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K. Sreenivasa Rao Vs. Regional Director, Securities and Exchange Board of India - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 21241 of 2001
Judge
Reported in[2002]112CompCas327(AP)
ActsSecurities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulation, 1997 - Regulations 2, 3, 10, 11 and 12; Securities and Exchange Board of India Act, 1992; Securities and Exchange Board of India Regulation, 1994; Companies Act, 1956 - Sections 111A, 397 and 398; Constitution of India - Article 226
AppellantK. Sreenivasa Rao
RespondentRegional Director, Securities and Exchange Board of India
Appellant AdvocateY. Jagan Mohn, Adv.
Respondent AdvocateP.V.S.S.S. Rama Rao, ;S.R. Ashok and ;S. Renuka, Advs.
DispositionWrit petition dismissed
Excerpt:
.....that petitioner entitle to initiate proceedings under section 111a only and cannot invoke writ of mandamus - applicability of regulation 10 also questioned - regulation 10 not applicable as parties were promoters of company - petitioner knowingly failed to avail remedy available under section 111a - relief claimed by petitioner is one sided - if granted resulted in situation wherein petitioner get both consideration and restoration to their share - petition dismissed and no relief can be granted to petitioner. - - on the other hand, respondents 1 and 2, on their own accord, have taken all possible measures to verify as to whether the transfer of shares is in accordance with the provisions of the regulations and on being satisfied with the explanation submitted by.....l. narasimha reddy, j. 1. the petitioner filed this writ petition seeking a writ of mandamus declaring the transfer of rs. 9.76 lakhs shares in fenoplast ltd. the 3rd respondent herein 'the company' in favour of respondents 4 to 8 ('haridass family'), as illegal and violative of regulation 10 of the securities and exchange board of india (substantial acquisition of shares and takeovers) regulations, 1997 ('the regulations') and seeks a consequential direction for restoration of those shares to the petitioner's family. 2. according to the petitioner, the company was floated in the year 1975 by three families, known as, katta family, haridass family and gada family. the shareholding of these families was at 28, 25 and 47 per cent, respectively. the petitioner claims to belong to the katta.....
Judgment:

L. Narasimha Reddy, J.

1. The petitioner filed this writ petition seeking a writ of mandamus declaring the transfer of Rs. 9.76 lakhs shares in Fenoplast Ltd. the 3rd respondent herein 'the Company' in favour of respondents 4 to 8 ('Haridass family'), as illegal and violative of Regulation 10 of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997 ('the Regulations') and seeks a consequential direction for restoration of those shares to the petitioner's family.

2. According to the petitioner, the company was floated in the year 1975 by three families, known as, Katta family, Haridass family and Gada family. The shareholding of these families was at 28, 25 and 47 per cent, respectively. The petitioner claims to belong to the Katta family, whereas respondents 4 to 8 are said to be from Haridass family. It is alleged that, as time passed by, the Haridass family started asserting and dominating over the other two families and ultimately the petitioner's family was left with no alternative except to leave the company. That resulted in a Memorandum of Understanding 'MOU' dated 27-9-1996 between the petitioner's family and the Haridass family.

3. The MOU provided for transfer of the shares of the petitioner and his family in favour of Haridass family for consideration stipulated therein. It is also stated that on account of certain controversies relating to working out of the MOU, the petitioner approached the CLB (the Principal Bench, at New Delhi), by filing C.P. No. 78 of 2000.

4. The complaint in this writ petition is that Clause 9 of the MOU provided for compliance with the regulations framed under the Securities and Exchange Board of India, 1992 (the 'SEBI Act') and the transfer of the shares of the petitioner and his family was effected in violation of the regulations. The petitioner contends that compliance with Regulation 10 was mandatory and non-compliance with the same would render the transaction void. In that view of. the matter, the petitioner claims that he and his family members are entitled to the relief claimed in the writ petition.

5. Sri Y. Jaganmohan, the learned counsel for the petitioner, submits that the MOU between the petitioner's family and the Haridass family stipulated various conditions, the important one being Clause 9, relating to compliance with the regulations framed under the SEBI Act. He submits that, admittedly the Haridass family, who have acquired the shares of the petitioner's family, have not made any public announcement before acquiring the shares and this constitutes a flagrant violation of Regulation 10. Relying upon the judgment of the Bombay High Court in Shirish Finance & Investment (P.) Ltd. v. M. Srinivasulu Reddy [2002] 35 SCL 27, the learned counsel submits that non-compliance with Regulation 10 has the effect of rendering the transfer of shares void, and as a consequence the shares are liable to be restored to the petitioner's family.

