Order in the matter of M/s Kalpbut Real Estate Ltd[SAT Appeal No.447/2015,448/2015]

Under Sections 11(1), 11(4)and 11B of the Securities and Exchange Board of India Act, 1992read with Regulation 65 of the Securities and Exchange Board of India (Collective Investment Scheme) Regulations, 1999, against Kalpbut Real Estate Limited [CIN: U45400UP2007PLC034180] and its directors viz., Mr. Bhanu Pratap Singh [PAN: AENPS9792L], Mr. Krishan Pal Singh [PAN: AMYPS0600G], Ms. Guddi Devi [PAN: AJXPD0444R], Mr. Rajendra Singh Thakur [PAN: ABUPT7761N], Mr. Parvesh Kumar Singh [PAN: DEWPS4079J], Mr. Natthu Singh [PAN: DKBPS2620L], Mr. Raksha Pal Singh [PAN: BDSPS9886A], Mr. Devendra Pal Singh [PAN: BJVPS0029N], Ms. Rajeshwari Sengar [PAN : AVZPS2724H] and Mr. Pooran Prakash [PAN : ALLPP2252K] Date of Hearing: April 20, 2015 and May 08, 2015 Appearances: For Noticees: Mr. KRCV Seshachalam, Advocate. Mr. Ashish Kumar Agarwal, Chartered Accountant. For SEBI: Mr. Mohd. Atif Alvi, Deputy General Manager. Mr. N. Murugan, Assistant General Manager. Mr. Pradeep Kumar, Assistant General Manager. Ms. Treasa Kuriala, Assistant General Manager. 1.1 Kalpbut Real Estate Limited (hereinafter referred to as "Kalpbut" or "company") is a company incorporated on November 02, 2007 having its Registered Office at Shop No.- 5, Hotel Athitya Palace Complex, 2013, Junction Road, Mathura, Uttar Pradesh with CIN: U45400UP2007PLC034180.

1.2 Securities and Exchange Board of India (hereinafter referred to as "SEBI") had received a complaint vide e-mail dated November 26, 2013 alleging that several companies including Kalpbut have launched various collective investment schemes without obtaining certificate of registration from SEBI or Reserve Bank of India. 1.3 On enquiry, SEBI, prima facie found that Kalpbut is engaged in fund mobilizing activities from the public, which is in the nature of a Collective Investment Scheme without obtaining a certificate of registration from SEBI. Therefore, SEBI, vide an interim ex-parte Order dated December 10, 2014 (hereinafter referred to as ‘interim order’) passed the directions against Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Pal Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash (hereinafter collectively referred to as ‘noticees’). 2.1 Prima facie findings/Allegations: The noticees were mobilising funds under the garb of real estate from the public through Collective Investment Schemes offering Single Installment Plan and Multiple Installment Scheme.

The prospective buyers/investors who were interested in the aforesaid 'schemes' were made to execute a 'Plot buyer agreement' with the company without any identification of the plot or land for which they made the investment. After execution of the same, Kalpbut issued a 'Registration Letter' in favour of the buyer/investor without identifying the land or plot. 2.2 The Company agreed to arrange for the allotment and registration of plot in the name of the investor, within a reasonable period, not exceeding 180 days in the case of Single Installment Plan and in cases of Multiple Installment Scheme, the allotment would be done within a reasonable period, generally not exceeding 365 days after receipt of 50% of the ‘consideration’. However, no sale deeds had so far been executed. The unidentified plot would remain in the possession of Kalpbut till the expiry of the 'Plot buyer agreement'. 2.3 Kalpbut agreed to develop and maintain the unidentified plots during the currency of ‘Plot Buyers Agreement', in consultation with agro consultants and experts taking into consideration factors such as soil, climate etc. Kalpbut would finally decide all matters relating and incidental to development of the plot including survey, demarcation, clearing, cultivation, planning to develop crops, trees, plants, saplings, use of fertilizer and pesticides irrigation harvesting, etc. 2.4 The property forming part of the scheme would be managed solely by Kalpbut on behalf of the buyer/investors further indicating uncertainty regarding plot of land that will be allotted to the investor upon maturity of the agreement term.

2.5 The schemes also provided for return to the investors. The 'Registration letter' issued to an investor by Kalpbut under its 'Multiple Installment Scheme' indicated an 'Assured Realizable cost' at the end of the term. ', For instance, an investor making an investment in 'Multiple Installment Scheme for a period of 5 years had to pay Rs. 1,150/- as half yearly installment, for a plot size of 60 sq. yards, where the "plot/land consideration" was mentioned as Rs 12,000/-. The investor was entitled to an 'Assured Realizable cost' of Rs 18,000/- i.e. he/she was entitled to an amount of Rs 6,000/- as return after the term period of 5 years. Further, in case Kalpbut committed breach of the agreement by not allotting land in favour of the investor, the "buyer” was entitled to terminate the Plot buyer agreement, and in such event the investor was entitled to refund of the investment along with simple interest @ 15% per annum from the date of contract. Thereby, the scheme also provided for the return to the investors. 2.6 In view of the above attributes of the scheme, it was alleged that the contributions were collected from the investors under the Schemes launched by Kalpbut and the same is pooled and utilized for development of plots.

The investments were made by the investors with a view to receive returns from the schemes. The property, contribution or investment forming part of the scheme/Plans were managed by Kalpbut on behalf of investors and the investors did not have any day-to-day control over the management of the schemes/Plans. In order to satisfy the requirements of section 11AA of the Securities and Exchange Board of India Act, 1992 for collective investment schemes, the noticees were required to get a certificate of registration from SEBI under Section 12(1B) of the SEBI Act and Regulation 3 of the SEBI (Collective Investment Schemes) Regulations, 1999 (hereinafter referred to as ‘the CIS Regulations’). However no registration was sought by the noticees from SEBI. 2.7 The mobilization of funds from the public, was also prima facie found to be a fraudulent practice in terms of Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practice Relating to Securities Market) Regulations, 2003 (hereinafter referred to as ‘PFUTP Regulations’). The directors of Kalpbut were alleged to be responsible for the illegalities.

