Interim Order in the matter of ATM Agro Industries India Limited

WTM/SR/SEBI – ERO/27/02/2015 BEFORE THE SECURITIES AND EXCHANGE BOARD OF INDIA, MUMBAI CORAM: S. RAMAN, WHOLE TIME MEMBER ORDER Under Sections 11, 11(4), 11A and 11B of the Securities and Exchange Board of India Act, 1992, in the matter of ATM Agro Industries India Limited (PAN: AAICA4906A) and its Directors, viz. Shri Taimur Ali Gayen (PAN: AEBPG4001N; DIN: 02108358), Shri Yusuf Ali Gayen (PAN: AYNPG5900E; DIN: 05136738), Shri Indrajit Roy (PAN: BHQPR8645J; DIN: 06754713), Shri Hasem Mirza (PAN: BAGPM1763F; DIN: 02763820), Smt. Ashmin Khatun (PAN: BKBPK8720K; DIN: 02762776), Shri Mirza Dinar (DIN: 02761080), Smt. Nandini Chatterjee (PAN: ACEPC4432C; DIN: 02985377), Shri Debasish Dasgupta (PAN: APDPD8203N; DIN: 03544876), Shri Kamal Kishore Lodha (PAN: AAYPL5577B; DIN: 05106473), Shri Debabrata Ghosh (PAN: AFWPG1415L; DIN: 05159545), Shri Pradip Das (PAN: ACZPD8269R; DIN: 05166308), Shri Tahidur Rahaman Gayen (PAN: BDOPG6790F; DIN: 05256592), Shri Arun Kumar Mishra (PAN: AIIPM2433R; DIN: 05257673), Shri Saiful Alam (PAN: AVFPA7748F; DIN: 06773537) and Shri Mohammad Younus (PAN: AHJPM6572H; DIN: 06773530) alongwith its Debenture Trustee, viz. ATM Secured Deventure Development Trust (represented by its Trustees, viz. Shri Arghya Sengupta, Shri Jagadish Chandra Nag and Shri Ram Sunder Bhattacharya).

1. Securities and Exchange Board of India ("SEBI") received a complaint on January 13, 2014, alleging mobilization of funds by ATM Agro Industries India Limited ("AAIIL").

2.1 Thereafter, SEBI vide letter dated January 30, 2014, sought the following information from AAIIL, viz. – i. Copy of the Memorandum and Articles of Association of the company; ii. Copy of Audited Annual Accounts and Annual Returns of the company for the last 3 years; iii. Name, addresses and occupation of all the Promoters/Directors of the company; iv. Names and details of the Key Managerial Personnel of the company; v. Other information in respect of issue of shares/debentures by the company, viz. – a. Copy of Prospectus/Red Herring Prospectus/Statement in lieu of Prospectus/Information Memorandum filed with Registrar of Companies ("ROC"); b. Date of opening and closing of the subscription list;

c. Details regarding the number of application forms circulated inviting subscription; d. Details regarding the number of applications received; e. Details regarding the number of allottees and list of such allottees, etc.; f. Number of shares/debentures allotted and value of such allotment against each allottee's name. g. Details regarding subscription amount raised; h. Date of allotment of shares/debentures; i. Copies of the minutes of Board/Committee meeting in which the resolution has been passed for allotment; j. Date of dispatch of shares/debentures Certificates; k. Details of the total number of applicants for each of MIRL's scheme besides the list of final allottee; l. Copies of application forms, pamphlets, advertisements and other promotional material circulated for issuance of shares/debentures; m. Terms and conditions of the issue of shares/debentures; n. Details of application for listing, if any, filed with stock exchanges; o. Copy of Form 2 and Form 10 filed with ROC; p. Details of Debenture Trustee.

2.2 However, the abovementioned letter was returned as undelivered to SEBI.

2.3 Thereafter, vide letters each dated March 11, 2014, SEBI once again sought the information (sought vide abovementioned letter dated January 30, 2014) from all the Directors of AAIIL. Reminder letters each dated March 24, 2014, were also sent to the Directors of AAIIL. Vide a reply dated March 26, 2014, SEBI was informed that information would be submitted within three months.