6. Sri S.R. Ashok, the learned senior counsel for respondents 3 to 8, submits that the writ petition itself is not maintainable. According to him, if there was any violation of procedure as regards transfer of shares, the course open to the petitioner was to initiate proceedings under section 111A of the Companies Act, 1956. Further, having filed C.P. No. 78 of 2000 before the CLB, the petitioner ought to have worked out his remedies in that forum and he cannot seek the relief of issuance of a writ of mandamus. It is further contended by him that the Regulation 10 does not apply to the transaction in question, inasmuch as the transfer was in favour of promoters.

7. Sri PVSSs Rama Rao, the learned counsel for respondents 1 and 2, submits that the petitioner did not make any representation or moved any proceedings before respondents 1 and 2 complaining about the so-called violations. On the other hand, respondents 1 and 2, on their own accord, have taken all possible measures to verify as to whether the transfer of shares is in accordance with the provisions of the regulations and on being satisfied with the explanation submitted by respondents 3 to 8, respondents 1 and 2 did not proceed further. He submits that issuance of writ of mandamus would arise only if the statutory authorities have failed to discharge their duties and, in the facts and circumstances of the case, it cannot be said that respondents 1 and 2 have failed to discharge their duties.

8. The petitioner claims to represent the Katta family. Whether the petitioner, who filed the writ petition in his individual capacity, can be said to be representing the family, is an issue that is very much relevant. However, the parties did not canvass the same. For the purpose of this writ petition, it will be taken as though the petitioner is challenging the transfer of entire Rs. 9.76 lakhs shares belonging to his family, irrespective of his individual holding, he seeks a writ of mandamus for declaring the transfer of the shares as violative of Regulation 10 and, consequently, to direct retransfer of the same.

Before proceeding further to discuss the merits of the matter, it is better to have a bird's eye view of the scope and ambit of the writ of mandamus. This becomes relevant in the context of the learned counsel for therespondents taking a serious objection as to the maintainability of the writ petition on the facts of the case, particularly when there is a separate enactment and a specialised agency to resolve such controversies. The contention of the learned counsel for the petitioner in this regard is that once the infraction of any provision of law is shown, the aggrieved party can certainly seek a declaration and existence of alternative remedy or machinery is of no consequence.

9. The scope of writ or mandamus, particularly in contradistinction to writ of cortiorari and prohibition, was aptly stated by WADE in his Treatise on Administrative Law as under:--

The commonest employment of is as a weapon in the hands of the ordinary citizen, when a public authority fails to do its duty by him. Certiorari and prohibition deal with wrongful action, mandamus deals with wrongful inaction.

Indian Law, in this context, is in no way different. In a way, the scope has been widened in one after the other stages. The only limited factor, be it in English or Indian Law, is to treat the remedy as discretionary and be cautious in exercising the discretion. It is in this area that many concepts, such as, latches, existence of alternative remedy, conduct of the party to invoke jurisdiction of the Court, etc., have been ascribed an important role to play. In consonance with the broad principles laid down in the leading American case of Marbury v. Madison, the emphasis as regards writ of mandamus has also been to keep its scope wide, as far as possible, but restrict its application guided by judicial discretion. The approach in England has been precisely restated in R. v. Hanley Revising Barrister [1912] 3 KB 518, when the Court said :

'Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable.'

The judgment of the Hon'ble Supreme Court in Gulam Abbas v. State of U.P. : 1981CriLJ1835 and several other judgments indicate that the approach of the Courts in India as regards issuance of writ of mandamus including grant of declaratory relief appear to be on the same lines. A review of the authorities on the question reveals that entertaining applications for issuance of writ of mandamus appears to be a rule than an exception. In this view of the matter, it needs to be seen as to how far the petitioner has made out a case for granting of the relief prayed for and if he has made out such a case, whether there are any stumbling blocks in the way of the Court granting the relief.

10. The complaint of the petitioner is that the transfer of shares has taken place in violation of Regulation 10. Regulation 10 reads as under :--

'10. Acquisition of Fifteen per cent or more of the shares or voting rights of any company.--No acquirer shall acquire shares or voting rights which (taken together with shares or voting rights, if any, held by him or bypersons acting in concert with him), entitle such acquirer to exercise fifteen per cent or more of the voting rights in a company, unless such acquirer makes a public announcement to acquire shares of such company in accordance with the regulations.'

It is a matter of record that the transfer of shares in question has taken place in March and May 1997. SEBI Regulations, 1997, have come into force with effect from 20-2-1997. Therefore, the SEBI Regulations, 1997 are applicable to the said transaction. Regulation 10 deals with the obligations of acquirer and the procedure to be followed by him, while acquiring the shares exceeding 15 per cent of the voting right in a company. The term 'acquirer' is defined under regulation 2(b) so as to mean a person who, directly or indirectly, acquires or agrees to acquire shares or voting rights in a company either by himself or with any other person acting in concert with the acquirer. An acquirer proposing to acquire, 15 per cent or more of the voting rights in a company is under obligation to make public announcement of the proposal, in accordance with the regulations. Admittedly, the extent of voting rights in this case is more than 15 per cent and the Haridass family, who fits into the definition of 'acquirer', has not made any public announcement.

