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TMI Blog2021 (6) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Depository Participant. It is required to be noted that if the Petitioner is aggrieved by the order passed by SEBI based on a complaint filed by the 2nd Respondent, the appropriate course to be adopted by the Petitioner is to approach the appropriate Appellate Authorities itself as provided in the Act under which the order was passed and this Tribunal cannot redress the grievance in relation to the order or in terms of the said order. Further from a perusal of the order passed by SEBI, it is evident that the Petitioner had failed to carry out minimum due diligence exercise taking into consideration the glaring inconsistencies in the 'Certificates' purported to be issued by Police Station regarding filing of complaint with respect to loss of share certificate, submitted by the claimants from which the same could have been identified. This Tribunal is of the considered view that if at all any person who can be considered as 'aggrieved' by the acts of the 1st Respondent or the Petitioner whether individually or in tandem it can be only the 2nd Respondent subject to him establishing his clear title to the shares entitling him to seek for rectification under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the Petition that the Petitioner was also appointed as a Share Transfer Agent by the Company for physical shares as well. It is also averred in the Petition that while handing over to the Petitioner by the Company, in the year 2012, of the signatures pertaining to the past and present shareholders and that upon verification of the said records, it was found that specimen signatures of all the shareholders had not been handed over to the Petitioner. The same was also communicated to SEBI by the Petitioner vide e-mail dated November 21, 2013 that it had specimen signatures of only 99.56% shareholders of the Company. 4. At this point, it must be stated that presently this Tribunal is not going into the merits of the case and is concerned only with the issue of maintainability in view of the Registry having chosen to list the matter in the cause list for deciding on the aspect of maintainability in relation to numbering the Company Petition on the limited aspect as to whether the Petitioner can be considered as a person falling under any one of the categories as mentioned in Section 59(4) of the Companies Act, 2013 entitled to approach this Tribunal under the said provision. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as other prevalent Regulations. 9. The Petitioner, it is claimed had despatched duplicate share certificates of 600 shares along with the covering letter dated 18th December 2014 to the address i.e., the new address recorded in relation to the said Mr. Sewratan Mundra. 10. Consequent to the issue of duplicate share certificates, it is stated that a share transfer in relation to the said shares was lodged with the Petitioner on 9th January 2015 along with duplicate share certificates in Form SH4 by the 1st Respondent/Mr. Anil Kumar Shivratan Bhootra in the capacity as a transferee (buyer) along with a copy of his PAN card. 11. The said share transfer had been approved by the Board of the Company at its meeting held on 10th January 2015 after affixing signature of the authorized signatory of the transfer endorsement on the certificate in favour of the 1st Respondent/Mr. Anil Kumar Shivratan Bhootra. The Company had returned the share certificates to the Petitioner which was then despatched to the 1st Respondent/Mr. Anil Kumar Shivratan Bhootra on January 12, 2015. 12. Subsequent to the above transfer, the 1st Respondent/Mr. Anil Kumar Shivratan Bhootra had also lodge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a person impersonating the grandfather of the complainant all other discrepancies either relate to mismatching of photographs or signatures or that the PAN card being fake and not been verified from the Income Tax website/NSDL and accordingly a prima facie case of lack of basic due diligence was made out against the appellant. What is noticeable is that apart from the complainant's case no other investor has come forward to make a complaint in relation to the wrongful transfer of the share certificates illegally to a third party. The discrepancies pointed out by SEBI do not reveal that the appellant made any gain by this wrongful transfer nor there is any finding of a loss being caused to an investor. Thus, exercising the powers under Section 11 and 11B restraining the appellant from accepting fresh clients for a period of three months for failing to exercise due diligence appears to be harsh and unwarranted in the facts and circumstances of the given case. ***** 19. In view of the aforesaid, the impugned order is so far as it restrains the appellant from accepting fresh clients is quashed. Other directions issued by the WTM of SEBI will continue to operate agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(4) of the Companies Act, 2013 which reads as under:- 59. Rectification of register of members.-- (1)............. (2)............... (3)............. (4) Where the transfer of securities is in contravention of any of the provisions of the Securities Contracts (Regulation) Act, 1956 (42 of 1956), the Securities and Exchange Board of India Act, 1992 (15 of 1992) or this Act or any other law for the time being in force, the Tribunal may, on an application made by the depository, company, depository participant, the holder of the securities or the Securities and Exchange Board, direct any company or a depository to set right the contravention and rectify its register or records concerned. 19. Taking into consideration the above provision, viz., Section 59(4) of Companies Act, 2013 and from the averments as made in the Petition, since the Petitioner is neither a depository, company, depository participant, holder of the securities or the Securities and Exchange Board as specified in Section 59(4) of the Companies Act, 2013 stated to be the persons eligible to approach this Tribunal seeking for a direction from this Tribunal to any Company or a Depository t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows:- 12. The present order has been passed under disciplinary proceedings against the RTA for the failure to exercise the diligence which is in violation of the Securities Laws, as mentioned in the order above. SEBI cannot adjudge private disputes or claims or counter claims as held by Hon'ble Securities Appellate Tribunal, Mumbai in Ibrahim Ahmed Vs. SEBI (Appeal No. 40 of 2009), MCS Ltd. Vs. SEBI (Appeal No. 107 of 2008) and Hameed Ullah Lalji alias Tony Ullah Vs. SEBI (Appeal No. 123 of 2008). The observations in this order does not ipso facto entitle any shareholder of the client company of the RTA to claim their securities, which claims are to be taken up by such shareholders before appropriate forum. 22. Thus, this Tribunal is of the considered view that if at all any person who can be considered as 'aggrieved' by the acts of the 1st Respondent or the Petitioner whether individually or in tandem it can be only the 2nd Respondent subject to him establishing his clear title to the shares entitling him to seek for rectification under Section 59 of the Companies Act, 2013. 23. In the circumstances, the Petitioner not being covered under Section 59(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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