2002 (9) TMI 796 - AT - Companies Law

Summary

Issues Involved:
1. Allegations of manipulation in the public issue.
2. Appellant's resignation and association with the public issue.
3. SEBI's authority under section 11B of the Securities and Exchange Board of India Act, 1992.
4. Appellant's involvement and responsibility in the public issue.
5. Legality of the directions issued by SEBI.

Issue-wise Detailed Analysis:

1. Allegations of Manipulation in the Public Issue:
The company made a public issue of 25,40,000 equity shares, which opened on 9.5.1995 and closed on 20.5.1995. Allegations included manipulation of promoters' contribution and late subscription. SEBI's investigation revealed that the promoters' contribution was not actually received, and minimum subscription was falsely shown as met by depositing cheques that later bounced. Further, applications for shares worth Rs. 180 lacs were made post-closure of the issue and refunded with interest, indicating manipulation.

2. Appellant's Resignation and Association with the Public Issue:
The Appellant contended that he resigned from the Board on 7.5.1995, before the public issue opened, and thus was not associated with the alleged violations. However, evidence showed that the Appellant actually resigned on 1.8.1995. The Appellant's involvement was further evidenced by his signing of the prospectus and accompanying the managing director to various meetings related to the public issue.

3. SEBI's Authority Under Section 11B of the Securities and Exchange Board of India Act, 1992:
The Appellant argued that SEBI's directions under section 11B, which prohibited him from accessing the capital market and dealing in securities for three years, were beyond the scope of the section. The Tribunal noted that section 11B does not empower SEBI to impose penalties but is preventive and remedial. The Tribunal referenced its decision in Sterlite Industries (India) Ltd. V. SEBI, stating that SEBI's directions should be aimed at protecting investors and ensuring the orderly development of the securities market.

4. Appellant's Involvement and Responsibility in the Public Issue:
The Tribunal found that the Appellant was actively involved in the public issue. Despite being designated as a non-executive director, he had significant functional responsibilities, including assisting the company in management, law, and accounts. His involvement was corroborated by his own statements and evidence showing his participation in meetings related to the public issue.

5. Legality of the Directions Issued by SEBI:
The Tribunal concluded that the directions issued by SEBI were punitive rather than preventive or remedial, as they effectively barred the Appellant from accessing the capital market and dealing in securities. The Tribunal held that section 11B does not provide for such penal actions and thus set aside SEBI's directions. However, it clarified that this decision does not prevent SEBI from taking any lawful action against the Appellant in the future.

Conclusion:
The Tribunal found that the public issue was manipulated and that the Appellant was involved in the process. However, it set aside SEBI's directions prohibiting the Appellant from accessing the capital market and dealing in securities, stating that such directions were beyond the scope of section 11B and were punitive in nature. The appeal was disposed of accordingly, with the Tribunal allowing SEBI to take any lawful action against the Appellant if necessary.