2002 (3) TMI 936 - AT - Companies Law

Summary

Issues Involved:
1. Debarring from accessing the capital market and dealing in securities.
2. Compliance with regulation 7(1) of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997.
3. Procedural compliance in investigation and adherence to principles of natural justice.
4. Legality of directions and penalties imposed by SEBI.

Issue-wise Detailed Analysis:

1. Debarring from accessing the capital market and dealing in securities:
The appellant and others were debarred from accessing the capital market and dealing directly or indirectly in securities for a period of one year. This direction was found to be beyond the scope of regulation 44(a), which only empowers SEBI to direct persons not to further deal in securities, particularly those of the target company. The Tribunal held that the direction to debar from accessing the capital market and dealing in all securities was not justified and was beyond SEBI's powers under regulation 44(a) and sections 11 and 11B of the SEBI Act. The Tribunal set aside this part of the order, emphasizing that such a direction should be in the interest of the securities market, which was not demonstrated in this case.

2. Compliance with regulation 7(1) of SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 1997:
The appellant failed to disclose the acquisition of over 5% of the shares in Bombay Dyeing within the stipulated four days, as required by regulation 7(1). The Tribunal rejected the appellant's argument that the duty to disclose did not include persons acting in concert. It was held that the acquisition by persons acting in concert must be considered collectively for disclosure purposes. The Tribunal also dismissed the appellant's contention that the disclosure requirement was not mandatory, affirming that the use of "shall disclose" indicates a mandatory requirement. The Tribunal concluded that the appellant did not comply with regulation 7(1) as the disclosure letter did not reach Bombay Dyeing.

3. Procedural compliance in investigation and adherence to principles of natural justice:
The appellant argued that SEBI did not follow proper procedures in the investigation and violated principles of natural justice. The Tribunal found that SEBI had complied with regulation 39(2) by issuing an order to investigate without prior notice in the interest of investors. SEBI had also communicated the findings of the investigation and provided an opportunity for the appellant to be heard, fulfilling the requirements of regulation 42(1). The Tribunal noted that the appellant was given access to documents and an opportunity to inspect them, and cross-examination was not necessary as no statements from individuals were relied upon. The Tribunal concluded that SEBI adhered to the principles of natural justice.

4. Legality of directions and penalties imposed by SEBI:
The Tribunal examined the legality of the directions and penalties imposed by SEBI. It was noted that regulation 44(a) does not empower SEBI to debar entities from accessing the capital market or dealing in all securities. The Tribunal held that such a direction was beyond SEBI's powers and not justified by the facts of the case. The Tribunal also clarified that non-compliance with regulation 7(1) does not make the acquisition itself violative of the regulations, but it attracts monetary penalties under section 15A(b) of the SEBI Act. The Tribunal upheld SEBI's decision to appoint an Adjudicating Officer to inquire into the violations and impose penalties if warranted, as this process is separate and provides an opportunity for the appellant to be heard.

Conclusion:
The Tribunal set aside the direction debarring the appellant from accessing the capital market and dealing in securities, finding it beyond SEBI's powers and not in the interest of the securities market. The Tribunal upheld the finding of non-compliance with regulation 7(1) and SEBI's decision to appoint an Adjudicating Officer for further inquiry and penalties.