2.4 However, as no information was forthcoming, vide letters each dated July 25, 2014, the Directors of AAIIL were once again reminded to submit the information (sought vide abovementioned letter dated January 30, 2014). Vide reply dated August 5, 2014, AAIIL informed SEBI that its Registered Office was closed by the Jhargram Police Station on account of a case pending before the Hon'ble Jhargram SDJM Court (Case No. 99/13 dated May 2, 2013) and till such matter is settled, the Registered Office cannot be re– opened. AAIIL therefore, informed SEBI that it would be unable to provide the information since all documents were maintained in that Office. Subsequently, vide letter dated August 10, 2014 (which was received in SEBI on August 19, 2014), one of the Directors of AAIIL, viz. Shri Saiful Alam, inter alia replied to SEBI submitting that he was not involved in any day–to–day work of that company and therefore, was not aware of its fund mobilization activities. No other information has been received by SEBI, from AAIIL till date.

2.5 SEBI received two more complaints (one dated August 21, 2014 and another received on January 5, 2015) against AAIIL.

3. The material available on record i.e. correspondences exchanged between SEBI and AAIIL, the abovementioned complaints received in SEBI and information obtained from the Ministry of Corporate Affairs' website i.e. MCA 21 Portal, have been perused. On an examination of the same, it is observed that – i. AAIIL was incorporated on May 5, 2010, with the ROC, Kolkata with CIN No. as U01120WB2010PLC146651. Its Registered Office is at Judges Court Road, Circuit House More, Medinipur, Kolkata – 721101, West Bengal, India.

ii. The present Directors in AAIIL are Shri Taimur Ali Gayen, Shri Yusuf Ali Gayen and Shri Indrajit Roy.

iii. Shri Hasem Mirza, Smt. Ashmin Khatun, Shri Mirza Dinar, Smt. Nandini Chatterjee, Shri Debasish Dasgupta, Shri Kamal Kishore Lodha, Shri Debabrata Ghosh, Shri Pradip Das, Shri Tahidur Rahaman Gayen, Shri Arun Kumar Mishra, Shri Saiful Alam and Shri Mohammad Younus, who were earlier Directors in AAIIL, have since resigned.

iv. Form 2 (Form for Return of Allotment – filed by AAIIL with the ROC in accordance with the provisions of the Companies Act, 1956) for the Financial Years 2011–12 and 2012–13, reveals that AAIIL issued "Redeemable Preference Shares" ("Offer of Redeemable Preference Shares") to investors, details of which are provided below –

Type of Security Year No. of persons to whom Total Amount preference shares were allotted ( in Crores)

Redeemable Preference 2011–12 108 3.37 Shares 2012–13 192 2.25 TOTAL 300 5.62 v. From the material available on record, it is noted that AAIIL also issued Secured Redeemable Non – Convertible Debentures ("Offer of NCDs"), details of which are provided below –

Year Type of Security Amount Raised Number of ( in Crores) Allottees *2011 – 12 Secured Redeemable Non – 13.36 Details not available Convertible Debentures 2012 – 13 2.26 1232 TOTAL 15.62 *As per the Balance Sheet of AAIIL for the financial year ended March 31, 2012, it is observed that the company issued debentures amounting to 13.36 Crores during the financial year 2011-12. However, AAIIL has not provided details of debentures issued during the year 2011-12 in its Annual Return filed for that year. AAIIL has provided details of debenture holders to whom debentures have been issued during the year 2012-13. It is observed that AAIIL has issued debentures amounting to 2.26 Crores to 1232 number of investors. Hence, it may be presumed that a much higher amount of 13.36 Crores raised by it during the year 2011-12 through issue of such debentures must have been from more than 49 persons. vi. It is also noted that the abovementioned NCDs were allotted in accordance with the following terms and conditions as contained in the brochure circulated by AAIIL –

Monthly Installment Scheme Plan IDM2 IDM3 IDM 4.7 IDM 7.1 IDM 9.7 IDM 13.7 Minimum Deposit 25000 General 10.08% 14.40% 18.00% 20.64% 22.80% 25.20% Benefit per month 210 300 375 430 475 525 Return Amount 25000 26250 27400 28500 29250 30000 Term Deposit Scheme Plan IDF2 IDF3 IDF 4.7 IDF 7.1 IDF 9.7 IDF 13.7 Issue Price 1000 1000 1000 1000 1000 1000 Minimum 100 Debentures Adjustment Amount 230 500 1000 2000 4000 9000 Maturity Value 1230 1500 2000 3000 5000 10000

The Offer of NCDs may be subscribed to by an Individual, Trust, Financial Institution, HUF, NRI, Co-operative body, Others, etc.

