2023 (10) TMI 1173 - HC - SEBI

Writ petitions by minority shareholders of Bharat Nidhi Ltd. ( BNL ) - Request to place on record a compilation of documents - complains to the SEBI of violation by BNL of various provisions of the Securities laws - allegation of violations pertaining to the minimum public sharing norms ( MPS ) as also violations in respect of the promoters disclosure in shareholding in BNL - as contented that BNL was earlier listed on the Delhi Stock Exchange and after the same ceased to be functional, BNL had sought listing of its share at the Calcutta Stock Exchange, which is also not functional. BNL is now stated to be on the Dissemination Board of the National Stock Exchange. HELD THAT - The contents of Regulation 29 to the effect may not be released to the public is with a further rider that only if the same prejudices the Board and/or the applicant . These contents are quite, significant, by virtue of which Regulation 29 cannot be read as a blanket or a mandatory bar on non supply of documents and information. By no stretch of imagination, can it be said that the petitioners in the present case, who are minority shareholders and in such capacity, being part owners of the company to the extent of their shareholding, are persons who are alien/outsiders to the company (BNL), moreover they are integral to the company, having an inextricable concern and interest in the functioning and management of the company. Thus the word public as used in Regulation 29 can in no manner be made attributable to shareholders of BNL like the petitioners. This apart, if such contention as urged on behalf of the respondents that the petitioners are public and therefore, they are not entitled to receive information by the applicability of Regulation 29, if accepted, the same yardstick and parameters become applicable to respondent Nos. 3 to 9, who are also shareholders of BNL, who are hence not a different class, than that of the petitioners. The petitioners as also respondent Nos. 3 to 9 belong to the same species as shareholders As it cannot be countenanced that some shareholders can take shelter under Regulation 29 to plead confidentiality of settlement information, against a group of other shareholders, so as to bring about an effect that information in relation to settlement be not supplied to such persons of their own class who are similarly situated. No shareholder can take a position that he cannot disclose any information on the affairs of the company to other shareholders. This would bring about a situation of disharmony, distrust causing damage to the management and functioning of the company. None of the contentions as urged on behalf of respondent Nos. 2 to 9 in opposing the prayer of the petitioners to furnish documents would persuade us to hold that there was any embargo legal and/or factual for such documents not to be furnished/supplied to the petitioners. The objection of such respondents that the petitioner ought not to have raised such plea on the documents at the midst of the final hearing, as this itself would show that no prejudice was caused to the petitioners, in our opinion, is certainly not a tenable contention, for more than one reason. Moreover, as observed above, the case of the petitioners is that the very basis of the SEBI undertaking investigation on the complaints as made by the petitioners of BNL violating the rules, regulations and norms as prescribed by SEBI, being violated by BNL and the same forming subject matter of investigation by SEBI and the resultant show cause notice were foundational facts, hence, in such context, it was the petitioners entitlement to receive all the documents in that regard. Such documents therefore have all relevancy as law would contemplates in the present lis between the parties. Thus, the impression of respondent Nos. 2 to 9 that the petitioners should not be provided with such documents, is not acceptable. Once it is the entitlement of the petitioners in law to receive such documents, they need to be furnished such documents, unless furnishing of these documents would stand prohibited in law, which is certainly not a situation in the present facts. Regulations are framed under the SEBI Act, 1992. The avowed object and intention of the Act is to protect the interests of investors in securities and to promote the development of, to regulate the securities market. Thus, all actions which are taken by the SEBI and through the various bodies as constituted under the Act and the regulations are required to act considering the paramount interest of the investors. For such reasons as well, we do not find as to why the petitioners ought not to be entitled to the documents. We do not find that there is any impediment whatsoever in law or otherwise for the documents, as demanded, to be supplied to the petitioners. We are inclined to grant to the petitioners interim relief in terms of prayer clause (g).

Summary

Issues Involved:
1. Alleged violations of Securities laws by Bharat Nidhi Ltd. (BNL).
2. Petitioners' request for interim reliefs, specifically the production of investigation-related documents by SEBI.
3. Confidentiality concerns raised by respondents regarding the settlement proceedings documents.

Summary:

Issue 1: Alleged Violations of Securities Laws by BNL
The petitioners, minority shareholders of Bharat Nidhi Ltd. (BNL), complained to SEBI about BNL's violations of various Securities laws, including minimum public sharing norms (MPS) and promoter disclosure requirements. SEBI investigated these complaints, issued a show cause notice to BNL, and observed prima facie violations. BNL, previously listed on non-functional stock exchanges, moved for a settlement of the show cause notice under the Securities and Exchange Board of India (Settlement Proceedings) Regulation, 2018 ("2018 Regulations"), which the petitioners contested, leading to the impugned Settlement Order dated 12 September 2022.

Issue 2: Petitioners' Request for Interim Reliefs
The petitioners sought interim reliefs for SEBI to produce copies of the Investigation Report, Show Cause Notices, minutes of meetings of the IC Committee, HPAC and Panel of WTMs, and other relevant documents. The petitioners argued that these documents were crucial for their case, especially given their challenge to the impugned settlement order. They contended that the documents were necessary to understand the violations alleged and the basis for the settlement, emphasizing that withholding these documents caused them severe prejudice.

Issue 3: Confidentiality Concerns
Respondents, including BNL and its majority shareholders, opposed the petitioners' request, citing Regulation 29 of the 2018 Regulations, which mandates confidentiality of information submitted and discussions held during settlement proceedings. They argued that releasing these documents would prejudice the Board and the applicant and that the petitioners, as adversaries, should not be granted access to such confidential information. They also contended that the issue of document production was raised too late in the proceedings, suggesting that the petitioners had not suffered any prejudice due to the lack of these documents.

Court's Analysis and Decision:
The Court analyzed Regulation 29 and concluded that it does not impose a blanket prohibition on the release of documents. The regulation's confidentiality clause applies only if releasing the information would prejudice the Board or the applicant and is directed towards the public, not shareholders like the petitioners. The Court emphasized that shareholders have an inherent interest in the company's affairs and should not be considered outsiders.

The Court also noted that SEBI, in its fairness, agreed to produce the documents if directed by the Court. Given the petitioners' entitlement to these documents and the absence of any legal impediment, the Court granted interim relief in terms of prayer clause (g). SEBI was directed to furnish the requested documents to the petitioners within three weeks.

Conclusion:
The Court granted the petitioners' request for interim relief, directing SEBI to provide the necessary documents related to the investigation and settlement proceedings. The case was adjourned for further hearing on 29 November 2023.