2.8 In view of the prima facie findings on the violations, vide the said interim order dated December 10, 2014,the noticees were directed:-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 including land obtained through money raised by Kalpbut; not to dispose of or alienate any of the properties/assets obtained directly or indirectly through money raised by Kalpbut; not to divert any funds raised from public at large which are kept in bank account(s) and/or in the custody of Kalpbut.” 3.1 The noticees, in the said interim order, were advised to file their replies within a period of 21 days from the date of receipt of the interim order and also to indicate whether they wish to avail an opportunity of personal hearing in the matter. 4.1 Service of the interim order: The copy of the interim order was sent to the noticees vide letter dated December 19, 2014. Kalpbut vide its letter dated January 07, 2015, on its behalf and on behalf of the directors sought an extension of time for filing of objections and replies.

A request for granting an opportunity of personal hearing was also made vide the said letter. The noticees vide letter dated January 27, 2015, submitted the common reply to the interim order. The Company vide its another letter dated February 27, 2015, made additional submissions and requested that the directions issued against it be kept in abeyance till final conclusion of the proceedings.

5.1 Personal hearing: Thereafter, SEBI intimated vide letter dated March 17, 2015 that opportunity of hearing to all the noticees would be scheduled on April 20, 2015. Since the notices of hearing addressed to Mr. Krishan Pal Singh, Mr. Raksha Pal Singh returned undelivered, SEBI vide letter dated April 08, 2015 intimated Kalpbut to deliver the notices of hearing to them. In the personal hearing held on April 20, 2015, Mr. KRCV Seshachalam, Advocate and Mr. Ashish Kumar Agarwal, Chartered Accountant appeared as authorised representatives of the noticees. During the course of hearing, SEBI asked the representatives to give more details regarding the operations of the noticees and a further opportunity of hearing was scheduled for May 08, 2015. Mr. KRCV Seshachalam, the Advocate for the noticees appeared on May 08, 2015 and made additional submissions. On conclusion of the personal hearing, the authorised representative of the noticees requested that the directions issued against it, be kept in abeyance till the final conclusion of the proceedings. 6.1 The Reply of the noticees: The case of the noticees as submitted in their replies including the replies of the company vide its letters dated July 05, 2014, July 23, 2014 and July 24, 2014 and the personal hearing in a nutshell is as follows: 6.2 The company is not running any CIS scheme.

The company is running genuine real estate business. The Company owns the land, it develops and sells them on installment basis to its customers. Its business includes buying and selling of land; creating housing plots and selling them to the retail buyers; buying agricultural land and selling the housing plots after converting it to non agricultural land; buying land and developing the residential complexes and selling the individual residential units to retail buyers; undertakes development of the plots of land so sold, if desired by the buyers. Buying and selling of land squarely falls under the jurisdiction of State. The company has complied with all the relevant laws with regard to a real estate business and submitting all necessary information to the state government. 6.3 The company first acquires the land and then plots are created as per the measurement to enable small/ middle income group buyers to acquire the same. The payments are made by the buyers for buying an existing piece of land already owned by the company. The payments received from the buyers were not used for acquiring the land, since the company owns land already.

Once the interested buyer pays the money, the company immediately allots the property as per availability and preference and necessary registration letter is also given with necessary details like plot number, khasra number etc. to identify the property. 6.4 The company has on-going "projects"in Hadora, Baheta, Islam Nager,Bhamori, Sisirka, in the district of Badaun, Aonala in the district of Bareilly,Lehravan in the district of Moradabad. As far as Baduan and Sisarka are concerned, they are under the process of development and once the land is leveled the demarcation work would start as per lay out plan. The selling of housing plots with one time payment do not fit into the definition of CIS. 6.5 All the agreements of the ongoing "projects" are under Single Investment Schemes and the sale deeds will be executed only at the time of possession. It had not made any agreement with any of its customers on multiple investment schemes. No consideration is received from any investor. What is received is only the advance consideration in installments from the buyers for the land. The company has received part consideration from 2,388 investors under various "projects" to the tune of 15,64,86,244 as on 31/03/2013.

6.6 The development activities of the company includes cultivation, plantation, cropping, saplings, fertilizers and other maintenance task and marketing of produce thereof during the tenure of its engagement. The development of the plot is at the option of the buyer. The consideration for the same would be completely different and in addition to what was agreed to be paid for the cost of land. The property is not managed by the company, the property is transferred to the purchasers and the purchaser has various commercially viable options. The purchaser of the land has full control over the property subject to the fulfillment of payment of full consideration. Even if the property is managed by the company, it is not from the funds raised from the buyers. 6.7 Non execution of the sale deed is of no relevance in a real estate transaction of this nature. The sale will be completed after completion of the formalities with various authorities and within the time as mutually agreed upon.

6.8 The company in the plot buyer agreement has inserted a default clause which is customary in any real estate agreement. Such clauses are incorporated in the agreement, as the individuals will have the advantage of monetised and liquidated money return instead of long process of filing suit for specific performance. There was no creation of profits or returns by the Company. What was paid to the purchaser in case of frustration of agreement is the penal interest as agreed. 6.9 The corpus of the installment plans does not constitute 100 crore. As on date, there is no complaint of delay or default from any buyer. 6.10 SEBI while passing the interim order had relied upon an investor complaint and information from the RoC, however, the same were not provided to it. On receiving the copy of the complaint subsequently from SEBI, it is found that the Company does not have any buyer in the name of the complainant and the purported application of the said complainant was not issued by it. The claim of the complainant is incorrect and in all the cases there is an identified and identifiable plot of land.

