Interim Order in the matter Prosperity Agro India Limited[SAT Appeal No.:410/2016

Under Sections 11(1), 11(4) and 11B of the Securities and Exchange Board of India Act, 1992 read with Regulation 65 of the SEBI (Collective Investment Schemes) Regulations, 1999 in the matter of Prosperity Agro India Limited (CIN: U01400PN2010PLC135473) (earlier known as Samruddha Jeevan Agro India Private Limited)and its Directors, viz., Mr. Santosh Shrawan Mali(AWMPM2320F), Mr. Santosh Kaluram Paygude (ANQPP5668L), Mr. Vanshree Tukaram Chidrawar (AMHPC6141M), Mr. Hrishikesh Vasant Kanase (BBXPK1567K), Mr. Dattatray Madhav Yadav (ACPPY3360C). 1. Securities and Exchange Board of India (hereinafter referred to as "SEBI") received a letter dated January 20, 2014 from an investor who is stated to have invested about ````30 lacs in Prosperity Agro India Limited (hereinafter referred to as "PAIL"). It was also stated that PAIL is a related entity of Samruddha Jeevan Foods India Limited ('SJFIL'). SEBI had passed an interim order on October 31, 2013 against SJFIL for carrying out Collective Investment Schemes activities without obtaining certificate of registration as Collective Investment Management Company (CIMC) from SEBI. Vide the said Order, SJFIL and its Directors were inter alia directed "not to collect any more money from investors including under the existing schemes; not to launch any new schemes; not to dispose of any of the properties or alienate any of the assets of the schemes; not to divert any funds raised from public at large which are kept in bank account(s) and/or in the custody of the company."

2. Subsequently, SEBI received another complaint on September 04, 2014 from an investor of SJFIL alleging that instead of refunding the money on maturity, SJFIL transferred the membership from SJFIL to PAIL and later on to Samrudha Jeevan Multi-Purpose Co-operative Society Limited.

3. As a matter of preliminary inquiry, SEBI, vide letter dated January 22, 2014, inter alia, sought the following details / documents from PAIL in order to ascertain whether or not PAIL is carrying on 'Collective Investment Schemes' in terms of Section 11 AA of the SEBI Act, 1992 (hereinafter referred to as "SEBI Act") :

i. Memorandum and articles of Association of the company as filed with the Registrar of companies. ii. Contact details, Email id, Fax numbers of the company and the designated person for corresponding with SEBI. iii. Details of the past and present directors of the company. iv. Brochures/offer document pertaining to your schemes/arrangements. v. Copies of application forms that are required to be submitted by investors / applicant to participate in the schemes. vi. Sample copies of the registration letter and allotment letter issued to the investors who subscribed to the schemes. vii. Sample copies of the agreement letter / contract required to be entered into by investor /applicant under the schemes. viii. Details of the scheme wise, year wise amount mobilized till date along with the number of investors under the schemes. ix. Details of the scheme wise, year wise amount paid/redeemed by you till date along with the number of investors under the schemes. x. Certified copy of audited financial statement for the last three financial years. xi. Copy of Income Tax Return filed by the company for the last three financial years. xii. List of all investors along with the address and contact numbers of the investors. xiii. Details of the regulatory approvals obtained by you, if any, for provision of accidental death / disability benefits to investor, under your schemes. xiv. Details of any other similar scheme(s), if any, floated by group/associates of your company.

4. In response to the aforesaid letter, PAIL vide letter dated February 15, 2014 sought extension of time upto one month for submission of details/information. Subsequently, PAIL vide letter dated March 22, 2014 submitted that “the main business of company is rearing of livestock against service charges and sale of agricultural products. The company is also engaged in the allied activities such as sale of milk products, sale of bio-fertilizer, and sale of Bags etc. PAIL expressly denied any fund mobilization/ pooling of funds from the general public.

5. PAIL also furnished the following documents: i. Memorandum and Articles of Association ii. Details of the past and present Directors iii. Audited financial statements for the financial years ended March 31, 2011, March 31, 2012 and March 31, 2013. iv. Income Tax Returns for the financial year 2010-11 and 2011-12. v. Business Manual vi. Application Forms for rearing of livestock. vii. Agreement for Rearing of Livestock.

