Penta Gold Limited vs Sebi

Date of Decision : 17.04.2018

Appeal No. 116 of 2018

Penta Gold Limited 30, 1st Floor, Champa Gully, Zaveri Bazar, Mumbai - 400 002. Maharashtra ...Appellant

Versus [[

National Stock Exchange of India Limited Exchange Plaza, Plot No. C/1, G Block, Bandra Kurla Complex, Bandra (East), Mumbai - 400 051. ...Respondent

Mr. P.N. Modi, Senior Advocate with Mr. Neville Lashkari, Ms. Purti Minawala, Ms. Poornima Balasubramaniam and Mr. Kunal Mehta, Advocates i/b Crawford Bayley and Co. for the Appellant.

Mr. Rashid Boatwalla, Advocate with Mr. Rahul Jain, Advocate i/b MKA & Co. for the Respondent.

Mr. Vishal Kanade, Advocate with Mr. Mihir Mody and Mr. Nishant Upadhyay, Advocates i/b K Ashar & Co. for SEBI on notice.

CORAM : Justice J.P. Devadhar, Presiding Officer Dr. C.K.G. Nair, Member

Per : Justice J.P. Devadhar (Oral)

1.

Where a public issue is undersubscribed, whether, the underwriters to

the public issue are entitled to discharge their obligation contained in

regulation 106P of the Securities and Exchange Board of India (Issue of

Capital and Disclosure Requirements) Regulations, 2009 ('ICDR

Regulations' for short) by procuring applications from third parties is the

basic question raised in this appeal.

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2. In the present case, Inventure Merchant Banker Services Private

Limited ('Merchant Banker' for short) was appointed to act as its lead

Merchant Banker to the public issue of the appellant company. Under the

public offer, 36 Lakh equity shares of the company having face value of Rs.

10 each at a price of Rs. 37 per share aggregating to Rs. 1332.00 Lakh were

offered to the public in terms of Chapter XB of ICDR Regulations. On

September 26, 2017 an Underwriting Agreement was executed between the

appellant company, the merchant banker and GCM Securities Ltd.

(underwriter and market maker) wherein the merchant banker had

underwritten 15% of the issue size and GCM Securities Ltd. had

underwritten 85% of the issue size.

3. The public issue of the appellant company opened for subscription on

March 23, 2018 and closed on March 27, 2018 wherein the issue was

subscribed only to the extent of 55.42%. With a view to determine the

underwriters obligation in relation to unsubscribed shares and to determine

the basis for allotment of shares, a meeting was held on April 5, 2018

between the company, merchant banker and Karvy Computershare Pvt. Ltd.

(Registrar to the Issue). In the minutes of the meeting dated April 5, 2018 it

was recorded that unsubscribed portion comes to 16,14,000 shares and that

the underwriters had subscribed to those 16,14,000 shares by procuring

applications from 8 investors named therein.

4. On furnishing a copy of the minutes of the meeting dated April 5,

2018, Mr. Lokesh Bhandari, Manager of National Stock Exchange of India

Limited ('NSE' for short) sought explanation from the appellant as to why

the undersubscribed portion of the issue has been subscribed by 8 investors

and not by the underwriters themselves. The appellant explained that as per 3

the Model Underwriting Agreement prescribed by SEBI it was open to the

underwriters to procure subscription from the investors. In support of the

above contention reliance was placed on the decision of BSE in case of

Powerhouse Fitness and Realty Ltd. wherein BSE had allowed such

procurement of subscription by the investors.

5. Rejecting the contention of the appellant, the Manager of NSE by the

impugned communication dated April 6, 2018 informed the appellant that

the Exchange has not approved the basis of allotment because

undersubscribed shares have been subscribed by 8 investors and not by the

underwriters themselves as set out in the offer document. Challenging the

said communication, present appeal is filed.

6. Before considering the rival contentions, it would be appropriate to

quote Regulation 106P of the ICDR Regulations which reads thus:-

Underwriting by merchant bankers and underwriters.

"[106P]. (1) The issue made under this Chapter shall be hundred per cent. underwritten.

Explanation- The underwriting under this regulation shall be for the entire hundred percent of the offer through offer document and shall not be restricted upto the minimum subscription level.

(2) The merchant banker/s shall underwrite at least fifteen per cent of the issue size on his/ their own account/s.