6.11 If SEBI is still of the opinion that any activity of the Company constitutes CIS, the Company will ensure that all the funds received from the purchaser are repaid and plans will be wound up, in accordance with law, within a reasonable time. 6.12 The SEBI communications before the interim order had not contained any mention of any preliminary regulatory enquiry. In the absence of the same the Company could not relate to the context of seeking such information. The company was under bonafide belief that SEBI was satisfied with its reply and no further action was required from their side. However, SEBI passed the interim order without giving any opportunity to explain the question of law on which the entire order was based. 6.13 The Company has other business of constructing residential buildings and selling flats in normal commercial terms and the company believes that the directions as contained in the interim order are not applicable to the said activities and these can be continued in the normal course of business. 7.1 I have considered the allegations, replies and materials on record.

On perusal of the same, the following issues arise for consideration. Each question is dealt with separately under different headings. 1. Whether the noticees have launched and are running the arrangement/scheme as alleged? 2. Whether the major attributes of the arrangement fall within the definition of collective investment schemes as defined in section 11AA of SEBI Act? 3. If so, whether the noticees have violated Section 12(1B) of the SEBI Act and Regulation 3 of the CIS Regulations’ and Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practice Relating to Securities Market) Regulations, 2003. 9.1 Whether the noticees have launched and are running the arrangement/scheme as alleged: On perusal of copies of plot buyer agreement, registration letter and other materials on record, I find that:- a) The company had received money from the public through Single Installment scheme and Multiple Installment Scheme. Admittedly, the company collected Rs. 15,64,86,244/-from as many as 2338 investors under its various schemes. The prospective buyers/investors who were interested in the aforesaid 'Schemes' were made to execute a 'Plot Buyer(s)'s Agreement' with the company without any identification of the plot or land.

After execution of the same, the company issued a 'Registration Letter' in favour of the buyer/investor without identifying the land or plot. b) The company agreed to arrange for the allotment and registration of plot in the name of the investor, within a reasonable period, not exceeding 180 days in case of Single Installment Plan and in cases of Multiple Installment Scheme, the allotment would be done within a reasonable period, generally not exceeding 365 days after receipt of 50% of the consideration. The unidentified plot would remain in the possession of the company till the expiry of the 'Plot Buyer(s)'s Agreement'. c) The company in its Plot Buyer Agreement undertook to develop and maintain the unidentified plots during the currency of Plot Buyer Agreement, in consultation with agro consultants and experts taking into consideration factors such as soil, climate etc. The company stated that it would finally decide all matters relating and incidental to development of the plot including survey, demarcation, clearing, cultivation, planning to develop crops, trees, plants, saplings, use of fertilizer and pesticides, irrigation and harvesting.

The property forming part of the scheme was being managed solely by the Company on behalf of the customers/investors. The investors had no day today control over the activities of development of the plot. d) In case the company committed breach of the promise in the agreement/scheme by not allotting land in favour of the investor, the “buyer” would be entitled to terminate the Agreement/scheme, and in such event the investor is entitled to the refund of the investment along with simple interest @ 15% per annum from the date of contract. This clause is present in all the plot buyers agreement submitted by the Company. The fact that the investor is entitled to receive the return of the investment along with simple of interest of 15% shows that the scheme provides for monetary returns. 9.2 At this juncture, the argument of the noticee in its reply dated Jan 27, 2015 that SEBI while passing the interim order had relied upon an investor complaint and information from the RoC, without providing the copy of the same to the noticees, is considered. During the personal hearing, it was further submitted that SEBI has relied upon the said false complaint for arriving at the conclusions in interim order.

9.3 I find that the copy of the complaint from one Mr. Mangal Sen along with its annexures, was forwarded to the company vide letter dated Feb 11, 2015. On receipt of the same, the company had denied vide its letter dated Feb 27, 2015, the fact of his being a customer. The Company also submitted that Mr. Mangal Sen had submitted an affidavit stating that he had not paid any money to the company and the application form might be a forged one. However, no copy of the affidavit was provided to SEBI at any point of time. I find that copies of the plot buyer agreements submitted by the Company itself contains the clause providing for returns. Therefore, it cannot be said that SEBI is relying on the documents of Mangal Sen for establishing the allegations against the noticees. 9.4 In view of the above observations, I find that the noticees have launched and are carrying on the arrangement/scheme as alleged. 10.1 Whether the major attributes of the arrangement fall within the definition of collective investment schemes as defined in section 11AA of SEBI Act? 10.2 Before proceeding to determine whether the four conditions mentioned in section 11AA(2) are satisfied, I consider it apt to deal with the contention of the noticees that it is running a genuine real estate business.

The company submitted that it had on going "projects" in Hadora, Baheta, Islam Nager, Bhamori, Sisarka, in the district of Badaun, in Aonla in the district of Bareilly, in Lehravan in the district of Moradabad, in Padrilalpur, Ghatampur, in the district of Kanpur. As far as "projects" in Baduan and Sisarka are concerned, they are under the process of development and once the land got leveled the demarcation work would start as per lay out plan(Lay-out). In order to establish the case of the noticees that it agreed to sell identified plots to the prospective buyers in its various “projects", the noticees produced copies of registration letters, plot buyer agreement, Lay-out plans and application forms in respect of its ongoing "projects". 10.3 The company vide letter dated May 26, 2014, forwarded to SEBI a copy of the registration letter and plot buyers agreement, in respect of Sisarka 'Project', issued to one Mr. Vijay Pratap (Registration serial Number: 000623 dated 9/5/2012)and to another person, Mr. Hari Shankar (Registration No 000650 dated 16/05/2012). Both of them had invested Rs 50,000/- each in the company's 'Single Installment Plan' for 50 sq.yards plot at Sisarka, Distt.

