{"id":217210,"date":"2001-11-29T00:00:00","date_gmt":"2001-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/anand-rathi-vs-securities-and-exchange-board-of-on-29-november-2001"},"modified":"2018-04-16T09:38:03","modified_gmt":"2018-04-16T04:08:03","slug":"anand-rathi-vs-securities-and-exchange-board-of-on-29-november-2001","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/anand-rathi-vs-securities-and-exchange-board-of-on-29-november-2001","title":{"rendered":"Anand Rathi vs Securities And Exchange Board Of … on 29 November, 2001"},"content":{"rendered":"
Securities Appellate Tribunal<\/div>\n
Anand Rathi vs Securities And Exchange Board Of … on 29 November, 2001<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
1. These three appeals filed by the appellants, viz, Shri Anand Rathi, Anand Rathi Securities (P.) Ltd. and Anand Rathi Direct India (P.) Ltd. are directed against the common order made by the respondent on 9-11-2001. By the said order Shri Anand Rathi has been restrained from holding any position of director or trustee of any capital market related institutions\/entities for a period of two years from 12-3-2001. In the case of Anand Rathi Securities (P.) Ltd. and Anand Rathi Direct India (P.) Ltd., their certificates of registration granted to do stock broking business have been suspended for a period of 9 months with effect from 12-3-2001. In Shri Rathi’s case order has been issued invoking Sections 11 and 11B of the Securities and Exchange Board of India, Act, 1992 (‘the Act’). In the case of the said two private limited companies, suspension order has been issued in terms of regulation 26 of the Securities and Exchange Board of India (Stock Brokers and sub-Brokers) Regulations, 1992 (‘the 1992 Regulations’). While the direction to Shri Rathi has the approval of all the three members of the Board (which includes the Chairman) who heard the matter the order against the two companies has the approval of only 2 members, as one member, i.e., Chairman did not subscribe to the conclusion arrived at by the other two members. He has viewed that these two companies are not liable for any penalty of suspension under regulation 26. In terms of Section 7(3) of the Act decision of the majority prevails and therefore, the order in force against the two companies is the one made by the two members.\n<\/p>\n
2. All the three appeals were filed in the Tribunal on 20-11-2001 praying for the following relief(s).\n<\/p>\n
(a) the impugned order dated 9-11-2001 be quashed;\n<\/p>\n
(b) for such further and other reliefs as the nature and circumstances of the case may require;\n<\/p>\n
Pending final decision on the appeal the following interim relief(s) have been sought:\n<\/p>\n
(a) the operation of the impugned order dated 9-11-2001 be stayed;\n<\/p>\n
(b) for such further and other reliefs as the nature and circumstances of the case may require;\n<\/p>\n
A copy of each of the appeals was served on the respondent on 21-11-2001. In terms of Rule 14(1) of the Securities Appellate Tribunal (procedure) Rules, 2000, the respondent is required to file its reply within 30 days of the recept of the copy of the appeal. Accordingly the reply is due by 20-12-2001. The respondent has expressed its readiness to file the reply early. There is no statutory requirement of any rejoinder from the appellants. Therefore, on receipt of the reply the main appeal itself can be heard and disposed of in December, 2001 obviating the need for an interim stay order at this juncture. Though Shri Goolam Vahanvati, the learned Advocate General appearing of the respondent expressed his readiness to file the reply and argue the case at a very early date, Shri Aspi Chinoy, the learned senior counsel appearing for the appellants preferred to have an interim order staying the operation of the impugned order during the pendency of the appeal. Shri Chinoy feels that since the order is patently illegal, the appellants should not be made to suffer even for a day as a result thereof. Therefore, the request for interim stay was taken up for disposal. Since the appeal is relatable to a common order and in all the three appeals the parties are also represented by common counsel it was decided to hear the matter and pass a common order.\n<\/p>\n
On 28-2-2001, the Hon’ble Finance Minister presented what was widely seen as an Investor Friendly’ Budget. The general expectation was that the Stock Markets in the country would be encouraged by such a budget, and during 28-2-2001 to 1-3-2001, the Senses rose by 201 points. However, this rising trend did not continue on the next day. On 2-3-2001, the Sensex dropped by 176 points. There was a lot of general concern as to the cause of such a large drop, which was unusual and exceptional especially in the light of a positive budget. The respondent initiated investigation into the matter.\n<\/p>\n