6. In addition, PAIL also submitted that documents such as, brochures, offer documents pertaining to the schemes, application forms to be submitted by investors, sample copies of registration letter, sample copies of agreement letter, details of schemes wise amount mobilized and repaid. PAIL also submitted that list of all investors is not available as the company is not running any schemes or arrangements.

7. Upon examination of the aforementioned information /documents provided by PAIL, SEBI vide letter dated August 08, 2014 sought the following additional information from PAIL: i. Copies of executed application form for rearing of livestock and agreement for rearing of livestock ii. List of vendors and customers

8. In reply to the aforesaid letter, PAIL vide letter dated August 23, 2014 sought extension of time upto one month. Thereafter, vide letter dated October 18, 2014 PAIL submitted sample copies of executed application forms and agreement for rearing of livestock and List of investors/customers.

9. I have carefully considered the material available on record, correspondence exchanged between SEBI and PAIL, along with the documents contained therein and information furnished by the complainant, submissions made by PAIL, etc. In this context, the issue for determination is whether the mobilization of funds by PAIL under its various schemes falls under the ambit of ‘collective investment scheme’ in accordance with Section 11AA of the SEBI Act, 1992 (hereinafter referred to as "SEBI Act").

10. On an examination of the material available on record, it is prima facie observed that:

a) PAIL (CIN: U01400PN2010PLC135473) (earlier known as Samruddha Jeevan Agro India Private Limited) was incorporated on February 5, 2010 having its registered office at Office No. 502, 4th Floor, prosperity heights, CTS No. 6769, Mitra Mandal Chowk, Parvati, Pune, Maharashtra -411009.

b) As per the MoA of PAIL the main object is "to carry on the business of agriculture, farming, horticulture, animal husbandry, live stock in all their respective forms and branches and to grow, produce, process, buy, sell, export, import, market, prepare, refine, extract, manipulate, grind and deal in all kinds of produce and products including food grains, cereals, seeds, oil seeds, plants, flowers, vegetables, fruits, spices and herbs and edible oils and food products and to breed buffaloes, rabbits, goats, sheep's, goat farms, dairy farms."

c) It is stated in the Business Manual that PAIL is engaged in the agricultural business of animal husbandry i.e., rearing and breeding of calves/goats/buffalos at Sondawada (tal- Pardi, Dist: Valsad, Gujrat), Village Mailar Gram(Tal-Indi, Dist- Vijapur, Karnataka) and village Kanjoori (Tal.& Dist.: Khandawada, Madhya Pradesh). The main business of PAIL is rearing and breeding of livestock for service charges and sale of agricultural products. PAIL is also engaged in the allied activities such as sale of milk and milk products, sale of bio fertilizers, etc.

d) It is noted that PAIL is engaged in the business of rearing of livestock (Goats/ buffalo) through its various rearing plans. Customers who are desirous of investing in the plans can opt for installment payment plan (monthly/ quarterly/ half yearly/ yearly instalments)or lump-sum payment plan. The livestock are delivered to PAIL after entering into the contract. After completion of the contract the customers can take back his livestock.

11. Various rearing plans mentioned in the business manual are provided as under:

a) Rearing Plan Prosperity Life for the period 36 months/ 3 years

No of goats/ calf/ Live Rearing Charges Approximate number of Buffalo given for stock In ```` goats & equivalent weight of goats/ calf/ buffalo at Rearing by customer rearing MLY QLY HLY YLY the end of live sock charges rearing contract 1 goat- 10 to 15 kg 3600 100 295 585 1160 2 goats upto 48 kgs 1 goat of 16 to 24 kg 7200 200 590 1170 2320 4 goats upto 95 kgs 2 goats of 25 to 36 kgs 10800 300 885 1755 3480 7 goats upto 131 kgs 1 calf of 8 to 10 14400 400 1180 2340 4640 1 non milking buffalo months old 1 calf of 11 to 12 18000 500 1475 2925 5800 1 milking buffalo months old 1 calf of 20 to 22 36000 1000 2950 5850 11600 1 milking buffalo & 1 non months old milking buffalo

