (WTM) shall take steps with the aid and assistance of Investigating Authorities/Experts in Finance and Accounts and other supporting staff to examine the documents produced by Saharas so as to ascertain their genuineness and after having ascertained the same, they shall identify subscribers who had invested the money on the basis of RHPs dated 13.3.2008 and 16.10.2009 and refund the amount to them with interest on their production of relevant documents evidencing payments and after counter checking the records produced by Saharas.
7. SEBI (WTM), in the event of finding that the genuineness of the subscribers is doubtful, an opportunity shall be afforded to Saharas to satisfactorily establish the same as being legitimate and valid. It shall be open to the Saharas, in such an eventuality to associate the concerned subscribers to establish their claims. The decision of SEBI (WTM) in this behalf will be final and binding on Saharas as well as the subscribers.
8. SEBI (WTM) if, after the verification of the details furnished, is unable to find out the whereabouts of all
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4 or any of the subscribers, then the amount collected from such subscribers will be appropriated to the Government of India.
9. We also appoint Mr. Justice B.N. Agrawal, a retired Judge of this Court to oversee whether directions issued by this Court are properly and effectively complied with by the SEBI (WTM) from the date of this order. Mr. Justice B.N. Agrawal would also oversee the entire steps adopted by SEBI (WTM) and other officials for the effective and proper implementation of the directions issued by this Court. We fix an amount of Rs.5 lakhs towards the monthly remuneration payable to Mr. Justice B.N. Agrawal, this will be in addition to travelling, accommodation and other expenses, commensurate with the status of the office held by Justice B.N. Agrawal, which shall be borne by SEBI and recoverable from Saharas. Mr. Justice B.N. Agrawal is requested to take up this assignment without affecting his other engagements. We also order that all administrative expenses including the payment to the additional staff and experts, etc. would be borne by Saharas.
10. We also make it clear that if Saharas fail to comply with these directions and do not effect refund of money as directed, SEBI can take recourse to all legal remedies, including attachment and sale of properties, freezing of bank accounts etc. for realizations of the amounts.
11. We also direct SEBI(WTM) to submit a status report, duly approved by Mr. Justice B.N. Agrawal, as expeditiously as possible, and also permit SEBI (WTM) to seek further directions from this Court, as and when, found necessary.
The appeals were, therefore, dismissed with the
aforesaid directions.
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5 3. As indicated above, the present appeal is
directed against the order of the Securities
Appellate Tribunal, in the Appeal, being
No.221 of 2012, which had been filed on 27th
November, 2012, complaining that the SEBI had
not accepted the documents, which were to be
furnished to it by the appellants, since they
were tendered a couple of days after the
stipulated period.
4. We are not inclined to interfere with the
substance of the order of the Tribunal impugned
in this appeal. The only question which we are
inclined to consider is whether the time for
implementing the directions contained in the
earlier order of 31st August, 2012, may be
extended or not.
5. Mr. Gopal Subramanium, learned senior
counsel, submitted that after the aforesaid
order had been passed, certain amounts had been
paid to investors and that according to them a
sum of ` 5120/- Crores remained to be paid to
SEBI, out of the amount already indicated, for
the purpose of distribution to the investors.
6. Having heard learned senior counsel, Mr.
Gopal Subramanium, appearing for the appellants,
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6 Mr. Datar, for SEBI and Mr. Vikas Singh,
appearing for Universal Investors Association &
Ors., who has filed a separate Writ Petition, we
are not inclined to accept the submissions made
by Mr. Gopal Subramanium, at their face value,
since, in the order of 31st August, 2012, it has
been indicated that if any payments had been
made, the details thereof, along with supporting
documents, were to be submitted to SEBI to
verify the same. Essentially, the appellants
have failed on both counts, since neither the
amount indicated in the order, together with
interest @ 15% per annum, accrued thereon, has
been paid, nor have the documents been submitted
within the time stipulated in the said order.
The reliefs prayed for in the writ petition
filed by Universal Investors Association,
amounts to a review of the order passed by this
Court on 31.08.2012.