Badaun in Uttar Pradesh. Thereafter, the company vide letter dated June 6, 2014 referring to the copy of registration letter submitted vide letter dated May 26, 2014 (received by SEBI on May 30, 2014), contended that once the interested person paid the money, the company immediately allotted the property as per availability and preference and registration letter was given with necessary details like plot number, khasra number etc. to identify the property.

10.4 I have perused the “Lay-out” given by the noticees in respect of the Sisarka 'project' which clearly contains nine different blocks viz., 'A', to "I". On perusal of the copy of the registration letter enclosed by the company in its letter dated May 26, 2014, I find that the same carried the details for the commencement of the scheme, the name of the scheme and the term of the scheme, consideration paid and the amount of installment received. But at the same time, there was no column, in the copy of the registration letter for details of plot, khasra number, etc. Therefore, the question of mentioning of the same does not arise at all in the case. Curiously, the company has falsely stated in its letter dated June 6, 2014 and misled SEBI that the registration letter carried details such as plot number, Khasra Number in order to identify the property. There is no mention of any identifiable plot number associated with any specific Blocks('A', to "I") in either of the application forms signed by these two investors. In the case of Mr. Harishankar, simply "04" is shown as plot number both in the application form and in the Plot buyer agreement.

Similar is the case with Mr. Vijay Pratap. However, no mention as to whether the same belongs to any of the Blocks 'A' to "I, is made therein. Similarly, vide letter dated July 23, 2014, ten copies of registration letters issued to various investors (Khalid Zamankhan, BhooDevi, Seema Devi, Nekpal Singh, Suman, Pramod Kumar, Dipanshi, Sonkali, Shaheeda, Hardai) were given in respect of Sisarka 'project'. In none of the copies of these registration letters too, there is any mention of the Block numbers. It does not stand to reason how the plots agreed to be sold, can be identified just by a numerical number of plot without mentioning the Blocks to which it belongs. 10.5 Even during the personal hearing, the noticees maintained the same stand that it was running a real estate business. A copy of the “Lay-out” map claimed to be in respect of Hathora, Badaun, U.P was submitted by the authorised representative to show that only Plots mentioned in the “Lay –out” plan are being agreed to be sold. The “Lay-out” carries the diagrammatic representation of different plot sizes in various blocks such as 'A', 'B', 'C' and 'D'.

10.6 In order to verify the claim of the noticees, the authorised representatives were directed during the first personal hearing, to submit the complete list of investors containing the name, address, details of the plot allotted, details of the plot sold, etc. within two days from the date of hearing. The representatives were also directed to submit the complete case file/ set of documents starting from the respective application forms, respective agreements, respective details of payment made/ installment receipts, respective allotment letters, respective sale deeds, respective possession letters, etc. of all its customers who have been allotted/ sold, the plot/ in unit nos. B-2 to B-121 at Hathora, Badaun, U.P. The representatives were also asked to demarcate and identify the plot on the 'lay-out map' for all such customers. For submitting these details, the noticees were granted time till May 08, 2015. The noticees were also granted another opportunity of personal hearing on May 08, 2015 as stated earlier. 10.7 The noticees vide letter dated May 01, 2015 submitted the complete list of investors containing name, address, details of plot allotted and the project in which the plot was allotted.

The Company also submitted set of documents (application forms, plot buyers agreement and registration letters) for plot no.B-2 to B-121 at Hathora, Badaun, UP. However, I note that the Company has not demarcated and identified the plot on the 'lay-out map' for all its customers for plot/ unit nos. B-2 to B-121 at Hathora, Badaun, U.P. 10.8 I have perused the copies of the registration letter and the plot buyers agreement submitted pursuant to the personal hearing in respect of 'B' blocks. The said copies were submitted in support of their case that the identified plot is agreed to be sold. The genuineness of the said documents is questionable for the following reasons. The said documents have been signed by Mr. P.K Singh, one of the noticees. On perusal of the signature in vakalath filed on behalf of Mr. P.K Singh, the said signature is neither matching with the signature observed in copy of the registration letter, nor signature observed in the copy of the plot buyer agreement submitted by the company. Further, upon a comparison of registration letters submitted vide letter dated May 26, 2015 and registration letters submitted pursuant to personal hearing, I find that the right hand side columns in the registration letters submitted vide letter dated May 26, 2014 are vacant without details of the Block number or Plot number and bottom portion has a specific Receipt cum Acceptance letter.

However, in the registration letter submitted pursuant to the personal hearing, I find that vacant columns on the right hand side have been utilized to incorporate the Block number along with the plot number and the bottom portion of "Receipt cum Acceptance letter" is missing. 10.9 Further, I find from the copy of the plot buyers agreement of Latoori dated March 25, 2010, that the company has agreed with the investor that the same will expire on May 20, 2016. However in the copy of the plot buyer agreement of the same person submitted subsequent to the personal hearing, the date is altered as May 20, 2017. 10.10 In view of these discrepancies, the documents submitted pursuant to the personal hearing do not seem to be genuine and no reliance can be placed on them. 10.11 Moreover, the said plot buyers' agreement if considered as an agreement to sell, sought by the noticees, cannot be considered as a piece of admissible evidence, in view of U. P. Civil Laws (Reforms and Amendment) Act, 1976, w.e.f. January 1, 1977, which mandates even an agreement to sell has to be registered in state of Uttar Pradesh and judgment of the Hon'ble High court of Allahabad in Vijay Kumar Sharma v Devesh Behari Saxena (AIR 2008 ALL 66), which lays down that the unregistered agreement to sell cannot be considered as a piece of evidence.