• PAIL also provides plans namely Prosperity World for a period of 3 years and Prosperity Vaibhav for a period of 4 years, which are similar to plans provided above.

b) Rearing Plan Prosperity Green for the period 4 years

No of goats/ calf/ Buffalo Live stock Approximate No. of goats & equivalent given for Rearing by customer rearing weight of goats/ calf/ buffalo at the end charges of live sock rearing contract In ` 1 Goat of 15 to 20 kgs 6000 4 goats of 75 kgs 2 goats of 25 to 30 kgs 9000 6 goats of 113 kgs 2 Goat of 35 to 40 kgs 12000 8 goats of 150 kgs 1 Calf of 15 to 18 mnths old 30000 1 milking buffalo & 1 Buffalo 1 milking baffalo 60000 3 buffalos

• PAIL also provides plans namely Prosperity Anand for a period of 5 years and Prosperity Sun for the period of 5.5 years, which are similar to plans provided above.

12. From the audited financial details provided by PAIL for the financial year ending March 31, 2011, March 31, 2012 and March 31, 2013, the following are observed.

a) The summary of observation from the financial statements for the financial year 2010-11, 2011-12 and 2012-13 are provided as under: Item/year March 31, 2011 March 31, 2012 March 31, 2013 Long term liability - 16,73,89,241 68,22,44,892 Deposits Received - 15,00,00,000 15,00,00,000 Advance Farming Charges - - 50,89,58,201 Livestock farming fees 10,42,96,100 79,98,21,296 98,92,62,437 Purchase of live stocks 1,51,150 32,09,359 82,78,744 Livestock Maintenance 6,34,40,821 46,40,95,808 63,92,01,901 charges Advertisement & sales 28,68,382 9,07,37,765 7,20,48,672 promotions b) PAIL has also submitted that during the financial year 2012-13 it has received `15,00,00,000/- from the vendor (Samrudha Jeevan Foods India Ltd.) towards utilization of livestock farming facility of the Company at its project situated at Valsad (Gujrat) and Jalki (Karnataka) for livestock owned by the vendor. It is pertinent to note that Samrudha Jeevan Foods India Ltd. is one of the group entities of the PAIL and SEBI had issued an interim order against Samrudha Jeevan on October 31, 2013 (mentioned at para 1 above).

13. From the terms and conditions to be signed by the customers/investors while furnishing the application form the following are mentioned. a) The calves/ goats/ buffalos shall be accepted by PAIL only if it is in good health and physical condition at the time of commencement of rearing contract.

b) The applicant/ customer/ owner shall make all the payments strictly as per the terms of the rearing contract. In case of any default on the part of customer in the payment of any amount due towards rearing charges on any count whatsoever, it will be open for PAIL to treat the rearing contract as ineffective/ non operative/ invalid.

c) PAIL shall return livestock only at the end of tenure/ period of the rearing contract; meaning thereby the live stock will not be returned to customers/owners before the end of tenure/period of rearing contract.

d) PAIL shall bear freight etc. charges at the time of taking delivery of calves/ goats/ buffalos etc. at the commencement of rearing contract, whereas at the end of rearing contract, the concerned customer/ owner shall bear freight charges etc. and risk for taking delivery of calves/ goats/ buffalos.

14. From the Livestock Rearing Contract furnished by PAIL vide reply dated October 18, 2014, inter alia, the following are noted:

a) "The Owner (Customer) on his/her/their own free will is/are entering into the present livestock rearing contract with Contractor (PAIL) and hereby handover 1 goat weight in Kgs (18 kg) to Contractor for rearing and breeding of the said livestock. b) The Owner shall pay to the contractor total sum of Rs. 6000 towards rearing and breeding expenses of the said Live Stock.

c) The live stock rearing contract shall come into force immediately on physical delivery of goats and actual receipt of rearing charges from owner to the contractor.