3. It was noticed that Shri Rathi, the then President of the Stock Exchange, Mumbai (BSE),had sought some information at about 1510 hours on 2-3-2001 in respect of the position of some brokers\/FIIs in certain scrips from the surveillance department of BSE.\n<\/p>\n
4. In view of the above, the respondent by an ex parte Interim Order, dated 12-3-2001 passed under Sections 11 and 11B of the SEBI Act, restrained Shri Rathi from acting as director-member of BSE and also directed Shri Rathi and his four associate entities (viz., Anand Rathi Securities (P.) Ltd., Rathi Global Finance Ltd., Rathi Capital & Securities (P.) Ltd. and Navaratan Capital Securities Ltd.) not to undertake any fresh business as brokers till further orders were passed by SEBI. Subsequently, on 21-3-2001, a post-decisional hearing was given to Shri Rathi and his associates by the Chairman and the then full time Member Shri J.R. Verma. They decided, in view of the divergent view, complexities and seriousness of the issues involved that Shri Rathi and his associates should be called for a further hearing on 28-3-2001 before the entire SEBI Board.\n<\/p>\n
5. Accordingly the Board, held the hearing on 28-3-2001 and after the hearing passed an order dated 30-3-2001 confirming the above referred Interim Order dated 12-3-2001. However, Prof. J.R. Verma disagreed with the majority view of the Board on the issue of suspension. Subsequently, on the basis of preliminary investigation report, the said order was further reviewed and confirmed by the Board vide its order dated 23-4-2001.\n<\/p>\n
6. Aggrieved by the orders dated 12-3-2001 and 23-4-2001, Shri Rathi filed a Writ Petition No. 628 of 2001 before the Hon’ble High Court, Mumbai. The Hon’ble Court Mumbai vide its order dated 2-5-2001 dismissed the petition as not maintainable under Article 226 of the e Constitution and rejected the contentions of the petition and ordered SEBI to complete the enquiry within 4 months from 2-5-2001. Subsequently on SEBI’s request the time frame for issuing the order was enlarged by the Hon’ble High court.\n<\/p>\n
The respondent passed the impugned order on 9-11-2001. The said order
\nis under challenge in the present appeals.\n<\/p>\n
7. Shri Chinoy submitted that even though serious charges were levelled
\nagainst the appellants ultimately nothing did survive except the violation
\nof certain circular and inspite of the same harsh penalty was levied on
\nthe appellants. In this context he referred to the statement of charge’
\nissued by the respondent and in particular to the following charges:\n<\/p>\n
“(1) Shri Rathi has misused his position as a Board Member and President
\nof Bombay Stock Exchange (BSE) by seeking non public, confidential and
\nprice sensitive information from the surveillance department; (2) Shri
\nRathi sought to obtain confidential and price sensitive information directly
\nfrom BSE’s surveillance department in order to pass the same to trading
\nconcerns (either belonging to him or his relatives) for utilisation of the
\nsame in a manner beneficial to them; (3) based on the information
\nprocured by Shri Rathi, his associated broking firms have done substantial
\nsales trades in certain scrips on 2-3-2001 and in the forenoon session of
\n5-3-2001. According to show cause notice (SCN) Shri Anand Rathi and the
\nentities referred to in the notice violated:\n<\/p>\n
(a) Code of Conduct for Stock Brokers as stipulated in Schedule II and
\nregulation 5 of the SEBI (Stock Brokers and Sub-Brokers) Regulations, 1992;\n<\/p>\n
(b) Regulation 3 of the SEBI (Insider Trading) Regulations, 1992; and <\/p>\n
(c) Regulation 4 of the SEBI (Prohibition of Fraudulent and Unfair
\nTrade Practices Relating to Securities Markets) Regulations, 1995.”\n<\/p>\n
8. The learned senior counsel submitted that the only charge which
\naccording to the investigating office survived scrutiny was that Shri
\nRathi had asked for information form the surveillance department and
\nby seeking such information he had interfered with the functioning of
\nsurveillance department and violated SEBI’s circular dated 8-8-1995,
\n6-12-1995 and 25-5-2000. He has not found the appellant guilty of any
\nviolation of any of the provisions of the Act, Rules or Regulations. Shri
\nChinoy submitted that with reference to the said charge Shri Rathi was
\nasked to show cause as to why the penalty as recommended by the
\nInquiry Officer should not be imposed on him. In this context he referred
