2015 (10) TMI 266 - HC - Companies Law

Validation of Participatory Notes as offshore derivative instruments (ODIs) - alleged statement by the Finance Minister Petitioner contends with regard to the Participatory Notes which are nothing but ODI s and the alleged statement made by the Finance Minister Respondent holds that ODI s include participatory notes which are entered into by a Foreign Portfolio Investor Held That - Premise on which the writ petition is found does not exist - Regulation 22 of SEBI(Foreign Portfolio Investors) Regulations,2014 prescribes the conditions for issuance of ODI s of which, a participatory note is an example - Finance Minister has only stated that the Government would not take any knee-jerk reaction with regard to stipulating or not stipulating any norms stricter than what are already in place - Petitioner cannot validate any cause for filing the present petition Decided against the appellant.

Summary

Issues:
1. Legality of participatory notes (PNs) under various laws and regulations.
2. Impact of a press report suggesting stricter norms for PNs.

Issue 1: Legality of participatory notes (PNs):
The writ petition challenged the legality of participatory notes (PNs) as offshore derivative instruments (ODIs) under the Prevention of Money Laundering Act, 2002, Foreign Exchange Management Act, 1999, and SEBI Rules and Regulations. The petitioner argued that PNs are illegal instruments. However, the Additional Solicitor General presented the Securities and Exchange Board of India (Foreign Portfolio Investors) Regulations, 2014, which define ODIs to include PNs among other instruments. The regulations outline eligibility criteria for foreign portfolio investors, categorization of investors, and conditions for issuance of ODIs, including PNs. It was highlighted that PNs are not inherently illegal but are regulated under the specified regulations. Any deviations from the regulations empower SEBI to take corrective action, as specified in Regulation 44, which outlines liability for defaulting entities.

Issue 2: Impact of the press report on stricter norms for PNs:
The press report mentioned suggestions by the Special Investigation Team (SIT) for stricter norms regarding PNs. The Finance Minister's statement indicated that the government would not rush into implementing additional norms beyond those already in place under the SEBI Regulations, 2014. The court found that these developments did not provide a valid basis for the petitioner's multifarious reliefs sought in the petition. The court dismissed the petition, noting the withdrawal of personal allegations made against one of the respondents. Ultimately, the court concluded that the petition lacked merit, emphasizing that the legal premise challenging the legality of PNs did not hold ground based on the existing regulatory framework.

In conclusion, the judgment clarified the regulatory framework governing participatory notes, emphasizing their legality under the specified regulations and the authority of SEBI to address any deviations. The dismissal of the petition highlighted that the reported suggestions for stricter norms did not warrant the relief sought by the petitioner, ultimately affirming the legality and regulatory oversight of participatory notes in the Indian financial market.