(3) The issuer in consultation with merchant banker may appoint underwriters in accordance with Securities and Exchange Board of India (Underwriters) Regulations, 1993 and the merchant banker may enter into an agreement with nominated investor indicating therein the number of specified securities which they agree to subscribe at issue price in case of under-subscription.

(4) If other underwriters fail to fulfill their underwriting obligations or other nominated investors fail to subscribe to unsubscribed portion, the merchant banker shall fulfill the underwriting obligations.

4 (5) The underwriters other than the merchant banker and the nominated investors, who have entered into an agreement for subscribing to the issue in case of under-subscription, shall not subscribe to the issue made under this Chapter in any manner except for fulfilling their obligations under their respective agreements with the merchant banker in this regard.

(6) All the underwriting and subscription arrangements made by the merchant banker shall be disclosed in the offer document.

(7) The merchant banker shall file an undertaking to the Board that the issue has been hundred per cent. underwritten along with the list of underwriters and nominated investors indicating the extent of underwriting or subscription commitment made by them, one day before the opening of issue."

7. In the present case, the underwriting agreement executed on

September 26, 2017 in accordance with the model underwriting agreement

prescribed by SEBI specifically records that the underwriters agree to

underwrite and/or procure subscription for the issue of shares in case the

issue is undersubscribed. Admittedly the said underwriting agreement was

vetted by NSE before the public issue was opened.

8. Thus on one hand, regulation 106P(2) of ICDR Regulations require

the merchant banker to underwrite at least 15% of the issue size on his own

account and further regulation 106P(4) provides that if the other

underwriters or the nominated investors fail to fulfill their obligation then

the merchant banker shall fulfill their underwriting obligations. On the other

hand, the model underwriting agreement prescribed by SEBI in the year

1993 which continues to be in force till date permits the underwriters to

procure applications from the investors to subscribe to the unsubscribed

shares if the issue is undersubscribed. The model underwriting agreement

prescribed by SEBI further provides that in the event of failure by the

underwriters to subscribe to the shares, the issuer company shall be free to 5

make arrangement with one or more persons to subscribe to such shares

without prejudice to the rights of the issuer company to take such measures

and proceedings as may be available to it against the underwriters including

the right to claim damage for any loss suffered by the company by reason of

failure on part of the underwriters to subscribe to the shares.

9. In the present case the underwriting agreement executed by and

between the appellant and the underwriters was in accordance with the

model underwriting agreement prescribed by SEBI and the said

underwriting agreement was admittedly vetted by NSE. Having vetted the

underwriting agreement executed by the appellant company and the

underwriters which is in consonance with the model underwriting agreement

prescribed by SEBI, NSE is not justified in rejecting the basis of allotment

submitted by the appellant on ground that the underwriters have failed to

subscribe to the unsubscribed shares as contemplated under regulation 106P

of the ICDR Regulations.

10. In these circumstances, in the interest of investors and securities

market, we dispose of the appeal by passing the following order:-

(a) The impugned communication of NSE dated April 6, 2018 is

quashed and set aside;

(b) Appellant is at liberty to ascertain from the underwriters

within 3 days from today as to whether they are ready and

willing to discharge their obligation set out in regulation 106P

of the ICDR Regulations and intimate the same to the NSE

immediately thereafter.

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(c) If the underwriters express their inability to discharge their

obligation under the ICDR Regulations, then the appellant

company be permitted to take into consideration the shares

subscribed by the 8 investors and proceed to complete the

public issue process.

(d) If the underwriters agree to discharge their obligation set out

in the ICDR Regulations, then, in the peculiar facts of present

case, no action need be taken against the underwriters.

11. Before concluding we deem it proper to bring to the notice of SEBI

that there is no clarity between the ICDR Regulations and the model

underwriting agreement prescribed by SEBI in the year 1993 (which is still

in operation) in relation to the obligations to be discharged by the

underwriters. Therefore, it would be just and proper that SEBI addresses

itself on the above issue expeditiously and ensure that there is clarity in

relation to the obligations to be discharged by the underwriters.

12. Appeal is disposed of in the above terms with no order as to costs.

Sd/-

Justice J.P. Devadhar Presiding Officer

Sd/-

Dr. C.K.G. Nair Member 17.04.2018 Prepared and compared by:msb