2023 (8) TMI 60 - HC - FEMA

Proceedings under FEMA - receiving foreign exchange in lieu of issuance of equity shares/share warrants - whether no approval has been granted by FIPB? - HELD THAT - As clearly transpires without any semblance of doubt that the custodian general of foreign exchange is the Reserve Bank of India and any permission with regard to inflow of foreign exchange would definitely have to have the permission of the Reserve Bank of India. In the case on hand, the permission is for receiving foreign exchange in lieu of issuance of equity shares and for the said purpose, the appropriate authority to grant permission is FIPB. Newbridge, the foreign investor, intended to invest in equity shares in the petitioner-company, with further downstream investment in the sister concern of the petitioner company for which necessary approval was granted by FIPB. In fact, the 1st respondent is also not disputing the approval granted to the petitioners for issuance of equity shares. However, the show cause notice was issued only on account of the petitioner company issuing share warrants, which was later converted into equity shares. The sequence of events for obtaining approval have already been extracted above. In this regard, the initial approval was granted by FIPB on 27.12.2005. Thereafter, as there was certain errors in the number of equity shares, further approval was solicited, which was also granted by FIPB on 31.01.2006. There is no quarrel that equity shares were issued by the petitioner company in favour of Newbridge. However, for an amount of about Rs.243 Crores, share warrants were issued, which was subsequently converted into equity shares. It has been the ratio of the Supreme Court even in LIC case 1985 (12) TMI 289 - SUPREME COURT that RBI is the custodian general of foreign exchange. In the present case, the foreign investment was approved by FIPB. Communication reveals that FIPB had nowhere said that the issuance of warrants at the point of time when it was issued by the petitioner company required permission. In fact, the order clearly spells out that there was no explicit policy at the material point of time with regard to issuance of warrants. The above stand of FIPB unequivocally speaks to the effect that there was no explicit policy with regard to warrants, which effectively could only mean that there was no prohibition on issuance of warrants. The further stand of FIPB that no post facto approval is required as the warrants have since been converted into equity shares should not be read in isolation and it should be read in conjunction with the earlier part of the order, where FIPB has intimated that there was no explicit policy with regard to issuance of warrants at the relevant point of time. Omission to spell out warrants to be included in the term security as defined u/s 2 (za) of FEMA cannot be taken mean that issuance of warrants is prohibited. Prohibition should be clearly spelt out either explicitly or even impliedly. There is neither an implicit nor an explicit prohibition. The mere omission of warrants, therefore, cannot be construed that it is a prohibited instrument and, therefore, it is a contravention of Section 6 (3) (b) of FEMA, 1999. As on the relevant date when the share warrants were issued, there was no regulations bny the 2nd respondent prohibiting the issue of share warrants, which was the only reason the 2nd respondent had directed the petitioners to approach FIPB to obtain post facto approval. If really there were any regulations, or even implied prohibition in the issuance of share warrants, RBI being the custodian general of foreign exchange, would definitely have called upon the explanation of the petitioners. When the 2nd respondent itself has accepted that there was no contravention of Section 6 (3) (b) of FEMA, 1999, the show cause notice issued by the 1st respondent to the petitioners alleging that there is no permission for issuance of share warrants is not only uncalled for, but is also an act usurping the powers of the 2nd respondent. When FIPB, the authority, who is vested with power to grant approval has held that no post facto approval is required, interpreting the order in any other fashion, that too by an authority, who is not empowered to decide on the manner in which the said order has been passed, it does not lie in the mouth of the 1st respondent to claim that approval has not been obtained and such a finding is not only perverse, but arbitrary, illegal and unreasonable and, therefore, the impugned order passed as a consequence of the said finding deserves to be interfered with. This Court is of the considered view that the writ petitions deserve to be allowed by setting aside the orders impugned herein. Accordingly, the impugned order passed by the 1st respondent is set aside and all the writ petitions are allowed. Consequently, connected miscellaneous petitions are closed.

Summary

Issues Involved:
1. Maintainability of Writ Petition Despite Alternative Remedy
2. Jurisdiction of the 1st Respondent
3. Validity of Issuance of Share Warrants
4. Delay in Issuance of Show Cause Notice

Summary:

Maintainability of Writ Petition Despite Alternative Remedy
The court examined whether the writ petition is maintainable despite an available alternative remedy. It was held that the power of the High Court under Article 226 is plenary and not limited by other provisions. The court cited the Apex Court's decision in Whirlpool Corporation v. Registrar of Trademarks and other cases, emphasizing that the availability of an alternative remedy does not bar the maintainability of a writ petition. The court concluded that the writ petitions are maintainable.

Jurisdiction of the 1st Respondent
The court scrutinized the jurisdiction of the 1st respondent, who issued the impugned order. It was argued that the 1st respondent, being an enforcement authority, overstepped its jurisdiction by questioning the approval granted by the Foreign Investment Promotion Board (FIPB) and the Reserve Bank of India (RBI). The court referred to LIC of India v. Escorts Ltd., highlighting that the RBI is the "custodian-general of foreign exchange" and has the exclusive authority to grant permissions related to foreign exchange transactions. The court found that the 1st respondent usurped the jurisdiction of the RBI and FIPB, making its actions arbitrary and illegal.

Validity of Issuance of Share Warrants
The court analyzed whether the issuance of share warrants by the petitioners was valid under the Foreign Exchange Management Act (FEMA), 1999. It was noted that the FIPB had granted approval for foreign investments and that the policy regarding the issuance of warrants was not explicit at the material time. The court found that there was no prohibition on the issuance of warrants, and the subsequent conversion of warrants into equity shares did not require post facto approval from FIPB. The court held that the issuance of share warrants was not in contravention of FEMA, 1999.

Delay in Issuance of Show Cause Notice
The court considered the delay in issuing the show cause notice, which was issued in 2019 for transactions that occurred in 2005. The court did not adjudicate this issue separately, as it had already concluded that the 1st respondent lacked the authority to interpret the approvals granted by FIPB and RBI.

Conclusion:
The court allowed the writ petitions, setting aside the impugned order passed by the 1st respondent. The court held that the 1st respondent acted beyond its jurisdiction and that the issuance of share warrants by the petitioners was not in violation of FEMA, 1999. Consequently, the penalties imposed on the petitioners were deemed illegal and arbitrary.