Therefore, even assuming that identified plot is agreed to be sold through plot buyer agreement the same cannot be accepted as a valid piece of evidence for agreement to sell. Therefore those documents do not exist in the eye of law for the purpose of proving the "agreement to sell". Rather, these demonstrate the features of the collective investment scheme and can be considered as one of the scheme documents. 10.12 Further, even though Company started its activities as early in the year 2009, the company neither produced any registered sale deed as on this date, nor any legally valid documents to show that it was in the business of selling lands or plots to the ‘buyers’. The noticees argued vide letter dated Jan 1, 2015 that non execution of sale deed is of no relevance in the real estate. I find that as per clause 2A the scheme document of 'Plot Buyer(s) Agreement', the title of the plot had to be transferred to the investor by executing sale deed within a reasonable period after issuance of the allotment letter. The company vide letter dated 24/07/2014 submitted that sale deeds will be executed only at the time of possession.

However, not even a single sale deed has so far been produced before SEBI. It is difficult to accept a company as a real estate company which in six years of its existence has not had a single registered sale deed. 10.13 Therefore, the argument of the company that it is running a genuine real estate business is liable to be rejected. I find that there is no tenable evidence to conclude that the company is selling identified plots in the various above mentioned "projects" or that sale consideration is received for the plots claimed to be sold by the company in respect of those "projects". 10.14 I proceed to consider now whether the four conditions mentioned in section 11AA(2) of SEBI Act are satisfied in the instant arrangement. Section 11AA of SEBI Act reads as follows: "(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. [(2A)] Any scheme or arrangement made or offered by any person satisfying the conditions as may be specified in accordance with the regulations made under this Act.]

(3) Notwithstanding anything contained in sub-section (2) [or sub-section (2A)], any scheme or Arrangement: i. made or offered by a co-operative society ii. under which deposits are accepted by non-banking financial companies iii. being a contract of insurance iv. providing for any scheme, Pension Scheme or the Insurance Scheme framed under the Employees Provident Fund v. under which deposits are accepted under section 58A of the Companies Act, 1956 vi. under which deposits are accepted by a company declared as a Nidhi or a mutual benefit society vii. falling within the meaning of Chit business as defined in clause (d) of section 2 of the Chit Fund Act, 1982(40 of 1982); viii. under which contributions made are in the nature of subscription to a mutual fund; [ix. such other scheme or arrangement which the Central Government may, in consultation with the Board, notify,] shall not be a collective investment scheme."

10.15 Perusal of the above section shows that the any arrangement or scheme to be considered as collective investment scheme has to satisfy the four conditions mentioned in section 11AA(2) of SEBI Act and the same should not fall within any of the exceptions mentioned in section 11AA(3) of SEBI Act. 10.3.1 Regarding the first requirement of pooling of the contributions and utilization of the same for the scheme, noticees denied that any contribution was received from the investors. The company vide letter dated July 23, 2014, denied making any agreement with any of its customers on multiple investment schemes. However, it argued vide letter dated January 27, 2015 that it received advance consideration in installments for selling the land already owned by it. In order to support their case that there is no pooling of money received from the investors, the company stated that it acquired the land first and then the plots are created as per the measurement to enable small/ middle income group buyers to acquire the same(which was submitted vide its reply dated Jan 27, 2015).The Company submitted that payments made by the buyers were for buying an existing piece of land and that the payments from the buyers were not used for acquiring the land since the company had its own land.

10.3.2 In a nutshell, the argument of the company is that there is no pooling of contributions, since the legal nature of money received is only sale consideration from the purchasers, the same does not fall within the meaning of “contributions” of the investors, within the meaning of section 11AA(2) of SEBI Act. Further the money collected is not pooled and utilised to purchase any property since the company already owns land. 10.3.3 However, the argument of the company that it was only receiving sale consideration cannot be accepted, as there was no proof to show that the company was selling identified plots. Although the company argued that it had not pooled and utilised the collected money because it owned land, I note that the prohibition to run the CIS schemes as per section 12(1B) of SEBI Act, would also step in even at the time of launching and sponsoring the scheme, the stage at which there is only a proposal to utilize the money for the schemes. I note that the company agreed through its various scheme documents to utilize the money contributed by the investors for the development of the land.

Therefore, I find that money was collected by the company with a promise to utilize the same for the development of the unidentified plots. 10.3.4 I further find that the denial of company at one place that it did not have any multiple installment plan, does not help the company in any manner. It is immaterial whether the contribution by the investors are by way of lump sum payment or by way of installments. In fact, I find from the plot buyer agreement, that the company had "single installment scheme" and multiple installment scheme. The plot buyer agreements at clause 14 dealing with the eventuality of breach by the 'buyers' specifically deals with the "buyers" of "multiple installment plans". Therefore, the company did run both single and multiple installment schemes. 10.4.1 As regards, the second requirement, that contributions/payments were made by the investors with a view to receive profits, income, produce or movable or immovable property from such scheme, I have noted earlier, that the scheme document provides for development of the plots. The Scheme document plot buyer agreement had the clause for development and the company made the representation to the buyer that the development was at the option of the investors.