7. We, therefore, dispose of the appeal and the
writ petition, as also the intervention
applications with the following directions:-
(I) The appellants shall immediately hand over
the Demand Drafts, which they have produced in
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7 Court, to SEBI, for a total sum of ` 5120/-
Crores and deposit the balance in terms of the
order of 31st August, 2012, namely, ` 17,400/-
Crores and the entire amount, including the
amount mentioned above, together with interest
at the rate of 15 per cent, per annum, with
SEBI, in two installments. The first
installment of ` 10,000/-Crores, shall be
deposited with SEBI within the first week of
January, 2013. The remaining balance, along
with the interest, as calculated, shall be
deposited within the first week of February,
2013. The time for filing documents in support
of the refunds made to any person, as claimed by
the appellants, is extended by a period of 15
days. On receipt of the said documents, SEBI
shall implement the directions contained in the
order passed on 31st August, 2012. In default
of deposit of the said documents within the
stipulated period, or in the event of default of
deposit of either of the two installments, the
directions contained in paragraph 10 of the
aforesaid order dated 31st August, 2012, shall
immediately come into effect and SEBI will be
entitled to take all legal remedies, including
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8 attachment and sale of properties, freezing of
bank accounts etc. for relisation of the balance
dues.
8. Let a copy of this order be made available
to Mr. Justice B.N. Agrawal, who has been
appointed by this Court, by tomorrow, to enable
His Lordship to oversee the working of the Order
of 31st August, 2012, and this Order passed by us
today.
9. Having regard to the nature of the case, the
appellants shall bear the costs of the
respondent(s) in these proceedings.
10. In the event any excess payment is found to
have been made by the appellants by virtue of
the earlier Order and this Order, the same shall
be refunded to the appellants by SEBI.
........................CJI.
(ALTAMAS KABIR)
..........................J (SURINDER SINGH NIJJAR)
..........................J
(J.CHELAMESWAR) NEW DELHI; December 05, 2012.
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ITEM NO.4 COURT NO.1 SECTION XVII
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CIVIL APPEAL NO(s). 8643 OF 2012
SAHARA INDIA REAL ESTATE EXCH.COR.LD.&AN Appellant (s)
VERSUS ` SECURITIES & EXCH.BOARD OF INDIA Respondent(s)
(With appln(s) for ex-parte stay,permission to file synopsis and list of dates and office report ))
WITH W.P.(C)No.527 of 2012 (with office report)
Date: 05/12/2012 This Appeal was called on for hearing today.
CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR HON'BLE MR. JUSTICE J. CHELAMESWAR
For Appellant(s) Mr. Gopal Subramanium, Sr. Adv. Mr. Mukul Rohatgi, Sr. Adv. Mr. Ashok K.Parija, Sr. Adv. Mr. Satish Kishanchandani, Adv.
Mr. Gaurav Kejriwal, AOR Mr. Keshav Mohan, Adv. Mr. Jatin Pore, Adv. Mr. Devansh Mohta, Adv. Mr. Mahesh Agarwal, Adv. Mr. Gaurav Choudhary, Adv. Mr. Nishint Agarwal, Adv.
Mr. Ashok K.Parija, Sr. Adv. Mr. Gaurav Kejriwal, AOR
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10 In WP 527/12 Mr. Vikas Singh, Sr. Adv.
Mr. Rudreshwar, Adv. Mr. Chandra Prakash, AOR.
For Respondent(s) Mr. Arvind P.Datar, Sr. Adv. Mr. Pratap Venugopal, Adv. Ms. Surekha Raman, Adv. Ms. Nupur Kanungo, Adv.
for M/S. K.J. John & Co.,Advs.
Mr. Shailendra Singh, Adv. /intervenor Mr. Kaushal Yadav, AOR. UPON hearing counsel the Court made the following O R D E R
The appeal and the writ petition, as also the intervention applications are disposed of in terms of the signed order.
Let a copy of this order be made available to Mr. Justice B.N. Agrawal, who has been appointed by this Court, by tomorrow, to enable His Lordship to oversee the working of the Order of 31st August, 2012, and this Order passed by this Court today.
Having regard to the nature of the case, the appellants shall bear the costs of the respondent(s) in these proceedings.
(Sheetal Dhingra)
COURT MASTER (Juginder Kaur)
Assistant Registrar [Signed order is placed on the file]