\nto the Inquiry Officer’s recommendation that “it would be fit and proper
\nin the interest of securities market that Shri Rathi be restrained under
\nSections 11 and 11B of SEBI Act, 1992 from being associated with any of
\nthe capital market related institutions\/entities for a period of 2 (two)
\nyears”. The respondent accepted the said recommendation to impose
\npenalty. Shri Chinoy submitted that thus it is clear that the respondent has
\ninvoked Sections 11 and 11B to impose penalty on Shri Rathi.\n<\/p>\n
The learned senior counsel submitted that apart from the charge that Shri
\nRathi had asked for information from the surveillance department, there
\nis no finding that the information so collected was made use of by him or
\nany of his associates.\n<\/p>\n
With reference to the suspension order passed against the two companies
\n(Appellants in appeal 53 and 54 of 2001) Shri Chinoy submitted that there
\nis not even a whisper of any wrong doing by these two companies, but the
\ncompanies have been penalised only on the ground that these two
\ncompanies are associated companies of Shri Rathi in as much as he is a
\ndirector and shareholder in these companies.\n<\/p>\n
9. Shri Chinoy submitted that Shri Rathi, as President of BSE was duty
\nbound and specifically authorised to act as such in the given circum\n<\/p>\n
-stances, i.e. to exercise all power and to meet all obligations under the
\nrules and bye-laws of the exchange. He referred to bye-laws 4,6,60 and
\n73(a) and also Rule 118, 148 and 152 of BSE to show that the President was
\nentitled to collect information from the surveillance department. He
\nfurther stated that on several occasions the Finance Ministry’s officers
\nand SEBI Chairman had called for information from his which were only
\nin the possession of the surveillance department and he had furnished the
\ninformation called for, that collecting information by him from the
\nsurveillance department for the purpose in the past was not considered
\nobjectionable by the authorities, but now they view it differently. Shri
\nChinoy submitted that in his capacity as the President of the exchange in
\nthe context of an unjustifiable market upheaval witnessed on 2-3-2001
\nthe President was certainly entitled to call for the information from the
\nsurveillance department which functions under the Governing Board of
\nthe exchange. Shri Chinoy further submitted that Shri Rathi had not done
\nany thing clandestinely, that the telephone call was made in the presence
\nof other people, that the call was put through by his Secretary, that the call
\nwas first directed to the ED, as he was not available to the GM, and that
\nwhen he was also not available to an official of the surveillance department
\nnot personally known to him. Further Shri Rathi knew that his conver-\n<\/p>\n
sation with the officer was being recorded as the recording system was
\nintroduced by Shri Rathi himself. According to Shri Chinoy Shri Rathi’s
\naction was bona fide and it was in the context of discharging his duties as
\nthe President of the exchange.\n<\/p>\n
Shri Chinoy submitted that the alleged violation of the requirement of
\nmere circular cannot warrant imposition of any harsh penalty as has
\nbeen done in the case, that the principles laid down by the Hon’ble
\nSupreme Court in Hindustan Steel Ltd. v. State of Orissa AIR<\/a> 1970 SC 253
\nhave been totally ignored by the respondent while imposing the penalty.
\nShri Chinoy submitted that the alleged breach of three circular cannot
\nby any standard be considered as an action deliberately in defiance of law
\nor guilty of conduct contumacious or dishonest or conscious disregard
\nto the obligation cast on Shri Rathi to warrant penalty as laid down by the
\nApex Court. He also stated that in R.K. Agarwal v. SEBI [2001] 31 SCL 279
\n(Mum.-Sat.),that inspite of the fact Shri R.K. Agarwal, former President
\nof Uttar Pradesh Stock Exchange, was found by SEBI to have interfered
\nwith the surveillance department, he was only restrained from “holding
\nany public position in future as member of the Governing Board of the
\noffice bearer of the exchange as well as any capital market related public
\ninstitutions” for 2 years. Shri Chinoy submitted that for having called for
\ncertain information during the discharge of his duties, Shri Rathi has been
\nawarded as very heavy penalty. Shri Chinoy referred to the decision of this
\nTribunal in Sterlite Industries India Ltd. v. SEBI [2001] 34 SCL (Mum.-
\nSat.) and stated that Section 11B cannot be used for imposition of penalty
\nand that the direction restraining Shri Rathi from holding any position of