However the investor clearly expressed his intention through his representation in the plot buyer agreement by opting for the development of the plot by the company which is further shown by clause 4 of the said Agreement. As per clause 8 of the plot buyer agreement, the company agreed to notify the investor as soon as the development activities are over, 30 days before the expiry of the agreement. It shows that the possession of the property remained with the Company for development/ cultivation during the tenure of agreement (generally 3 to 7 years). For example, Plot buyer agreement in respect of Mr. Viay Pratap under examination, provided for the expiry period ending on April 15, 2016.Thereafter, the company agreed to hand over the developed plots to the investors. The company further extended its marketing services for selling the developed plots(clause 16 of the Plot Buyer Agreement). 10.4.2 The company had denied receiving any maintenance charge from the investors. However, from the "general terms and conditions" (clause 6) appended to the Plot buyers agreement of Hari Shankar (as in the case of other investors) as supplied by the company, I find that the cost of the plot can include development charges.

Therefore, even if no amount was separately charged as maintenance/development cost by the company, the same was included in the cost of the land as per the terms and conditions. Even if the company was not separately charging anything for the development of plot, the same did not alter the basic arrangement with the investors that the plots are agreed to be developed. If the plots were not meant to be developed, it does not stand to reason why should there be an agreement clause to that effect and there is no reason why the land is being held by the Company for such a long duration. The company vide its reply dated Jan 27, 2015 has rather admitted the development activities. According to the Company, the development activities on the plot included cultivation, plantation, cropping, saplings, fertilizers and other maintenance task and marketing of produce thereof during the tenure of its engagement. Even if no such development charges were received under the heading of ‘development charges’, the promise of developmental activity clearly establishes that the contribution made by the investor are usable for developmental activities.

The legal position that the section 12(1B) of SEBI Act mandates the registration of the CIS scheme at the stage of sponsoring to launch the scheme itself, shows that an arrangement to develop the unidentified plot by pooling of money from investors will itself be sufficient without actual development being proved by SEBI, provided other conditions prescribed in section 11AA(2) of SEBI Act are satisfied. Thus, I find that in the instant scheme, contributions/payments were made by the investors with a view to receive immovable property(developed plots)from such scheme. 10.4.3 The company argued vide reply dated Jan 27, 2015 that the clause 13 A of the Plot buyer agreement which provided for refund of investment along with simple interest at 15% p.a from the date of contract in case company breaches the agreement, is only liquidated money which the investor will get instead of filing a lengthy process of suit for specific performance. I find that this clause is present in all the plot buyers agreement submitted by the Company. The fact that the investor is entitled to receive the return of the investment along with simple of interest of 15% shows that the scheme provides for monetary returns.

10.4.4 On perusal of the interim order I find that the allegation cum finding against the company that it was running CIS was not only based on the fact that the company was providing returns. It was also on the basis that the company was agreeing to provide developed plots. It may be seen as per section 11AA(2)(ii) in order to constitute a CIS scheme, the contributions to such scheme by the investors have to be made with a view to receive profits, income, produce or movable or immovable property from such scheme. In the instant case, there is also an allegation that the company agreed to provide immovable property in the form of developed plots. In view of the foregoing discussion, I find that in the instant scheme, contributions/payments were made by the investors also with a view to receive returns from such scheme. Therefore, the second requirement under section 11AA(2) of SEBI Act is also satisfied in the instant case. 10.5.1 As regards the third requirement that the property, contribution or investment forming part of the scheme, whether identifiable or not, is managed on behalf of the investors, and the fourth requirement that the investors do not have the day to day control over the management and operation of the scheme., the noticees vide reply dated Jan 27, 2015 argued that the entire maintenance of plot, was at the option of the buyer and the consideration for the same would be completely different and in addition to what was agreed to be paid.

Even if the property was managed by the company, it was not from the funds raised from the investors. 10.5.2 As discussed earlier, the development of the plot is not at the option of the investor as claimed by the company. In the Plot buyer agreement, it is seen that the company undertook development for all investors. The scheme rather provideed for mandatory development by the company as shown by clause 4 of the said Agreement. The same reads as follows:- "DEVELOPMENT : The Company shall in conformity and in accordance with the opted scheme by the buyer(s) develop and maintain the Buyer(s) plot from the date of signing of this agreement in consultation with agro consultants and experts taking into consideration such factors such as soil, climate etc. All matters pertaining to development including survey, demarcation, clearing, cultivation, planning to development corps trees plants saplings etc. use of fertilizer and pesticides irrigation harvesting and all other activities allied or incidental thereof shall be finally decided by the company...." 10.5.3 The perusal of the above clause clearly shows that the management of the development activities were to be done by the company on behalf of the investors.

The manner of the development activities to be done by the company also was "finally" decided by the company. Hence I find that the instant arrangement/scheme satisfies the third and fourth conditions for CIS schemes. 10.5.4 In view of the satisfaction of the all the four conditions, I find that the instant arrangement/schemes falls within the definition of collective investment schemes. As all the four conditions specified under section 11AA(2) of the SEBI Act are satisfied in this case, the schemes/ plans promoted, launched, carried on and operated by the noticees are in the nature of CIS in terms of section 11AA(1). In this regard, it would be relevant to place reliance on the observations of the Hon'ble Supreme Court, made in the matter of PGF Limited &Ors. Vs. Union of India &Anrs. (Civil Appeal No. 6572 of 2004): "Therefore, the paramount object of the Parliament in enacting the SEBI Act itself and in particular the addition of Section 11AA was with a view to protect the gullible investors most of whom are poor and uneducated or retired personnel or those who belong to middle income group and who seek to invest their hard earned retirement benefits or savings in such schemes with a view to earn some sustained benefits or with the fond hope that such investment will get appreciated in course of time.

