G P Shah Investment Private Limited And Others vs Securities And Exchange Board Of India

Tarun Agarwala, Presiding Officer

Misc. Application No. 396 of 2019

For the reasons stated in the application the delay in filing the appeal is condoned. The Misc. Application is allowed.

A Misc. Application on behalf of Appellant No. 11 has been filed today which is taken on record and is allowed.

The Appellant No. 11, Ms. Shilpa Mahavir Deshlahra, is permitted to withdraw the appeal and liberty is given to file afresh within two weeks from

today.

We have heard the learned counsel for the parties. The present appeal has been filed against the order of the Adjudicating Officer (“AO†for

convenience) of the Securities and Exchange Board of India (“SEBI†for convenience) dated March 13, 2019 imposing a penalty of ` 5 crores to

be paid by the appellants jointly and severally, under Section 15H (ii) of the SEBI Act, 1992 for violation of Regulation 3(2) of the SEBI (Substantial

Acquisition of Shares and Takeover) Regulations, 2011 (“SAST Regulations, 2011â€​ for convenience).

The facts leading to the filing of the appeal is, that the proceedings under Section 11 and 11B of the SEBI Act read with Regulation 3(2) of the

SAST Regulations were initiated by the WTM which culminated in the following findings:-

“32. …., the consequence of breach provided in regulation 3(2) should follow unless in the facts and circumstance of the case any other direction

could be found in the interest of investors and the securities market. In this case, I have already rejected the contention that conversion of warrant in

the financial year 2011-12 was beyond the control of notcees and it was due to the act or omission of the GDR holders. The noticees have further

argued that the shareholders who are sought to be protected under the Takeover Regulation, 2011 had duly approved the proposal of issuance of

warrants to the noticees. It is to be kept in mind that, by the special resolution, the shareholders of a company approve every proposal of preferential

allotment. I note that the Takeover Regulations do not exempt acquisition through preferential allotment from obligation of public announcement and in

case of acquisition of shares or voting rights or control through preferential allotment also the consequence is the same as in case of acquisition

through any other mode. I find that the facts and circumstances of this case do not suggest any reason to deviate from the normal rule of requirement

of making public announcement in terms of regulation 3(2) of the Takeover Regulations, 2011. I, therefore, find that the noticees should make open

offer to the public shareholders in accordance with the Takeover Regulations, 2011.

I note that had the noticees made the public announcement in accordance with the Takeover Regulations, 2011 and complied with all related

activities within the timelines specified under therein, all formalities with respect to their public announcement and the open offer would have been

completed on March 12, 2012. Since the noticees have failed to make the public announcement within the stipulated time and the public announcement

in compliance with this order would be after delay, the noticees shall pay interest on consideration amount to the shareholders who tender their shares

in the open offer and who are eligible for interest as per law.

I, therefore, in exercise of powers conferred upon me under sections 19, 11 and 11B of the SEBI Act and regulation 32 of the SEBI (Substantial

Acquisition of Shares and Takeovers) Regulations, 2011, hereby issue the following directions:

(a) The noticees, G.P. Shah Investment Private Limited, B.G. Jain Investment Private Limited, P.B. Jain Investment Private Limited, Varju

Investment Private Limited, Nakoda Syntex Pvt. Ltd, Mr. Babulal G. Jain, B.G. Jain HUF, Ms. Pushpadevi B. Jain, Mr. Devendra B. Jain, Mr. Kartik

B. Jain, Ms. Shilpa B. Jain and Ms. Neetu D. Jain shall make a combined public announcement to acquire shares of the target company, M/s Nakoda

Limited, in terms of regulation 3(2) of the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011, within a period of 45 days from

the date of this order;

(b) The noticees shall, along with consideration amount, pay interest at the rate of 10% per annum from March 13, 2012 to the date of payment of

consideration, to the shareholders who were holding shares in the target company on the date of violation and whose shares have been accepted in the

open offer, after adjustment of dividend paid, if any.â€​

Against the said order the appellants preferred in Appeal No. 169 of 2013 which was dismissed by judgement dated November 13, 2013. This Tribunal

held that the date on which the appellants acquired the shares triggered the provisions of Regulation 3(2) of the SAST Regulations, 2011 and

consequently incurred an obligation to make a combined public announcement to acquire the shares of the target company.

The aforesaid order of the WTM as affirmed by this Tribunal has become final and, till date, the appellants have not complied with the obligation to

make a public announcement of an open offer for acquiring the shares of the target company.

Since there was no compliance, the AO issued a show cause notice to show cause as to why penalty should not be imposed for violating Regulation

3(2) of the SAST Regulations, 2011. Inspite of service of the notices and sufficient time being granted the appellants did not file any reply and

consequently the AO proceeded ex-parte and passed the impugned order imposing a penalty of ` 5 crores to be paid jointly and severally by all the

appellants.

Before this Tribunal, the only ground urged was that Appellant No. 6 was the head of the family and all decisions were been taken by him and by

his son Appellant No. 9. They had the entire knowledge but could not appear or contest the matter before the AO as Appellant No. 6 and 9 were

arrested by the Central Bureau of Investigation (CBI). It was also contended that the quantum of penalty imposed was excessive and therefore urged

that if an opportunity was given to the appellants they would be able to satisfy the AO for relaxation in the quantum of penalty. The learned counsel

thus contended that the matter may be remanded for a fresh decision.

Having heard the learned counsel for the parties, and upon a perusal of the record we find that no relief can be granted to the appellants. We find

that the Appellant No. 6 was released on bail on July 24, 2018 and thereafter the AO granted several opportunities vide notices dated September 24,

2018 and October 10, 2018 but the appellants chose not to appear or file any reply. We also find no explanation was given by the other appellants as to

why they could not appear and contest the matter before the AO. In the light of the aforesaid, we are of the opinion that sufficient opportunity was

given to the appellants to contest the matter which they failed to do so. Thus, remanding the matter back to the AO in the given circumstances does

not arise.

With regard to the quantum of penalty, we find that the order of the WTM directing the appellants to make a public announcement was issued as

far back as on July 08, 2013 which after 7 years has not as yet been complied with. Considering the aforesaid and the admitted violations, we do not

find any error in the imposition of penalty imposed by the AO though, under Section 15HB a maximum penalty of ` 25 crores or three times the

amount of profits could have been imposed. In view of the aforesaid, we do not find any merit in the appeal and the same is dismissed with no order

as to costs.