4.1 In the context of the abovementioned details of the Offer of Redeemable Preference Shares and the Offer of NCDs, the issue for determination in the instant matter is whether the mobilization of funds by AAIIL through the aforesaid, is in accordance with the provisions of the SEBI Act, 1992 ("SEBI Act") read with the SEBI (Issue and Listing of Debt Securities), Regulations, 2008 ("Debt Securities Regulations"); the Companies Act, 1956.

4.2 I note that the jurisdiction of SEBI over various provisions of the Companies Act in the case of public companies, whether listed or unlisted, when they issue and transfer securities, flows from the provisions of Section 55A of the Companies Act. While examining the scope of Section 55A of the Companies Act, 1956, the Hon'ble Supreme Court of India in Sahara India Real Estate Corporation Limited & Ors. vs. SEBI (Civil Appeal no. 9813 of 2011) (Judgment dated August 31, 2012) (hereinafter referred to as the "Sahara Case"), had observed:

"We, therefore, hold that, so far as the provisions enumerated in the opening portion of Section 55A of the Companies Act, so far as they relate to issue and transfer of securities and non-payment of dividend is concerned, SEBI has the power to administer in the case of listed public companies and in the case of those public companies which intend to get their securities listed on a recognized stock exchange in India."

4.3 In this regard – i. Reference is also made to Sections 67(1) and 67(3) of the Companies Act, 1956, which are reproduced as under:

"67. Construction of reference to offering shares or debentures to the public, etc. 67. (1) Any reference in this Act or in the articles of a company to offering shares or debentures to the public shall, subject to any provision to the contrary contained in this Act and subject also to the provisions of sub-sections (3) and (4), be construed as including a reference to offering them to any section of the public, whether selected as members or debenture holders of the company concerned or as clients of the person issuing the prospectus or in any other manner.

(2) Any reference in this Act or in the articles of a company to invitations to the public to subscribe for shares or debentures shall, subject as aforesaid, be construed as including a reference to invitations to subscribe for them extended to any section of the public, whether selected as members or debenture holders of the company concerned or as clients of the person issuing the prospectus or in any other manner. (3) No offer or invitation shall be treated as made to the public by virtue of sub-section (1) or sub-section (2), as the case may be, if the offer or invitation can properly be regarded, in all the circumstances- (a) as not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation; or (b) otherwise as being a domestic concern of the persons making and receiving the offer or invitation. Provided that nothing contained in this sub-section shall apply in a case where the offer or invitation to subscribe for shares or debentures is made to fifty persons or more: Provided further that nothing contained in the first proviso shall apply to non-banking financial companies or public financial institutions specified in section 4A of the Companies Act, 1956 (1 of 1956).”

ii. While examining the scope of Section 67 of the Companies Act, 1956, the Hon'ble Supreme Court of India in the Sahara Case observed:

"Section 67(1) deals with the offer of shares and debentures to the public and Section 67(2) deals with invitation to the public to subscribe for shares and debentures and how those expressions are to be understood, when reference is made to the Act or in the articles of a company. The emphasis in Section 67(1) and (2) is on the “section of the public”. Section 67(3) states that no offer or invitation shall be treated as made to the public, by virtue of subsections (1) and (2), that is to any section of the public, if the offer or invitation is not being calculated to result, directly or indirectly, in the shares or debentures becoming available for subscription or purchase by persons other than those receiving the offer or invitation or otherwise as being a domestic concern of the persons making and receiving the offer or invitations. Section 67(3) is, therefore, an exception to Sections 67(1) and (2). If the circumstances mentioned in clauses (1) and (b) of Section 67(3) are satisfied, then the offer/invitation would not be treated as being made to the public. The first proviso to Section 67(3) was inserted by the Companies (Amendment) Act, 2000 w.e.f. 13.12.2000, which clearly indicates, nothing contained in Sub-section (3) of Section 67 shall apply in a case where the offer or invitation to subscribe for shares or debentures is made to fifty persons or more. …

