{"id":238003,"date":"2004-07-09T00:00:00","date_gmt":"2004-07-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/silverline-holdings-vs-securities-and-exchange-board-of-on-9-july-2004"},"modified":"2019-03-31T06:40:27","modified_gmt":"2019-03-31T01:10:27","slug":"silverline-holdings-vs-securities-and-exchange-board-of-on-9-july-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/silverline-holdings-vs-securities-and-exchange-board-of-on-9-july-2004","title":{"rendered":"Silverline Holdings … vs Securities And Exchange Board Of … on 9 July, 2004"},"content":{"rendered":"
Securities Appellate Tribunal<\/div>\n
Silverline Holdings … vs Securities And Exchange Board Of … on 9 July, 2004<\/div>\n
Bench: K R Officer, B Samal<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
B. Samal, Member<\/p>\n
1. The present appeal is against the impugned order of the Respondent dated 24th October, 2003 imposing a penalty of Rs.21,00,000\/- on (1) Silverline Holdings Corporation (2) Subra Mautitius Ltd., and (3) Shreyas Holdings Limited  on the charge of failure to furnish the information sought for by the Respondent on time.  The Allegation against the appellants is that there was a delay in submission of information by 37 days i.e. from 26th December, 2002 to 2nd February, 2003.\n<\/p>\n
2.\tAn Adjudicating Officer was  appointed under rule 4 of SEBI (Procedure for holding enquiry and imposing penalties by adjudicating officer) Rules, 1995 to enquire into and adjudicate the alleged violation of section 15 A of the SEBI Act, 1992.  A show cause notice was issued on 12th May, 2003 under rule 4 of the said rules to the appellants.  The Respondent ordered for investigation into the affairs relating to the dealings of Silverline  under  the following provisions of law:\n<\/p>\n
(i) Sub regulation (1) of Regulation 19 of the SEBI (Stock Brokers & Sub Brokers) Regulations, 1992; and<\/p>\n
(ii) Sub regulation (1) of Regulation 7 of the SEBI (Prohibition of  Fraudulent & Unfair Trade Practices relating to securities market) Regulations, 1995; and <\/p>\n
(iii) Regulation 38 of the SEBI (Substantial Acquisition of Shares & Takeover) Regulations, 1997; and<\/p>\n
(iv) Regulation 5 of the SEBI (Insider Trading) Regulations, 1992.\n<\/p>\n
3.\tSummons were issued on 7th October, 2002 to the appellants  requiring  them to appear before the investigating authority on 25tht October, 2002 at 11 a.m.  with the directions inter alia to produce all documents\/details as indicated in the annexure enclosed to the said summons.  The appellants vide their letter dated 25th October, 2002 sought time till 20th November, 2002.  Again the appellants vide their letter dated 19th November, 2002 sought time till 9th December, 2002.  The appellants failed to appear before the Investigating authority on the said date.  Another summons dated 21st November, 2002 was issued by the Investigating authority asking the appellants to appear in person on 9th December, 2002.  It was stated that instead of complying with the above summons the appellants vide their letter dated 9th December, 2002 requested the investigating authority to give one more opportunity on 13th December, 2002 to comply with the said summons.\n<\/p>\n
4.\tInstead of keeping the appointment on 13th December, 2002 one Mr. Krishnakumar Subramaniam representing the appellants appeared before the investigating authority and stated that all the informations sought for would be submitted by 26th December, 2002 at 11 a.m.  Thereafter the investigating authority informed the appellants by way of Fax message dated 26th December, 2002 that failure of appearing before the investigating authority and failure to submit details\/information sought for would attract monetary penalty under the provisions of SEBI Act, 1992 for each day of such non compliance.\n<\/p>\n
5.\tThe alleged violation attracts monetary penalty under section 15A of SEBI Act, 1992 which reads as under:\n<\/p>\n
“15A.  If any person, who is required under this Act, or any rules or regulations made thereunder <\/p>\n
(a) to furnish any documents, return or report to the Board, fails to furnish the same, he shall be liable to a penalty not exceeding one lakh and fifty thousand rupees for each such failure<\/p>\n
b) to file any return or furnish any information, books or other documents, within the time specified therefor in the regulations, fails to file return or furnish the same within the time specified therefor in the regulations, he shall be liable to a penalty not exceeding five thousand rupees for every day during which such failure continues.”\n<\/p>\n
c) to maintain books of accounts or records, fails to maintain the same, he shall be liable to a penalty not exceeding ten thousand rupees for every day during which the failure continues or one crore rupees whichever is less.”\n<\/p>\n
6.\tShow cause notice was issued to the appellants why appropriate penalty under section 15A of the SEBI Act, 1992 and Rule 4 of  SEBI (Procedure for holding enquiry  and imposing penalties by Adjudicating officer) Rules, 1995 should not be imposed.  All the appellants vide their letter dated 3rd January, 2003 acknowledged the receipt of the said show cause notice and requested to grant them an extension of further 15 days to file their reply.  Further vide their letter dated 5th June, 2003 the appellants expressed their desire to be heard personally in the matter through their advocates.\n<\/p>\n
7.\tThe appellants submitted their reply dated 18th June, 2003 to the show cause notice.  Their submissions are as under:\n<\/p>\n
(a) The appellants submitted that all the three of them are foreign companies.  The appellant No.1 is a company incorporated under the laws of the State of Delaware, USA.  The appellant No.2 and 3 are both companies incorporated under the laws of Mauritius.  The appellants submitted that they are all promoters of Silverline, a company incorporated under the Companies Act, 1956 having its registered office at Bombay.\n<\/p>\n