d) The live stock rearing contract is commencing from April 25, 2012 and ending on October 24, 2017. On expiry of the aforesaid tenure, the contractor hereby undertakes to handover five number of goats (approximately 100 kg weight) to the owner.

e) After the commencement and during the rearing contract, contractor shall be absolute owner of milk, dung etc. of the said goats and contractor shall have right to use the said goats and their offspring for agricultural purpose such as production of fertilizers, goober gas etc. contractor shall have absolute liberty to enter into rearing and/or breeding sub contract with other persons/ farmers/ organizations/firms etc. for that livestock during subsistence of present live stock rearing contract.

f) In case death of goats during three contract period, the owner shall not be responsible for the same and PAIL shall be entirely liable to bear the loss there of.

15. From the installment receipts submitted vide letter dated August 25, 2014, by one of the complainants who had invested in the schemes of SJFIL, the following are observed:

a) The receipts only contain the amount of money already paid by the customers and the consideration amount. The details about the goat handed over and goats about to be received on completion of the maturity period are not mentioned in the said receipts.

b) It is seen from the receipts that initially the customer/investor had invested in Samruddha Jeevan Foods India Limited. During February, the account was transferred to PAIL and latter on in the month of March 2014, it had been transferred to Samruddha Jeevan Multi- State Multi Purpose Co-operative Society Limited.

16. The features of the so-called 'rearing and breeding of livestock for service charges' offered by PAIL have to be considered in light of the provisions of Section 11AA of the SEBI Act. The aforesaid Section 11AA, which provides for the conditions to determine whether a scheme or arrangement is a 'collective investment scheme', reads as under : “(1) Any scheme or arrangement which satisfies the conditions referred to in subsection (2) or sub-section (2A) shall be a collective investment scheme. Provided that any pooling of funds under any scheme or arrangement, which is not registered with the Board or is not covered under the exemptions from CIS sub-section (3), involving a corpus amount of one hundred Crore rupees or more shall be deemed to be a collective investment scheme. (2) Any scheme or arrangement made or offered by any person under which, (i) the contributions, or payments made by the investors, by whatever name called, are pooled and utilized solely for the purposes of the scheme or arrangement; (ii) the contributions or payments are made to such scheme or arrangement by the investors with a view to receive profits, income, produce or property, whether movable or immovable from such scheme or arrangement; (iii) the property, contribution or investment forming part of scheme or arrangement, whether identifiable or not, is managed on behalf of the investors; (iv) the investors do not have day to day control over the management and operation of the scheme or arrangement.”

17. In the context of abovementioned Section11AA of the SEBI Act, the Scheme of "Rearing Plans offered by PAIL is examined as under : (i) The contributions, or payments made by the investors, by whatever name called, are pooled and utilized solely for the purposes of the scheme or arrangement;

PAIL invites funds from public for its schemes towards "rearing of livestock such as Calves/Goats/Buffaloes” through its various plans viz., Prosperity Life(3years), Prosperity World(3 years), Prosperity Vaibhav (4years), Prosperity Green (4 years), Prosperity Anand (5years) and Prosperity Sun (5.5 years). The amounts are collected from the customers as per the onetime payment plans or periodic payment plans. The 'customers' or investors who are desirous to subscribe to the schemes are made to execute an agreement viz., "Live Stock Rearing Contract" prescribing two different set of payment schedules illustrated at para 11 (a) and (b) above. As per the "Live Stock Rearing Contract" the customer is required to handover goat(s) and pay the corresponding rearing charges either in upfront payment or through installment payments as per the plan opted by the customer. Upon executing the contract with the "Customers", PAIL would rear the livestock from the pooled amount received from the 'customers'. As per the submission of PAIL vide its letter dated October 18, 2014, it has received `15,68,50,449/- as short term advance from 39,347 customers for advance rearing charges as on March 31, 2013. Further, PAIL has received `50,89,58,201/- as long term advance from 40,916 customers as advance rearing charges as on March 31, 2013. Hence, it is noted that as on March 31, 2014 PAIL has mobilized minimum of `66.58 cores as advance rearing charges. Further, at the end of the agreement term, the 'customer(s)' is entitled to receive goats as per the plans narrated at para 11 above. Therefore, it is clear that the payments or the contributions collected from the ‘customers’ under the schemes towards "Rearing of Goats/Buffaloes” and the contributions are being utilized by PAIL for the purpose of the scheme and therefore the above referred schemes satisfy the first condition stipulated in Section 11AA (2) (i) of the SEBI Act.