Resultantly, if an offer of securities is made to fifty or more persons, it would be deemed to be a public issue, even if it is of domestic concern or proved that the shares or debentures are not available for subscription or purchase by persons other than those received the offer or invitation. … I may, therefore, indicate, subject to what has been stated above, in India that any share or debenture issue beyond forty nine persons, would be a public issue attracting all the relevant provisions of the SEBI Act, regulations framed thereunder, the Companies Act, pertaining to the public issue. …"

iii. In the instant matter, for ascertaining whether the Offer of Redeemable Preference Shares and Offer of NCDs are public issues or issues on private placement basis in accordance with Section 67 of the Companies Act, 1956, the number of subscribers is of utmost importance.

Offer of Redeemable Preference Shares – a. Under the Offer of Redeemable Preference Shares, it is observed that during the Financial Years 2011–12 and 2012–13, AAIIL allotted redeemable preference shares to a total of 300 individuals/investors and mobilized funds amounting to approximately 5.62 Crores. The number of investors to whom allotments were made under the Offer of Redeemable Preference Shares alongwith the amount mobilized therein, during the Financial Years 2011–12 and 2012–13 (details provided in Table at paragraph 3(iv) of page 4), would prima facie indicate that such Offer was a public issue of securities, as prescribed under the first proviso to Section 67(3) of the Companies Act, 1956.

Offer of NCDs – b. It is observed from the MCA21 Portal that under the Offer of NCDs, during the Financial Years 2011–12 and 2012–13, AAIIL issued NCDs amounting to a total of 15.62 Crores (details provided in Table at paragraph 3(v) of page 4). Although details regarding the number of investors under the Offer of NCDs is not available for the Financial Year 2011–12, it is however, observed that AAIIL allotted NCDs under such Offer to 1232 investors during the Financial Year 2012–13. The number of investors to whom allotments were made under the Offer of NCDs alongwith the amount mobilized therein, during the Financial

Year 2012–13, would prima facie indicate that such Offer was a public issue of securities, as prescribed under the first proviso to Section 67(3) of the Companies Act, 1956.

c. Further, the quantum of funds mobilized under the Offer of NCDs during the Financial Year 2011–12 when viewed in light of the amount mobilized under such Offer during the Financial Year 2012–13 alongwith the number of investors therein, would prima facie lead to the inescapable conclusion that such Offer during the preceding Financial Year i.e. 2011–12, was also a public issue of securities, as prescribed under the first proviso to Section 67(3) of the Companies Act, 1956.

d. From the brochure circulated by AAIIL for the Offer of NCDs, it is observed that the invitation for subscription to such Offer extended to " Individual, Trust, Financial Institution, HUF, NRI, Co-operative body, Others, etc.". Such a generalized category of investor(s) cannot be said to satisfy the condition of specificity as required under Section 67(3) of the Companies Act, 1956.

e. It is observed that AAIIL is not stated to be a Non–banking financial company or public financial institution within the meaning of Section 4A of the Companies Act, 1956. In view of the aforesaid, I, therefore, find that AAIIL is not covered under the second proviso to Section 67(3) of the Companies Act, 1956.

f. In view of the above, the Offer of Redeemable Preference Shares and Offer of NCDs by AAIIL, would prima facie qualify as public issues under the first proviso to Section 67(3) of the Companies Act, 1956. In this regard, it is pertinent to note that by virtue of Section 55A of the Companies Act, Section 67 of that Act, so far as it relates to issue and transfer of securities, shall also be administered by SEBI.

