Capetown Trading Company Private ... vs Sebi

Date of Decision : 28.06.2019

Appeal No. 102 of 2018

Capetown Trading Company Private Limited Boomerang, Ground Floor, B-1-04/05, Chandivali Farm Road, Andheri (East), Mumbai - 400 072. ...Appellant

Versus

Securities and Exchange Board of India. SEBI Bhavan, Plot No. C-4A, G-Block, Bandra-Kurla Complex, Bandra (East), Mumbai - 400 051. ...Respondent

Mr. Vinay Chauhan, Advocate with Mr. K.C. Jacob, Advocate i/b Corporate Law Chambers India for the Appellant.

Mr. Anubhav Ghosh, Advocate with Ms. Rashi Dalmia, Advocate i/b The Law Point for the Respondent.

CORAM : Justice Tarun Agarwala, Presiding Officer Dr. C.K.G. Nair, Member Justice M.T. Joshi, Judicial Member

Per : Dr. C.K.G. Nair, Member

1.

This appeal has been filed challenging the order of the

Adjudicating Officer ('AO' for short) of Securities and Exchange 2

Board of India ('SEBI' for short) dated September 29, 2017. By

that order a penalty of Rs. 50 Lakh has been imposed on the

appellant under Section 15H(ii) of the SEBI Act, 1992 for

violation of Regulation 12 read with Regulation 14 of the SEBI

(Substantial Acquisition of Shares and Takeovers) Regulations,

1997 ('Takeover Regulations, 1997' for short) for failure to make

an open offer in the year 2006.

2. Learned counsel Shri Vinay Chauhan appearing on behalf of

the appellant fairly submitted that the appellant admits the failure

and therefore seeks only mitigation of the amount of penalty

imposed in view of the specific facts and circumstances of the

matter. Accordingly, we do not propose to go into the details of

the matter. However, for facility the relevant background of the

matter in brief is as follows: Certain entities filed an offer letter

with SEBI for acquiring 20% of the equity capital of Innoventive

Venture Limited (formerly known as Platinum Ocean Energy Ltd.

- Target Company) in terms of Regulation 10 and 12 of the

Takeover Regulations, 1997 in the year 2011. A public

announcement for the same was made on August 9, 2011. While

examining this letter of offer SEBI noticed that M/s. Capetown

Trading Company Ltd., the appellant herein, had acquired 30,000

shares constituting 4.08% of the shares of the target company on 3

March 31, 2006. The appellant was also shown as the promoter of

the target company in the offer letter. By the said acquisition of

4.08% of the equity share capital, the appellant came to control

the target company. Despite this, the appellant failed to make

necessary public announcement and open offer for acquiring

minimum of 20% of the shares of the target company.

3. Learned counsel for the appellant also submitted that though

the appellant did in fact come to control the target company in

March 2006 this was under special circumstances. There was no

identified promoter of the company at that point in time. The share

capital of the company was rather limited: only 7,35,000 equity

shares and the appellant was holding only 30,000 shares

constituting 4.08%. There were a number of other shareholders,

two of which had holding of 14.29% each. The appellant bought

30,000 shares at Rs. 5.50 per share on March 31, 2006 at a total

investment of Rs. 1,65,000/-. The appellant sold these shares in

the open offer made on August 9, 2011 at a price of Rs. 10 per

share and made a gain of only about Rs. 1,35,000/-. Even if the

appellant had to make an open offer in the year 2006 soon after

acquiring 4.08% share capital the total cost of the same would

have been only about Rs. 12.67 Lakh at a price of Rs. 8.62 per

share. Therefore, even if the most demanding direction relating to 4

violation of Takeover Regulations, that is, direction to make an

open offer was made by SEBI in this matter would have cost the

appellant only Rs. 12.67 Lakh. However, penalty of Rs. 50 Lakhs

has been imposed. Accordingly, the counsel for the appellant

submitted that the penalty imposed is too harsh and

disproportionate considering the facts of the matter.

4. For convenience the relevant provisions of the Takeover

Regulations, 1997 are reproduced as under:-

"Acquisition of control over a company.

12. Irrespective of whether or not there has been any acquisition of shares or voting rights in a company, no acquirer shall acquire control over the target company, unless such person makes a public announcement to acquire shares and acquires such shares in accordance with the regulations:

Provided that nothing contained herein shall apply to any change in control which takes place in pursuance to a [special resolution] passed by the shareholders in a general meeting:

Provided further that for passing of the special resolution facility of voting through postal ballot as specified under the Companies (Passing of the Resolutions by Postal Ballot) Rules, 2001 shall also be provided.

Explanation.--For the purposes of this regulation, acquisition shall include direct or indirect acquisition of control of target company by virtue of acquisition of companies, whether listed or unlisted and whether in India or abroad.

5 Timing of the public announcement of offer.

14. (1) ..................

(2) ..................

(3) The public announcement referred to in regulation 12 shall be made by the merchant banker not later than four working days after any such change or changes are decided to be made as would result in the acquisition of control over the target company by the acquirer."