(ii) The contributions or payments are made to such scheme or arrangement by the investors with a view to receive profits, income, produce or property, whether movable or immovable from such scheme or arrangement; As noted from various clauses of the "Live Stock Rearing Contract" and the "Business Manual", that the livestock is handed over to PAIL after the execution of the "Live Stock rearing Contract". As per the rearing plans mentioned at para 11 (a) and (b) above, an investor who handed over 1 goat of 15 to 20 kg weight (under Prosperity Green Plan), after 4 years he is entitled to receive 4 goats approx. weighing 75 Kgs. Hence, the customer is assured of getting returns compared to the initial investment. Hence, it appears that such contracts are entered by the "customers", with an intention to earn profits and therefore the above referred schemes satisfy the second condition stipulated in section 11AA (2)(ii) of the SEBI Act. (iii) The property, contribution or investment forming part of scheme or arrangement, whether identifiable or not, is managed on behalf of the investors; (iv) The investors do not have day to day control over the management and operation of the scheme or arrangement.

As per the terms of the "Live Stock Rearing Contract, after the commencement and during the rearing contract, PAIL shall be absolute owner of milk, dung etc. of the said goats and PAIL shall have right to use the said goats and their offspring for agricultural purpose such as production of fertilizers, goober gas etc. PAIL shall have absolute liberty to enter into rearing and/or breeding sub contract with other persons/ farmers/ organizations/firms etc. for that livestock during subsistence of present live stock rearing contract (Clause 7). As per Clause 12 of the Contract, "the Owner hereby authorizes the Contractor to take all the necessary decisions in respect of all such aspects of the present contract...". Therefore, it is clear that the ‘customer’ or investor neither, at any stage, manage the contribution, property or investment forming part of the Scheme towards “Rearing of Calves/Goats/Buffaloes” nor have day to day control over the management and operation of the said scheme towards the “Rearing of Calves/Goats/Buffaloes” offered by PAIL. Therefore, the above referred Schemes satisfy the conditions stipulated in section 11AA (2)(iii) and (iv) of the SEBI Act.

18. In view of above, I find that the scheme of “Rearing of Calves/Goats/Buffaloes” offered by PAIL, prima facie, fulfills the conditions of a 'collective investment scheme' as defined in Section 11AA of the SEBI Act.

19. In this context, it may be relevant to refer to the observations made by the Hon’ble Supreme Court of India in P.G.F. Limited & Ors. Vs. UOI & Anr. (MANU/SC.0247/2013), wherein it was stated: “...sub-section (2) of Section 11AA, which defines a collective investment scheme disclose that it is not restricted to any particular commercial activity such as in a shop or any other commercial establishment or even agricultural operation or transportation or shipping or entertainment industry etc. The definition only seeks to ascertain and identify any scheme or arrangement, irrespective of the nature of business, which attracts investors to invest their funds at the instance of someone else who comes forward to promote such scheme or arrangement in any field and such scheme or arrangement provides for the various consequences to result therefrom.”

20. I note that in terms of Section 12(1B) of the SEBI Act, "no person shall sponsor or cause to be sponsored or cause to be carried on a 'collective investment scheme' unless he obtains a certificate of registration from the Board in accordance with the regulations”. Regulation 3 of the SEBI (Collective Investment Schemes) Regulations, 1999 (hereinafter referred to as "CIS Regulations") also prohibits carrying on CIS activities without obtaining registration from SEBI. Therefore, the launching/ floating/ sponsoring/causing to sponsor any 'collective investment scheme' by any 'person' without obtaining the certificate of registration in terms of the provisions of the CIS Regulations is in contravention of Section 12(1B) of the SEBI Act and Regulation 3 of the CIS Regulations. In this regard, I note that PAIL has not obtained any certificate of registration from SEBI under the CIS Regulations for its fund mobilizing activity from the public, under the instant 'Schemes' offered by it.

