2019 (12) TMI 946 - AT - SEBI

Recovery certificates/attachment notices/orders issued by the concerned authority in SEBI - SEBI held that the scheme mooted by the appellant was a CIS and directed that the contributions made to the scheme must be returned - proof of refund of money to the investors in full or refund in the form of land with full transfer of ownership and all rights - HELD THAT - This Tribunal had given ample opportunities to the appellant to prove the veracity of their statements with documents before SEBI. The appellant is not able to prove that. Therefore, just making bold statements with part documentation by which no conclusion can be reached do not prove refund of money to the investors in full or refund in the form of land with full transfer of ownership and all rights. We also note that the impugned orders dated August 12, 2016 and September 14, 2016 deal with the documents furnished by the appellant in detail and we are not able to find fault with the same. The appellant is not able to prove whether land has been given to the investors in accordance with the terms and conditions i.e. after development of the land etc. and what happens to the maintenance aspect. In fact, we are told by the learned counsel for the SEBI that a large number of plots are still being maintained by the appellant which is not disputed. If that be the case the contention that land parcels have been handed over to the investors as ultimate beneficiaries and as full and final transfer is not correct. Therefore, in the absence of appropriate and complete evidence relating to full refund of the investors' amount, either in the form of money or in the form of developed land and maintenance amount we are unable to interfere with the impugned directions in the various orders.

Issues:
1. SEBI's recovery certificates and attachment notices challenged by the appellant.
2. Appellant's contention regarding conducting a genuine weekend farming business and returning funds to investors.
3. Appellant's challenge against SEBI's recovery notices and orders.
4. Appellant's argument on returning funds and conveying land to investors.
5. Appellant's submission on the sustainability of SEBI's recovery directions.
6. Appellant's defense against SEBI's recovery orders.
7. SEBI's argument on the appellant's responsibility to refund investors.
8. SEBI's stance on the appellant's delayed refund process.
9. SEBI's reliance on the appellant's lack of credibility in proving refunds.
10. Tribunal's analysis of the appellant's submissions and SEBI's contentions.
11. Tribunal's decision on the appellant's failure to prove refund to investors.

Analysis:

1. The appeal challenges SEBI's recovery certificates and attachment notices issued against the appellant, stemming from a long history of recovery proceedings initiated after a previous order by the Supreme Court. The appellant contests the orders directing payment and asset attachment, claiming to have already returned funds or conveyed land to a significant number of investors, with only a specific amount remaining unpaid.

2. The appellant asserts that it operated a legitimate weekend farming business, collecting funds from contributors for land acquisition and development. SEBI classified this scheme as a Collective Investment Scheme (CIS) and directed refunds, a decision upheld by the Tribunal and Supreme Court. The appellant argues that the remaining unpaid amount is minimal, with land available for distribution to contributors, albeit facing challenges due to agricultural land regulations.

3. The appellant challenges SEBI's recovery notices and orders, emphasizing the distribution of land and refunds made to the majority of investors. The appellant questions the necessity of additional payments demanded by SEBI, citing the availability of funds and assets to settle remaining dues.

4. The appellant's defense revolves around returning funds and conveying land to investors as per the scheme's terms. The appellant highlights the distribution of land to a significant number of contributors and the deposit of funds and assets to meet remaining obligations, countering SEBI's recovery demands.

5. The appellant argues that SEBI's recovery directions, including the demand for a substantial amount, are arbitrary and unsustainable, given the actions taken to refund investors and distribute land. The appellant contends that the orders issued by SEBI lack merit and impose undue financial burdens beyond the actual outstanding obligations.

6. The appellant's legal counsel presents the appellant's case as distinct from typical CIS operations, emphasizing the genuine intent behind the farming business and the proactive steps taken to address investor concerns. The appellant's counsel asserts that the appellant complied with initial registration requirements and fulfilled obligations to a significant extent.

7. SEBI asserts the appellant's prolonged delay in refunding investors, spanning over 16 years, and challenges the appellant's claims of returning funds and land. SEBI questions the appellant's credibility in proving full refunds and disputes the appellant's assertions regarding the distribution of land to investors.

8. SEBI highlights the appellant's inconsistent approach towards refunding investors, withdrawing provisional registration and appealing against refund orders over an extended period. SEBI argues that the appellant failed to provide substantial evidence of complete refunds or land distribution, casting doubt on the appellant's compliance with regulatory directives.

9. SEBI relies on the appellant's historical actions and responses to regulatory orders to question the veracity of the appellant's current claims. SEBI contests the appellant's assertions of fulfilling refund obligations, citing discrepancies in the appellant's submissions and the lack of conclusive evidence supporting the appellant's contentions.

10. The Tribunal reviews the appellant's submissions and SEBI's arguments, considering the appellant's challenges against SEBI's recovery directions and SEBI's skepticism towards the appellant's refund process. The Tribunal assesses the legal precedents cited by both parties to evaluate the validity of the appellant's claims and SEBI's enforcement actions.

11. Ultimately, the Tribunal dismisses the appeal, citing the appellant's failure to substantiate claims of full refunds to investors and land distribution in accordance with regulatory requirements. The Tribunal upholds SEBI's recovery orders, emphasizing the lack of comprehensive evidence supporting the appellant's assertions and the ongoing management of land parcels by the appellant, indicating incomplete fulfillment of refund obligations.

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