I.A. Nos. 101-103 In Contempt Petitions (C) No.412 - 413 of 2012 In Civil Appeals No. 9813 and 9833 of 2011 And Contempt Petition (C) No.260 of 2013 In Civil Appeal No.8643 of 2012. Case: S.E.B.I. Vs Sahara India Real Estate Corporation Ltd. & Ors.. Supreme Court

Case Number:I.A. Nos. 101-103 In Contempt Petitions (C) No.412 - 413 of 2012 In Civil Appeals No. 9813 and 9833 of 2011 And Contempt Petition (C) No.260 of 2013 In Civil Appeal No.8643 of 2012
Party Name:S.E.B.I. Vs Sahara India Real Estate Corporation Ltd. & Ors.
Judges:T.S. Thakur and A.K. Sikri, JJ.
Issue:Banking
Judgement Date:June 04, 2014
Court:Supreme Court
 
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Judgment:

T.S. Thakur, J.

  1. Sahara India Real Estate Corporation Limited (SIRECL) and Sahara Housing Investment Corporation Limited (SHICL) (hereinafter referred to as ''Saharas'' for short) invited and claim to have collected deposits from general public including cobblers, labourers, artisans and peasants in the form of what were described as ''Optional Fully Convertible Debentures'' (OFCD). On a complaint received from Professional Group of Investors Protection, SEBI found that the mobilisation of funds under the Red Herring Prospectus (RHP) dated 13th March, 2008 and 6th October, 2009 issued by the two companies was not legally permissible. By an ad interim ex parte order dated 24th November, 2010 SEBI directed Saharas not to offer their equity shares/OFCDS or any other securities to the public or invite subscription in any manner whatsoever either directly or indirectly pending further orders. Aggrieved by the said order Saharas approached the High Court at Bombay but the High Court not only declined to interfere with the directions issued by SEBI but also passed a further order on 23rd June, 2011, directing the promoter Mr. Subrata Roy Sahara and Directors Miss Vandana Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary of Saharas to jointly and severely refund the amount collected by Saharas in terms of the RHPs issued by them alongwith interest @ 15% p.a. from the date of the receipt of the deposits till the date of such repayment. Pursuant thereto the SEBI ordered that the refund of the amount shall be made only in cash through demand drafts or pay orders. The SEBI issued further directions including a direction that Sahara Commodity Services Corporation Limited (earlier known as SIRECL) and SHICL shall not access the security market for raising funds till the time the aforesaid payments are not made to the satisfaction of the SEBI.

  2. Aggrieved by the order aforementioned, Saharas filed an appeal before the Securities Appellate Tribunal (SAT) who concurred with the view taken by the SEBI, and while affirming the order passed by the SEBI, directed Saharas to refund the amount collected from the investors within a period of six weeks.

  3. Appeals No.9813 and 9833 of 2011 were then preferred by Saharas against the above orders in which this Court by an order dated 28th November, 2011 extended the period for making the refund upto 9th January, 2012 but finally disposed of the appeals by an order dated 31st August, 2012. This Court while doing so modified the order passed by the SEBI and the SAT and directed Saharas to deposit with the SEBI the amount collected by them through their RHPs together with interest @ 15% p.a. within a period of three months. The amount when deposited was directed to be invested in a nationalised bank to earn interest. Saharas were also directed to furnish details with supporting documents to establish whether they had refunded any amount to the investors who had subscribed through the RHPs in question. SEBI was then to examine the correctness of the details so furnished. Failure to prove the refund of the amount by Saharas had to give rise to an inference that Saharas had not refunded the amount to the real and genuine subscribers as directed by the SEBI.

  4. It is common ground that directions issued by this Court by its order dated 31st August, 2012 were not complied with. Instead Appeal No.221 of 2012 was preferred by Saharas before the SAT which was dismissed by the Tribunal as premature. This dismissal was assailed by the Saharas in C.A. No. 8643 of 2012 that came to be disposed of by a three-Judge Bench of this Court by an order dated 5th December, 2012 with the following among other directions:

    (I) The appellants shall immediately hand over the Demand Drafts, which they have produced in Court, to SEBI, for a total sum of 5120/-Crores and deposit the balance in terms of the order of 31st August, 2012, namely, 17,400/- Crores and the entire amount, including the amount mentioned above, together with interest at the rate of 15 per cent, per annum, with SEBI, in two installments. The first installment of 10,000/-Crores, shall be deposited with SEBI within the first week of January, 2013. The remaining balance, along with the interest, as calculated, shall be deposited within the first week of February, 2013. The time for filing documents in support of the refunds made to any person, as claimed by the appellants, is extended by a period of 15 days. On receipt of the said documents, SEBI shall implement the directions contained in the order passed on 31st August, 2012. In default of deposit of the said documents within the stipulated period, or in the event of default of deposit of either of the two installments, the directions contained in paragraph 10 of the aforesaid order dated 31st August, 2012, shall immediately come into effect and SEBI will be entitled to take all legal remedies, including attachment and sale of properties, freezing of bank accounts etc. for realisation of the balance dues.

  5. Pursuant to the above, Saharas deposited Rs.5120/- crores with the SEBI but failed to pay the remaining amount. The balance amount payable is in the vicinity of Rs.12280/- crores, exclusive of interest payable on the same. SEBI then filed Contempt Petitions No.412 and 413 of 2012 and, Contempt Petition No.260 of 2013 against the contemnors for non-compliance of the directions of this Court. Various orders have been passed in these contempt petitions from time to time, and those which are germane for our purpose, shall be adverted to hereinafter at the appropriate stage. The applications (IAs) which we are dealing with in this order, are filed in these contempt petitions and arise out of the earlier orders passed.

  6. It is pertinent to point out at this stage that in the course of the proceedings in the above contempt petitions some proposals appear to have been explored by the parties for compliance with the directions of this Court but all such proposal were found to be unsatisfactory eventually leading to the issue of non-bailable warrants against Mr. Subrata Roy Sahara for his production before this Court. Three other Directors of Saharas were also ordered to remain present before this Court.

  7. On...

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