4.4 I note that – i. From the abovementioned, it will follow that since the Offer of Redeemable Preference Shares and Offer of NCDs are public issues of securities, such securities shall also have to be listed on a recognized stock exchange, as mandated under Section 73 of the Companies Act, 1956. In this regard, reference is made to Sections 73 of the Companies Act, 1956, of which sub-Sections (1), (2) and (3) are relevant for the instant case, which is reproduced as under:

"73. (1) Every company intending to offer shares or debentures to the public for subscription by the issue of a prospectus shall, before such issue, make an application to one or more recognised stock exchanges for permission for the shares or debentures intending to be so offered to be dealt with in the stock exchange or each such stock exchange. (1A) Where a prospectus, whether issued generally or not, states that an application under sub-section (1) has been made for permission for the shares or debentures offered thereby to be dealt in one or more recognized stock exchanges, such prospectus shall state the name of the stock exchange or, as the case may be, each such stock exchange, and any allotment made on an application in pursuance of such prospectus shall, whenever made, be void, if the permission has not been granted by the stock exchange or each such stock exchange, as the case may be, before the expiry of ten weeks from the date of the closing of the subscription lists: Provided that where an appeal against the decision of any recognized stock exchange refusing permission for the shares or debentures to be dealt in on that stock exchange has been preferred under section 22 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956), such allotment shall not be void until the dismissal of the appeal.

(2) Where the permission has not been applied under subsection (1) or such permission having been applied for, has not been granted as aforesaid, the company shall forthwith repay without interest all moneys received from applicants in pursuance of the prospectus, and, if any such money is not repaid within eight days after the company becomes liable to repay it, the company and every director of the company who is an officer in default shall, on and from the expiry of the eighth day, be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed, having regard to the length of the period of delay in making the repayment of such money. (3) All moneys received as aforesaid shall be kept in a separate bank account maintained with a Scheduled Bank 1 [until the permission has been granted, or where an appeal has been preferred against the refusal to grant such. permission, until the disposal of the appeal, and the money standing in such separate account shall, where the permission has not been applied for as aforesaid or has not been granted, be repaid within the time and in the manner specified in sub-section (2)]; and if default is made in complying with this sub-section, the company, and every officer of the company who is in default, shall be punishable with fine which may extend to five thousand rupees.”

ii. In the Sahara Case, the Hon'ble Supreme Court of India also examined Section 73 of the Companies Act, 1956, wherein it observed that – "Section 73(1) of the Act casts an obligation on every company intending to offer shares or debentures to the public to apply on a stock exchange for listing of its securities. Such companies have no option or choice but to list their securities on a recognized stock exchange, once they invite subscription from over forty nine investors from the public. If an unlisted company expresses its intention, by conduct or otherwise, to offer its securities to the public by the issue of a prospectus, the legal obligation to make an application on a recognized stock exchange for listing starts. Sub-section (1A) of Section 73 gives indication of what are the particulars to be stated in such a prospectus. The consequences of not applying for the permission under sub-section (1) of Section 73 or not granting of permission is clearly stipulated in sub-section (3) of Section 73. Obligation to refund the amount collected from the public with interest is also mandatory as per Section 73(2) of the Act. Listing is, therefore, a legal responsibility of the company which offers securities to the public, provided offers are made to more than 50 persons. … Section 73(2) says that every company and every director of the company who is an officer in default, shall be jointly and severally liable to repay that money with interest at such rate, not less than four per cent and not more than fifteen per cent, as may be prescribed. The scope of the above mentioned provisions came up for consideration before this Court in Raymond Synthetics Ltd. & Ors. V. Union of India (supra), wherein the Court held that in a case where the company has not applied for listing on a stock exchange, the consequences will flow from the company’s disobedience of the law, the liability to pay interest arises as from the date of receipt of the amounts, for the company ought not to have received any such amount in response to the prospectus. I am, therefore, of the view that since Saharas had violated the listing provisions and collected huge amounts from the public in disobedience of law, SEBI is justified in directing refund of the amount with interest."

iii. Having regard to the abovementioned observations of the Hon'ble Supreme Court of India, since the Offer of Redeemable Preference Shares and Offer of NCDs is prima facie a public issue in accordance with the provisions of the Companies Act, 1956, the same will attract the requirement of compulsory listing before a recognized stock exchange in terms of Section 73(1) of the Companies Act, 1956 and also compliance with the provisions of Sections 73(2) and 73(3) of that Act.

iv. In the facts of the instant case, it prima facie appears that AAIIL has violated the provisions of Section 73 of the Companies Act, 1956, in respect of the Offer of Redeemable Preference Shares and Offer of NCDs.

