India: SEBI - Sahara Dispute - The Long Battle Still Continues

I. OVERVIEW:-

The tug of War between Sebi- Sahara has now reached the pinnacle and the raising of deposits by two group companies of Sahara viz. Sahara India Real Estate Corporation Ltd. (hereinafter referred to as SIRECL) and Sahara Housing Investment Corporation Ltd. (hereinafter referred to as SHCL) by way of issuance of OFCD which spotted the limelight since year 2010 has apparently rattled the world's largest Family i.e. Sahara India Parivar, to the extent that the Group had to shut down some of its companies in order to refund the amount of Rs. 17, 400 crore with interest as directed by the Hon'ble Supreme Court in its judgment dated 31.08.2012 passed in Civil Appeal 9813 of 2011 and Civil Appeal 9833 of 2011¹. The article will shed light with respect to Sebi- Sahara dispute in particular the issuance of OFCD, briefly outlining of SEBI (WT) Member order, affirmation of SEBI order by SAT, Hon'ble Apex Court judgments and the recent updates on the controversy including the arrest of Subrata Rai and two Sahara directors as a result of NBWs issued against them by Hon'ble Supreme Court vide order dated 27.02.2014 as well as cancellation of Sahara Mutual fund licence by SEBI vide its recent order dated 28.07.2015.

II. SEBI- SAHARA DISPUTE :- FACTUAL MATRIX

• Sahara India Real Estate Corporation Limited (hereinafter referred to as "SIRECL") and Sahara Housing Investment Corporation Limited (hereinafter referred to as "SHCL"). The companies will be referred to as Sahara Companies and these two Sahara companies were offering Optionally Fully Convertible Debentures ("OFCD") to all the people who were associated with the SAHARA group and thereby placing their argument of this being a private placement as they have approached only those who are associated with the Sahara Group in any manner.²
• The proposal of issuance of OFCD was approved by way of special resolution passed in terms of Section 81 (1A) of the Companies Act in its EGM held on 3.3.2008.
• It was specifically indicated in the RHP by the SIRECL that did not intend to get their securities listed on any recognized stock exchange. Further, it was also stated in the RHP that only those persons to whom the Information Memorandum (for short 'IM') was circulated and/or approached privately who were associated/affiliated or connected in any manner with Sahara Group, would be eligible to apply.
• SIRECL filed RHP was under Section 60B of the Companies Act, before the RoC, Uttar Pradesh on 13.3.2008, which came to registered on 18.3.2008.³
• Subsequently, Information Memorandum ( hereinafter referred to as "IM") was circulated by SIRECL in April 2008, along with the application forms to its so called friends, associated group companies, workers/ employees and other individuals associated with Sahara Group for subscribing to the OFCDs by way of private placement. Then IM carried a recital that it was private and confidential and not for circulation.
• The same strategy was adopted by SHICL and the approval of issuance of OFCD was approved in AGM dated 16.09.2009. SHICL filed RHP on 6.10.2009 with ROC, Mumbai, Maharashtra under Section 60 B of the Companies Act, which subsequently came to be registered on 15.10.2009.

III. INITIAL CONTROVERSY AND THE CORRESPONDENCES MADE :-

A) Initial Correspondences

• Sensing unusual and fishy with respect to entire transaction, series of correspondences were made by SEBI. Vide letter dated 12.1.2010 addressed to M/s. Enam Securities, SEBI inquired about the complaint received from one Roshan Lal alleging that Sahara Group was issuing Housing bonds without complying with Rules/ Regulations/Guidelines issued by RBI/MCA/ NHB.

B) Reply of the letter by Merchant Banker

• The above letter was replied by Merchant Banker dated 29.1.2010 stating that the Sahara companies were not registered with any stock exchange and therefore SEBI had no jurisdiction. The issuance of OFCDs were in compliance with the applicable laws.
• Merchant banker to the issue defended the action on the right that OFCD was issued in compliance with Section 81 (1) (A) of the Act which was passed on passed on 3.3.2008 and 16.06.2009 respectively. Furthermore, it was also brought to the notice that IM was circulated prior to the opening of the offer.

C) SEBI correspondences calling for various details from Sahara

• Another communication dated 12.5.2010 was sent by SEBI to Saharas calling for various details including the details regarding the number of application forms circulated after filing of RHP with RoC, details regarding the number of applications received and subscription amount received, date of opening and closing of subscription list of OFCDs, number and list of allotees etc.
• Sahara did not comply with the said summon and did not furnish the desired information.

D) Summon dated 30.08.2010 issued by SEBI

• Inspite of repeated correspondences when SEBI failed to provide relevant and pertinent information. SEBI issued summons dated 30.8.2010, Under Section 11C of the SEBI Act, directing the company to furnish the requisite information by 15.9.2010.

E) Saharas Companies defence and reply to the SEBI's allegation

• Detailed reply dated 13.9.2010 was sent by SIRECL to SEBI, wherein it was stated that the company had followed the procedure prescribed under Section 60B of the Companies Act pursuant to the special resolution passed Under Section 81(1A) in its meeting held on 3.3.2008 .
• Company has filed RHPs under Section 60B with the concerned RoC.
• Saharas in their defence stated that SEBI does not have jurisdiction in the instant case since SIRECL was not a listed company and it did not intend to get its securities listed on any recognized stock exchange in India.
• OFCDs issued by the company would not fall under Sections 55A (a)⁴ and/or (b) and hence the issue and/or transfer of securities and/or non payment of dividend or administration of either the company or its issuance of OFCDs, were not to be administered by SEBI and all matters pertaining to the unlisted company would fall under the administration of the Central Government or RoC⁵.
• Saharas in their defence contended that OFCDs were restricted to a select group (as distinguished from general public), however large they might be and hence the issuance of OFCDs was not a public offer to attract the provisions of Regulations 3 and/or 6 of ICDR 2009.
• Company had stated that issuance of OFCDs of 2008 was also not covered by the SEBI (Issue and Listing Securities) Regulations, 2008, since it would apply to non-convertible debt securities, whereas the OFCDs issued by SIRECL were convertible securities. SIRECL, therefore, requested SEBI to withdraw the summons issued Under Section 11C of the SEBI Act. Summons dated 23.9.2010 was also issued to SHICL, for which also an identical reply was sent to SEBI.

IV. SEBI PROCEEDINGS

• Notice dated 24.11.2010 was issued by SEBI inter alia stating that OFCDs issued by SIRECL and SHICL was a public issue and, therefore, securities were liable to be listed on a recognized stock exchange Under Section 73 of the Companies Act.
• Based on its preliminary enquiry, SEBI found out that the issuance of OFCDs by Saharas was prima facie in violation of Sections 56 and 73 of the Act.
• Further the said issuance of OFCD also violated various clauses of DIP Guidelines Regulations namely 4(2), 5(1), 6, 7, 16(1), 20(1), 25, 26, 36, 37, 46 and 57 of ICDR 2009.
• Subsequently, SEBI directed both the companies to show cause why action should not be initiated against the company including issuance of direction to refund the money solicited and mobilized through the prospectus issued with respect to the OFCDs, on the ground that the Companies have violated the various provisions of the Companies Act, SEBI Act, erstwhile DIP Guidelines and ICDR 2009.

Notice dated 20.05.2011 issued by SEBI

• SEBI issued fresh notice dated 20.5.2011 inter alia stating that the companies have not complied with earlier notices and has even failed to provide any information to SEBI regarding details of its investor in order to show cause that the offer of OFCD is made to less than 50 persons. Further, it was stated by the SEBI that arguendo issuance of OFCD was made as private placement, nevertheless any offer/issue to fifty or more persons would be treated as public issue in terms of first proviso to Section 67 (3) of the Companies Act.
• Sahara along with SIRECL were also guilty of making false statement in RHP along with letter dated 15.1.2011 and hence the Company stands liable under Section 62 and 63 of the Act for making untrue statement.
• Notice also alleged that Saharas had violated the provisions of Section 73 of the Companies Act, by non-listing of their debentures in a recognized stock exchange.
• The detailed notice of SEBI also cast serious aspersions with regard to credibility of information furnished by Sahara for the reason that the CD that was sent by Sahara to SEBI was secured in such a manner that no analysis was possible and the addresses of the OFCDs holders were incomplete or ambiguous.
• Serious doubts were also raised with regard to the identity and genuineness of the investors and the intention of the companies to repay the debenture holders upon redemption.
• The Notice, stated that the companies had prima facie violated the provisions of the Companies Act, SEBI Act, 1992, DIP Guidelines and ICDR 2009 and hence the offer/issue of OFCDs to public was illegal, and imperiled the interest of investors in such OFCDs and was detrimental to the interest of the securities market.

Response of Sahara to the SEBI notice

• In its detailed reply Sahara once again questioned the jurisdiction of SEBI with respect to monitoring of OFCD on the ground that OFCD being hybrid instrument SEBI has no Further, it was reiterated that the company had raised funds by way of private placement to friends, associates, group companies, workers/ employees and other individuals associated/ affiliated with Sahara Group, without giving any advertisement to the public.

SEBI (WTM) Order dated 23.06.2011

• On detail appreciation of various contention raised in the notices, reply furnished by Sahara Companies, SEBI found Sahara contravening various provisions of companies Act inter alia Sections 56, 73, 117A, 117B and 117C as well as various clauses of DIP guidelines as well as various ICDR Regulations.
• Consequently, Sahara was directed to refund the money collected under the Prospectus dated 13.3.2008 and 6.10.2009 to all such investors who had subscribed to their OFCDs, with interest.

V. PROCEEDINGS IN SECURITIES APPELLATE TRIBUNAL (SAT)

Aggrieved by the above order of SEBI (WTM) asking Sahara to refund the money collected under the prospectus dated 13.03.2008 and 06.10.2009, Sahara went to SAT in appeal bearing no. 131 of 2011 and 132 of 2011.

SAT vide its order dated October 18, 2011⁶ upheld the order of SEBI The Ld. Tribunal took the view that SEBI had jurisdiction over the Saharas since OFCDs issued were in the nature of securities and should have been listed on any of the recognized exchanges within the Country.

VI. STATUTORY APPEAL U/S 15 Z OF SEBI ACT BEFORE THE HON'BLE SUPREME COURT AND THE PROCEEDINGS BEFORE THE HON'BLE SUPREME COURT

• Aggrieved by the above captioned order, SIRECL preferred statutory C.A. No. 9813 of 2011 and SHICL filed C.A. No. 9833 of 2011 before the Hon'ble Apex Court.

A) Contention of the Parties in the Statutory Appeal before the Apex Court

I. Contention of Sahara Companies

1) Jurisdiction of SEBI-

• It was contended that since both the company were unlisted company therefore SEBI cannot have its jurisdiction under section 55 A of the SEBI Act to administer the provisions of Sections 56, 62, 63 and 73 of the Companies Act on an unlisted company without framing any Regulations u/s Section 642 (4) of the Companies Act⁷.
• SEBI exercises the power with respect to listed companies and the public companies which intend to get their securities listed on any recognized stock exchange.
• Furthermore, it is the Central Government which is competent to administration of sections 56, 62, 63 and 73 with respect to OFCDs.

2) Repeal of Companies cannot be compelled to list the shares or debentures on stock exchange:-

It was further urged on behalf of the company that the companies cannot be compelled to list their shares stocks on recognized stock exchange as the same will tantamount to invasion of corporate autonomy⁸.

3) Section 67 of the Companies Act would not necessarily imply that company's offer of shares or debentures to fifty or more persons would ipso facto become a 'public issue' or a 'private offer':-

Intention of the offeror is a material factor and not the numbers as it has been stated by the SEBI in its order are irrelevant.

4) SEBI cannot approbate and or reprobate regarding the jurisdiction of unlisted public companies:

The Appellant contended that the SEBI has stated on oath before various forum that an unlisted public company was not within its jurisdiction if the company did not intend to list their shares on stock exchange. Therefore, SEBI cannot now take contrary its stand when it comes to the case of the appellant. The Appellant in its defense has cited one Bombay High Court judgment Kalpana Bhandari vs. SEBI; MANU/ MH/1065/2003 and Delhi High Court judgment in Society for Consumers & Investment v. UOI; passed in W.P. 15467 of 2006.

II. Contention of SEBI and SAT

1) SEBI had jurisdiction to administer the Saharas debentures-

As per Section 55 A of the Act, proviso to Section 67 (3) and 73 of the Act and related provisions clearly bring out the intention of the Parliament i.e. even if an unlisted public company makes an offer of shares or debentures to 50 or more persons in that case, it becomes mandatory to follow all the statutory provisions that would culminate in the listing of those securities.

Further, in case once the number reaches fifty, in that case proviso to Section 67(3) applies and it is an issue to the public, attracting Section 73(1) and an application for listing becomes mandatory and, thereafter the jurisdiction vests with SEBI.

Section 55 A of the Act is applicable even for the cases where the company "intend to" get their securities listed.

Further on combined reading of the proviso to section 67 (3) and Section 73 (1), the offer was made by the Sahara to more than forty nine persons and hence the requirement to make application and that on a combined reading of the proviso to Section 67(3) and Section 73(1), since Saharas had made an offer of OFCDs to more than forty nine persons, the requirement to make application for listing became mandatory and SEBI has the necessary jurisdiction even though Saharas had not got their securities listed on a stock exchange.

Further, Mr. Arvind Datar, Learned Senior Counsel appearing on behalf of the SEBI vehemently stated that Saharas should be judged by what they did, not what they intended.

VII. HON'BLE SUPREME COURT FINDINGS

The Hon'ble Apex Court dismissed the appeal preferred by the Sahara Company and in its detailed judgment stated that SEBI has the power to administer the provisions referred to in the opening part of Section 55 which relates to issue and transfer of securities and non-payment of dividend by public companies like Saharas, which have issued securities to fifty persons or more, though not listed on a recognized stock exchange, whether they intended to list their securities or not and they were directed to refund the amount so collected through OFCD.

VIII. ANALYSIS OF THE SEBI-SAHARA CASE

A) Did SEBI encroach beyond its power

Yes, there was encroachment

In the instant case the Company being unlisted company, it is the prerogative of Registrar to Call for information or explanation.⁹ The underlining provision is contained in Section 234 (1) which deals with Power of Registrar to call for information or explanation. On pursuing through the affidavit which has been filed by the petitioner in the HC it has been stated by the Company that the petitioner company has communicated necessary information to Registrar of Companies which has been duly verified and was found satisfactory by the ROC.

No, there was no encroachment

As per SEBI the issue was to more than 50 persons so it has become a public issue and thereby there was a requirement of listing which was not complied and thereby SEBI derives its power. Taking the que from Bombay HC decision in the case of PWC and Ors. v SEBI & Ors.¹⁰wherein it was said that powers conferred to SEBI to regulate capital markets is of wide amplitude and SEBI's general domain extends to protecting investors of listed companies and the securities markets it can be said that SEBI in order to safeguard the interest of investors of listed companies of Sahara has taken this step and thereby it is within its jurisdiction.

B) Was SEBI justified in initiating Action against the Petitioner Company?

There have being instances reported¹¹ according to which investors who had given money to Sahara for booking flats in its proposed projects in 2003 have still not heard of even land being acquired for the project and they are left with no remedy with their money stuck with Sahara. Sahara invests the investor money in numerous ventures like sponsoring of Indian Cricket Team, investment in Production houses so an accusation has often being levelled against Sahara that it invests the investor money without any accountability to investors thereby SEBI order barring Sahara from raising the money if seen in the holistic line can be considered to be justified.

IX. RECENT UPDATES ON SEBI- SAHARA DISPUTE AND THE ARREST OF SUBORTO ROY AND SAHARA DIRECTORS FOR WILFUL NON-COMPLIANCE OF HON'BLE APEX COURT ORDER

After having noticed and witnessed that Sahara companies including its directors were not complying with the direction and order dated 31.08.2012, The Hon'ble Apex Court in rare and exceptional case issued NBW vide order dated 26th February, 2014 against Sahara Chief Mr. Subrata Roy in the contempt proceedings initiated by SEBI. The Hon'ble Court in its strong worded order asked the Sahara Chief to be produced on the next date of hearing. Some of the media reports published stated that the Court went on to the extent stating that "The arms of this court are very long. We will get him here if he does not want to come on his own. If other directors can come, why can't he? Yesterday only we had refused your plea for exemption from personal appearance. All this is going on for last two years. We are issuing non-bailable warrant now¹²"

Since then, Sahara Chief is in Tihar Jail even though he has been granted bail by the Hon'ble Apex Court vide its order dated 18th June, 2015. He is still not enlarged on bail because as per the order granting bail, Sahara group has to furnish Rs. 1000 crore half in cash and half in guarantee which the company has failed to do so till date and therefore, the Group MD has not been released on bail.

In a recent crackdown, SEBI has cancelled the Certificate of Registration of the Sahara Mutual Fund license¹³ and has also debarred Sahara Mutual fund/ Sahara Asset Management Company from taking any new subscriptions from the investors. Further, the Sahara Mutual Fund shall not levy any penalties/ loads on the SIP/ STP investors for not depositing the instalments.

CONCLUSION

From the happening around the world be it Facebook or Sahara it is clear that going Public to raise money is becoming out of fashion. In the wake of these corporate horses getting more enthusiastic it becomes even more onerous for regulatory bodies to match up with their enthusiasm. Laws in US were practical enough to deter Goldman Sachs from including US investor in their offering whereas in the case of SAHARA such a happening fell into a jurisdictional conflict.

Pertinently, the order of the Hon'ble Supreme Court issuing NBWs against once upon a time giant company clearly goes on to state that defaulter cannot take law for a ride and dupe the investor of their hard earned money. It was primarily why the SEBI was established by the Parliament after the infamous Harshad Mehta and Ketan Parikh scam in order to protect the interest of the investor which were blatantly dumped by unscrupulous investor by offering them attractive return. Subrato Rai and two directors of Sahara still continues to be in jail even though they have been granted bail by the Apex Court for the obvious reason that the Hon'ble Apex Court has placed stringent terms and conditions for the release of Saharashri.

Footnotes

1. (2013)1 SCC 1

2. SEBI (WTM) Order dated 23.06.2011

3. Refer Para 3 of Judgment dated 31.08. 2012 passed in Civil Appeal 9813 of 201; Sahara India Real Estate Corporation Limited & Ors vs. Securities and Exchange Board of India

4. "55A. Refer Section 55 A of the Companies Act, 1956."

5. Refer Para 11 of the Judgment dt. 31.08.2012

6. Refer Para 42 of the Judgement and order passed by SAT in Appeal No. 131 of 2011

7. Refer Para 26 of the Judgment bearing C.A 9813 of 2011 and 9833 of 2011 dated 31.08.2012

8. Refer Para 34 of the Judgment bearing C.A 9813 of 2011 and 9833 of 2011 dated

9. S. 234, The Companies Act, 1956.

10. Writ Petition No. 5249 of 2010, Bombay High Court

11. John Samuel Raja D, Sahara Stuck In Sand Much-Delayed Housing Projects And A Lack Of Transparency In Group Dealings Mar Sahara's Attempts To Raise Money From The Public, Outlook Business, Aug 21, 2010, available at: http://blogcms.outlookindia.com/article_v3.aspx?artid=266568, (visited on 1st march,2011)

12. SC orders arrest of Sahara chief Subrata Roy, says 'arms of court very long' : http://indianexpress.com/article/india/india-others/sc-orders-arrest-of-sahara-chief-subrata-roy-says-arms-of-court-very-long

13. http://www.sebi.gov.in/cms/sebi_data/attachdocs/1438083387013.pdf

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.