1997 (11) TMI 426 - HC - Companies Law

Allotment of shares and debentures to be dealt in on stock exchange, Allotment of shares - Prohibition of

Issues Involved:
1. Jurisdiction of the appellate authority of SEBI.
2. Non-supply of material documents to the petitioner.
3. Compliance with the minimum subscription requirement.
4. Validity of the allotment of shares.
5. Interpretation of statutory provisions under sections 69 and 73 of the Companies Act.

Issue-wise Detailed Analysis:

1. Jurisdiction of the appellate authority of SEBI:
The petitioner contended that the appellate authority of SEBI overstepped its jurisdiction by addressing investor grievances in an appeal that was solely about the refusal of listing permission by the Bombay Stock Exchange. The court rejected this contention, stating that compliance with the minimum subscription requirement is a condition precedent for listing permission. Therefore, the appellate authority was both empowered and duty-bound to examine whether the petitioner-company had complied with this statutory requirement. The court noted that earlier, investors had filed a special civil application raising similar grievances, and the court had granted liberty to make representations to the appellate authority, thus justifying the appellate authority's examination of these grievances.

2. Non-supply of material documents to the petitioner:
The petitioner argued that it was not provided with a crucial document, the letter dated 12-7-1996, which the appellate authority relied upon. However, during the hearing, it was clarified that the contents of this letter were identical to another letter already in the petitioner's possession. Consequently, the petitioner conceded that no prejudice was caused due to the non-supply of the specific letter, thereby dismissing the argument of a breach of natural justice.

3. Compliance with the minimum subscription requirement:
The appellate authority found that the petitioner-company had not genuinely received the minimum subscription amount. Six applications for one lakh shares each, accompanied by consecutively numbered stockinvests issued by Punjab National Bank, were found dubious. These stockinvests were encashed in an account not designated as a banker to the issue, and the funds were withdrawn in cash by an employee of the petitioner-company. The court upheld the appellate authority's finding that the receipt of Rs. 30 lakhs was merely an illusion and did not constitute actual compliance with the minimum subscription requirement.

4. Validity of the allotment of shares:
The court agreed with the appellate authority that the allotment of shares was invalid due to non-compliance with the minimum subscription requirement. The court emphasized that statutory provisions under sections 69 and 73 of the Companies Act mandate that application money must be deposited in a separate bank account with the bankers to the issue until listing permission is granted. The withdrawal of Rs. 30 lakhs in a dubious manner before obtaining listing permission constituted a flagrant breach of these provisions, rendering the allotment improper.

5. Interpretation of statutory provisions under sections 69 and 73 of the Companies Act:
The court interpreted the statutory provisions to mean that the application money must be kept out of the company's reach until all conditions for valid allotment are satisfied. The court held that the term "a Scheduled Bank" in sections 69(4) and 73(3) should be understood as the Scheduled Bank/s which are bankers to the issue, to prevent manipulation and ensure investor protection. The court concluded that the petitioner-company's actions violated these mandatory provisions, and thus, the application money was not genuinely received as required by law.

Conclusion:
The petition was dismissed with costs, and the appellate authority's order was upheld. The court emphasized the importance of adhering to statutory requirements to protect investors and prevent fraudulent practices. The request for a stay of the judgment was also rejected.

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