4.5 Under Section 2(36) read with Section 60 of the Companies Act, 1956, a company needs to register its prospectus with the ROC, before making a public offer or issuing the prospectus. As per the aforesaid Section 2(36), “prospectus” means any document described or issued as a prospectus and includes any notice, circular, advertisement or other document inviting deposits from the public or inviting offers from the public for the subscription or purchase of any shares in, or debentures of, a body corporate. As mentioned above, the Offer of Redeemable Preference Shares and Offer of NCDs were public issues of securities. Having made public issues, AAIIL was required to register a prospectus with the ROC under Section 60 of the Companies Act, 1956. I find that there is no evidence on record to indicate whether or not AAIIL has complied with the provisions of Section 60 of Companies Act, 1956. In view of the same, I find that AAIIL has prima facie not complied with the provisions of Section 60 of Companies Act, 1956.

4.6 Under Section 56(1) of the Companies Act, 1956, every prospectus issued by or on behalf of a company, shall state the matters specified in Part I and set out the reports specified in Part II of Schedule II of that Act. Further, as per Section 56(3) of the Companies Act, 1956, no one shall issue any form of application for shares in or debentures of a company, unless the form is accompanied by abridged prospectus, contain disclosures as specified. Based on the material available on record, I find that AAIIL has not complied with the provisions of Section 56(1) and 56(3) of the Companies Act, 1956 and therefore, has prima facie violated the aforesaid provisions.

4.7.1 Under Section 117B of the Companies Act, 1956, no company shall issue a prospectus or a letter of offer to the public for subscription of its debentures, unless it has, before such issue, appointed one or more debenture trustees for such debentures and the company has, on the face of the prospectus or the letter of offer, stated that the debenture trustee or trustees have given their consent to the company to be so appointed. Based on the material available on record, I find that AAIIL has not complied with the provisions of Section 117B of the Companies Act, 1956 and therefore, has prima facie violated the aforesaid provisions.

4.7.2 Further, under Section 117C of the Companies Act, 1956, where a company issues debentures, it shall create a debenture redemption reserve for the redemption of such debentures, to which adequate amounts shall be credited, from out of its profits every year until such debentures are redeemed. From the Balance Sheet filed by AAIIL with the ROC for the Financial Year 2011-12, it is observed that the company has created

Debenture Redemption Reserve for an amount of 8.53 Lakhs. However, AAIIL has not filed any Balance Sheets with the ROC thereafter.

4.8 In addition to the above, reference may be made to the Debt Securities Regulations, which were framed by SEBI in exercise of its powers under Section 30 of the SEBI Act and are applicable to the public issue and listing of debt securities. It may be relevant to note that under the aforesaid Regulations, 'debt securities' have been defined as 'non-convertible debt securities which create or acknowledge indebtedness, and include debenture…' In this context, I find that AAIIL, through the Offer of NCDs, which is a public issue of debt securities, has prima facie violated the following provisions of the aforesaid Regulations, which contain inter alia conditions for public issue and listing of debt securities, viz.

i. Regulation 4(2)(a) – Application for listing of debt securities ii. Regulation 4(2)(b) – In-principle approval for listing of debt securities iii. Regulation 4(2)(c) – Credit rating has been obtained iv. Regulation 4(2)(d) – Dematerialization of debt securities v. Regulation 4(4) – Appointment of Debenture Trustee vi. Regulation 5(2)(b) – Disclosure requirements in the Offer Document vii. Regulation 6 – Filing of draft Offer Document viii. Regulation 7 – Mode of disclosure of Offer Document ix. Regulation 8 – Advertisements for Public Issues x. Regulation 9 – Abridged Prospectus and application forms xi. Regulation 12 – Minimum subscription xii. Regulation 14 – Prohibition of mis-statements in the Offer Document xiii. Regulation 15 – Trust Deed xiv. Regulation 17 – Creation of security xv. Regulation 19 – Mandatory Listing xvi. Regulation 26 – Obligations of the Issuer, etc.