Certain other Section of the people who are worstly affected are those who belong to the middle income group who again make such investments in order to earn some extra financial benefits and thereby improve their standard of living and on very many occasions to cater to the need of the educational career of their children. 38. Since it was noticed in the early 90s that there was mushroom growth of attractive schemes or arrangements, which persuaded the above vulnerable group getting attracted towards such schemes and arrangements, which weakness was encashed by the promoters of such schemes and arrangements who lure them to part with their savings by falling as a prey to the sweet coated words of such frauds, the Parliament thought it fit to introduce Section 11AA in the Act in order to ensure that any such scheme put to public notice is not intended to defraud such gullible investors and also to monitor the operation of such schemes and arrangements based on the regulations framed under Section 11AA of the Act. ... ... ... 40. It will have to be stated with particular reference to the activity of the PGF Limited, namely, sale and development of agricultural land as a collective investment scheme, the implication of Section 11AA was not intended to affect the development of agricultural land or any other operation connected therewith or put any spokes in such sale-cum-development of such agricultural land.

It has to be borne in mind that by seeking to cover any scheme or arrangement by way of collective investment scheme either in the field of agricultural or any other commercial activity, the purport is only to ensure that the scheme providing for investment in the form of rupee, anna or paise gets registered with the authority concerned and the provision would further seek to regulate such schemes in order to ensure that any such investment based on any promise under the scheme or arrangement is truly operated upon in a lawful manner and that by operating such scheme or arrangement the person who makes the investment is able to really reap the benefit and that he is not defrauded ... ... It is, therefore, apparent that all other schemes/arrangements operated by all others, namely, other than those who are governed by sub-section 3 of Section 11AA are to be controlled in order to ensure proper working of the scheme primarily in the interest of the investors. ... ... 42. Therefore, in reality what sub-section (2) of Section 11AA intends to achieve is only to safeguard the interest of the investors whenever any scheme or arrangement is announced by such promoters by making a thorough study of such schemes and arrangements before registering such schemes with the SEBI and also later on monitor such schemes and arrangements in order to ensure proper statutory control over such promoters and whatever investment made by any individual is provided necessary protection for their investments in the event of such schemes or arrangements either being successfully operated upon or by any misfortune happen to be abandoned, where again there would be sufficient safeguards made for an assured refund of investments made, if not in full, at least a part of it. ... ...

In the light of our above conclusions on this ground it will have to be held that Section 11AA is a valid provision, not suffering from any infirmity, as it does not intrude into the specific activities of sale of agricultural land and its development. ... ... It is needless to state that as per the agreement between the customer and the PGF Limited, it is the responsibility of the PGF Limited to carry out the developmental activity in the land and thereby the PGF Limited undertook to manage the scheme/arrangement on behalf of the customers. Having regard to the location of the lands sold in units to the customers, which are located in different states while the customers are stated to be from different parts of the country it is well-neigh possible for the customers to have day to day control over the management and operation of the scheme/arrangement. In these circumstances, the conclusion of the Division Bench in holding that the nature of activity of the PGF Limited under the guise of sale and development of agricultural land did fall under the definition of collective investment scheme under Section 2(ba) read along with Section 11AA of the SEBI Act was perfectly justified and hence, we do not find any flaw in the said conclusion. ... ....

53. We, therefore, hold that Section 11AA of the SEBI Act is constitutionally valid. We also hold that the activity of the PGF Limited, namely, the sale and development of agricultural land squarely falls within the definition of collective investment scheme under Section 2(ba) read along with Section 11AA (ii) of the SEBI Act and consequently the order of the second respondent dated 06.12.2002 is perfectly justified and there is no scope to interfere with the same. In the light of our above conclusions, the PGF Limited has to comply with the directions contained in last paragraph of the order of the second respondent dated 06.12.2002 ... ..."

11.1 If so, whether the noticees have violated Section 12(1B) of the SEBI Act and Regulation 3 of the CIS Regulations’ and Regulation 4(2)(t) of the SEBI (Prohibition of Fraudulent and Unfair Trade Practice Relating to Securities Market) Regulations, 2003: 11.2 Section 12(1B) of the SEBI Act mandates that no person, shall sponsor or cause to be sponsored or carry on or caused to be carried on any CIS, unless it obtains a certificate of registration from SEBI in accordance with the CIS Regulations. The prohibition is on every person. Regulation 3 of the CIS Regulations provides that no person other than a Collective Investment Management Company which has obtained a certificate under the said regulations shall carry on or sponsor or launch a 'CIS'. A person can launch or sponsor or cause to sponsor a CIS only if it is registered with SEBI as a Collective Investment Management Company. 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.

11.3 I find that the noticees have launched and are carrying on collective investment schemes, without obtaining certificate of registration from SEBI. Therefore, the noticees have contravened the provisions of Section 12(1B) of the SEBI Act and Regulation 3 of the CIS Regulations. 11.4 In respect of the allegation of violation of reg. 4(2)(t) of reg. 4(2) (t) of SEBI (Prohibition of Fraudulent and Unfair Trade Practices relating to Securities Markets) Regulations, 2003 (FUTP Regulations, 2003), it may be noted the FUTP Regulations was amended with effect from Sept 06, 2013 and clause (t) to reg. 4(2) was inserted which reads as follows:- 4. Prohibition of manipulative, fraudulent and unfair trade practices (2) Dealing in securities shall be deemed to be a fraudulent or an unfair trade practice if it involves fraud and may include all or any of the following, namely (a)… "(t) illegal mobilization of funds by sponsoring or causing to be sponsored or carrying on or causing to be carried on any collective investment scheme by any person." 11.5 Subsequent, to introduction of reg. 4(2) (t) of FUTP Regulations, 2003., the illegal mobilisation of funds by means of collective investment schemes are deemed to be fraudulent.