11. The learned counsel for the petitioner places reliance upon the judgment of the Bombay High Court in Shirish Finance & Investment (P.) Ltd's case (supra). The Bombay High Court was dealing with the case where the transfer of shares was challenged in a suit on the original side of the Court. The suit appears to have been partly decreed after appreciating the various facts put forth by both the parties and after recording the findings thereon. A regular appeal was filed before the Division Bench. Placing its interpretation on regulations 9 and 10, the Bombay High Court took the view that the said provisions are mandatory in character and any breach thereof must render the transaction void The difference as to the nature of proceedings in the present case, and the one before the Bombay High Court is a separate matter. The important question is as to whether the principle laid down therein applies to the facts of the present case.

12. The learned counsel for the respondents submit that the transfer in question was among the existing shareholders, that too, in favour of the promoters. They placed reliance upon regulation 3, which exempts the application of regulations 10, 11 and 12 as regards certain transactions. One such transaction is whether the transfer of shares is among the promoters. If the truncated portions of regulation 3 which are relevant for this purpose, are assembled it reads as under :--

'3. Applicability of the regulation.--(1) Nothing contained in regulations 10, 11 and 12 of these regulations shall apply to :

(a) to (d)

(e) inter se transfer of shares amongst-

(b) Promoters.'

From the very averments in the affidavit, it is clear that respondents 3 to 8 are the promoters of the company along with the family of the petitioner. This question does not need any further ascertainment. Once respondents 3 to 8 answer the definition of 'promoters', they are exempted from the requirement of making public announcement as contemplated under Regulation 10.

It is also not difficult to see the justification behind this regulation. The purpose of requiring an acquirer of shares or voting rights to the extent of 15 per cent to make public announcement is to ensure that the existing shareholders of the company are alerted to enable them to take such steps as are necessary to ensure that, the voting rights and thereby the managerial powers do not get into the hands of 3rd parties. Where the proposed transfer is among the promoters, such requirement is naturally superfluous.

13. Therefore, Regulation 10 has no application for the transaction or proceedings in question.

14. The learned counsel for the petitioner made an attempt to submit that the transaction in question is governed by the SEBI Regulations, 1994, whereunder the promoter is not per se exempted, and an order by the competent authority is required to be passed granting exemption. Since the transfer of shares has taken place subsequent to coming into force of the SEBI Regulations 1997, the SEBI Regulations, 1994, have no application to the facts of the present case.

There is another aspect of the matter. The present controversy is about the transfer of shares. The Companies Act, is one of the most exhaustive enactments and is a self contained code. If any shareholder or investor is aggrieved by any transfer of shares in a company, a detailed mechanism is provided for under Section 111A of the Companies Act. Sub-section (3) of the same reads as under :--

'111A. Rectification of register on transfer.--(I)'

(2) * *

(3) The Company Law Board may, on an application made by a depository, company, participant or investor or the Securities and Exchange Board of India, if the transfer of shares or debentures is in contravention of any of the provisions of the Securities and Exchange Board of India Act, 1992, (15 of 1992), or regulations made thereunder or the Sick Industrial Companies (Special Provisions) Act, 1985 (1 to 1986), or any other law for the time being in force, within two months from the date of transfer of any shares or debentures held by a depository or from the date on which the instrument of transfer or the intimation of the transmission was delivered to the company, as the case may be, after such inquiry as it thinks fit, direct any depository or company to rectify its register or records.'

The petitioner did not choose to take recourse to this remedy, which is not only alternative but also effective. The petitioner filed company petitionNo. 78 of 2000 before the CLB under Sections 397 and 398 of the Companies Act complaining of oppression and claiming necessary reliefs. The complaint was with reference to the transfer of shares in question. However, he has withdrawn the same. When the petitioner felt that the matter could not be prosecuted through a specialised agency under the provisions of the Companies Act, it is too difficult to imagine as to how the same can be resolved in a writ petition under Article 226 of the Constitution of India.

15. The transfer of shares in question took place in March and May 1997, the MOU is of the year 1996 and the writ petition is filed in the year 2001. This aspect becomes more significant in view of the fact that the time within which an application is permitted to be filed under Section 111A is only 30 days from the date of transfer. Delay and latches is one of the recognised grounds for refusal of the discretionary relief. Even otherwise, it needs to be observed that there is no averment in the affidavit that the petitioner and his family members have not received the consideration contemplated under the MOU. The relief claimed is one sided. If granted, it would result in a situation, wherein the petitioner and his family members will be entitled to retain the consideration, and at the same time they will be restored to their shares. This is a circumstance, which throws light on the conduct of the petitioner. This, certainly is a factor, which needs to be taken into account.

16. For the foregoing reasons, I hold that the petitioner has not made outany case for grant of the relief claimed in the writ petition. The same is,accordingly, dismissed. No costs.


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