21. I also find that the fund mobilizing activity of PAIL through its various schemes, prima facie, amounts to a fraudulent practice in terms of Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practices Relating to Securities Market) Regulations, 2003 ("PFUTP Regulations").

22. From the material available on record, it is observed that its Directors, viz., Mr. Santosh Shrawan Mali(AWMPM2320F), Mr. Santosh Kaluram Paygude (ANQPP5668L), Mr. Vanshree Tukaram Chidrawar (AMHPC6141M), Mr. Hrishikesh Vasant Kanase (BBXPK1567K), Mr. Dattatray Madhav Yadav (ACPPY3360C) are the present Directors who were in charge of and responsible for the day to day affairs of PAIL. It is also noted from the investor complaints received by SEBI that Samruddha Jeevan Foods India Limited (group entity of PAIL) had diverted the investors money from SJFIL to PAIL and later on transferred to Samruddha Jeevan Multi- State Multi Purpose Co-operative Society Limited. This is evident from the transfer of `15 crores from SJFIL to PAIL under the pretext of deposit received from SJFIL (vendor) towards the utilization of livestock farming facility of PAIL at its projects situated at Valsad (Gujarat) and Zalki (Karnataka) for livestock owned by SJFIL.

23. Protecting the interests of investors is the first and foremost mandate for SEBI and therefore, steps have to be taken to ensure that PAIL does not collect further funds under its schemes and no investors are defrauded. Further, in order to safeguard the assets/property, acquired by PAIL and its Directors using the funds collected from the investing public until full facts and materials are brought on record and a final decision is taken in the matter, it is incumbent on SEBI to take preventive action by way of an immediate measure. In the light of the same, I find no other alternative but to take recourse through an interim order against PAIL and its Directors for preventing them from further carrying on with its existing fund mobilizing activity by launching ‘collective investment scheme’ without registration from SEBI in accordance with law.

24. In view of the foregoing, I, in exercise of the powers conferred upon me under Sections 11(1), 11B and 11(4) of the SEBI Act, 1992 read with Regulation 65 of CIS Regulations and PFUTP Regulations, hereby direct PAIL and its Directors viz., Mr. Santosh Shrawan Mali(AWMPM2320F), Mr. Santosh Kaluram Paygude (ANQPP5668L), Mr. Vanshree Tukaram Chidrawar (AMHPC6141M), Mr. Hrishikesh Vasant Kanase (BBXPK1567K), Mr. Dattatray Madhav Yadav (ACPPY3360C) : • not to collect any fresh money from investors under its existing schemes; • not to launch any new schemes or plans or float any new companies to raise fresh moneys; • to immediately submit the full inventory of the assets obtained through money raised by PAIL; • not to dispose of any of the properties or alienate the assets obtained directly or indirectly through the money raised by PAIL; • not to divert any funds raised from public at large, kept in bank account(s) and/or in the custody of PAIL; • furnish full details of Advertisement & sales promotions expenses (item para 12(a); • furnish complete details of accounts transferred from Samruddha Jeevan Foods India Limited to PAIL and complete details of accounts transferred from PAIL to Samruddha Jeevan Multi- State Multi Purpose Co-operative Society Limited (para 15 (b) of this order).

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

26. This order shall be treated as a show cause notice and PAIL and its directors may show cause as to why the plans/ schemes identified in this order should not be held as a ‘collective investment scheme’ in terms of the Section 11AA of the SEBI Act and the CIS Regulations and why appropriate directions under the SEBI Act and CIS Regulations, including directions in terms of Regulations 65 and 73 of the CIS Regulations should not be taken against them.

27. PAIL and its abovementioned Directors may, within 21 days from the date of receipt of this Order, file their reply, if any, to the prima facie observations made herein. They may also indicate whether they desire to avail an opportunity of personal hearing on a date and time to be fixed on a specific request made in that regard.

Place: Mumbai S. RAMAN Date: March 31, 2015 WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA