2018 (8) TMI 641 - AT - Companies Law

Violation of provision of SEBI - listed company has violated Clause 36 of the Listing Agreement by failing to disclose that it has acquired indirect control over another listed company through a Trust established exclusively for its benefit - whether SEBI is justified in disposing of that complaint by merely recording that the Trust is not a subsidiary of the listed company and hence no disclosures were required to be made under Clause 36 of the Listing Agreement, is the basic question raised in this appeal. Held that - Admittedly, on reconsideration of the issue SEBI has not passed any quasi judicial order but only submitted a report to this Tribunal in the form of an affidavit. In these circumstances, while setting aside the impugned decision dated 9/1/2017, we direct SEBI to decide afresh the question as to whether on execution of ZOCD Agreement dated 27/2/2012 RIL acquired indirect control over NW18 through IMT and failed to disclose the same in violation of Clause 36 of the Listing Agreement. We make it clear that our prima facie view that by subscribing to the ZOCDs under the ZOCD Agreement dated 27/2/2012 RIL acquired indirect control over NW18 through IMT is not binding on SEBI and SEBI is directed to reconsider the issue independently without being influenced by the prima facie observations made by this Tribunal in that behalf.

Summary

Issues Involved:
1. Whether SEBI was justified in disposing of the complaint regarding the violation of Clause 36 of the Listing Agreement by merely stating that the Trust was not a subsidiary of the listed company.
2. The maintainability of the appeal against SEBI's decision.
3. Application of the principles of res judicata.

Issue-Wise Detailed Analysis:

1. Justification of SEBI's Decision:
The core issue in the appeal was whether SEBI was justified in disposing of a complaint that alleged a listed company (RIL) violated Clause 36 of the Listing Agreement by failing to disclose its indirect control over another listed company (NW18 and TV18) through a Trust (IMT) established for RIL's benefit. The appellants argued that SEBI's decision to dismiss the complaint on the grounds that IMT was not a subsidiary of RIL was erroneous. The Tribunal held that Clause 36 of the Listing Agreement mandates disclosure when a listed company acquires indirect control over another listed company, regardless of whether this is through a Trust or another entity. SEBI's failure to consider the merits of the complaint and its erroneous interpretation of Clause 36 were found to be detrimental to investor interests and contrary to the purpose of disclosure obligations.

2. Maintainability of the Appeal:
The respondents raised a preliminary objection, arguing that SEBI's decision on the SCORES platform was administrative under Section 11(1) of the SEBI Act and thus not appealable. The Tribunal rejected this contention, stating that SEBI's decision involved judicial interpretation of Clause 36, affecting the appellants' rights as shareholders, thus qualifying as a quasi-judicial decision. The Tribunal referenced the Apex Court decision in NSDL vs. SEBI, clarifying that the parameters for a quasi-judicial order were met in this case. Consequently, the Tribunal held the appeal to be maintainable.

3. Principles of Res Judicata:
The respondents contended that the issue of RIL's indirect control over NW18 through IMT had already been decided by SEBI in a previous complaint, invoking the principle of res judicata. The Tribunal reviewed the sequence of events, noting that SEBI had rejected a similar complaint on 9/2/2015, which the appellants did not challenge. However, the Tribunal observed that in Appeal No.55 of 2015, it had directed SEBI to reconsider the issue due to SEBI's failure to consider the clauses of the ZOCD Agreement. SEBI's subsequent report, submitted as an affidavit, did not constitute a fresh quasi-judicial order. Therefore, the Tribunal concluded that the decision of 9/2/2015 had not attained finality and directed SEBI to decide the issue afresh.

Conclusion:
The Tribunal set aside SEBI's impugned decision dated 9/1/2017, directing SEBI to reconsider whether RIL violated Clause 36 of the Listing Agreement by failing to disclose its acquisition of indirect control over NW18 through IMT. The Tribunal emphasized that SEBI should independently assess the issue without being influenced by previous observations and, if it disagrees with the Competition Commission of India's view, provide reasons for its contrary stance. The appeal was disposed of with no order as to costs.