4.9 Upon a consideration of the aforementioned paragraphs, I am of the view that AAIIL is prima facie engaged in fund mobilising activity from the public, through the Offer of Redeemable Preference Shares and Offer of NCDs and as a result of the aforesaid activity has violated the aforementioned provisions of the Companies Act, 1956 (Section 56, Section 60 read with Section 2(36), Section 73, Section 117B) read with the Debt Securities Regulations.

5.1 From the material available on record, it is observed that AAIIL created a charge for an amount of 20 Crores and appointed ATM Secured Deventure Development Trust (represented by its Trustees, viz. Shri Arghya Sengupta, Shri Jagadish Chandra Nag and Shri Ram Sunder Bhattacharya) as Debenture Trustee for the Offer of NCDs by that company.

5.2 Section 12(1) of the SEBI Act states that: "No… trustee of trust deed … shall buy, sell or deal in securities except under, and in accordance with, the conditions of a certificate of registration obtained from the Board in accordance with the regulations made under this Act".

5.3 In addition, Regulation 7 of SEBI (Debenture Trustees) Regulations, 1993 ("Debenture Trustees Regulations"), provides that: "no person should act as a debenture trustee unless he is either – i. a scheduled bank carrying on commercial activity; or ii. a public financial institution within the meaning of section 4A of the Companies Act, 1956; or iii. an insurance company; or iv. body corporate."

5.4 Based on the material available on record, I find that ATM Secured Deventure Development Trust (represented by its Trustees, viz. Shri Arghya Sengupta, Shri Jagadish Chandra Nag and Shri Ram Sunder Bhattacharya) has acted as unregistered Debenture Trustee, which amounts to violation of the abovementioned provisions of the SEBI Act read with the Debenture Trustee Regulations.

6. SEBI has a statutory duty to protect the interests of investors in securities and promote the development of, and to regulate, the securities market. Section 11 of the SEBI Act has empowered it to take such measures as it deems fit for fulfilling its legislative mandate. Further, as per the provisions of Section 55A of the Companies Act, 1956, administrative authority on the subjects relating to public issue of securities is exclusively with SEBI. For this purpose, SEBI can exercise its jurisdiction under Sections 11(1), 11A, 11B and 11(4) of the SEBI Act read with Section 55A of the Companies Act, 1956 (as mentioned in paragraphs 4.1–4.9 above). Steps therefore, have to be taken in the instant matter to ensure only legitimate fund raising activities are carried on by AAIIL and no investors are defrauded. In light of the facts in the instant matter, I find that there is no other alternative but to take recourse through an interim action against AAIIL and its Directors, for preventing that company from further carrying on with its fund mobilising activity under the Offer of Redeemable Preference Shares and Offer of NCDs.

7. I note that Shri Hasem Mirza, Smt. Ashmin Khatun, Shri Mirza Dinar, Smt. Nandini Chatterjee, Shri Debasish Dasgupta, Shri Kamal Kishore Lodha, Shri Debabrata Ghosh, Shri Pradip Das, Shri Tahidur Rahaman Gayen, Shri Arun Kumar Mishra, Shri Saiful Alam and Shri Mohammad Younus, who were earlier Directors in AAIIL, have since resigned.