\ndirector or trustee in capital market related institution\/entity for 2 years
\nis nothing but a penalty. Such a direction is contrary to the law settled in
\nSterlite Industries India Ltd., case (supra) and an order passed in total
\nregard to the settled law cannot be allowed to be in position for any reason.\n<\/p>\n
Shri Chinoy submitted that action of a person who is a director of a
\ncompany, if not relatable to his position in the company as a director, is
\nnot binding on the company, that for the omissions and commissions
\npersonal to the directors, the companies in which he holds directorship
\ncannot be held responsible that in the instant case there is no finding of
\nany violation by the appellant companies and still their certificate of
\nregistration has been suspended only for the reason that those two
\ncompanies are associated with Shri Rathi. According to Shri Chinoy,
\naction based on Shri Rathi’s conduct in his capacity as the President of the
\nexchange, against the two companies is untenable and patently illegal.\n<\/p>\n
Shri Chinoy submitted that a person cannot be punished on the basis of
\nsurmises and conjectures. Reasonable evidence is a must to hold the
\nperson guilty. There is no evidence to support the finding and consequential
\npenal action against the appellants. Shri Chinoy submitted that the
\npunishment meted out to the appellants is not warranted in law and it is
\nalso not on admitted facts and as such cannot be allowed to remain
\noperative unchecked.\n<\/p>\n
Shri Chinoy submitted that it is a fit case to grant interim stay as there is
\na strong case that the penalty imposed is against the settled law, that the
\nbalance of convenience is also in favour of the appellants. He also stated
\nthat the appellants as a result of the illegal order made by the respondent
\nare put to considerable hardship and unless the order at the earliest is
\nstayed the appellants would continue to suffer irreparable injury to
\nwhich they are now subjected to.\n<\/p>\n
10. Shri Goolam Vahanvati, the learned Advocate General, appearing for
\nthe respondent submitted that the respondent would be filing its reply
\nwithin 15 days and thereafter the main appeal itself can be heard on any
\ndate convenient to the Tribunal and that as the appeal itself can be
\nexpeditiously disposed off, it may not be necessary to pass an interim
\norder at this stage, Shri Vahanvati submitted that in any case the
\nappellants have not established any prima facie case in their favour for
\ninterim stay of the operation of the impugned order.\n<\/p>\n
11. The learned Advocate General briefly explained the market scenario
\non the day the Union Budget 2001, was presented and the days following.\n<\/p>\n
He also explained the background of the appeal and submitted that the
\nappeals raise several complex legal issues requiring detailed consideration.
\nHe stated that the issues involved are not that simple as is being projected
\nby the appellants. The question as to whether the respondents order is
\npunitive in nature, the consequences of the finding against Shri Rathi
\nwould visit the companies which he owned and controlled etc. are matters
\nto be considered in detail. Further the conduct of Shri Rathi as President
\nof BSE, seeking price sensitive information from the surveillance
\ndepartment cannot be simply viewed as an innocent actin without
\nexamining his business interest, the context in which he sought the
\ninformation, the nature of information he sought and the time he chose
\nto collect such information etc. He further submitted that the fact that
\nShri Rathi owns broking outfits is also a factor to be taken note of while
\ndeciding Shri Rathi’s conduct in this regard.\n<\/p>\n
With a view to show that the conduct of Shri Rathi asking for information
\nfrom the surveillance department was for the purpose of managing the
\naffairs of the exchange of which he was the President at that time or was
\nit to benefit him as dealer in securities, the learned Advocate General
\nreferred to the verbatim transcript of the recorded telephone conversa-
\ntion Shri Rathi had with Shri Arun Dhanwade of the surveillance depart-
\nment on 2-3-2001 and stated that it is evident from the conversation that
\nthe information was sought not for the purpose of exchange manage-\n<\/p>\n
ment. The learned Advocate General submitted that Shri Rathi Asking for
\ninformation from the surveillance department was against the accepted
\n norms required to be followed by the President of the exchange. The
\nargument that the call was put by his Secretary and there were others in
\nthe room a that point of time, etc. are not of any support of the appellant.