The company carrying on unregistered collective investment schemes and all those persons who are directors as on the date of introduction of reg. 4(2) (t) of FUTP Regulations, 2003 will be liable for action, for violation of reg. 4(2) (t) of FUTP Regulations, 2003. In the present case, the examination of the list of investors with the corresponding date of investment, given by the company, I find that the fund mobilization continues subsequent to Sept 06, 2013, Therefore, the directors as on Sept 06, 2013 and the company have violated reg. 4(2) (t) of FUTP Regulations. 11.6 The company vide its reply Jan 27, 2015 submitted that Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash had resigned from the directorship of the company with effect from March 25, 2013. I have perused the certified copy of the Board Resolution submitted by the company in this regard. From the records of MCA website, I find that these three directors have resigned with effect from March 25, 2013. I further find Mr. Krishan Pal Singh has resigned vide board resolution dated December 30, 2014. I note that the above directors were on the Board of the Company during the time the Company had been collecting monies.

11.7 As far as the other directors namely, Mr. Bhanu Pratap Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh are concerned they are acting as directors as on this date as per the records. The company also has not denied their directorship as on this date. 11.8 In view of the violation committed by such directors and the company, they are liable, to wind up the scheme and repay the amount collected along with the company with interest, to be abstained from collecting any money from the investors or launch or carry out any Collective Investment Schemes, or restrained from accessing the securities market or to be prohibited from buying, selling or otherwise dealing in securities market and therefore necessary consequential directions can be passed by SEBI to that effect. 11.9 In view of the serious findings in the interim order and timely conclusion of proceedings, the request of the noticees that directions issued in the interim order be kept in abeyance till the final conclusion of the proceedings, the prayer made by the noticees at the time of personal hearing is not granted.

The said prayer becomes infructous in view of this final order. 12.1 In view of the observations made in this order, I, in exercise of the powers conferred upon me under Section 19 of the Securities and Exchange Board of India Act, 1992 and Sections 11(1), 11B and 11(4) thereof and Regulation 65 of the SEBI (Collective Investment Schemes) Regulations, 1999, hereby issue the following directions:

a) Kalpbut Real Estate Limited [CIN: U45400UP2007PLC034180] and its directors namely Mr. Bhanu Pratap Singh [PAN: AENPS9792L], Mr. Krishan Pal Singh [PAN: AMYPS0600G], Ms. Guddi Devi [PAN: AJXPD0444R], Mr. Rajendra Singh Thakur [PAN: ABUPT7761N], Mr. Parvesh Kumar Singh [PAN: DEWPS4079J], Mr. Natthu Singh [PAN: DKBPS2620L], Mr. Raksha Pal Singh [PAN: BDSPS9886A], Mr. Devendra Pal Singh [PAN: BJVPS0029N], Ms. Rajeshwari Sengar [PAN : AVZPS2724H] and Mr. Pooran Prakash [PAN : ALLPP2252K] shall abstain from collecting any money from the investors in respect of the schemes identified as a Collective Investment Scheme in this Order. b) Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash are restrained from accessing the securities market, including by way of sponsoring or causing to sponsor or carrying on or causing to carry on any Collective Investment Schemes, and are prohibited from buying, selling or otherwise dealing in securities market, for a period of four years. c) Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash shall wind up the existing Collective Investment Schemes and refund the money collected by the said company under the schemes with interest at the rate of 15% per annum within a period of three months from the date of this Order and thereafter within a period of fifteen days, submit a winding up and repayment report to SEBI in accordance with the SEBI (Collective Investment Schemes) Regulations, 1999, including the trail of funds claimed to be refunded, bank account statements indicating refund to the investors and receipt from the investors acknowledging such refunds.

d) Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, shall not alienate or dispose off or sell any of the assets of Kalpbut Real Estate Limited except for the purpose of making refunds to its investors as directed above. e) Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash are also directed to provide a full inventory of all their assets and properties and details of all their bank accounts, demat accounts and holdings of shares/securities, if held in physical form. 12.2 In the event of failure by Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash to comply with the above directions f) Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash shall remain restrained from accessing the securities market and would further be prohibited from buying, selling or otherwise dealing in securities, even after the period of four years of restraint imposed in paragraph 12(b) above, till all the Collective Investment Schemes are wound up and all the monies mobilized through such schemes are refunded to its investors along with interest. g) SEBI would make a reference to the State Government/ Local Police to register a civil/ criminal case against Kalpbut Real Estate Limited, its promoters, directors and its managers/ persons in-charge of the business and its schemes, for offences of fraud, cheating, criminal breach of trust and misappropriation of public funds; and h) SEBI would make a reference to the Ministry of Corporate Affairs, to initiate the process of winding up of the company, Kalpbut Real Estate Limited. i) SEBI shall initiate attachment and recovery proceedings under the SEBI Act and rules and regulations framed there-under.

13. This Order shall be without prejudice to the right of SEBI to initiate prosecution proceedings under Section 24 and adjudication proceedings under Chapter VIA of the Securities and Exchange Board of India Act, 1992 against Kalpbut Real Estate Limited and its directors namely Mr. Bhanu Pratap Singh, Mr. Krishan Pal Singh, Ms. Guddi Devi, Mr. Rajendra Singh Thakur, Mr. Parvesh Kumar Singh, Mr. Natthu Singh, Mr. Raksha Pal Singh, Mr. Devendra Pal Singh, Ms. Rajeshwari Sengar and Mr. Pooran Prakash, including other persons who are in default, for the violations as found in this Order. 14. This order shall come into force with immediate effect. 15. Copy of this Order shall be forwarded to the stock exchanges and depositories for necessary action.

DATE : July 03, 2015 PRASHANT SARAN PLACE : Mumbai WHOLE TIME MEMBER SECURITIES AND EXCHANGE BOARD OF INDIA