- SEBI has just one-point programme – to destroy Sahara
- Misleading, misinformation campaign
- ‘We are being singled out for punishment’
- Raises questions that why govt. depts. are not being punished
Hitting back at SEBI and its Chairman, Sahara India Pariwar has said that the market regulator has just one-point agenda to “destroy” the image of the diversified conglomerate.
Countering the allegations made by SEBI Chairman on the OFCDs raised by it, Sahara said in a public notice that he has recently “mischievously misled” the people. “Right from the beginning SEBI’s one point programme has been to hit and destroy Sahara by mischievously misleading campaign of misinformation though trial by media,” Sahara said.
Sahara recalled that when it promoted OFCDs for the first time in 2001, it had obtained a written permission for its OFCD issue from the Registrar of Companies (RoC) Kolkata under the Ministry of Corporate Affairs way back in 2001 and under Sec 60B (9) of the Companies Act, submitted prospectus to the same Registrar (filing the return) with the details of around 1.87 crore investors with their names, addresses and amounts raised etc.
Sahara is being accused of violating the rules pubic issue rules on the pretext that the raising of funds from more than 50 investors does not remain a private placement. But the fact is that even after informing of 1.87 crore investors in 2007, neither RoC nor any of the government departments raised any objection. On the contrary, in 2008, Sahara got permission from two RoCs – Kanpur and Mumbai – for raising funds through OFCD again. Moreover, all through these 10 years, various RoCs regularly did inspections, investigation and regularly took Balance Sheets and returns and other documents as per Companies Act. RoCs permitted Sahara and to that extent they were the concerned regulators for the OFCD, Sahara argued.
Recalling the SEBI’s wavering stand, Sahara said the regulator had forwarded a complaint against the Sahara companies – Sahara India Real Estate Corporation Limited and Sahara Housing Investment Corporation Limited – received in April 2010 to two different Regional Directors of Corporate Affairs Ministry, for appropriate action.
SEBI had even said in its letter to the two Regional Directors, who were concerned with the ROCs which permitted the OFCDs that the issue did not fall under the market regulator’s purview since the companies were unlisted. (Copy of the letter – http://sahara.in/furtherprecedents/docs/1.pdf)
Subsequently, Sahara pointed out, the Minister of State for Finance had informed the Lok Sabha in April 2010 itself on a question relating to CitiCorp’s OFCD issue that in the matters of unlisted companies issuing securities to several thousands of persons, SEBI does not exercise any jurisdiction. This statement was based on what the Executive Director, SEBI informed the Finance Ministry. (Copy of the Question & Answer at Parliament – http://sahara.in/furtherprecedents/docs/2.pdf)
In November same year, however, SEBI took a complete U turn and submitted through an affidavit in Lucknow Bench of Allahabad High Court that SEBI is the regulator for Sahara OFCDs, Sahara said.
Sahara pointed out in its public statement that SEBI should be severely punished for lying in Parliament or in its affidavit in the High Court. Any other citizen would have been jailed for such an act, Sahara said.
Mr. Mohan Parasaran ji, the then Additional Solicitor General of India (and now the Solicitor General) had also expressed his opinion on the query raised by the Ministry of Corporate Affairs that Sahara was right and SEBI wrong. He mentioned in his letter, “SEBI has no jurisdiction over the unlisted companies like the Sahara Group of Companies which are not intending to get themselves listed.” (Opinion of Mr. Mohan Prasanan – http://sahara.in/furtherprecedents/docs/8.pdf)
Dr. Ashok Nigam, Additional Solicitor General of India, appearing on behalf of the Ministry of Corporate Affairs, also submitted through Affidavit in the Court that Sahara was right and SEBI was wrong. He also added, “In issuance of OFCD the petitioner company after their registration with the Registrar of Companies has been permissible under the law. The Central Government remains the regulating authority for the company. It has got its own control system in place which has been under constant review with the developments taking place in the corporate world and it has already increased its controlling aspect of such companies and would further strengthen the same by making keener and deeper scrutiny of private placement of companies”. (Copy of the Affidavit – http://sahara.in/furtherprecedents/docs/13.pdf )
In addition, as many as five other legal luminaries, including two former Chief Justices of India and one ex-Chairman of Securities Appellate Tribunal (SAT), expressed the opinion in favour of Sahara.
The Law Ministry with the signature of the then Minister Mr Veerappa Moily, officially communicated to the Ministry of Corporate Affairs (MCA) that Sahara was right and SEBI was wrong. MCA had, in fact, asked for the Law Ministry’s opinion, but they never produced it anywhere. But, somehow, Sahara got the copy and produced it in the court. SEBI has not yet reacted to it in the Court. (Copy of the document – http://sahara.in/furtherprecedents/docs/14.pdf )
Contrary to its view on Sahara, SEBI took an altogether different stand in the Kalpana Bhandari Case before the Bombay High Court that it did not has jurisdiction over unlisted public companies that did not intend to list their shares.
Similarly, in another case ‘Society for Consumers and Investors Protection Vs. Union of India’ in Delhi High Court in, SEBI took a view that it did not command jurisdiction, under Section 55A of the Companies Act, 1956, over unlisted public companies which did not intend to get listed.
Further, in response to the Prayag Infotech Hi-Rise Ltd., letter dated 27th January, 2009, SEBI took a similar stand that unlisted companies did not come under its regulatory purview.
Stating that the company is being singled out for imposing a severe punishment, that too with a retrospective affect, Sahara asked as to why all the government departments are not being penalized. Had they not given repeated permissions Sahara would not have faced such a huge problem and injustice, the statement said and asked: “Is Sahara alone supposed to be solely responsible for the sanctity of law and legal system of the country that everybody should be hell bent upon punishing it with retrospective effect?”
On the current Scenario of its case on OFCD issue, Sahara explained that almost 3 years back it had voluntarily declared through a reputed Charted Accountant Firm that the liability, along with interest, of these two companies was Rs. 24,000 crores.
Sahara, which apprehended public violence across the country, began to refund the deposits much before that Supreme Court judgment of August 31, 2012 and some payments dragged up to September 20, 2012. Thus, Sahara’s liability was reduced to just Rs. 2,610 crores. Sahara also declared the Rs. 2500 crores as buffer amount subject to final verification of amounts. These figures were also certified by the same CA firm that declared the original liability of Rs 24,000 crores.
Following the Supreme Court order, Sahara deposited Rs 5120 crores with SEBI but the regulator is yet to pay to the investors. Is this the SEBI way of protecting the interest of small investors?
Sahara pointed out that SEBI accepted the liability figure of Rs. 24,000 crore as suited them and was not ready to accept the updated figure of Rs 2610 crores. Both the figures have been provided by Sahara itself and they are not come out as a result of any investigation by SEBI or any other body. Moreover, SEBI is supposed to refund about Rs 2000 crore to Sahara after refunding Rs 2610 crore to investors.
“It is important to note that there has been not a single complaint against Sahara. Had the payments not been made, there would have been violence and complaints throughout the country,” Sahara said and pointed out that nothing of this sort has happened.
Sahara said that the future of over 11 lakh workers is at stake and all that the company wants is justice.
For details the following link can also be consulted – http://sahara.in/furtherprecedents/