\t(b) The appellants submitted that as they all situated outside India it was difficult to furnish to the investigating  authority the documents and information sought for by the date fixed in the summons and, therefore, they sent a letter seeking time till 20th November, 2002 to appear before the investigating authority.\n<\/p>\n
\t(c)The appellants received the summons to appear but they could not comply with it.  The appellants submitted that on and around 7th December, 2002 Mr. Krishna Kumar Subramaniam who was in London at that time took till and was unable to travel back to Bombay in time to attend before the investigating authority.  Therefore, letter dated 9th December, 2002 was sent by the appellants to the respondent informing the investigating authority about Mr. Subramaniam’s illness and seeking appearance before the investigating authority on 13th December, 2002.\n<\/p>\n
(d) Despite efforts made by Shri Subramaniam to comply with the summons by the extended date, the information and documents pertaining to the foreign appellants could not be kept ready to be produced before the investigating authority on 13th December, 2002.\n<\/p>\n
(e) The appellants stated that on or around 20th December, 2002 Mr. Krishna Kumar Subramaniam the authorized representative of the appellants who is a diabetic took ill again and became incapacitated and unable to attend to any work and the said Mr. Subramaniam was treated by Dr. P. L. Tiwari who advised Mr. Subramaniam to take complete bed rest for a period of two weeks from 20th December, 2002 to 2nd January, 2003.  Finally the required information was submitted on 2nd February, 2003.\n<\/p>\n
8.\tThe learned Counsels for both the appellants and the respondent agreed that there has been delay in submission of the desired information by 37 days.  The learned Counsel for the appellants submitted that looking to nature and the gravity of the offence,  the penalty of Rs.21 lakhs is too heavy.  In the normal course this is a case where delay should have been condoned as the representative of the appellants fell sick for which they submitted a medical certificate which has been accepted by the respondent.  The learned Counsel for the appellants also submitted that even after submission of statements on 2.2.2003 and further information, no action appears to have been taken by the Respondent so far.\n<\/p>\n
9.\tThe learned Counsel for the respondent submitted that the appellants have deliberately delayed submission of the information from time to time.  The information sought was pertaining to a public limited company for which   any authorized agency could have submitted the  information.  It is not necessary that only Mr. Subramaniam who fell sick should have submitted the desired information.  The respondent had therefore, no alternative but to impose penalty of Rs.21 lakhs as a deterrent measure.\n<\/p>\n
10.  On the quantum of penalty there has been no application of mind by the Respondent to the provisions of section 15J.  The factors to be determined under section 15J are:\n<\/p>\n
(a) the amount of disproportionate gain or unfair advantage, wherever quantifiable, made as a result of the default,<\/p>\n
(b)   the amount of loss caused to an investor or group of investors as a result of the default.\n<\/p>\n
(c)   The repetitive nature of the default.\n<\/p>\n
The delay according to the appellants was on account of the illness of the representative of the appellants who was to submit the information, for which medical certificate was submitted.  The delay was  of 37 days and the appellant had furnished all the information to the respondent in full satisfaction.  The information that was sought for in the year 2002 was with respect to an enquiry which even to this date has not been completed.  When SEBI takes two years to complete an enquiry it is appalling that a sum of Rs.21,00,000\/- has been imposed for a delay of 37 days.  Even in filing the appeal, the appellants would have had to pay a heavy court fee.  All this could have been avoided if the respondent applied its mind and passed a workable reasonable order.  These appeals take time and the appeal could have been avoided if a just and equitable penalty was imposed.  The penalty of Rs.21,00,000\/- for a delay of 37 days is mind boggling and cannot be sustained by any court unless the information called for in the summons was deliberately withheld for malafide reasons.  It is nobody’s case that the information was withheld by the appellants with ulterior motive.  It was a question of appellants not being able to furnish the information for medical reasons.  In that view of the matter taking into account the provisions of section 15J we do not think this is a fit case for imposing such a penalty for a simple delay of 37 days.  The information sought for has been furnished by the appellants and a lot of time of this court could have been saved if a just penalty was imposed. Therefore, we are inclined to reduce the penalty to Rs1,50,000\/- which should be paid within six weeks from the date of receipt of this order.\n<\/p>\n
Appeal disposed of accordingly.\n<\/p>\n
No order as to costs.\n<\/p>\n
 (Pronounced in Court)<\/p>\n","protected":false},"excerpt":{"rendered":"
Securities Appellate Tribunal Silverline Holdings … vs Securities And Exchange Board Of … on 9 July, 2004 Bench: K R Officer, B Samal JUDGMENT B. Samal, Member 1. The present appeal is against the impugned order of the Respondent dated 24th October, 2003 imposing a penalty of Rs.21,00,000\/- on (1) Silverline Holdings Corporation (2) Subra […]<\/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-238003","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nSilverline Holdings ... vs Securities And Exchange Board Of ... on 9 July, 2004 - 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\/silverline-holdings-vs-securities-and-exchange-board-of-on-9-july-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Silverline Holdings ... vs Securities And Exchange Board Of ... on 9 July, 2004 - 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