2008 (3) TMI 737 - AT - Companies Law

Irregularities/illegalities in allotment of share - Certificate of registration expired and not been renewed - Unexplained delay of issue of show cause notice issued after a lapse of more than 8 years - Restraining from Accessing securities for a period of one month - violation of Clauses 1 2 and 9 of the code of conduct prescribed in Schedule III to the Securities and Exchange Board of India (Merchant Bankers) Regulations 1992 - HELD THAT - We cannot resist observing that there has been an inordinate delay in initiating action against the appellant. It is alleged to have committed the irregularities in the earlier part of the year 1996 and the show-cause notice was admittedly issued in June 2004. How could any one file a proper reply after a lapse of more than eight years. This long delay itself causes grave injustice to the delinquent and results in the violation of the principles of natural justice. Such delays defeat the very purpose of the proceedings. What is contended by the learned Counsel for the Board is that investigations commenced only in May 2002 and were going on till the year 2003. This is no explanation for the delay. Why could they not commence earlier. Again when investigations continue for years together the very purpose of issuing the directions under Section 11B may be lost as in the instant case. In view of the inordinate delay in initiating action against the appellant and that too when its certificate of registration had already expired the impugned order cannot be sustained. Thus we allow the appeal and set aside the impugned order leaving the parties to bear their own costs.

Issues Involved:
1. Allegations of manipulation and irregularities in the IPO of Mazda Fabrics and Processors Limited.
2. Alleged failure of the appellant (merchant banker) to act as per the code of conduct.
3. Delay in initiating action against the appellant.
4. Appropriateness of the penalty imposed under Section 11B of the SEBI Act.

Issue-wise Detailed Analysis:

1. Allegations of Manipulation and Irregularities in the IPO:
Mazda Fabrics and Processors Limited (Mazda) launched an Initial Public Offer (IPO) in January 1996. It was alleged that the promoters of Mazda, through an individual named Suresh Bafna, manipulated the issue by arranging applications from various entities to ensure the IPO's success. Specifically, Bafna allegedly arranged for the subscription of over 67.5% of the shares allotted in the public issue. Investigations revealed that 50 applications, each for 1000 shares, were accompanied by cheques with continuous serial numbers from the same account, indicating potential manipulation. The appellant, a merchant banker, was accused of failing to detect these irregularities and assisting the promoters in fulfilling the subscription level.

2. Alleged Failure of the Appellant to Act as per the Code of Conduct:
As the lead manager to the issue, the appellant was accused of not ensuring that the Registrar to the issue was not making irregular allotments to applicants. It was alleged that the appellant violated Clauses 1, 2, and 9 of the code of conduct prescribed in Schedule III to the Securities and Exchange Board of India (Merchant Bankers) Regulations, 1992. The Board also believed that the appellant violated Circular No. 1, dated 1-3-1993, issued to registered merchant bankers. Consequently, a notice was issued to the appellant in June 2004, calling for action under Sections 11(4)(b), 11B, and 11 of the SEBI Act.

3. Delay in Initiating Action Against the Appellant:
The irregularities were alleged to have occurred in early 1996, but the show-cause notice was issued only in June 2004, after more than eight years. The appellant argued that this delay caused grave injustice and violated the principles of natural justice. The Tribunal noted that such long delays defeat the purpose of the proceedings and result in unfairness to the delinquent. The Board's explanation that investigations commenced only in May 2002 and continued until 2003 was deemed insufficient to justify the delay.

4. Appropriateness of the Penalty Imposed Under Section 11B:
The Tribunal examined the relevant provisions of the Regulations in force in 1996, which specified penalties such as suspension or cancellation of registration for merchant bankers. It was noted that the appellant's certificate of registration expired on 30-9-2000 and was not renewed. The Tribunal emphasized that Section 11B of the SEBI Act is meant for regulatory purposes, not punitive actions. The directions under Section 11B should aim to protect the securities market and investors' interests, not to punish the delinquent. The Tribunal concluded that the Board should have proceeded under the Regulations or the Enquiry Regulations, not under Section 11B, which resulted in a harsher penalty than warranted.

Conclusion:
The Tribunal allowed the appeal and set aside the impugned order, noting that the appellant ceased to be a merchant banker after 30-9-2000 and posed no threat to the securities market. The inordinate delay in initiating action and the inappropriate use of Section 11B for punitive purposes were key reasons for setting aside the order. The parties were left to bear their own costs.

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