2014 (10) TMI 670 - SC - Companies Law

Restriction on offer of equity shares/OFCDS or any other securities to the public or invite subscription in any manner whatsoever either directly or indirectly - High Court directed to refund the amount collected by Saharas in terms of the RHPs issued by them alongwith interest @ 15% p.a. from the date of the receipt of the deposits till the date of such repayment - Held that - It is apparent, from the submissions made at the bar, that these IAs have two limbs In the first instance, the contemnors want relaxation in the restraint orders over the Bank deposits and immovable properties to comply with the directions of this Court regarding deposit of the amounts. That part of the prayer does not pose any difficulty, as the same is in aid of compliance with the directions of this Court. Second set of prayers is for grant of bail or relaxation of jail conditions in the interregnum. Here, we have our reservations. We are not inclined to modify order dated 26th March, 2014 granting interim bail to the contemnors upon conditions stipulated in the said order. Background in which the contemnors came to be committed to the jail and the finding recorded by the Court that they have at all earlier stages tried to adopt dilatory tactics and avoided to comply with the orders passed by the Court does not in our view call for any modification of the terms on which the contemnors can be released. Dr. Dhawan pleaded, in the alternative, that the least which could be done was to shift the contemnors from Tihar Jail to a guest house for incarceration to enable them to take decisions that are necessary for compliance with the directions issued by this Court. This request was opposed by Mr. Venugopal, according to whom similar requests made repeatedly over several hearings in the past have been declined by this Court, although no specific order refusing the same was recorded. The Bench has passed a conditional bail order after due and proper consideration having regard to the attendant circumstances including conduct of the contemnors. The order can be modified only under very compelling circumstances. The only reason given by the applicants is that interim release or transfer of the contemnors to a guest house would enable them to dispose of the properties speedily and enable them to arrange for the requisite Bank Guarantees. We don't think so. It is noteworthy that the total amount to be deposited is between ₹ 33000/- to ₹ 35000/- crores. To show their bonafides, the contemnors have been directed to deposit less than 1/3rd of that amount as a condition for bail. After all, even when this part of the order is complied with and the contemnors are set free, they will have to arrange the deposit of the balance amount, which again is very substantial. Sale of valuable properties at a price lesser than the market value of such assets is bound to prejudicially affect the interest of the depositors and defeat the orders passed by this Court in its letter and spirit. That is particularly so because according to Mr. Venugopal, SEBI is unable to value the properties or process the sale and transfer thereof. It was in that background that we had indicated to Dr. Dhawan learned counsel for the appellants that the restraint orders cannot be lifted in toto and that Saharas should come forward with a proposal for sale of such properties as were sufficient to comply with the interim bail direction of this Court regarding deposit of ₹ 5,000/- crores in cash and a bank guarantee of ₹ 5.000/- in addition. Dr. Dhawan has pursuant to that observation confined his prayer for permission to sell/transfer only nine items of properties situated in nine different cities in the country and disclosed the estimated value of such property in the statement which we have extracted above. Immovable properties owned by Sahara Group of companies situated in 9 different cities mentioned in the note filed by Dr. Dhawan and extracted in the body of this order with an estimated value of ₹ 2500/- crores are permitted to be sold by the companies/other entities persons in whose names such properties are held subject to the condition that such sales are not for a price lower than the estimated value indicated in the statement filed before this Court or the circle rates fixed for the area in which such properties are situated. The seller shall furnish to this Court the details of the valuation of the properties sold and the terms of sales together with a declaration that the purchasers is not a related party qua Saharas. Needless to say that upon deposit of the sale consideration the title deeds of the property shall be released by SEBI in favour of the purchaser(s). The sale consideration of the properties less transaction cost and statutory dues on the same shall be deposited with the SEBI to the extent the same is necessary to make a total deposit of ₹ 5,000/- crores inclusive of the maturity value and sale proceeds of the FDs, bonds and securities etc. permitted to be encashed and sold in terms of direction (iii) (a) above. The balance/excess amount of the sale consideration shall be deposited by Saharas in a separate account to be opened in a nationalised bank which deposit shall remain subject to further orders of this Court - Saharas are also permitted to charge its immovable properties situated in Aamby Valley (Pune), the details whereof are given in Annexure B to IAs No.101-103, for purposes of furnishing a bank guarantee for an amount of ₹ 5,000/-crores and/or for deposit of ₹ 5,000/- crores if there is any shortfall despite encashment and sales permitted in prescribed terms. - Decided partly in favour of Appellant.

Summary

Issues Involved:
1. Legality of Sahara's mobilization of funds through OFCDs.
2. Compliance with SEBI's refund directives.
3. Non-compliance and contempt proceedings.
4. Proposals for compliance and conditional bail.
5. Modification of restraint orders on asset sales.

Detailed Analysis:

1. Legality of Sahara's Mobilization of Funds through OFCDs:
Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) collected deposits from the public through 'Optional Fully Convertible Debentures' (OFCDs). SEBI found this mobilization under the Red Herring Prospectus (RHP) dated 13th March 2008 and 6th October 2009 to be legally impermissible. SEBI issued an ex parte order on 24th November 2010, prohibiting Saharas from offering OFCDs or any other securities to the public.

2. Compliance with SEBI's Refund Directives:
The High Court at Bombay directed the promoters and directors of Saharas to refund the collected amounts with 15% interest per annum. SEBI ordered the refund to be made in cash through demand drafts or pay orders and restricted Sahara Commodity Services Corporation Limited (formerly SIRECL) and SHICL from accessing the securities market until the payments were made.

3. Non-Compliance and Contempt Proceedings:
Saharas appealed to the Securities Appellate Tribunal (SAT), which upheld SEBI's order and directed a refund within six weeks. The Supreme Court extended the refund period but ultimately required Saharas to deposit the collected amount with SEBI within three months, with interest. Saharas failed to comply, leading to contempt petitions by SEBI. The Supreme Court issued non-bailable warrants against the Sahara promoters and directors, who were subsequently committed to judicial custody.

4. Proposals for Compliance and Conditional Bail:
Despite various proposals for compliance, none were satisfactory. On 26th March 2014, the Supreme Court granted conditional interim bail to the contemnors, requiring a deposit of Rs. 10,000 crores (Rs. 5,000 crores in cash and Rs. 5,000 crores via a bank guarantee). Saharas filed a writ petition challenging the validity of the Supreme Court's order, which was dismissed.

5. Modification of Restraint Orders on Asset Sales:
Saharas requested the lifting of restrictions on bank accounts and properties to comply with the court's directives. The Supreme Court allowed the encashment of FDs, bonds, and securities, with proceeds to be deposited in SEBI's designated account. The sale of immovable properties in nine cities was permitted, provided sales were not below the circle rates. The court also allowed the charging of Aamby Valley properties for furnishing a bank guarantee and directed that bank guarantees be from nationalized or scheduled banks only.

Conclusion:
The Supreme Court declined to modify the conditional bail terms and denied the request to shift the contemnors to a guest house. The court emphasized compliance with its directions and allowed asset sales to facilitate this. The matter was referred to a three-Judge Bench for further proceedings, with Mr. F.S. Nariman appointed as amicus curiae to assist the court.