5. Since violation of the aforesaid Regulations is admitted the

only relevant question to be considered by us is whether the

penalty of Rs. 50 Lakhs imposed on the appellant under Section

15H(ii) i.e. failure to make a public announcement to acquire

shares at a minimum price is proportionate or not. We note that

penalty imposable for violation of Regulation 15H(ii) at the

relevant time was Rs. 25 Crore or three times the amount of

profits made out of such failure, whichever is higher. In the instant

matter, this provision would imply a penalty of Rs. 25 Crore. We

also note that this provision has been amended with effect from

September 8, 2014 which reads as follows:-

"The penalty shall not be less than 10 Lakh rupees but which may extend to 25 Crore rupees or 3 times the amount of profits made out of such violation, whichever is higher."

6 6. Though the penalty provisions in the Takeover Regulations

state the aforesaid it is not that the maximum penalty is always

imposed, mitigating factors as provided under Section 15J of the

SEBI Act 1992 as well as any other mitigating factors have to be

considered while imposing the penalty. Further, since SEBI Act,

Rules and Regulations are basically for protecting the interests of

investors and enable orderly development of the securities market,

the impact of a violation in terms of its implications on the market

and investors need to be factored in. Impact of a particular action /

violation on the securities market needs to be interpreted in two

ways because every violation of securities laws need not have a

market-wide impact meaning a visible impact on a large number

of investors or in terms of moving the securities market indices,

such as NIFTY or SENSEX. At the same time we cannot take the

view that violations that do not lead to a visible impact or impact

on NIFTY / SENSEX are not violations punishable with penalty.

Therefore, a violation needs to be analyzed in terms of its market-

wide implications or in terms of its implications on the security of

the company concerned and the investors therein, such as in the

present matter. In short, there can be a market-wide impact or

impact on a particular company and its securities and therefore

only its investors. The penalty provisions are incorporated to 7

address all these situations: micro impact as well as a macro or

market-wide impact of violations. Otherwise if such a distinction

is not made penalty provisions under Section 15H(ii) of SEBI Act

would invariably lead to a minimum penalty of Rs. 25 Crore as it

existed prior to September 8, 2014. Amendment made on this date

itself clearly shows that was not the intention of law. It is also

clear from the penalty imposed in the instant matter at Rs. 50

Lakhs that even under the earlier provisions the penalty provision

was not interpreted purely in terms of the letters but also by taking

mitigating factors into account.

7. Given the aforesaid state of the law, the question before us is

whether there is ground for reducing the penalty from Rs. 50

Lakhs imposed by the AO of SEBI through the impugned order in

the facts of the matter. Here we are told that the profit made by the

appellant in terms of the impugned acquisition of 4.08% of the

equity share capital of the target company was only Rs. 1.35

Lakh; the total investment was only Rs. 1.65 Lakh; the total

amount saved (or profits made) through avoiding an open offer to

minimum of 20% of the equity shareholders was only Rs. 12.67

Lakh. These calculations are not disputed. Further, we note that

for takeover violations by substantial acquisition of shares or

through acquisition of control different directions are provided 8

under Regulation 44 of the Takeover Regulations, 1997, the most

demanding of which is that of directing an open offer at a

minimum price, along with interest. In the instant matter by taking

control of the company in March 2006 in terms of the impugned

acquisition directing an open offer could have been the normal

direction. Such a direction is, however, dispensed with because by

the time SEBI came to know the violations in 2011 ownership and

control of the company had moved hands and the appellant herein

also sold off the shares acquired in 2006. Hence, only the

monetary penalty of Rs. 50 Lakh has been imposed.

8. On the question of reduction of the amount of penalty the

learned counsel for the appellant sought a substantial reduction, to

a maximum of Rs. 12.67 Lakh, the amount that was required for

making the open offer for a minimum of 20% of the equity capital

of the target company in 2006.

9. However, learned counsel Shri Anubhav Ghosh appearing

on behalf of the respondent SEBI submitted that the amount of

Rs. 50 Lakh imposed is fully justified in view of the fact that the

penalty provision at the relevant time was three times the profit

made or Rs. 25 Crore whichever is higher. He further submitted

that more than 95% of the equity share capital was held by others, 9

about 30 shareholders, who were denied an exit option at the

relevant point of time which was also a factor leading to no

trading in the shares of the company and the company potentially

becoming sick consequently.

10. While we agree that the AO had factored in some mitigating

aspects while deciding the penalty, given the aforesaid

calculations of the investment, profits made or loss avoided and in

terms of the magnitude of the variables such as number of shares

acquired by the appellant, total share capital of the company etc.

there is still ground for some more mitigation. We are also of the

view that the amount of penalty imposed should have some co-

relation with the most penalizing of the directions on takeover

violations i.e. cost of making an open offer. In the instant case that

cost is estimated to be Rs. 12.67 Lakh at the relevant time. Further

considering interest / time factor into account this amount should

be adjusted. Accordingly, taking all factors into account we are of

the considered view that an amount of Rs. 20 Lakh would serve

the interests of justice.

11. Accordingly, while upholding the impugned order on merit

we reduce the amount of penalty from Rs. 50 Lakh to Rs. 20 10

Lakh. Appellant is directed to pay this amount to SEBI within a

period of 30 days from the date of this order.

12. Appeal is partly allowed in above terms. No orders on costs.

Sd/-

Justice Tarun Agarwala Presiding Officer

Sd/-

Dr. C.K.G. Nair Member

Sd/-

Justice M.T. Joshi Judicial Member 28.06.2019 Prepared and compared by:msb