8. In view of the foregoing, I, in exercise of the powers conferred upon me under Sections 11, 11(4), 11A and 11B of the SEBI Act, hereby issue the following directions – i. AAIIL shall not mobilize funds from investors through the Offer of Redeemable Preference Shares and Offer of NCDs or through the issuance of equity shares or any other securities, to the public and/or invite subscription, in any manner whatsoever, either directly or indirectly till further directions; ii. AAIIL and its present Directors, viz. Shri Taimur Ali Gayen (PAN: AEBPG4001N; DIN: 02108358), Shri Yusuf Ali Gayen (PAN: AYNPG5900E; DIN: 05136738) and Shri Indrajit Roy (PAN: BHQPR8645J; DIN: 06754713) including its past Directors, viz. Shri Hasem Mirza (PAN: BAGPM1763F; DIN: 02763820), Smt. Ashmin Khatun (PAN: BKBPK8720K; DIN: 02762776), Shri Mirza Dinar (DIN: 02761080), Smt. Nandini Chatterjee (PAN: ACEPC4432C; DIN: 02985377), Shri Debasish Dasgupta (PAN: APDPD8203N; DIN: 03544876), Shri Kamal Kishore Lodha (PAN: AAYPL5577B; DIN: 05106473), Shri Debabrata Ghosh (PAN: AFWPG1415L; DIN: 05159545), Shri Pradip Das (PAN: ACZPD8269R; DIN: 05166308), Shri Tahidur Rahaman Gayen (PAN: BDOPG6790F; DIN: 05256592), Shri Arun Kumar Mishra (PAN: AIIPM2433R; DIN: 05257673), Shri Saiful Alam (PAN: AVFPA7748F; DIN: 06773537) and Shri Mohammad Younus (PAN:

AHJPM6572H; DIN: 06773530), are prohibited from issuing prospectus or any offer document or issue advertisement for soliciting money from the public for the issue of securities, in any manner whatsoever, either directly or indirectly, till further orders; iii. AAIIL and its abovementioned past and present Directors, are restrained from accessing the securities market and further prohibited from buying, selling or otherwise dealing in the securities market, either directly or indirectly, till further directions; iv. AAIIL shall provide a full inventory of all its assets and properties; v. AAIIL's abovementioned past and present Directors shall provide a full inventory of all their assets and properties; vi. AAIIL and its abovementioned present Directors shall not dispose of any of the properties or alienate or encumber any of the assets owned/acquired by that company through the Offer of NCDs, without prior permission from SEBI; vii. AAIIL and its abovementioned present Directors shall not divert any funds raised from public at large through the Offer of Redeemable Preference Shares and Offer of NCDs, which are kept in bank account(s) and/or in the custody of AAIIL; viii. AAIIL and its abovementioned past and present Directors shall furnish complete and relevant information (as sought by SEBI letters dated February 3, 2014 and February 11, 2014), within 21 days from the date of receipt of this Order. ix. The Debenture Trustee, viz. ATM Secured Deventure Development Trust (represented by its Trustees, viz. Shri Arghya Sengupta, Shri Jagadish Chandra Nag and Shri Ram Sunder Bhattacharya), is prohibited from continuing with its assignment as debenture trustee in respect of the Offer of NCDs of AAIIL and also from taking up any new assignment or involvement in any new issue of debentures, etc. in a similar capacity, from the date of this order till further directions.

9. The above directions shall take effect immediately and shall be in force until further orders.

10.1 The prima facie observations contained in this Order are made on the basis of the material available on record i.e. correspondences exchanged between SEBI and AAIIL, the abovementioned complaints received in SEBI and information obtained from the Ministry of Corporate Affairs' website i.e. MCA 21 Portal. In this context, AAIIL and its abovementioned Directors may, within 21 days from the date of receipt of this Order, file their reply, if any, to this Order and may also indicate whether they desire to avail themselves an opportunity of personal hearing on a date and time to be fixed on a specific request made in that regard.

10.2 Similarly, the Debenture Trustee, viz. ATM Secured Deventure Development Trust (represented by its Trustees, viz. Shri Arghya Sengupta, Shri Jagadish Chandra Nag and Shri Ram Sunder Bhattacharya), may, within 21 days from the date of receipt of this Order, file its reply, if any, to this Order and may also indicate whether it desires to avail itself an opportunity of personal hearing on a date and time to be fixed on a specific request made in that regard.

11. This Order is without prejudice to the right of SEBI to take any other action that may be initiated against AAIIL and its abovementioned Directors; its Debenture Trustee, viz. ATM Secured Deventure Development Trust (represented by its Trustees, viz. Shri Arghya Sengupta, Shri Jagadish Chandra Nag and Shri Ram Sunder Bhattacharya), in accordance with law.

Place: Mumbai S. RAMAN Date: February 12, 2015 WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA