SEBI | What could give a ‘semblance of credibility on first blush’, denied on ‘second’| Fraudulent issuance of GDR dealt suitably | Directed to disgorge

Securities and Exchange Board of India (SEBI): S.K. Mohanty (Whole Time Member) in a detailed 92 paged order, barred six individuals and seven entities from the securities market for varying periods and directed some to disgorge illegal gains. Further made clear distinctions from the cases referred to, in regards with the instant matter, specifying very categorically the different factual threads.

The present matter pertains to the issuance of GDR by Zenith Birla (India) Limited and the independent and concerted efforts of the other Notices.. It had issued 1.81 million GDRs for USD 22.99 million in 2010. Thereafter, all the 1.81 million GDRs were cancelled and converted into equity shares. Post cancellation of the aforesaid GDRs, it was noticed that 4,77,30,000 shares of Zenith on conversion of 1,377,667 GDRs were sold in the Indian securities market through FII-sub-account namely India Focus Cardinal Fund  (IFCF). Similarly, 1,15,06,560 shares of Zenith on the conversion of 319,626 GDRs were sold in the Indian securities market through FII-sub account namely High Blue Sky Emerging Market Fund.  DRThe Company had concealed material facts from its shareholders and investors of Indian securities market and thereby had prevented them from taking an informed decision while dealing in the shares of the Company.

There were certain submissions made by the parties which the Court dealt with suitably, for instance, “…I note that the instant proceedings are in the nature of quasi-judicial proceedings and the provisions of Indian Evidence Act, 1872 are not strictly applicable to such proceedings. Further, the principle under Section 65 (a) of the said Act, itself provides for admissibility of a document as a secondary evidence under certain condition inter alia, when the original is in possession of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to the process of the Court. As stated in the beginning, the copies of the documents relied upon in the SCN to prove the allegations, were actually obtained during investigation through the help of overseas securities market regulators and the copies of all such documents relied upon in the SCN have been duly made available to the Noticees. The Noticees have filed their written replies to the SCN by referring to those documents, hence the objection to the reliability on those documents at this stage is without any reason and does not explain as to how these copies of documents have caused prejudice in defending their interest and contesting the allegations made against in the SCNs…”.

“Noticee no. 6 should understand that the instant proceeding is an inquisitional proceeding where an entity is required to offer comments / replies in response to the allegation levelled in the SCN. It is not an adversarial proceeding i.e. a dispute resolution proceeding where respective counter parties present their respective claims to a third neutral party, or an adjudicator for deciding the dispute…””… Hence the contention of the Noticee no. 6 is not tenable and he is expected to only confine his submissions in rebutting the allegations made against him in the SCN…”.

The Court further remarked, “On the basis of close connection of IFCF and HBS with AP and the role played by the AP, Vintage, IFCF and HBS in implementing the fraudulent scheme of GDR issue of Zenith, it is the call of justice that all these entities should be made jointly and severally liable to disgorge the said illegal gains earned by IFCF and HBS. Therefore, in my considered view, the gains made by these Noticees by selling such shares are liable to be disgorged since the underlying shares of those GDRs for which no consideration was paid by Vintage, were sold and unlawful gains were made out of such sale by these Noticees…”. Therefore, such acts providing partial and distorted information to the public about issuance of GDRs by the Company were observed to be acts falling in the category of fraudulent acts.

Common submission by some of the Noticees:

GDR were issued by the Company in 2010 while SEBI had issued SCN after 9 years of the GDR and such inordinate delay of around 9 years is unjustified and unfair.

Replying to which the court exclaimed, “….The submissions advanced by the Noticees may give a semblance of credibility on first blush, however, after scrutiny of the records before me, I am of the view that the aforesaid observations of the Noticees and the decisions relied upon by them would neither be applicable nor be helpful to the Noticees, as the facts and the context of the matters referred to above are distinguishable from the facts of the present matter…”

While taking cognizance of the individual and active role of the Noticees in connivance with Zenith, the Court took note of the role of the Bank also. The Court gave due credit to the corrective steps that the Bank took by removing the director from its joint venture, further dissolving and transferring its sub account. And therefore it stated, “…in my opinion, though the acts of the Noticee no. 13 are in violation of the provisions alleged in the SCN, taking cognizance of the aforesaid mitigating measures taken by it as a bank and as a FII, the matter needs to be considered accordingly…”.[Zenith Birla (India) Ltd, In re, 2021 SCC OnLine SEBI 75, decided on 30-03-2021]

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