\nThe learned Advocate General submitted that the question as to whether
\nthe information received from the surveillance department was made
\nuse of or not is the issue here. The question is whether Shri Rathi was
\nentitled to call for price sensitive information from the surveillance
\ndepartment, that the fact that Shri Rathi had asked for information from
\nthe surveillance department remains undisputed. The learned Advocate
\nGeneral submitted that conduct of Shri Rathi in this regard was not
\nbefitting to the high position he was holding in the exchange, that his
\nconduct as a whole should be taken into consideration and not in any
\nsegmented way, while dealing with the entities which are under his
\ncontrol and management, that therefore, in the light of the clear finding
\nagainst Shri Rathi, the order passed against the two appellant companies
\nis to be sustained.\n<\/p>\n
12. The learned Advocate General submitted that Shri R.K. Agarwal’s
\ncase relied on by appellants and Shri Rathi’s case are not comparable
\nas the facts and circumstances relating to these two cases are not
\nidentical. The learned Advocate General submitted that the order prohibits
\nShri Rathi from holding any position of director\/trustee of any capital
\nmarket related institutions\/entities, that the prohibition on participa-
\ntion in the management of any capital market related institutions\/
\nentities. Shri Rathi has not been debarred from dealing in securities that
\nhe is at liberty to deal in securities and, therefore, the order cannot in any
\nway to construed as punitive.\n<\/p>\n
The learned Advocate General further submitted that the appellants’
\nprayer for interim relief and the substantive relief sought in the appeal are
\nsubstantially the same and that the present appeal is not wherein such
\nan order in the nature of interim relief would be justified. He also
\n submitted that since the respondent is ready and willing to co-operate to
\nget the appeal disposed off expeditiously, any order unsettling the status
\nquo would be unjustified and the balance of convenience is in allowing
\nthe order to operate undisturbed till the disposal of the appeal.\n<\/p>\n
13. I have very carefully considered the submissions made by the learned
\ncounsel for the parties. No doubt, the appeals involve complex legal
\nissues. Shri Chinoy’s main argument is that the order is patently illegal and
\nwrong as it is against the settled legal position in Sterlite Industries India
\nLtd.’s case (supra) and that this itself is a ground to grant interm stay.
\nAgainst this, the learned Advocate General had argued that the order
\nrestrained Shri Rathi only form holding any position, that too restricted
\nto director or trustee, in any capital market related institutions\/entities,
\nand the order does not in any way restrain Shri Rathi from dealing in
\nsecurities, to be construed as punitive, that restraint on holding the post
\nof a director or trustee of a capital market entity on proven misconduct
\nby itself is not a punitive measure. It is felt that it is a matter which requires
\ndetailed considerations as to whether the restraint on Shri Rathi holding
\ndirectorship, etc., in capital market related entities is punitive or not and
\nwhether the order is within the ambit of Sections 11 and 11B? Yet another
\nlegal issue which requires to be considered in detail is the question of the
\nreach of penal consequences on a company for the omissions and
\ncommissions of its directors unrelated to the position they hold in the
\ncompany. The answer to this question would decide the sustainability of
\nthe order against the two appellant companies.\n<\/p>\n
14. Shri Chinoy had strongly argued to establish that there is a prima facie
\ncase in favour of the appellants and the balance of convenience is also in
\ntheir favour and that in the absence of an order staying the operation of
\nthe impugned order pending disposal of the appeal, the appellants would
\nsuffer irreparable injury. I have given due weightage to his submissions
\nas also to the learned Advocate General’s submission. In the light of the
\nfacts and circumstances of the case I am not in a position to accept Shri
\nChinoy’s version. Shri Chinoy’s main argument that the order issued
\nunder Sections 11 and 11B in the case of Shri Rathi is punitive in nature
\nhas been strongly contested by the learned Advocate General. The matter
\nrequires to be examined in detail and at this stage it is not possible to reach
\non any firm conclusion in this regard. Decision on the point is very crucial.
\nIn my view the appellants have not made out any prima facie case in their
\nfavour now, warranting interference by this Tribunal with an interim
\norder to stay the operation of the impugned order pending disposal of the
\nappeal. Since no prima facie case has been established to my satisfaction
\nI am not inclined to make any interim order in these appeals at this
\njuncture, as prayed for.\n<\/p>\n
15. The Tribunal is anxious to dispose of the main appeal expeditiously.
\nSince the learned Advocate General has stated that respondent would be
\nfiling its reply within 15 days from today and that the counsel for the
\nparties have agreed to argue the appeal on 19-12-2001, I do not foresee
\nany problem in deciding the appeals expeditiously.\n<\/p>\n
16. Taking into consideration the convenience of the counsel for the
\nparties as communicated to the Tribunal, the appeals are posted for
\ndisposal on 19-12-2001 at 11.00 AM.<\/p>\n","protected":false},"excerpt":{"rendered":"
Securities Appellate Tribunal Anand Rathi vs Securities And Exchange Board Of … on 29 November, 2001 ORDER 1. These three appeals filed by the appellants, viz, Shri Anand Rathi, Anand Rathi Securities (P.) Ltd. and Anand Rathi Direct India (P.) Ltd. are directed against the common order made by the respondent on 9-11-2001. By the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-217210","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nAnand Rathi vs Securities And Exchange Board Of ... on 29 November, 2001 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/anand-rathi-vs-securities-and-exchange-board-of-on-29-november-2001\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Anand Rathi vs Securities And Exchange Board Of ... on 29 November, 2001 - 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