9911796707
TMI Blog2018 (1) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... dia Limited [PAN: AAECG6236F], Mr. Pradip Kumar Bera [PAN: AHUPB3853F], Mr. Gouranga Sundar Chakraborty [PAN: ATZPC0359C], Mr. Kalidas Datta [PAN: ACOPD9805C], Mr. Anukul Patra [PAN: ATEPP2709C], Mr. Ashok Kumar Yadav [PAN: ABXPY7352F], Mr. Avijit Chakraborty [PAN: AQSPC7029H], Mr. Mrinal Kanti Paul [PAN: BIDPP6796G] and Ms. Minu Chakrabarti [PAN: ATZPC0321Q] jointly and severally, shall forthwith refund the money collected by the Company through the issuance of Redeemable Preference Shares (which have been found to be issued in contravention of the public issue norms stipulated under the Companies Act, 1956), to the investors including the money collected from investors, till date, pending allotment of RPS, if any, with an interest of 15% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Pradip Kumar Bera, Mr. Gouranga Sundar Chakraborty, Mr. Kalidas Datta, Mr. Anukul Patra, Mr. Ashok Kumar Yadav, Mr. Avijit Chakraborty, Mr. Mrinal Kanti Paul and Ms. Minu Chakrabarti in complying with the aforesaid directions, SEBI, on expiry of three months from the date of this Order,- i. shall recover such amounts in accordance with section 28A of the SEBI Act including such other provisions contained in securities laws. ii. may initiate appropriate action against the Company, its promoters/directors and the persons/officers who are in default, including adjudication proceedings against them, in accordance with law. iii. would make a reference to the State Government/Local Police to register a civil/criminal case against the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a further period of four (4) years on completion of the repayments, as directed above. i. The above directions shall come into force with immediate effect." 2. Heard Mr. Nirman Sharma, learned Counsel for the appellant and Mr. Mustafa Doctor, learned Senior Counsel for the respondent-SEBI. It is argued on behalf of the appellant that the appellant was not a director when the resolution regarding issuance of redeemable preference shares was passed by the company. Therefore, he should not be made responsible for the acts of other directors. It is also contended that he was fraudulently made one of the directors whereas he had never given his consent for the same. Per contra, learned Senior Counsel Mr. Doctor on behalf of SEBI submits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was collected by BREDL after the appellant ceased to be a Director of BREDL, counsel for SEBI fairly stated on instruction that the obligation of the appellant to refund the amount with interest jointly and severally with BREDL and other Directors set out in the impugned order may be limited to Rs. 40 lakh only, because, that was the amount collected by BREDL during the period when the appellant was a Director of BREDL." 4. In the above background, this Tribunal held as under:- "10. Argument that the appellant was not a person responsible for issuance of redeemable preference shares and therefore for failure on part of BREDL and its directors to comply Section 73(2) of the Companies Act, 1956 the appellant could not be made liable is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then all the directors would be "officer who is in default". In the present case, no material is brought on record to show that any of the officers set out in clauses (a) to (c) of Section 5 or any specified director of BREDL was entrusted to discharge the obligation contained in Section 73 of the Companies Act, 1956. In such a case, as per Section 5(g) of the Companies Act, 1956 BREDL and all the directors of BREDL are liable. Therefore, decision of the WTM that all 10 directors of BREDL including the appellant would constitute "officer in default" cannot be defaulted. 12. Fact that appellant had merely lent his name to be a director of BREDL at the instance of Mr. Soumen Majumder and for becoming a director of BREDL the appellant had ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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